1. Definitions, application of the General Terms and Conditions of Sale
"Performance" means all goods and services which are the subject of an agreement between the client and FROLIGHT BV(hereinafter "FROLIGHT"), regardless of whether this is the subject of a signed written agreement. Unless otherwise agreed in writing,the Services are performed exclusively in Belgium.
Unless otherwise expressly agreed in advance and in writing, the Performance of FROLIGHT is exclusively subject to these GeneralTerms and Conditions of Sale to the exclusion of all general and special conditions of the client. Deviations in writing are only validto replace or supplement the clauses to which they refer. The other provisions of these General Terms and Conditions of Sale shallcontinue to apply in full. The client is considered to be aware of the General Terms and Conditions of Sale at the time of the offerand is deemed to accept them. FROLIGHT reserves the right to unilaterally modify the Terms and Conditions of Sale in case of validreasons and subject to prior notice. The applicable General Conditions for Sale can be consulted at any time on the websitewww.frolight.com.
2. Duration of the agreement
2.1. The offers and/or agreements are drawn up on the basis of data provided by the customer. The customer guarantees thecorrectness and completeness of the data provided, including the description of the orchard. The offers have a validity of onemonth. FROLIGHT reserves the right to modify its offer before it is accepted by the client. Any such modification to the offer is validfrom the moment it is communicated to the client.
2.2. The contract is only concluded when FROLIGHT has confirmed the order of the client or when FROLIGHT proceeds with theconformation of the order, whereby FROLIGHT will not unreasonably refuse the order. The client acknowledges to be representedby (an) authorised signatory(s).
2.3. In accordance with Book XII, Law of the Electronic Economy of the Economic Law Code, the parties expressly acknowledgethat electronic forms of communication give rise to a valid contract. FROLIGHT can use any electronic file to prove the existenceand content of the agreement. An ordinary, digital or electronically qualified signature is not an essential proof requirement.
2.4. The client shall provide FROLIGHT with any authorization, technical instruction or any other information useful for the properexecution of the Benefits in a timely manner.
2.5. The customer will enable FROLIGHT to perform the Performance and the customer will owe the agreed price to FROLIGHT fromthe effective date.
2.6. The equipment rental contract can only be terminated by a registered letter sent to the registered office of FROLIGHT at leasttwo months before the end of the rental contract.
2.7. The agreement for sale of equipment can only be terminated by a registered letter sent to the registered office of FROLIGHT atleast two weeks before the foreseen delivery or installation date.
2.8. Any early termination of the agreement by the client is only possible upon payment by the client of a "Cancellation Fee" equalto 30% of the total amount stated in the offer (in case of rental taking into account the entire duration of the rental agreement),with a minimum of €500.
2.9. FROLIGHT can terminate the agreement, in whole or in part, immediately, without notice of default and without prior judicialintervention, in writing, as soon as the client (1) is in a state of bankruptcy or apparent insolvency, has entered into the procedureof judicial reorganization or otherwise, or has been dissolved and is in liquidation or (2) is guilty of a serious breach of contract,without prejudice to the right to compensation from FROLIGHT.
2.10. If the client does not comply with one of its obligations and the client has not remedied this within 15 calendar days afternotice has been served, FROLIGHT has the right to terminate the agreement immediately and without prior judicial intervention atthe expense of the client, without prejudice to the right to compensation from FROLIGHT.
2.11. If it appears that the client is in such a difficult financial situation that he will no longer be able to comply with his contractualobligations, FROLIGHT shall also be entitled, insofar as permitted by law, to terminate the agreement without prior judicialintervention, subject to a notice period of 15 calendar days, addressed to the client by registered letter, without prejudice to theright to compensation from FROLIGHT.
2.12. In case of termination of the agreement by FROLIGHT based on one of the provisions in article 2.9 - 2.11, FROLIGHT is alsoentitled to a Severance payment.
2.13. In addition, at the end of the agreement, for whatever reason, FROLIGHT will charge a fixed amount of €350 per frost protection module which has to be removed, without prejudice to the right of FROLIGHT to claim a higher amount in function of the actualcosts incurred.
3. Rental of equipment
3.1. The material which is rented to the client remains the property of FROLIGHT. The rented material is provided with an identificationmark which cannot be removed or altered under any circumstances. The material is considered to be delivered in a good condition.The client has to check the material carefully upon receipt. Receipt always and irrevocably constitutes acceptance of the conditionof the material delivered. If the material or the delivery is affected by a defect, this must be notified in writing on the confirmationof delivery and in any case within 2 working days after delivery. Any subsequent or non-written notification of damage shall bedeemed to be damage caused by the customer.
3.2. The customer acknowledges having been informed of the permitted use of the material and undertakes to comply with it. Therented material may not be used by a third party in any way. The client is not allowed to change the location of the frost protectionsystem without the prior written consent of FROLIGHT. The client agrees to use the equipment with due diligence. The client is notallowed to modify the equipment or its accessories in any way.
3.3. All risks are transferred to the client from the moment the material is delivered for the entire duration of the contract. Thecustomer is liable for any theft, damage, or loss of or damage to the equipment, as well as for any damage caused to third parties,whether or not it is caused by the customer's fault. The client shall immediately report any loss or damage in writing to FROLIGHT.The damaged material can only be repaired or replaced by FROLIGHT at its discretion and the costs of this are at the expense ofthe client.
3.4. At the end of the rental period the client will return the material in its original state. The return of the rented material does notimply that FROLIGHT accepts the condition of the material. A claim for compensation in case of damage is possible by FROLIGHTwithin 30 calendar days after the return.
3.5. The material cannot be sublet or given on loan to third parties, nor pledged. In case of non-payment by the client or bankruptcy,cessation or interruption of the activities of the client, FROLIGHT is entitled to take back the material immediately and to access thesites or buildings where the material is located.
4. Sale of material
4.1. The sold material remains the property of FROLIGHT until the client has fulfilled all its obligations towards FROLIGHT, includingpayment of overdue invoices and damages. Until that moment the client is forbidden to sell or encumber this material in any way.The risks related to the material are transferred to the client as soon as the sold material leaves the exploitation site of FROLIGHT.4.2. As soon as the client or a third party appointed by the client receives the material, this recipient is obliged to carefully examinethe material. If the delivered material is affected by a visible defect, the client must make an explicit, unambiguous and motivatedcomplaint by registered letter to FROLIGHT within 2 working days after the delivery. FROLIGHT is not obliged to indemnify for visibledefects communicated after this period. Complaints relating to hidden defects must be communicated to FROLIGHT explicitly,unambiguously and with reasons by registered letter within a period of 1 month after the delivery. FROLIGHT is not obliged toindemnify for hidden defects communicated after this term. The client acknowledges that this period for reporting hidden defectsis amply sufficient given the nature of the material. The customer must always motivate a complaint sufficiently and use all technicalmeans, such as photo and video, as much as possible. In the absence of a timely and sufficiently substantiated complaint, thecustomer is deemed to have accepted the material.
5.1. The prices are stated without VAT. The prices at the start of the agreement are, subject to art. 5.2., those as mentioned in theoffer and/or agreement.
5.2. Apparent or obvious mistakes in the price offer, can also be corrected by FROLIGHT after the conclusion of the agreement andduring a period of 30 days in accordance with market prices. Complaints regarding the corrected price(s) must be communicatedin writing within 7 calendar days. The formulation of a complaint does not result in a suspension of payment.
6.1. The customer receives his invoice electronically. If the customer wishes to receive a paper invoice, he must inform us of this inwriting. An administrative cost of €3 is charged per paper invoice sent.
6.2. Unless otherwise explicitly agreed in writing, FROLIGHT invoices are payable 15 days after the invoice date, unless other paymentconditions are specified on the front of the invoice. In case of direct debit, the invoiced amount will be deducted 15 days from theinvoice date. The customer shall ensure that the account to be debited always contains a sufficient provision. In case of refusal ofa direct debit order by the bank and/or post office - for whatever reason - the costs caused by this will be charged to the customer.Any invoice that has not been contested within fifteen calendar days of its issue shall be regarded as accepted by the customer.All payments must be made by the customer as stated on the invoice.
6.3. Any invoice not paid on time shall, as from the due date, by operation of law and without further notice, attract an interest rateequal to the legal interest rate for late payment in commercial transactions, plus seven percentage points, rounded off to thenearest half a percentage point, and subject to a minimum of 12% per annum. In the event of non-payment on the due date, theoutstanding invoice amount - after notice of default - shall be increased by 15% with an absolute minimum of €100 by way ofconventional and fixed compensation, even if periods of grace are granted. This does not affect the right of FROLIGHT to ask forcompensation for the further costs linked to the non-payment. The non-payment on the due date of a single invoice 15 days aftersending a notice of default, makes the total balance due of all other invoices, even those not yet due, automatically due andpayable. Any partial payment made by the customer will first be offset against the interest and fees, and any balance against theprincipal. The client cannot transfer the claims of FROLIGHT and its payment requests cannot be endorsed. The client can neitherrefuse a payment by invoking a dispute not directly related to the subject of the invoice, nor exercise a lien on the undisputed partof the invoice.
6.4. Without prejudice to the art. 2.11., if the payment of the invoice or part of it has not been done 15 days after the sending of theformal notice, FROLIGHT can suspend the execution of the contract to the disadvantage of the client. This suspension does notaffect the charging of a rental fee for the material.
7. Term of performance, subcontracting and amendments to the agreement
7.1. The execution period mentioned in the offer is only an information. Neither a penalty nor damages can be imposed by theclient on FROLIGHT if this is not stipulated in the contract. If the performance of the Service is delayed due to a fact for whichFROLIGHT is not responsible, the contract will be automatically extended by a period equal to this delay. In this case, FROLIGHTreserves the right to modify the period of execution and, if the delay is due to the client, to ask for compensation for the damagesuffered. The customer will not be able to rely on this extension of the term to break the agreement or to appeal to a third party onbehalf of FROLIGHT. If the delay lasts more than 3 months FROLIGHT has the right to review its price in order to take into account,the possible increase of costs.
7.2. FROLIGHT reserves the right to have a part or all of its Performance performed by subcontracting.
7.3. Any modification of the provisions of the agreement at the request of the client can only take place with the prior writtenagreement of FROLIGHT. FROLIGHT can in that case apply a price revision as well as adjust the agreed delivery times. FROLIGHTmay charge an administrative fee of €35 per change to the agreement.
8. Force majeure
In case of force majeure, being a circumstance independent of the will of FROLIGHT or the client preventing FROLIGHT or the clientfrom fulfilling its obligations under the agreement, the one who is affected by the force majeure is not obliged to fulfill its obligationsand this for the duration of the situation of force majeure without being liable for any compensation. Force majeure suspends theagreement but does not give the right to terminate the agreement. By force majeure is meant, among other things: war (danger),rebellion or insurrection, every decision of the government concerning permits and licences, natural disasters, quarantine with banon visitors, every interruption as a result of exceptional weather conditions, transport difficulties, fire, strike and lock-out, both atFROLIGHT and its suppliers, without this list being exhaustive.
9.1. Possible complaints must be communicated to FROLIGHT by registered mail within 7 calendar days following the invoice(postmark as proof). The formulation of a complaint does not result in a suspension of payment. In the absence of a timelycomplaint, the Performance of FROLIGHT shall be considered as accepted. FROLIGHT shall only be liable for the direct materialdamage caused by FROLIGHT in the performance of Performance and in no case for indirect damage, such as for exampleoperating losses, financial costs, loss of profit, or any consequential damage caused by the offered frost protection system tofor example, but not limited to, the orchard, etc. FROLIGHT's liability shall always be limited to a maximum of the value of thegoods to which the agreement relates. Without prejudice to the foregoing, FROLIGHT's liability shall always be limited to€25.000 per claim.
9.2. FROLIGHT is not liable for the damage suffered by third parties, among which the employees of the client as well as thepersons he has under his care, who have suffered a disadvantage within the framework of the execution of the agreement,unless this damage is a direct consequence of a deliberate or gross fault of FROLIGHT.
9.3. The client shall be responsible for all costs and damages arising from the non-fulfillment of its obligations and if thePerformance cannot take place at the agreed time, including a cost for improper connection or overloading of the frostprotection system, etc.
9.4. The client shall indemnify FROLIGHT and its appointees against any claims arising from or related to the performance of theagreement.
10.1. The client and FROLIGHT will inform each other about all events or elements that can have an influence on the safety orthe good execution of the Performances.
10.2. FROLIGHT reserves the right, and the customer agrees that FROLIGHT may use any evidence, including photographs ofthe situation on site, to demonstrate a non-compliance on the part of the customer. The client will be informed by email.
10.3. The client informs FROLIGHT of the risks and provisions relating to welfare and safety associated with the site where theServices are provided. The client undertakes that the places, installations, machines, and equipment where and on whichFROLIGHT will perform its Performances comply with the legislation in force. The client's regulations on safety or coordination ofthe Performances can only be invoked against FROLIGHT if they have been previously, officially and in writing notified to andaccepted by FROLIGHT.
11. Information and processing of personal data
11.1. The information and personal data provided by the client is necessary for the preparation and execution of the contract,with the aim of processing and completing orders, the performance of the Service, invoicing, establishing non-compliance onthe part of the client, as well as the protection of the legitimate interests of FROLIGHT and all purposes reasonably compatiblewith this, such as direct marketing, where FROLIGHT acts as personal data controller. The submission of incorrect or falseinformation or personal data is considered a breach of the General Conditions of Sale. The client's personal data will only beprocessed in accordance with the applicable legislation.
11.2. Personal data shall not be kept longer than necessary to achieve the above-mentioned purposes. The customer has theright, as appropriate and in accordance with applicable law, to request FROLIGHT to review, correct or amend his personaldata, to erase or restrict the processing related to him, as well as the right to object to the processing and the right to personaldata portability. For further information please visit firstname.lastname@example.org.
12. Intellectual property
12.1. All intellectual property rights including all related provisions, further accessories and derived rights concerning thePerformances and trade names remain the full intellectual property of FROLIGHT. Amongst others this means: copyright, brand-, drawing- and model rights and/or other (intellectual property) rights, among which patentable or non-patentable technicaland/or commercial know-how, methods and concepts. The client is prohibited from using and/or modifying these intellectualproperty rights.
12.2. Information or know-how based on and/or resulting from information obtained cannot be used by the buyer to performservices and/or develop products and/or commercialize products/services, either under his own management or by and/orfor third parties.
13. Applicable law and competent court
The contract and by extension all disputes related to or arising from offers from FROLIGHT are governed exclusively by Belgianlaw. In case of dispute which cannot be settled amicably, the courts of the judicial district where the registered office ofFROLIGHT is situated shall have exclusive jurisdiction. The applicability of the Vienna Sales Convention is expressly excluded. Thenullity or invalidity of a provision or part of a provision of these General Conditions of Sale and/or of the agreement does notaffect the effect of the other provisions. FROLIGHT has the right to replace the provision in question by a valid provision ofsimilar intent.