GENERAL SALES CONDITIONS OF AVELON B.V.
In these general sales conditions the following terms are used and mean in the following, unless explicitly indicated otherwise:
Avelon: Avelon B.V., a private company with limited liability incorporated under the laws of The Netherlands.
Conditions: the general terms and conditions of sale as set out in this document, and including any special terms and conditions agreed in writing between Purchaser and Avelon.
Contract: any contract between Avelon and the Purchaser for the purchase and sale of Goods as laid down in a written order confirmation.
Days: all calendar days.
Goods: any goods which are supplied to the Purchaser by Avelon under any Contract between them.
Parties: Avelon and Purchaser.
Purchaser: the other party contracting with Avelon, acting in the performance of profession of business.
Season means a period of six months from 1 January up to and including 30 June being the spring/summer season and 1 July up to and including 31 December being the autumn/winter Season.
Working days: all Days with the exception of Saturdays and Sundays, 1st of January, 2nd day of Easter, 30th of April, Ascension Day, 2nd day of Whitsun, Christmas and 2nd day of Christmas, the Days that have been or will be proclaimed national holidays by the national government of the Netherlands.
These Conditions govern all offers from, sales made by and Contracts with Avelon. Any supplements or changes shall be in force only if accepted by a duly representative of Avelon by means of a written notice thereof.
Any Purchaser placing orders with Avelon is deemed to accept these Conditions to the exclusion of any other terms and conditions.
These Conditions shall also apply to all contracts with Avelon for the performance of which third parties must be engaged.
Avelon’s employees or agents are not authorized to make any representations concerning offers, quotations and Goods unless explicitly confirmed in writing by Avelon. In entering into the Contract, the Purchaser acknowledges that it does not rely on, and waives any claim for breach of any such representation which is not so confirmed.
Should one or several provisions in these Conditions be void or become void, then the other provisions of these Conditions shall continue to be fully applicable. At such a time, Avelon and Purchaser will enter into consultation to agree upon new provisions to replace the void or voided provisions, whereby purpose and purport of the original provision shall be respected if and in so far feasible.
Avelon shall not be liable for any advice given by its employees or agents to the Purchaser or its employees or agents as to storage; application or use of the Goods unless such advise is confirmed explicitly in writing by Avelon.
The Purchaser shall place written orders with Avelon or an agent of Avelon. Each order shall be confirmed by Avelon in the form of a written order confirmation. However, Avelon reserves the right to refuse all or part of any orders placed by Purchaser.
The written order confirmation shall be subject to these Conditions. The written order confirmation as sent to the Purchaser shall also immediately be the Contract as applicable between the Parties.
If the Contract fails to conform in any aspect with the placed order, then Purchaser is obliged within five (5) Days upon receipt of said Contract to draw Avelon’s attention to such non-conformity by means of a written notice. In this notice Purchaser shall either approve this order or place another written order with Avelon. In the event that another written order is placed, the original Contract will be replaced by a new Contract. If the obligation of Purchaser to draw attention to the non-conformity of the Contract has not been fulfilled, the Purchaser shall not be entitled to invoke this omission.
4) The Contract shall specify the price and quantities of the Goods ordered by the Purchaser.
5) Avelon is not in any manner liable for failure to deliver all or part of the Purchaser’s order.
Offers and quotations
All offers shall be without obligation, unless the offer stipulates a period for acceptance.
The Contract between Avelon and the Purchaser shall be binding, unless a written counter-notice of the Purchaser is received by Avelon within a period of five (5) Days upon receipt of said Contract.
In the event the Contract is not cancelled in accordance with article 4.2 of these Conditions but:
within a period of thirty (30) Days after date of the Contract fifty percent (50%) of the contract value shall be due by the Purchaser to Avelon;
after a period of thirty (30) Days after date of the Contract hundred percent (100%) of the contract value shall be due by the Purchaser to Avelon.
The prices in offers and quotations of Avelon will be in Euro, and exclusive of VAT and other levies imposed by the authorities, and exclusive of shipping and possible transport and packing costs, unless explicitly contracted otherwise.
If acceptance is not in conformity with the offer as worded in the quotation, then Avelon shall not be bound to such non-conforming acceptance. In such an eventuality, the Contract shall not be realized under said non-conforming acceptance, unless Avelon explicitly indicates otherwise by means of a written notice.
Offers or quotations shall not automatically apply to repeat orders.
Delivery shall have been made:
when shipping is effected through a professional carrier; upon transfer of the Goods to said carrier;
when delivery is made at the home, the office or the warehouse of the Purchaser.
Any dates quoted for delivery of the Goods are approximate only and Avelon shall not be liable for any delay in delivery of the Goods whatsoever caused unless explicitly contracted otherwise. When a period is exceeded, the Purchaser must notify Avelon of Avelon’s defaulting in writing.
In the event that Avelon needs information from the Purchaser to perform the Contract, then period of approximate delivery date shall commence after such information shall have been made available by the Purchaser to Avelon.
The Purchaser shall be bound to take delivery of the Goods at the moment that Avelon makes or has made delivery of the Goods at the Purchaser.
If the Purchaser refuses to take delivery, or is negligent in providing information or instructions required for such delivery, then Avelon shall be entitled to put the Goods in storage for account and risk of the Purchaser. Avelon may recover any costs made in this respect from the Purchaser.
Except for the Goods that are delivered, Avelon will arrange, for the Purchaser, insurance cover up to the amount of the sales price of the Goods and will bear the costs thereof. Insurance cover shall be for normal transport risk, therefore not for war risk or other exceptional risks. In the event of damage, Avelon will settle such damage with the insurer.
If Goods cannot be shipped due to circumstances for which Avelon is not responsible, then Avelon shall be deemed to have fulfilled its obligation to deliver by keeping intended Goods available for the Purchaser. In this event Avelon will notify the Purchaser of such circumstances within five (5) Working days after the Goods have been completed and readied for shipment. In such case, the effective day of delivery is the first day that the Goods are kept available for the Purchaser.
Avelon shall be entitled to make partial deliveries or deliveries by instalment and invoice separately for such deliveries unless explicitly contracted otherwise. Failure to accept or pay for such deliveries when due may be treated as cancellation of the Contract in accordance with clause 10.3 of these Conditions.
The risk of loss of, or damage to, the Goods subject of the Contract shall transfer to the Purchaser the moment that delivery of such Goods is made to the Purchaser in the legal sense and/or in actual fact, whereby said Goods are brought under the control of the Purchaser or of third parties to be designated by the Purchaser.
For account and risk of the Purchaser shall be:
all transportation of the Goods from Avelon to the Purchaser unless stated otherwise in this article;
any exchange or return of the Goods, in accordance with article 10.2.
Transportation of the Goods to the Purchaser’s office or warehouse within the Netherlands as well as to the Dutch border is for the account and risk of Avelon.
In case of a reorder by the Purchaser in the same Season and with a net value of at least EUR 500,- (in words: five hundred Euro), the transportation shall also be for account and risk of Avelon.
In the event that the transportation is for the account and risk of Avelon, the Purchaser shall determine, at delivery, if there are any damaged or missing Goods and alter the carrier’s delivery note accordingly. Within eight (8) Working days following delivery the Purchaser shall check the delivered Goods and confirm with the carrier in writing by registered mail with return receipt requested, the nature of the damage or the missing Goods. The Purchaser shall send a copy of such confirmation to Avelon in order that Avelon may exercise rights against the carrier on behalf of Purchaser. Claims for damaged or missing Goods will only be acceptable if sent within eight (8) Working days following delivery and any exchange or reimbursements are subject to the satisfaction of this condition. If the Purchaser does not comply with the foregoing deadlines and procedures, it shall be liable for the losses incurred due to any such damage or loss of the Goods.
7 Samples and Models
1) Samples and models shall consistently remain the property of Avelon and, without written permission, shall not in any manner or form, in whole or in part, be duplicated or provided to third parties for their perusal or use unless explicitly contracted otherwise; the Purchaser will forthwith return to Avelon, at first demand, any and all requisite documents, goods and objects. Regarding documents, illustrations, drawings, designs and models supplied by Avelon and ideas and solutions provided by Avelon, any and all copyrights, claims to model protection and patenting, wherever in the world, shall attach to Avelon, such unless explicitly contracted otherwise.
2) In the event that Purchaser is shown, or supplied with, a sample or model, this shall only have been shown or supplied as indication, whereby the ordered Goods shall not need to meet these specifications unless explicitly contracted otherwise.
8 Compensations, Price and Costs
The prices of the Goods shall be those indicated on the Contract.
Avelon nevertheless reserves the right, by giving notice to the Purchaser at any time before the delivery, to increase the price of the Goods.
If the price increase is more than ten percent (10%) then the Purchaser shall be entitled to dissolve the Contract unless such price increase is the result of a change in the Contract or arises from a statutory competence to impose such an increase.
9 Performance of the Contract
1) Avelon will perform the Contract to the best of its understanding and ability.
2) If, and in so far, due performance of the Contract demands Avelon shall be entitled to have certain activities performed by third parties.
3) The Purchaser shall ensure that all data that Avelon indicates are required, or which the Purchaser can reasonably be expected to understand are required, for the performance of the Contract will be supplied to Avelon on a timely basis. If the data required for the performance of the Contract have not been supplied to Avelon on a timely basis, then Avelon shall be entitled to suspend the performance of the Contract and / or charge the extra costs arising from the delay to the Purchaser.
4) Avelon shall not be liable for damage, of any nature whatsoever, resulting from the circumstance that Avelon based itself on Purchaser supplied data that prove inaccurate and/or incomplete.
5) The Purchaser shall hold Avelon harmless against any claims of third parties who incur damage, in connection with the performance of the Contract, which is attributable to the Purchaser.
10 General conditions of Payment
Payments shall be made net of any commission or expenses at thirty (30) Days from the date of invoice, with method of payment indicated by Avelon and in the currency of the invoice. Purchaser shall not be entitled to suspend payment or make any other deduction from such payment or exercise any right of set-off howsoever arising.
In the event a payment instrument is returned unaccepted, the order shall immediately be cancelled and/or the sale of the Goods automatically terminated without any further notice. The Purchaser is obliged to return any delivered Goods at its expense.
If the Purchaser fails to make any payment, on due date then, without prejudice to any other right or remedy available to Avelon, Avelon shall be entitled to cancel or suspend deliveries under any and all Contracts until payment is fully made. This is without prejudice to payment due on orders already delivered and the right to claim damages.
Upon expiration of the term payment, the Purchaser shall be in default and, as of that date, it shall owe interest at a rate corresponding to the Dutch statutory interest plus three percent (3%). If the Purchaser fails to meet any of its obligations, all extra-judicial costs reasonably incurred to obtain such payment shall be at the Purchaser’s expense. Such costs shall in any event include the costs of the collection agencies, process servers and attorneys. Where a court fully or substantially awards judgments against the Purchaser and its decision has become final, the Purchaser shall be under a duty to reimburse Avelon for all judicial costs incurred at trial and appellate levels, including any amounts not awarded by the court.
Avelon shall be entitled to have the payments made by the Purchaser serve in the first place to cover the costs, then to cover the overdue interest and finally to cover the principal amount and the outstanding interest. Avelon shall be permitted, without such rendering it in default, to deny an offer to make payment if the Purchaser instructs a different sequence for the allocation. Avelon shall be permitted to deny full settlement of the principal amount if such fails to include the overdue and outstanding interest as well as the costs.
The payment date for payment done by means of a bank transfer shall be the date the bank account of Avelon is credited.
If in the reasonable opinion of Avelon the creditworthiness of the Purchaser shall have deteriorated prior to delivery, Avelon shall be entitled to request full or partial payment of the price prior to delivery and/or reduce the payment period, and / or demand prior security for payment in a form acceptable by Avelon.
If the Purchaser continues to default in settling any of its obligations then the relevant Contract shall be dissolved without judicial intervention following a single notification on Avelon’s part, such to be without prejudice to the right of Avelon to claim compensation of damage, lost profit, interest and collection costs. In that case Avelon shall, moreover, be entitled to cancel any and all current orders for the relevant Purchaser we are then performing or, as the case may be, suspend performance thereof.
If Avelon has incurred additional costs, which proved necessary within reason, such shall also be compensated.
11 Change of Contract
In the event that the Contract needs for its due performance change in and/or supplement to the activities to be performed then Parties will adjust the Contract accordingly, on a timely basis and in mutual consultation.
If Parties agree to change and/or supplement the Contract, this may affect the completion moment of the performance. Avelon will inform the Purchaser of such as soon as possible.
If the change and/or supplement has/have financial and/or qualitative consequences for the Contract then Avelon will inform the Purchaser of such in advance.
12 Retention of title
1) Avelon shall remain owner of all Goods sold to Purchaser, and the legal title of the Goods shall as a result be retained, until payment in full, such to include any interest and costs, is made by the Purchaser of the price under any and all Contracts between the Parties. Delivery as referred to in these Conditions shall therefore only imply that Purchaser shall become the detentor (‘houder’) of the Goods. Legal transfer of title (‘juridische levering’) shall be effected by and after full payment is made and all other obligations resulting or arising from the Contract have been adequately and duly fulfilled. The foregoing also applies in case of partial deliveries.
2) A bank draft or any other document creating an obligation to pay does not constitute payment.
3) The Purchaser shall ensure that the Goods can always be identified and shall bear all risks as from delivery of the Goods, subject to Avelon’s retention of title. The Purchaser shall ensure the good condition of the Goods at its own risk and expense.
4) As long as Purchaser is detentor and not the owner of the Goods and has not the title to the Goods, Purchaser is obliged to insure the Goods properly, in any case against risks of theft, damage and loss, such to the extent that the relevant insurance policies include the clause that the insurance also covers Goods owned by third parties unless the latter are beneficiaries under such insurance policies. Purchaser shall not pledge possible claims on its insurer under the insurance policies as intended in this sub-article, in so far they relate to the Goods, to third parties nor shall he have such serve as security, in the broadest sense of word, towards third parties. Payouts in this respect shall serve as substitute for the Goods in question.
5) As long as Purchaser has not fulfilled all obligations arising and/or relating to the Contract and until the ownership of the Goods shall be transferred to Purchaser and/ or Avelon has reasonable grounds to fear that the Purchaser will come in default, Avelon has the right to immediately claim, respectively reclaim (the title to) the Goods delivered at any moment. Purchaser hereby grants Avelon its irrevocable and unconditional consent to enter its premises for this purpose. On first demand, Purchaser shall be obliged to return the Goods immediately to Avelon, carriage paid, without any court intervention, summons or notice of default being required. In that event the Contract shall not be automatically dissolved as a consequence thereof, such without prejudice to the other rights of Avelon with this respect. If Avelon dissolves the Contract after having taken back the Goods, the amounts paid by Purchaser for the execution of its obligations shall be paid back to Purchaser, taking into account all claims of Avelon against Purchaser.
6) In the event of Purchaser’s suspension of payment, bankruptcy and/or liquidation, Avelon shall be entitled to cancel, in whole or in part, the order without the requirement of defaulting proceedings or judicial intervention and claim back the part of the Goods delivered that remained unpaid. Cancellation and claim-back shall leave intact Avelon’s right to compensation for loss or damage. In such events any claim of Avelon on the Purchaser shall be immediately and fully claimable.
13 Suspension and Dissolution
1) Avelon shall be competent to suspend compliance with the obligations or to dissolve the Contract, if:
the Purchaser does not or not fully comply with the obligations from the Contract.
upon closing of the Contract Avelon has been made aware of circumstances providing sound cause to fear that the Purchaser will not comply with its obligations. In the event there exists sound cause to fear that the Purchaser will comply only in part or unduly, then the suspension shall be permitted only to the extent justified by the non-compliance.
the Purchaser was requested when concluding the Contract to put up security for fulfilment of its obligations from the Contract and such security proves lacking or inadequate. Once security has been put up, competence to suspend shall lapse unless, as a result, said fulfilment has been unreasonably delayed.
2) Moreover, Avelon shall be competent to dissolve the Contract (have such dissolved) if there are circumstances of such a nature that compliance with the Contract proves unfeasible or cannot, by the criteria of reasonableness and fairness, any longer be demanded or, as the case may be, if circumstances occur otherwise of such a nature that the Contract cannot reasonably be expected to remain intact.
If the Contract is dissolved then the claims of Avelon on the Purchaser shall be immediately claimable. If Avelon suspends compliance with the obligations then it shall retain the claims both at law and under the Contract.
1) Avelon’s sole obligation towards the Purchaser is to warrant that the Goods will correspond in material respects Avelon’s specifications as laid down in the Contract and be free from defects in materials and workmanship. For the avoidance of doubt, any deviation in the colour or shading of any minor deviation in size of the Goods, or any ornamental deviation in the Goods shall not justify a claim under this warranty (‘garantie’). Instead of replacing non-conforming Goods, Avelon shall be entitled to cancel the Contract with respect to such non-conforming Goods, and refund the purchase price paid by the Purchaser.
2) Purchaser shall check accurately the quantity and the quality of the delivered Goods immediately upon delivery as referred to in article five (5) of these Conditions. Claims with respect to the quantity and the quality of the Goods delivered have to be filed within eight (8) Days after delivery, in writing, provided that defects with respect to not observable defects in the quality of the Goods that could not be observed reasonably by Purchaser within the aforementioned term, have to be filed in writing immediately after Purchaser observed or could have observed this defect. If no claim is filed in writing within the aforementioned term, Avelon shall be deemed to have duly and correctly fulfilled its obligations resulting or arising from the Contract with regard to inter alia the quantity and quality.
3) The warranty under 1) above shall be valid for a period of six (6) months upon delivery.
The warranty stated herein shall not be valid when the defect arose as a result of inexpert or improper use.
15 Liabilities and indemnifications
If Goods delivered by Avelon prove defective then the liability of Avelon towards the Purchaser shall be limited to the provisions as stipulated in these Conditions under ‘Warranties’.
Notices given by Avelon or in the name of Avelon relating to inter alia the quality, composition, and properties of the Goods do not bind Avelon, unless expressly made in writing in the form of a warranty.
Claims do not give Purchaser the right to suspend its payments or to appeal to set off or discount.
Any partial delivery shall be considered to be a separate delivery.
Avelon shall not be liable for consequential damage or loss of profits sustained by Purchaser, its subordinate or persons employed by it or the Purchaser’s clients - of whatever name - or for damage to third parties, caused by whole or partial delivery of the Goods, delayed or unsound delivery or failure of delivery of the Goods. The aforementioned provision does not affect the possible liability of Avelon pursuant to the mandatory legal provisions with regard to product liability.
Direct damage shall only be:
the reasonable costs entailed in establishing the cause and scope of the damage, in so far such establishing relates to the damage in the sense of these Conditions;
any reasonable costs incurred to achieve that the defective performance of Avelon satisfies the contractual provisions unless such defect proves not attributable to Avelon;
the reasonable costs incurred to avoid or limit the damage, in so far the Purchaser shall demonstrate that these costs did lead to limitation of direct damage as intended in these Conditions.
16 Force Majeure
If, as a consequence of force majeure Parties are unable to comply with their obligations, these obligations shall be suspended for a period equal to the duration of force majeure. Parties will in the event of force majeure make an arrangement concerning the performance of the Contract.
With respect to price increases during the period of force majeure, Avelon shall be authorized to adapt the agreed price and to invoice the adapted price to Purchaser.
If, as a consequence of a force majeure, the proper performance of the Contract is permanently impossible or if the proper performance of the Contract is impossible for a period totalling more than one month, Avelon and Purchaser shall be entitled to dissolve the Contract wholly or partially without court intervention. In the event of a force majeure Purchaser is not entitled to any compensation.
Force majeure shall include, in addition to its definition at law and in case law, any measure of any authority of whatever nature as a consequence of which delivery is (temporarily) limited or prevented, for example in the event importation and exportation are prohibited or prevented, physical or economic stagnations in transport, war, state of war or emergency, mobilization, danger of war, civil war, regardless of the fact whether The Netherlands are involved therein, riots, strike or lock-out, work-to-rule, picketing or entrance blockades and/or industrial interruptions, fire, flooding, frost, explosion, illness of personnel, both in the enterprise of Avelon and in enterprises supplying raw materials or auxiliary materials, and in general all events and circumstances beyond the control of Avelon and in general circumstances which interrupt the regular course of business of Avelon, which are of such nature that these circumstances cannot reasonably be attributed to Avelon and/or which were not reasonably foreseeable for Avelon at the time the Contract was concluded, and/or circumstances that are as such that Avelon cannot reasonably be required to fulfill the obligations arising from the Contract.
Avelon, the Purchaser, respectively, will forthwith warn the other party if it’s encountered by a force majeure situation as set forth in the provisions of these Conditions.
Avelon shall also be entitled to invoke a force majeure situation if the circumstance that impedes (further) compliance commences after Avelon should have complied with its obligation.
In the event of force majeure the Purchaser cannot invoke any damages.
In as much as Avelon shall have, at the time the force majeure situation commenced, already partially complied with the obligations from the Contract, or will be able to do so, and if the part complied with, to be complied with, respectively, has been valued as a separate item then Avelon shall be entitled to send a separate invoice for the part already complied with, to be complied with, respectively. The Purchaser shall be bound to settle this invoice as being an invoice for a separate Contract.
17 Intellectual property and copyrights
All intellectual property rights with respect to the Goods, such as patents, royalties, trademarks, models and furthermore all industrial rights and licenses related to the preceding intellectual property rights shall remain property of Avelon. In case of a possible infringement of any of the intellectual property rights of Avelon by third parties, Purchaser is obliged to inform Avelon thereof immediately.
The Purchaser shall not introduce changes to the Goods unless the nature of the Goods delivered dictates otherwise, or unless contracted otherwise.
Any designs, sketches, drawings realized by Avelon in the context of the Contract shall remain the property of Avelon, regardless whether such have been handed to the Purchaser or third parties, unless explicitly contracted otherwise in writing.
For each violation or inaccurate fulfilment of any of the provisions of this article, Purchaser shall forfeit to Avelon, without any demand, prior notice or judicial intervention being required, an immediately payable amount of EUR 15,000.- (in words: fifteen thousand Euro) for such breach to be increased by a penalty of EUR 1,000 (in words: one thousand Euro) for each day or part of a day that any such breach shall continue, without Avelon being required to prove any damage or loss and without prejudice to Avelon’s right to recover any damages or losses in excess of the penalties.
Each party agrees to undertake that it will keep confidential and will not use for its own purposes nor without the prior written consent of the other party to disclose to any third party information of a confidential nature, received either in the context of the Contract or from other sources. Information shall be confidential when a party has announced this to be the case or when the nature of the information dictates it.
If statute law or a court ruling binds Avelon to also supply confidential information to third parties designated by law or competent court and if Avelon cannot invoke in this regard a right of exemption recognized or permitted by statute law or, as the case may be, competent court then Avelon shall not be bound to pay damages or indemnification and the other party shall not be entitled to dissolve the Contract on the grounds of any damage arisen as a consequence.
Transfer of rights and obligations and transition of control
Without the prior written permission of Avelon, Purchaser shall not be entitled to transfer all or part of Purchaser’s rights and obligations under the Contract to a third party or to have an Contract executed wholly or partially by a third party.
If after conclusion of a Contract the control of all or a substantial part of Purchaser’s enterprise is directly or indirectly transferred to others, Avelon shall be entitled, within thirty (30) Days after being informed in writing by Purchaser of such transfer, to terminate the Contract unilaterally by registered letter, subject to a notice period of fourteen (14) Days, without court intervention, without Avelon being obliged to pay compensation for any damages and/or losses sustained by Purchaser.
20 Applicable law and jurisdiction
These Conditions and all offers, orders, order confirmations and Contracts or obligations ensuing there from, shall be governed by and construed in accordance with Dutch law.
Parties explicitly agree that the United Nations Convention on Contracts for the International Sale of Goods (‘Verdrag der Verenigde Naties inzake internationale koopovereenkomsten betreffende roerende zaken’) is not applicable to these Conditions.
All disputes, including those considered such by one party, arising from or related to offers, orders, order confirmations and/or Contracts to which these Conditions apply, or these Conditions proper, and arising from or related to its interpretation or performance both de facto and de jure will be settled by the competent civil court in The Netherlands.
These Conditions were registered on March 29, 2010 at the offices of the Chamber of Commerce in Amsterdam.
Registration number Chamber of Commerce: 34379151.