General Conditions
General Conditions
Article 1 Definitions
LUXarc : LUXarc s.a.r.l.s, the user of the general terms and conditions, seller;
Buyer : the counterparty of the seller, the customer, the client;
Agreement : the agreement between seller and buyer.
Article 2 General
2.1 These general conditions will apply to every offer, quotation and agreement between LUXarc and the buyer, in so far as these conditions have not expressly been deviated from by the parties in writing.
2.2 The applicability of the buyer’s general conditions is explicitly excluded, unless the parties have agreed otherwise in writing. If LUXarc accepts the applicability of general conditions of the buyer in addition to its own general conditions and the provisions of the buyer’s general conditions conflict with those of LUXarc’s general conditions, the provisions of LUXarc’s general conditions will have preference.
2.3 If one or more provisions of these general conditions are void or are nullified, the remaining provisions of these general conditions will continue to apply.
Article 3 Offers/Quotations/Prices
3.1 All offers, in whatever form, will be free of obligation, unless a term for acceptance is stated in the offer.
3.2 Agreements to which LUXarc is a party are only deemed to be lawfully concluded:
a) when the buyer places an order on our website, by email or phone, followed by;
b) a written confirmation by LUXarc of the order placed by the buyer – the order confirmation;
c) in the absence of a) and b), by the actual delivery of the sold products from stock.
3.3 The invoice is always deemed to reflect the agreement fully and accurately subject to a complaint within 14 days from the date of invoice.
3.4 If a natural person concludes an agreement on behalf of or for the account of another natural person, he/she will declare – by signing the agreement – that he/she is authorised to do so. This person, in addition to the other natural person, will be jointly and severally liable for all obligations arising from the agreement.
3.5 If the acceptance deviates from the offer laid down in the quotation, LUXarc will not be bound to that acceptance. In that case, the agreement will not be concluded in accordance with that deviating acceptance, unless LUXarc indicates otherwise.
3.6 LUXarc will be entitled to investigate the creditworthiness of the buyer. LUXarc may request the buyer to provide security prior to or upon the conclusion of the agreement for the fulfilment of its obligations with respect to LUXarc.
3.7 A composite quotation will not oblige LUXarc to supply a part of the products included in the offer or quotation for a corresponding part of the stated price.
3.8 The prices stated in the agreements, net order value, are plus the current statutory value added tax as at the date of delivery and – where agreed – the cost of the transport insurance. In the case of deliveries outside of Luxembourg, other country-specific dues and charges may be added. The resulting amount is the final total invoice amount (incl. VAT) in Euros. Prices are also exclusive of shipping costs and export documents, handling fee and packaging costs, unless expressly agreed otherwise LUXarc reserves the right to charge the aforementioned costs to the buyer.
3.9 The models, images, numbers, dimensions, weights, colours or descriptions given in the offer/quotation/advertisements/website/price lists are shown as an indication only and may differ in reality. If the buyer is shown a sample/image then the parties shall assume that this is shown as an indication unless it is expressly agreed that the item to be supplied shall match it in full.
3.10 LUXarc compiles the information displayed on the website with constant care and attention. Nevertheless information published on the site may be incomplete and/or inaccurate, LUXarc cannot be held liable for any consequences of this. The information on the website is regularly supplemented and/or updated. LUXarc reserves the right to implement any changes with immediate effect and without giving any notice.
3.11 LUXarc is entitled to pass on price rises of more than 3% in respect of, among other things, exchange rates, wages, raw materials or packaging materials after the agreement is established and before the products are supplied.
3.12 If expressly agreed in writing, LUXarc is entitled to make a credit limit charge of 2% which is not payable provided payment is made within 14 days from the invoice date.
3.13 If LUXarc makes an offer which the buyer must understand to contain a clerical error or technical error, or that the offer otherwise deviates from what the buyer might have expected, then the buyer can demand performance of the offer on the part of LUXarc. LUXarc shall not be liable for (in)direct compensation in the event of such an offer.
3.14 For bulky and heavy items delivery, LUXarc keeps the right to charge the buyer after purchasing the equipment, a supplement which LUXarc was charged buy the supplier for the delivery. This can vary between 35 and 500 euros. Such supplement will be charged after the purchase and the delivery after knowing the exact costs.
3.15 LUXarc is entiteled to rais the sell price of an item, even after the client purchased and received the equipment, in case LUXarc did a loss, due to a price raise from the supplier. The raise shall be as high that LUXarc is not making loss on the sold item.
Article 4 Performance of the agreement
4.1 LUXarc will perform the agreement to the best of its knowledge and ability.
4.2 If and in so far as required for a satisfactory performance of the agreement, LUXarc will be entitled to engage third parties for certain activities.
4.3 LUXarc will not be liable for damage, of whatever nature, resulting from the fact that LUXarc has worked on the basis of incorrect and/or incomplete data provided by the buyer, unless LUXarc should have been aware of this incorrectness or incompleteness.
4.4 If the delivery is delayed due to factors for which the buyer is responsible, LUXarc will be compensated by the buyer for any damage and costs ensuing from the delay.
4.5 The buyer will indemnify LUXarc against any claims of third parties that may incur damage in connection with the performance of the agreement and which is attributable to the buyer.
Article 5 Delivery
5.1 Delivery will be made ex address of LUXarc, unless the parties agree otherwise.
5.2 The buyer will be obliged to take delivery of the products at the time that LUXarc delivers or instructs others to deliver them to the buyer, or at the time at which the products are made available to the buyer pursuant to the agreement.
5.3 If the buyer refuses to take delivery or fails to provide information or instructions necessary to effect the delivery, LUXarc will be entitled to store the products at the buyer’s expense and risk.
5.4 If the buyer does not take delivery of the products within two weeks, LUXarc will be entitled to sell the products to another party or to destroy the products. The damage incurred by LUXarc in reselling or destroying the products will be borne by the buyer.
5.5 If LUXarc has stated a delivery period, it will be considered an indication. A stated delivery time will therefore never be a deadline. If a term is exceeded, the buyer must issue LUXarc with a written notice of default.
5.6 If LUXarc requires information from the buyer within the context of the agreement’s performance, the delivery period will commence after the buyer has made such information available to LUXarc.
5.7 LUXarc will be entitled to deliver the products in parts. LUXarc will be entitled to invoice partial deliveries separately.
Article 6 Inspections, complaints
6.1 The buyer will be obliged to inspect the products delivered or instruct others to do so at the time of delivery/transfer, but in any event within five (5) working days. In doing so, the buyer must assess whether the quality and quantity of the items delivered are in accordance with that which was agreed upon.
6.2 Any visible shortfalls must be reported to LUXarc in writing within five (5) working days of delivery. Any shortfalls that are not immediately visible must be reported to LUXarc in writing within ten (10) working days of delivery. The notice of default must specify the shortfall in as much detail as possible, so that LUXarc is able to respond properly.
6.3 If a timely complaint is submitted pursuant to the preceding paragraph, the buyer will remain obliged to take delivery of and pay for the purchased products. If the buyer wishes to return defective products, it may do so only after obtaining LUXarc’s prior written permission, in the manner indicated by LUXarc, at the buyer’s expense and in the original packaging.
6.4 The buyer must enable LUXarc at first request to inspect the items sold in order to verify whether the complaint is well-founded.
6.5 If a complaint is well-founded, LUXarc will replace the delivered items, unless this has become demonstrably pointless to the buyer. If this is the case, the buyer should state so in a written notification. In all cases, however, LUXarc will be liable only within the limits of the provisions laid down in the articles ‘Guarantee’ and ‘Liability’.
Article 7 Payment
7.1 Payment should be made within 30 days of the invoice date in a manner to be indicated by LUXarc and exclusively in Euros, depending on what was indicated by LUXarc when the agreement was entered into, unless the parties have agreed otherwise. Objections to amounts stated in invoices will not suspend the payment obligation.
7.2 LUXarc will be entitled to charge an advance. After payment of the advance, LUXarc will ensure delivery.
7.3 If the buyer fails to pay within the agreed period of time, the buyer will be in default by operation of law. In that case, the buyer will owe 1.5% in interest per month or part of a month, unless the statutory interest rate or the statutory commercial interest rate is higher, in which case the highest interest rate will apply. The interest on the exigible amount will be calculated from the time that the buyer is in default to the time of settlement in full.
7.4 Payments will first be used to cover the costs, then to cover any interest due and finally to cover the principal sum and the accrued interest.
7.5 Unless otherwise agreed, all bank charges for bank transfers must be covered by the buyer.
7.6 If you choose Paypal as payment option, you have to pay the full price in advance to confirm your order. No reduction other than coupons can be given. The transaction fees charged by Paypal are covered by Luxarc.
7.7 If you choose to pay by card in the shop using the Sumup terminal, you have to pay the full price to confirm your order. No reduction other than coupons can be given. The transaction fees of charged by Sumup are covered by Luxarc.
Article 8 Collection costs
8.1 If the buyer is in breach or in default of performance or timely performance of its obligations, all reasonable costs incurred in obtaining extrajudicial payment will be borne by the buyer. The collection costs will be 15% of the principal sum owed, with a minimum of € 350.
8.2 If LUXarc has incurred higher costs which were reasonably necessary, such costs will also qualify for reimbursement. Any reasonable court costs and enforcement costs will also be borne by the buyer.
Article 9 Retention of title
9.1 All products supplied by LUXarc shall remain the property of LUXarc until the buyer has met all obligations under all agreements made with LUXarc. The goods which are subject to the retention of title shall be visibly identified as LUXarc products at all times.
9.2 If third parties levy attachment on the products supplied under retention of title or wish to create or enforce rights thereon, the buyer will be obliged to inform LUXarc thereof as soon as possible.
9.3 Any products supplied by LUXarc that are covered by the retention of title pursuant to paragraph 1 of this article may only be resold within the context of normal business operations and may never be used as a means of payment.
9.4 In the event that LUXarc wishes to exercise its property rights as indicated in this article, the buyer hereby consents unconditionally and irrevocably to LUXarc or third parties appointed by LUXarc being allowed access to all premises where the property of LUXarc is located and to recover the products.
Article 10 Guarantee
10.1 LUXarc offers a warranty in regard to the functioning of its products. In all cases this warranty is limited to:
– the factory guarantee;
– maximum 180 days from supply of the products;
– (the amount of) the claim of the (ultimate) client/end user.
10.2 Any right to compensation under the warranty as referred to in this article shall lapse:
– in the event of inexpert or improper use or, as the case may be, storage and transport;
– after processing, mixing or modification of the supplies by the buyer or by a third party;
– in case of exposure to harmful substances and excessively high or low temperatures;
– if the supply is not used and processed according to the instructions for use;
– if the supply is used for a purpose other than that which the buyer advised LUXarc or for which it is suitable according to normal use.
10.3 In so far as the buyer fails to fulfill its obligations arising out of the agreements concluded by the parties it cannot have any recourse to this warranty provision.
Article 11 Suspension and dissolution
11.1 LUXarc will be entitled to suspend the fulfillment of its obligations or to dissolve the agreement, if:
– the buyer fails to perform the obligations arising from the agreement or fails to perform them in good time or in full;
– circumstances of which LUXarc has learnt following the agreement’s conclusion provide good reason for fearing that the buyer will not perform its obligations, or will not perform such in good time or in full. If there is good reason to fear that the buyer will only perform its obligations in part or will not perform such properly, suspension will be permitted only to the extent that such is justified by the relevant failure;
– the buyer was requested to provide security upon the agreement’s conclusion for the performance of its obligations arising from the agreement and such security has not been forthcoming or is insufficient. As soon as security has been provided, the right to suspend performance will lapse, unless the performance has been unreasonably delayed as a result;
11.2 In addition, LUXarc will be entitled to dissolve the agreement or have it dissolved if circumstances arise of such a nature that performance of the agreement is impossible or can no longer be required pursuant to standards of reasonableness and fairness, or if any other circumstances arise of such a nature that continued unamended maintenance of the agreement can no longer reasonably be expected.
11.3 If the agreement is dissolved, LUXarc’s claims with respect to the buyer will become immediately due and payable. If LUXarc suspends performance of its obligations, it will retain its rights and claims pursuant to the law and the agreement.
11.4 LUXarc will retain the right to claim damages at all times.
Article 12 Cancellation
12.1 Once an agreement has been concluded with LUXarc, if the buyer wishes to cancel it then 10% of the agreed order price including VAT shall be charged to the buyer as a cancellation charge and without prejudice to the right to demand compensation in full. Orders for products which differ from the standard order, for custom products or for products made to the buyer’s own specifications cannot be cancelled.
12.2 If, following cancellation, the buyer refuses to take delivery of products already purchased by LUXarc, the buyer will be obliged to pay LUXarc all ensuing costs.
12.3 Cancellation must be made in writing and a cancellation will only be deemed to be received once LUXarc has acknowledged the cancellation in writing.
Article 13 Liability and indemnification
13.1 If products supplied by LUXarc are defective, LUXarc’s liability vis-à-vis the buyer will be limited to the provisions laid down in these conditions under ‘Guarantee’.
13.2 LUXarc shall never be liable for the composition of and the possible presence of legally prohibited substances or bacteria on or in the supply. The buyer shall hold the manufacturer liable for this.
13.3 In all cases LUXarc shall be liable for direct loss only. If LUXarc is liable for direct loss then its liability shall be limited to no more than the amount of the payout to be made by the insurer of LUXarc, and at least up to a maximum of the sales value of the defective products.
13.4 Direct damage will be understood to mean only the following:
– the reasonable costs incurred in assessing the cause and scope of the damage, in so far as such assessment relates to damage within the meaning of these conditions;
– any reasonable costs incurred in order to ensure that LUXarc’s inadequate performance conforms to the agreement, unless this inadequate performance cannot be attributed to LUXarc; and
– the reasonable costs incurred in order to prevent or limit damage, in so far as the client demonstrates that such costs have resulted in the limitation of direct damage as referred to in these general conditions.
13.5 LUXarc will never be liable for indirect damage, including consequential damage, loss of turnover and profit, loss of savings and any damage due to an interruption in business operations.
13.6 If LUXarc is held liable by a third party for damage for which it is not liable pursuant to the agreement with the buyer or pursuant to these conditions, the buyer will fully indemnify LUXarc in that respect.
13.7 LUXarc will never be liable for:
– deviations, damage, faults and defects that have gone unnoticed in the products/samples approved by the buyer;
– damage resulting from raw materials that have been declared unfit because the environmental legislation has changed since delivery;
– damage as a consequence of use by the buyer that is not in accordance with the instructions, environmental legislation or product information.
13.8 LUXarc will never be liable for damage ensuing from any advice given. Advice will always be given on the basis of the facts and circumstances known to LUXarc and in mutual consultation, in which respect LUXarc will always take the buyer’s intention as a guideline and starting point.
13.9 In order to avoid incorrect and/or careless use of supplied products, the buyer will be obliged to provide users and end-users to whom it makes products available for any reason with user advice and manuals which are in line with the product and user information supplied by LUXarc upon delivery of the products. The buyer will also be obliged to ensure that the users and end-users use the products supplied in accordance with the above guidelines and in a careful and safe manner.
13.10 If and in so far as LUXarc is obliged, pursuant to product liability as referred to in law, to pay damages that have come about or been caused by a defective product manufactured by LUXarc or imported into the EU, LUXarc will be able to recover these damages in full from the buyer if the buyer has not observed the provisions of the previous paragraph.
13.11 In the event that a claim against LUXarc for defective product compensation is subject to the laws of an EU Member State that has used the limitation option of Article 16, paragraph 1 of EEC Council Directive of 25 July 1985 (Official Journal L 210) concerning liability for defective products, LUXarc excludes (should a contract party act by virtue of liability) all liability or any obligation to pay defective product compensation that exceeds the limit in question.
13.12 The buyer must ascertain in advance whether the purchased items are suitable for the purpose for which it intends to use them. Should it subsequently become clear that the purchased items are not suitable for their intended use, LUXarc cannot be held liable for any ensuing damage.
Article 14 Passing of risk/transport
14.1 The risk of loss, or damage with respect to the products that are the subject of the agreement will pass to the buyer at the time at which the products are legally and/or actually delivered to the buyer and therefore come under the buyer’s control or under the control of a third party designated by the buyer.
14.2 Any specific wishes of the buyer regarding the transport/dispatch/storage will be carried out only if the buyer has declared that it will bear the corresponding additional costs.
Article 15 Force majeure
15.1 The parties are under no obligation to fulfil any commitment should they be impeded from so doing as a result of any circumstance not attributable to gross negligence or intent of the party which is impeded, and for which it is also not responsible pursuant to the law, a legal act or generally accepted practice.
15.2 In these general conditions, and beside that which is understood in this context in legislation and case law, the term ‘force majeure’ shall mean an unattributable shortcoming as a result of which the agreement between the parties cannot be performed by LUXarc. This includes inter alia all external causes, whether or not foreseen, and on which LUXarc cannot exert any influence, such as traffic jams, power/ computer failures, export hindrances, accidents, theft, fire, sickness of its personnel and blockage in supplies by its sub-suppliers, and as a result of which LUXarc is unable to meet its obligations, whether on time or otherwise. Force majeure shall also mean strikes in the business of LUXarc.
15.3 The parties may suspend the obligations ensuing from the agreement during the period that the force majeure continues. If this period continues for more than one month, either party will be entitled to dissolve the agreement without being obliged to pay the other party damages.
15.4 To the extent that LUXarc has effected or will be able to effect partial performance of its obligations ensuing from the agreement at the time that the situation of force majeure occurs, and such partial performance has independent value, LUXarc will be entitled to invoice the part performed or to be performed separately. The buyer will be obliged to pay that invoice as if it related to a separate agreement.
Article 16 Intellectual property and copyrights
16.1 Without prejudice to the provisions in these general conditions, LUXarc reserves the rights and powers vested in it pursuant to intellectual property law and the Luxembourgish Copyright Law [Loi du 18 avril 2001 sur les droits d’auteur].
16.2 All items, samples, calculations and brochures supplied or provided by LUXarc are intended for use only by the buyer, and may not be multiplied, resold, processed, changed, copied, reproduced, made public or disclosed to third parties by the buyer without the prior permission of LUXarc, unless the nature of the items sold or the documents issued dictate otherwise.
Article 17 Applicable law
All agreements between LUXarc and the buyer will be governed by Luxembourgish law. The applicability of the provisions of the United Nations Convention on Contracts for the International Sale of Goods [CISG] is expressly excluded.
Article 18 Disputes
All disputes in connection with or arising out of the agreement concluded between the parties shall be referred to the Board of Arbitration, to a dispute commission or to the judge with jurisdiction in the area of domicile of LUXarc.
Article 19 Translation of these conditions
The English-language version of these conditions is the only authentic version. If there is any discrepancy between the English text and a translation, the English text will have preference