General terms and conditions of RED Horticulture B.V., Naaldwijk

RED Horticulture B.V., Europa 1, 2672 ZX Naaldwijk, sells and delivers a combined and integrated system consisting of Equipment (including in particular luminaires, the RED Box, RED Sense, and RED Access Points and the suspension hooks), software, software driven services and personal support services to provide data driven light strate¬gies for greenhouse cultivation. This is the RED Solution.

The Red Solution retrieves relevant data from the green¬houses of our Customers for the benefit of all our Customers. Such data include light data, growth data, crop data.

We analyse these data and we use those data for our research, our solutions and in our advisory services.
These terms and conditions apply to all offers and to all agree-ments in connection with the sale and delivery of our RED Solution, including sales of products and delivery of services.

These terms and conditions consist of the following chap¬ters:

A. General
B. Delivery of Equipment
C. Provision of services
D. MyRED Software
E. Final clauses

A. General

1. General

1.1 These terms and conditions apply to all our offers and to all sales and supplies of equipment, systems or services.
1.2 In the event of any conflict or inconsistency between these Terms and conditions and the terms of an agree¬ment concluded or an offer made, the terms of such agreement or offer prevail.
1.3 All Terms and Conditions of the customer are ex¬pressly objected to and rejected and will be of no force or effect.
1.4 Sales services, back offices services, after sales ser¬vices, IT-support and other services may be pro¬vided by other RED Horticulture entities. Such other RED Horticulture entities act solely as agent on be¬half of RED Horticulture B.V. Nothing in the commu¬nication and cor¬respondence via any such other RED Horticulture entity is meant to create an agree¬ment or contract between the customer and such other RED Horticulture entity.

2. Equipment, Services, subscription and software as a service (SaaS)

2.1 We provide and deliver a combined and integrated sys¬tem consisting of goods (including in particular luminaires, the RED Box, RED Sense, and RED Access Points and the suspension hooks, here¬after ‘the Equipment’), software, software driven services and per¬sonal support services to provide data driven light strate¬gies for greenhouse cultiva-tion, all as specified in our of¬fer.
2.2 Certain services (MyRED Software) are provided as Soft-ware as a Service (SaaS) on a subscription base such as specified in the offer.

3. Offer, order confirmation, agreement

3.1 All our offers are open for acceptance within the pe¬riod stated in our offer, but in any case not longer than 30 days from the date of the offer.
3.2 All our offers, quotations, rates and prices are non-binding.
3.3 Orders of the buyer are only binding after written con¬fir-mation on our part.
3.4 All agreements are only concluded after our written or¬der confirmation is signed by the Customer.
3.5 Oral agreements, promises, assurances and guaran¬tees made by our employees in connection with the conclu¬sion of the agreement are non-binding and only become bind¬ing upon our written confirmation.

4. Prices

4.1 All prices are denominated in Euro, excluding VAT and other government levies or taxes.
4.2 All prices for goods delivered are offered on EXW ba¬sis (Incoterms latest version) as specified on the order con-firmation. Prices do not include packaging storage and transport costs, nor costs for loading or unload¬ing.
4.3 We reserve the right to adjust prices for products and/or services when cost-determining factors in¬crease be¬tween the date of our order confirmation and the delivery of the products and/or the perfor¬mance of the services. Cost-determining factors are inter alia, the price of raw materials, shipping costs, labour costs and foreign ex-change rate fluctuations.
4.4 Prices for subscription services may be adjusted per 1st August of every calendar year in line with our price list. We will announce price adjustments for subscrip¬tion ser¬vices latest by 1st May of the same calendar year. Such price adjustments shall be announced by e-mail. If the price adjustment for the following calen¬dar year is higher than 10 %, customer has the right to terminate the con¬tract per 1st August of the running calendar year.

5. Payment

5.1 Unless otherwise agreed, invoices for the delivery of Equipment must be paid within 8 days after delivery. Un-less otherwise agreed, all other payments must be made within 30 days after invoice date by transfer into the bank account specified on our invoice.
5.2 We request a down payment for the order, such as specified in our offer. Down payments are immedi¬ately payable. When a down payment is requested, we will not process the order and/or deliver Equip¬ment and/or ser¬vices prior to payment of the down payment. We also may request (partial) pre-delivery payments prior to de¬livery, such as specified in our offer. Pre-delivery in¬voices are immediately payable and we will not deliver Equipment prior to such pre-delivery payment.
5.3 In case of late payment or default, the Customer shall pay default interest on all due amounts as of the due date up to and including the day we receive full pay¬ment. The interest rate is 16% per year, but equal to the statutory interest if the latter is higher. The Customer is only entitled to a right of suspension or a right to set off counterclaims against us, if such coun¬terclaims are undisputed or legally established in last re¬sort and based on the same contractual rela¬tionship.

6. Customer cooperation and responsibility

6.1 The Customer warrants that all information, documenta¬tion, drawings provided to us is complete, accurate and true. We are entitled to rely on the accurateness and completeness of all information, documentation, draw¬ings furnished to us,
6.2 The Customer is responsible for all information, orders, materials and actions provided or performed by Customer or by third parties engaged by Customer in connection with the delivery of our products or the provision of our services.
6.3 Customer is responsible for upkeeping and maintaining an operational point-to-point internet connection during the course of the agreement. Our products and services rely on the availability of an internet connection.
6.4 Customer is responsible for upkeeping and maintaining a functional and operational electric distribution and electric installation (‘electric grid’) free from voltage fluctuations. The power quality of the electric grid shall be in conformity with EN 50160.

7. Changes and variations

7.1 Any request to change, modify or vary a purchase order, order confirmation or agreement made by the Customer requires our prior written consent. Such changes or vari-ations may affect the planning, the time of delivery, the performance or on the price of the Equipment or ser¬vices. We will inform the Customer within reasonable time about the consequences of such changes or variations. The Customer accepts such consequences and is under an obligation to pay for all additional costs and expenses re-lated to such change or variation.

8. Force majeure

8.1 If we are unable to fulfil any obligation under our agree¬ment due to circumstances not attributable to us in the sense of art. 6:75 Dutch Civil Code (‘force majeure’), we are entitled to suspend fulfilment of our obligations as long as the force majeure situation continues.
8.2 Such circumstances not attributable to us (‘force majeure’) are all circumstances or occurrences beyond our reasonable control, whether or not foreseeable at the time of concluding the Agreement, including, but not lim¬ited to acts of God, natural disasters including earth¬quake, lightning, flooding, hurricane, or extreme weather conditions, strikes, lock-outs, war, terrorism, riots and civil unrest, fire, cybercrime and hacking, import or trade re¬strictions, power failures, breakdown of plant or machinery, lockdown, or non-performance of suppliers of other third parties on which we rely (such as connectivity and communication services).
8.3 If these circumstances have lasted longer than six months, we are entitled to terminate the Agreement partly or entirely, without any liability to the Customer.

9. Liability

9.1 As far as permitted by mandatory law, our liability for all claims of any kind, whether for Equipment delivered or for services provided, or for any other attributable failure in the performance of the agreement, is limited to a maxi¬mum of 50 % of the total net contract value (excluding VAT, packaging, storage and transport costs, costs for loading/unloading) such as specified in the Agreement or the order confirmation. Our liability is in any case limited to the amount of EUR 500.000,00.
9.2 We are under no circumstances liable for any lost profits, loss of production, lost savings, loss of data, loss of good-will, loss of reputation or any other indirect, incidental or consequential damage, including costs made to prevent, mitigate or assess such damages.
9.3 A liability claim requires that the Customer notifies us within 14 days after the date of the event giving rise to the claim. Such notification shall be made in writing, state the grounds of the claim and shall be supported by documen-tation of the claim, otherwise the claim shall be excluded. Any lawsuit relating to a liability claim must be filed within one year after the notification.

B. Delivery of Equipment

The following section applies to all sales and deliveries of Equipment including in particular luminaires, the RED Box, RED Sense, and RED Access Points and the suspension hooks.

10. Delivery time

10.1 All delivery times indicated in our offers, order confirma-tions or other documents are indicative. We will use all commercially reasonable efforts to meet the dates indicated.
10.2 All delivery times shall commence with the date of the agreement, meaning the order confirmation signed by the Customer and are subject to agreement on all commer¬cial and technical details, including approval of drawings, plans and the like, and subject to down-payment or pre-delivery payment if applicable.
10.3 In case of a delay in delivery, we will use all commercially reasonable efforts to effectuate delivery as soon as possible. However, under no circumstances shall Cus-tomer have a right to terminate the agreement and/or to claim compensation for late delivery.

11. Delivery

11.1 Delivery takes place when we make the Equipment avail-able to the Customer and inform the Customer that the Equipment is at his disposal. As of this moment, the Cus-tomer bears the risk of the Equipment. If the Customer does not take delivery, all costs and charges for further storage, insurance and the like are for the ac¬count of the Customer.
11.2 Unless otherwise agreed, Equipment is delivered EXW (Incoterms latest version) as specified in the order confir-mation.

12. Retention of title

12.1 All Equipment delivered remains our property until the Customer has fulfilled all its obligations under any agree-ment with us, including payment of interests, penalties, damages and other claims for non-performance.
12.2 As long as the Equipment delivered is subject to retention of title, the Customer is not permitted to encumber the Equipment. The Customer may not dispose of the Equip-ment other than in the course of normal business operations. These provisions do not only establish an ob-ligation but have effect upon property law.
12.3 In the event of a seizure by third parties, the Customer shall inform us immediately. The Customer shall also in¬form any third party immediately of our retention of title.

13. Non-conformity, defects, warranty

13.1 The Customer shall inspect the Equipment immediately after delivery. Any outside visible damage to the Equip¬ment or the outer packaging shall be noted on the transport document; the same applies to any shortage of the Equipment or packages/items. Furthermore, the Cus¬tomer shall report any non-conformity, damage, visible defect or inaccuracy as to type, number, colour and the like immediately, in any case within 5 working days after delivery.
13.2 Hidden non conformities shall be reported within 5 work¬ing days after discovery. When reporting a non-conformity, the Customer shall provide a description of the reasons and if possible supporting documents such as photos. On late inspecting and reporting, any and all claims for non-conformity shall be excluded.
13.3 Unless otherwise agreed in writing, we warrant that our luminaires will be free from defects for a period of five years after delivery. The warranty for all other hardware (the RED Box, RED Sense, and RED Access Points and the suspension hooks) is one year after delivery. All warranty claims must be made in conformity with our warranty protocol, otherwise the war¬ranty claim shall be excluded.
13.4 Our warranty does not cover non-conformities caused by (a) normal wear and tear, (b) improper use and operation, (c) improper storage, (d) lack of maintenance or mainte-nance carried out incorrectly, in particular not in conformity with our maintenance instruction, (e) installa-tion, assembly, modification or repairs carried out by the Customer or third parties on behalf of the Cus¬tomer, (f) malfunctioning, mismanagement or any other operational failure of the electrical grid.
13.5 If the Customer claims under the warranty, but on inspection/repair intervention, it turns out that there is no warranty issue but that the failure has a cause for which we are not responsible, such as cables wrongly fitted, failing internet connection etc., the Customer shall reimburse all costs related to our warranty intervention. The costs for operational staff are EUR 60,00 per hour, for IT-staff are EUR 140,00 per hour, plus travel expenses at EUR 0,38 per km (all ex VAT).
13.6 All measured lifetimes are industry standard measure-ments. They indicate an average length of operation. They never constitute a performance claim specific to an individual piece of Equipment.
13.7 The performance of the Equipment is an indication only. It may fluctuate depending on outside factors such as equipment reflections, blackout screens, heat pipes, plant height, sensor calibration and the like. We do not at any time guarantee any specific results of the Equipment.
13.8 In case of a justified claim for non-conformity, we may, at our choice and within reasonable time, repair or replace the goods. If despite reasonable efforts, a defect cannot be repaired and no replacement product can be supplied, we shall make an appropriate refund for the price paid for the goods in question, taking into account an eventual us¬age of the goods. Replacement goods may have minor deviations in design or specification that do not affect the functionality of the goods.
13.9 The Customer is responsible for sending parts or goods that are to be repaired or replaced because of non-con-formity in conformity with our warranty protocol and ac-companied by a warranty RMA form duly completed. All transport and shipping costs, as well as all costs of uninstalling and reinstalling are for the Customer’s ac-count.
13.10 The Customer shall keep all warranty issues confidential. In case of any violation of this prohibition, the Customer directly forfeits a contractual penalty without prior warning or notice of default. The penalty amounts to EUR 75.000,00 per violation.
13.11 All further warranty claims shall be excluded. The reme-dies set out in this article shall be the sole remedy for any claim based on non-conformity or defects of the Equip¬ment delivered.
13.12 Unless otherwise agreed, repairs, replacements or rem-edies will not extend or renew the warranty period for the piece of Equipment concerned.

C. Provision of services

We provide support and consulting services as well as software solution services. This section applies to the provision of all our services.

14. Services provided

14.1 We provide support services for setting up the RED Solution, information about and introduction to our prod¬ucts and (software) services, and support to the Cus¬tomer in starting the operation of the RED Solution, all as specified in the offer and/or in the order confirma¬tion.
14.2 We provide personalized and tailor-made consulting ser-vices as one off service or throughout a period of time or for a specific project, all as specified in the offer and/or in the order confirmation.
14.3 We provide software based services (MyRED Software) that support the Customer in lightning his greenhouse with the most optimised light recipe in order to reduce en¬ergy consumption, improve yields and crop quality. Our software is a setpoint programming tool as well as an in¬terface to gain insights in the light parameter. We do not at any time guarantee any specific results.

15. Performance of services

15.1 Unless otherwise agreed, we perform our services re-motely at our place of business.
15.2 We perform our support and consulting services during business hours between 9:00 o’clock and 18:00 o’clock CET.
15.3 We endeavour to deliver our services in conformity with the agreement or the order confirmation, unless we specifically agree to achieve a certain result. We perform our services to the best of our knowledge and according to the requirements of good workmanship.

16. Complaints

16.1 Any complaints concerning the provision of services shall be made within 5 working days after discovery of the event or facts giving rise to the complaint. In case of late complaints, all further claims shall be excluded.

17. Time period and early termination

17.1 The time period for the provision of our services is speci-fied in the offer and/or the order confirmation. In deviation from art. 7:408 DCC, the Customer may not terminate the services prior to the ending of the period specified.

D. MyRED Software

The following section applies to the subscription to our MyRED Software as a SaaS solution.

18. Software as a service

18.1 We provide MyRED Software as Software as a Service (SaaS). We provide the software in its latest version on subscription basis via internet during the course of the agreement.
18.2 We constantly develop our software. All our updates and upgrades are made available to the Customer in the course of the agreement without further costs.
18.3 MyRED Software is accessible by means of a browser through a computer, a smartphone or a tablet.
18.4 MyRED Software is also available as an application, called MyRED Mobile. The application is a condensed version of MyRED Software with limited functionalities and data sets for easier viewing.
18.5 MyRED Software is accessible via all browsers consid-ered to be standard in current market practice. We are unable to guarantee access or support each available web browser or version of web browser.
18.6 We are entitled, without any obligation to pay any com-pensation, to introduce changes in our software that may have an impact on the browsers used by the Customer. If such situation arises, we will make reasonable efforts to ensure transition to a different browser. The Customer is responsible for its own costs arising hereof.

19. Non-exclusive license

19.1 We hereby grant to the Customer the non-exclusive, non-sublicensable, non-transferable right to normal use of the MyRED Software for the subscription period.
19.2 This user right is limited to the application of the MyRED Software exclusively for the Customer’s use in its own business, for the maximum agreed number of users and the maximum agreed number of devices.
19.3 The Customer has no right to copy, distribute, modify, translate, reproduce, decompile, reverse assemble the software or to attempt otherwise to derive the source code or the algorithmic nature of the software, nor to cre¬ate derivative works therefrom, or to decode, decrypt or neutralize any security measures or to remove or circum-vent the protection of the software.

20. Availability, software support and maintenance

20.1 We endeavour, to the best of our efforts, to secure availability of the MyRED Software. Availability means that the software will be available and accessible on our servers. It does not refer to the availability of an internet connection with the Customer’s systems.
20.2 MyRED Software is serviced and supported daily be¬tween 9:00 o’clock and 18:00 o’clock.
20.3 We will schedule and announce planned maintenance at least 2 working days in advance.

21. Data retrieval and analysis

21.1 MyRED Software measures, retrieves and stores various data from the Customer’s greenhouse, such as, but not limited to, light data, climate data, crop data, consumption data (= data sets). MyRED analyses the data sets data and controls the luminaires based on set points parametrised by the Customer.
21.2 We have the right to use and analyse the data sets col¬lected from any specific customer, at any time, free of charge, during or after the Agreement, in our sole discre¬tion and for any purpose whatsoever, including to aggre¬gate or compile data sets with other data, or to analyse the data sets for AI solutions offered to all customers, such as, but not limited to the solutions of¬fered in the MyRED Light Recipe Library. The data sets cannot be connected or traced back to any specific customer, nor is it personal data in the meaning of the General Data Pro¬tection Regulation.

22. Subscription period, extension and early termination

22.1 The subscription period for the Customer’s right to use the MyRED Software is twelve months, unless otherwise specified in the offer and/ or the order confirmation.
22.2 The subscription period shall be automatically extended for a further period of twelve months, unless the Cus¬tomer terminates the agreement in writing and with a no¬tice period of three months.
22.3 The right to early termination prior to the ending of the time period is explicitly excluded.

E. Final clauses

23. Data protection

23.1 Both parties shall comply with all applicable data protec¬tion laws.
23.2 We process personal data in connection with offers and agreements, to supply our products and to provide our services, to collect our invoices, for regulatory and com-pliance purposes and in the context of business develop-ment. We do not share or transfer the personal data col-lected with/to third parties. We take care of the implemen-tation of appropriate technical and organisational measures to ensure a level of security appropriate to the risk involved, taking into account the state of the art and the costs of implementation. We will store personal data no longer than necessary to achieve the purpose of the data collection or is required by law and regulation.