TERMS AND CONDITIONS OF SALE
These terms and conditions of commercial sale of Kinetura Living Bvba apply to and form an integral part of all quotations and offers made by Kinetura®, all acceptances, acknowledgements and confirmations by Kinetura® of any orders by Purchaser and any agreements ("Agreement(s)") regarding the sale by Kinetura® and purchase by Purchaser of goods and services ("Products"), unless and to the extent Kinetura® explicitly agrees otherwise in writing.
Kinetura® is an initiative of:
KINETURA LIVING bvba, having its
registered and corporate office at Nijverheidsweg 26, 9820 Merelbeke, Belgium.
VAT number BE0543.493.374.
In case of any questions or comments, contact us via:
Telephone + 32 50 500150 or e-mail:
The terms and conditions of sale contain following definitions:
-"Purchaser" means any natural person (B2C) or legal (B2B) that enters into a contractual relationship of any kind with Kinetura®. Each "Purchaser" agrees not to purchase Kinetura®’s products with the mere purpose to sell them without the express permission of Kinetura®. Further also referred to as 'you' or 'your';
-'Consumer': Any natural person in the capacity of Purchaser who is acting for purposes which are outside his trade, business or profession;
-"Products": All goods and services which are the subject of this sale;
-“Goods made to the Purchaser’s specifications”: Non-prefabricated goods made on the basis of an individual choice of or decision by the Purchaser;
-“Sales contract”: Any contract under which the trader transfers or undertakes to transfer the ownership of goods to the Purchaser and the Purchaser pays or undertakes to pay the price thereof, including any contract having as its object both goods and services;
-“Conditions of sale”: present Terms and Conditions of sale.
These Conditions of sale shall apply to all current and future sales of Products by Kinetura® to the Purchaser. These Conditions of sale shall be always and exclusively applicable, except in the case of an explicit derogation. An explicit derogation is only valid insofar as it is the result of mutual agreement that is recorded in writing. Explicit derogations are only valid to replace or supplement the clauses to which they relate. This does not affect the applicability of the other provisions of these Conditions of sale. Kinetura® reserves the right to amend and / or supplement the Conditions of Sale in the future. A future change will obviously have no effect on existing product orders and the resulting agreements.
2. OFFER AND ACCEPTANCE
Kinetura® presents its product offer with the utmost care. Kinetura® is committed to communicate sufficient information about the characteristics of the Products, including technical descriptions and photographs illustrating the Products. Kinetura® relies largely on the information that has been made available by the partners and suppliers. Kinetura® applies the best technical resources and standards on the market for this purpose. The images displayed on Kinetura®’s marketing material approximate a true image of the significant features of its Products.
Every offer is only an invitation to the Purchaser to make a purchase and can therefore not be considered a binding offer regarding Kinetura®. An offer is only valid while stocks last. If the Product is no longer in stock Kinetura® reserve the right to inform you within 15 calendar days. Kinetura® reserves the right to attach particular conditions to a specific offer, such a limited duration. These conditions will be communicated explicitly and prior to the order.
Kinetura® is not bound by its offer when this offer has been compromised by a clear error or mistake. Obvious errors in price, such as obvious inaccuracies, can still be corrected by Kinetura® following the conclusion of the agreement. Kinetura®’s offers are open for acceptance within the period stated by Kinetura® in the offer or, when no period is stated, within thirty (30) days from the date of the offer, but any offer may be withdrawn or revoked by Kinetura® at any time prior to the receipt by Kinetura® of Purchaser’s acceptance thereof. These Conditions of Sale are applicable with regard to the offer and any agreements resulting from the individual quotation.
Prices in any offer, confirmation or Agreement are in Euros, based on delivery Ex-Works (INCOTERMS latest version) Kinetura®’s manufacturing facility or other facility designated by Kinetura®, unless agreed otherwise in writing between Purchaser and Kinetura® and do not include any taxes, duties or similar levies, now or hereafter enacted, applicable to the Products or any other expenses. Kinetura® will add taxes, duties and similar levies to the sales price where Kinetura® is required or enabled by law to pay or collect them and these will be paid by the Purchaser together with the price. The use of certain selected payment methods can entail additional costs, which are exclusively borne by the Purchaser.
NOTE: Kinetura® tries to communicate a full pricing but certain circumstances, such as, but not limited to, international shipments, and supplemental insurance, can give rise to additional costs. These additional costs such as, but not limited to, import duties and freight, delivery or postage costs, premiums and any other costs are always borne by the Purchaser. Price changes that are due to changes in VAT rates will be borne by the Purchaser.
The Purchaser purchases a Product from the Kinetura® product range by signing an order form or sending an approval mail. This purchase is binding on the Purchaser. Kinetura® will send a confirmation or a proforma invoice with the payment details of the order within 7 calendar days, directed at the specified e-mail address of the Purchaser. The confirmation and/or proforma invoice of the order means the conclusion of the Sales Contract. However the processing of the order only starts after receiving the full amount as stated on the proforma nvoice, unless agreed otherwise by Kinetura®. This means that the indicated delivery period only starts after the payment of the proforma invoice.
Kinetura® retains the possibility to reject the product order in an explicit statement or refuse to send a confirmation or proforma invoice . Kinetura® will inform the Purchaser and (where possible) propose a similar Product if the original order cannot be executed or only partially executed. Kinetura® will react to a product order within 14 calendar days. There is no Sales Contract if Kinetura® refuses the order or the Purchaser does not agree with the proposed alternatives. All made payments concerning that order will be refunded. The Purchaser is not entitled to any form of compensation.
The Parties expressly acknowledge that electronic communications, such as, but not limited to, email, give rise to a valid agreement. This is fully consistent with the Act of March 11, 2003 on electronic trading. Within the limits of the law, Kinetura® can make use of all electronic files available to prove the Sales Contract. An ordinary digital or electronic qualified signature is not an essential requisite proof.
The price as displayed on the confirmation of order or proforma invoice is the final price to be paid, barring the exception of article 2 – Prices. If the Purchaser remains with any complaints regarding Kinetura®’s pricing and payments, he must communicate these complaints in a written statement, within 7 calendar days after the confirmation of order. Other complaints must also be clearly communicated in writing within 7 calendar days. The filing of a complaint does not suspend due payments. The Purchaser who orders a Product in the context of a business or profession (B2B), can obtain an invoice on request.
Unless agreed otherwise between Kinetura® and Purchaser in writing, Kinetura® may invoice Purchaser for the price of the Products delivered upon delivery of the Products in accordance with the applicable INCOTERM. Net payment is due upon delivery unless stated differently on Kinetura®’s order or proforma invoice. All payments shall be made to the designated Kinetura® address. If deliveries are made in installments, each installment may be separately invoiced and shall be paid for when due. No discount is allowed for early payment unless agreed to in writing by Kinetura®. The Purchaser that fails to pay within the stipulated term is automatically and legally in default. In addition to any other rights and remedies Kinetura® may have under applicable law, interest will accrue on all late payments at the rate of eighteen percent (18%) per annum or the applicable statutory rate, whichever is higher and to the extent permitted by applicable law, from the due date until payment in full. Kinetura® can moreover reclaim all (extra) judicial costs as a result of non-payment from the Purchaser. These additional costs are consequently considered as the full payment. If Kinetura® has not received the payment after three reminders the invoice will be handed over to a collection agency or law firm who also handles the procedure. Kinetura® shall have the right to refuse performance and/or delivery of any Products until full payment of all amounts owed by the Purchaser and Kinetura® may suspend, delay or cancel any credit, delivery or any other performance by Kinetura®. Kinetura® always retains ownership of all products ordered until full payment of all amounts due under this Agreement, regardless whether the delivery has already occurred. Such right shall be in addition to, and not in lieu of, any other rights and remedies available under the Agreement or at law.
All deliveries of Products agreed to by Kinetura® shall at all times be subject to credit approval of Kinetura®. If, in Kinetura®’s judgment, Purchaser’s financial condition at any time does not justify production or delivery of Products on the above payment terms, Kinetura® may require full or partial payment in advance or other payment terms as a condition to delivery, and Kinetura® may suspend, delay or cancel any credit, delivery or any other performance by Kinetura®.
Products shall be delivered Ex-Works (INCOTERMS latest version) as designated by Kinetura®, unless otherwise agreed in writing. Delivery dates communicated or acknowledged by Kinetura® are approximate only, and Kinetura® shall not be liable for, nor shall Kinetura® be in breach of its obligations to Purchaser, for any delivery made within a reasonable time before or after the communicated delivery date. Kinetura® agrees to use commercially reasonable efforts to meet the delivery dates communicated or acknowledged by it on the condition that Purchaser provides all necessary order and delivery information sufficiently prior to the such delivery date. Given the specific nature of the Products, Kinetura® has the right to stipulate wider delivery terms. These divergent delivery times are always communicated within a reasonable time period after the confirmation of order. The delivery dates mentioned on Kinetura®’s website have an indicative value. Kinetura® will re-confirm the exact date when the goods are ready for delivery in the week prior to this date. Purchaser will arrange pick-up of the goods within maximum 4 weeks from delivery date. If, for any reason, the Purchaser is not able to arrange pickup within this timeframe Kinetura® is entitled to charge the Purchaser for appropriate storage and preservation costs.
Goods and materials are accepted at the place of delivery and the risk in the goods and materials transfers to the Purchaser upon delivery. The risk of transport is carried by the Purchaser, even if it has been agreed that Kinetura® will take care of, organize or be otherwise involved in the transport. It is the Purchaser’s duty to ensure that all necessary precautions have been taken and all conditions have been met to take delivery at such time as is indicated by Kinetura®. All damage caused because the above has not been complied with, remains solely the responsibility of the Purchaser.
If Purchaser fails to take delivery of Products ordered, then Kinetura® may deliver the Products in consignment at
If the Purchaser refuses to accept delivery, makes it impossible for Kinetura® to carry out the delivery or substantially delays the acceptance of delivery, Kinetura® shall be entitled to terminate the contract by giving written notice to the Purchaser (without there being any need for court intervention or any other formalities) and, as of such written notice, the contract shall be deemed to be rescinded on account of a breach by the Purchaser and compensation shall be due. Without prejudice to Kinetura®’s right to prove that the actual damage is higher, such compensation shall be deemed to amount, as a minimum, to a fixed sum of 25% - increased to 75% in the case of made-to-measure goods – of the total purchase price exclusive of VAT. When partial delivery has already taken place before the Purchaser refuses to accept any further deliveries, makes it impossible for Kinetura® to carry out any further deliveries or substantially delays the acceptance of any further deliveries, Kinetura® shall be entitled to invoice the Purchaser for the part of the delivery already made and to terminate the part of the contract relating to the deliveries that have not yet been made, by giving written notice to the Purchaser (without there being any need for court intervention or any other formalities). As of such written notice, the relevant part of the contract shall be deemed rescinded on account of a breach by the Purchaser and Kinetura® shall be entitled to compensation. Without prejudice to Kinetura®’s right to prove that the actual damage is higher and to claim damages accordingly, such compensation shall be deemed to amount, as a minimum, to a fixed sum of 25% - increased to 75% in the case of made- to-measure goods of the total purchase price exclusive of VAT.
5. DEFECTS AND COMPLAINTS
Kinetura® always strives for a high level of customer satisfaction, but cannot completely eliminate defects and complaints. That is why Kinetura® worked out a guarantee-regime that allows Kinetura® to conquer your satisfaction again. The conditions of the guarantee are always to be met. Additional commercial guarantees are also possible.
The statutory warranty period, as provided in Article 1641 to 1649 Belgian Civil Code is fully applicable to this agreement. Each Purchaser is by consequence entitled to a recovery if he finds a defect in the delivery of the ordered product, to the extent in accordance with the terms of the legal warranty obligation. The consumer enjoys furthermore a statutory warranty period of two (2) years from date of purchase. There is no warranty if the Purchaser was aware of the defects at the time of sale.
The Purchaser or the third party designated by the Purchaser is required to examine the Products accurately on their conformity as soon as the Products are received. Any shortages or apparent damages shall be detailed on the delivery note. Purchaser shall communicate these complaints in a written statement and in an explicit, unambiguous and motivated manner towards Kinetura®. This must be done within seven (7) days after delivery to the Purchaser or a third-party designated by the Purchaser. It is the duty of the Purchaser to motivate this communication sufficiently. Kinetura® recommends a statement that uses all reasonable technical resources, such as photo and video.
The Purchaser must send the defective Products or deficient packaging for inspection immediately to Kinetura®. Kinetura® requires the Products in their original condition, including original labelled packaging, accessories and documentation, and always accompanied by the original invoice or a valid proof of payment. Any deficiency in this obligation will be reduced proportionally in the repayment. The cost of remand will be borne by the Purchaser. The remand is always at at risk of the Purchaser. Kinetura® recommends a registered and insured remand to avoid the risks of loss and theft. This remand must be done within 7 calendar days after the initial communication stating the defect.
The warranty is not applicable in case of:
- Damage caused by normal wear and tear; accidental or intentional changes caused by the Purchaser to the Product,
including improper and incorrect use, exposure to moisture, fire, earthquake or other external causes.
- Damage caused during the installation and/or caused by a use in a manner that is not in accordance with the instructions and information provided. These instructions and information is also provided via electronic communication channels. - Damage caused after the removal of affixed seals on certain parts and/or after removal or defacing of the serial numbering and other product ranges. Affixed seals can never be removed without the express written permission of
- Consumables such as supplied bulbs, batteries, etc.
The Purchaser shall not be entitled to remand the Products in the absence of a substantiated complaint. The Purchaser is only entitled to a free repair or replacement of the ordered Products if the conditions of warranty are met. Kinetura® is only held to a reimbursement if the reparation or replacement no longer produces the same benefit for the Purchaser. The Purchaser will have to communicate this ground in a clear and motivated manner. Any compensation and reimbursements can never exceed the amount as invoiced to the Purchaser.
If the Products have been sent back although the conditions are not met, Kinetura® will send the Products to the Purchaser again. The cost of this remand will be borne by the Purchaser. Kinetura® may stock the Products at third parties for as long as the costs of return are not met. The stockage will take place on account and at risk of the Purchaser.
The burden of proof regarding the hidden defects shall be on the Purchaser. If there is any hidden defect in the goods and materials delivered by Kinetura®, the Purchaser shall be required to inform Kinetura® in writing (by registered mail) within 2 months following the date on which the Purchaser becomes aware of such defect. Such written communication must set out in reasonable detail the nature of the hidden defect and include evidence of such defect. The Purchaser shall make available all defective Products for inspection upon request by Kinetura®. Further, on Kinetura®’s request the Purchaser shall return all such Products to Kinetura® or Kinetura®’s appointed service partner. Kinetura® shall not be liable for any hidden defect if the Purchaser has failed to comply in any manner with this provision. Kinetura® shall only be held liable where the hidden defect becomes apparent within two years as from delivery of the goods. All the Purchaser’s claims shall become invalid six months after the notification of the hidden defect. All claims to guarantee for lack of conformity expire in the event of damage caused during processing, assembly or maintenance, changes and/or repairs made by the Purchaser or a third party. A claim to guarantee also expires if the delivered goods are not assembled or processed, used or installed according to Kinetura®’s instructions and/or the instructions of the manufacturer that accompanied the delivery and of which the Purchaser declares having received a copy. The same applies when the goods have not been maintained according to Kinetura®’s maintenance instructions and/or the instructions of the manufacturer that accompanied the delivery and of which the Purchaser declares having received a copy. There shall be deemed not to be a hidden defect for the purposes of this article if, at the time the contract was concluded, the Purchaser was aware, or could not reasonably be unaware of it. In any case, the customer is only entitled to require Kinetura® to repair the goods or to replace them, at Kinetura®’s sole discretion, in either case free of charge. Apart from the costs strictly related to conducting such repair or replacement, Kinetura® shall not be liable for any other costs, transport costs, installation costs, expenditures, damages or any other financial obligation that is in any manner related to the defect in the goods and materials or any possible consequence thereof.
Kinetura® cannot be held responsible for the quality nor for the conformity of drivers, dimmers, control system parts, finishes for front materials and any other additional elements, based on any commercial information (printed or electronic). Before each installation, the installer shall ask the latest technical information and installation manuals to the distributor, dealer or directly to Kinetura®.
Any other liability that is imposed by mandatory law shall, to the extent permitted by such mandatory law, be limited to the amount covered by Kinetura®’s insurance.
6. FORCE MAJEURE
Force majeure exists if Kinetura® is, wholly or partially, prevented to accomplish its obligations towards the other party by circumstances beyond its control. Kinetura® is in that case not obliged to fulfil its obligations for the time and may suspend its obligations for the duration of the force majeure.
7. INTELLECTUAL PROPERTY
Kinetura® retains all intellectual property right and related rights on all goods, standard as well as made-to-measure goods. These intellectual property rights include copyrights, trademarks, design rights and / or other (intellectual property) rights, including (patentable) technical and/or commercial know-how, methods and concepts. Kinetura® attaches a great importance to its intellectual property rights and has developed all possible measures to ensure their protection. Kinetura®’s Products and trade names are protected by numerous registrations at the responsible official bodies in the form of trademark registrations, patents and registrations of designs. The Purchaser is not allowed to make use of intellectual property and/or make changes in the presentation of these rights as described in this article, unless this is necessary for private use of the Product. Purchaser agrees not to reproduce, modify, or otherwise create any derivative Products.
Kinetura® will prosecute any violation of its intellectual property rights.
8. YOUR PRIVACY, KINETURA’S CONCERN
9. LIMITATION OF LIABILITY
The Purchaser is responsible for the further installation of the Products ordered and compliance with all local safety and other relevant regulations. This responsibility shall solely remain with the Purchaser and shall not change, even if there has been communication with Kinetura®, in any form, concerning the intended use, installation and/or construction plans, etc. The Purchaser confirms cognizance of all supporting information of the Product, including installation guidelines and safety guidelines. The Kinetura lighting fixtures have CE-marking only. Any use in territories or situations where other certification or marking (such as but not limited to UL, CUL...) may be mandatory, will be at the sole responsibility of the Ppurchaser, installer or the dealer selling the Kinetura fixtures to end customers. Kinetura® may recommend certain specialized third parties for the installation of the Products, but will do so solely at the explicit request of the Purchaser. Kinetura® is never a party to the agreement between the specialized third party and the Purchaser and is not liable for damage caused by these specialized third parties.
To the extent permitted by law, neither Kinetura® nor its employees or agents are liable, whether in contract, tort (including negligence) or otherwise, for and Purchaser is not entitled to any indirect, special, incidental or consequential damages of any kind (for example, but not limited to, loss of profits or revenue, loss of data, loss of use, rework, manufacturing expense, injury to reputation, loss of business opportunity, or additional financing costs). To the extent permitted by applicable law, Purchaser's recovery from Kinetura® for any direct damages will not exceed the price of the Product at issue. To the extent the preceding limitation of liability is deemed invalid under applicable law, Kinetura®'s total liability in any event will not exceed EUR 50.000 or the equivalent thereof.
10. APPLICABLE LAW AND COMPETENT COURT
All offers and agreements are subject to Belgian law. The applicability of the Vienna Sales Convention is expressly excluded.
All disputes relating to or arising out of offers and concluded agreements with Kinetura® shall be brought before the competent court of the judicial district where Kinetura® has its registered office.