General sales and delivery terms and conditions of Avingstan BV
Article 1. Definitions.
- Offer / Offer: Any offer from Avingstan to enter into an Agreement;
- Services: All (additional) services and / or (technical) work, of whatever nature, performed by Avingstan, in the broadest sense;
- Avingstan: The private company Avingstan BV (Chamber of Commerce file number: 74829939), being the user of the Terms and Conditions;
- Goods: The Goods to be delivered by Avingstan on the basis of the Agreement to or for the benefit of the Other Party, being goods and / or property rights;
- Agreement: Any Agreement between the Parties with regard to the purchase, sale and delivery of Goods by Avingstan to the Other Party and / or the provision by Avingstan of Services to the Other Party;
- Party / Parties: Avingstan and the Other Party or each for itself;
- In writing: By letter, fax, electronic message or bailiff’s writ;
- Terms and Conditions: These General Sales and Delivery Terms and Conditions of Avingstan;
- Counterparty: The natural person (s) and / or legal person (s) to whom Avingstan makes an Offer for the delivery of Goods and / or the provision of Services and / or who has an Agreement with Avingstan enters into.
Article 2. Applicability.
- These Terms and Conditions apply to all Offers and Agreements, as well as to all ensuing and building commitments.
- If the Terms and Conditions have been applicable to any Agreement, these will automatically – without this having to be separately agreed between the relevant Parties – apply to any subsequent agreement between the Parties, unless the relevant agreement has been explicitly Written in writing between Parties agreed otherwise.
- The applicability to any Agreement of general or specific terms and conditions applied by the Other Party is expressly rejected by Avingstan, unless and after the said terms and conditions have explicitly been declared Written by Avingstan to apply to an Agreement. Acceptance in this way of the applicability of terms and conditions of the Other Party to an Agreement does not in any case entail that those terms and conditions also apply tacitly to any Agreement concluded thereafter.
- In the event of invalidity or destruction by the Other Party of one or more provisions of the Terms and Conditions, the remaining provisions of the Terms and Conditions will continue to apply to the Agreement. Parties will consult to replace a void or voided provision of the Terms and Conditions with a provision that is valid or non-voidable and that corresponds as far as possible to the purpose and purport of the void or voided provision.
- Insofar as an Agreement deviates from one or more provisions of the Conditions, the provisions of the Agreement prevail. The other provisions of the Terms and Conditions will continue to apply without prejudice to the Agreement.
Article 3. Offers and formation of Agreements.
- An Offer, unless explicitly stated otherwise, is without obligation and valid during the period stated in the Offer. If the Offer does not state a period for acceptance, the Offer will in any case expire fourteen (14) days after the date stated in the Offer.
- An Offer accepted by the Other Party within the period of validity can be revoked by Avingstan for five (5) working days after the date of receipt of the acceptance by Avingstan, without this leading to any obligation on the part of Avingstan to compensate for any consequence thereof by the Other Party. damages suffered.
- An order given by the Other Party can be confirmed by Avingstan by means of an order confirmation. If the Other Party has not objected to this within fourteen (14) days after receiving the order confirmation, the order as described in the order confirmation is accepted.
- If the Other Party provides Avingstan with information, drawings and suchlike with a view to issuing an Offer, Avingstan may assume its accuracy and shall base its Offer on this. The Other Party indemnifies Avingstan against any claim by third parties with regard to the use of drawings and such provided by or on behalf of the Other Party.
- A price list, brochure, publications, drawing, image and the like provided by Avingstan to the Other Party cannot be classified as an Offer.
- With due observance of the other provisions of the Conditions, an Agreement will only be concluded:
(a) by acceptance by the Other Party of an Offer;
(b) by Written Order Confirmation of an order issued by the Other Party (verbally or in writing) other than on the basis of an Offer;
(c) because Avingstan actually implements an order from the Other Party.
- The Agreement supersedes and replaces all previous proposals, correspondence, agreements or other communication between the Parties that took place prior to the conclusion of the Agreement, regardless of how they may deviate from or conflict with the Agreement.
Article 4. Prices.
- Prices stated in an Offer or Agreement are in Euros and are – unless explicitly stated otherwise – exclusive of costs for packaging, transport and other costs of shipment, import documents, (transport) insurance (s), travel time, travel costs and accommodation costs and also excluding sales tax and / or other government-imposed taxes of any kind.
- Avingstan reserves the right to change the stated prices in the interim if and insofar as price-determining factors increase, such as but not exclusively if any cost-increasing taxes, levies or import duties are introduced or changed.
- If, however, the increased price that Avingstan wishes to use as referred to in Article 4, paragraph 2, has increased by more than fifteen percent (15%) compared to the original price, the Other Party is entitled to the Agreement in so far as it concerns future obligations of Avingstan. , to be canceled within seven (7) days after the price change has been notified, on the understanding that in that case Avingstan will under no circumstances be obliged to compensate the Other Party for any damage suffered as a result thereof.
Article 5. Delivery / Delivery time.
- The specification of delivery periods is made to the best of our knowledge and will be observed as much as possible, but is only indicative and never a strict deadline (unless explicitly agreed otherwise in writing between the Parties). Exceeding this term, for whatever cause, will under no circumstances entitle the Other Party to compensation, dissolution of the Agreement or non-compliance with any obligation. The Counterparty also indemnifies Avingstan against any claims that third parties (attempt to) assert against it on account of late delivery.
- The risk for the Goods to be delivered to the Other Party is transferred to it from the warehouse of Avingstan (Veenendaal, province of Utrecht), or the warehouse of a third party engaged by Avingstan, unless explicitly agreed otherwise in the Agreement. All Goods are transported at the risk of the Other Party at all times. Unless the Other Party requests Avingstan to insure the Goods during transport at the expense of the Other Party (and / or otherwise stipulated in the Agreement), Goods will be transported by or on behalf of Avingstan uninsured.
- Unless explicitly agreed otherwise in writing between the Parties, export and import duties, customs clearance charges, taxes and any other government-related costs of any kind whatsoever are associated with the transport and delivery of Goods by Avingstan.
- If the Goods that have been delivered in accordance with paragraph 2 of this article cannot be transported to the place of destination indicated by the Other Party due to circumstances that cannot be attributed to Avingstan and that are not dependent on it, Avingstan will keep those Goods at the expense and risk of the Other Party at its disposal.
- Avingstan reserves the right to have the delivery take place in parts to be determined by it.
Article 6. Payment.
- With regard to the Goods to be delivered or supplied by Avingstan and / or Services to be performed or performed by Avingstan, Avingstan will send an invoice to the Other Party. Payment must be made within thirty (30) days after the invoice date, unless otherwise agreed in Writing. Payment must be made to the bank account specified by Avingstan. The moment of payment is determined by the moment at which Avingstan has received notification from its bank regarding the transfer of the relevant amount.
- In the event of late payment of an invoice, the Other Party will be in default by operation of law without any notice of default being required.
- In the event of late payment of an invoice, the Other Party will owe interest on the invoice amount from the due date, amounting to 1% per month or part thereof (unless the statutory commercial interest is higher, in which case that interest applies) . Furthermore, all extrajudicial collection costs will be at the expense of the Other Party, which costs are hereby determined by the Parties in advance at least 15% of the outstanding claim with a minimum of € 150, without prejudice to Avingstan’s authority to claim the actual extrajudicial costs if these amount to more.
- Every payment from the Other Party is primarily intended to settle the extrajudicial collection costs and the legal costs that it owes and is then deducted from the interest it owes and thereafter from the longest outstanding claims, regardless of any other instructions from the Other Party.
- Without prejudice to mandatory law provisions, the Other Party does not have the right to suspend its payment obligations to Avingstan and / or to set off against Avingstan’s payment obligations to the Other Party.
- Avingstan is entitled to set off all claims against the Other Party against any debt that Avingstan may have on the Other Party or on (legal) persons affiliated with the Other Party.
Article 7. Retention of title.
- All delivered Goods remain the exclusive property of Avingstan until the time at which the Other Party has met all obligations – arising from or in connection with an Agreement (s), including claims for penalties, interest and costs. Until that time, the Other Party is obliged to store the Goods delivered by Avingstan separately from other goods and clearly identified as Avingstan property and to properly insure and keep them insured.
- In the case of a delivery of Goods to a Counterparty in a territory other than the Netherlands, the following applies with regard to the Goods concerned – if and as soon as they are located in the territory of the country concerned – in addition to the provisions of Article 7. Paragraph 1 retention of title under Dutch law also a retention of title as stated in Article 7 Paragraph 1 under the law of the country concerned, on the understanding that with regard to the Agreement the remainder of Dutch law applies exclusively as stated in Article 14.
- As long as the Goods delivered are subject to a retention of title, the Other Party may not encumber or dispose of these outside its normal business operations.
- If the Other Party is in default with regard to the services as referred to in paragraph 1, Avingstan is entitled to retrieve the Goods that belong to it (or have them retrieved) from the place where they are located. The Other Party already authorizes Avingstan to enter the spaces in use at or for the Other Party. All costs associated with retrieving the goods are for the account of the Other Party.
- If Avingstan cannot invoke its retention of title because the Goods supplied have been fed, mixed, distorted or traced, the Other Party is obliged to pledge or mortgage the newly formed goods to Avingstan.
Article 8. Security.
- If Avingstan learns of circumstances that give Avingstan good reason to fear that the Other Party will not strictly comply with its obligations, the Other Party is obliged at the first request of Avingstan to provide sufficient security in the form desired by Avingstan and to provide this if necessary to be filled for the fulfillment of all his (claimable and non-claimable) obligations. As long as the Other Party has not complied with this, Avingstan is entitled to suspend compliance with its obligations.
- If the Other Party has not complied with a request as referred to in paragraph 1 within seven (7) days after a demand for payment, all claims of Avingstan against the Other Party will become immediately due and payable.
Article 9. Ownership / Copyright.
- All (intellectual and industrial) property rights, including but not limited to copyrights and database rights, to all Goods and / or the results of Services including but not limited to copies, models, drawings, designs, documentation, photographic recordings, films, information carriers , equipment and software (in object and source code), data and data files, templates and molds, which are the subject of and / or arise from and / or have been used in the fulfillment of the obligations under the Agreement between Avingstan and the Other Party are vested in Avingstan . If the aforementioned rights do not rest with Avingstan, the Other Party is obliged to grant every cooperation to Avingstan to transfer the relevant right upon first request.
- The other party is not entitled to use the provisions of paragraph 1 other than for the benefit of the items to which they relate.
Article 10. Complaints, obligation to investigate, prescription and compliance.
- Complaints by the Other Party must be made in writing and as quickly as possible, but no later than eight (8) days after delivery or delivery or, in the case of invisible defects, within eight (8) days after the defects could reasonably have been identified. found. If the Other Party has not notified Avingstan in writing within the aforementioned reasonable period, the Goods and Services provided are deemed to have been accepted by the Other Party and meet the requirements and performance laid down in the Agreement.
- The Other Party is obliged to immediately examine the Goods delivered upon delivery. Claims and defenses, based on facts that would justify the claim that the Goods delivered do not comply with the Agreement, become time-barred after one year after delivery. This period cannot be interrupted by the Other Party.
- Avingstan guarantees that the delivered goods meet the specifications as stated in the Agreement.
- Avingstan is only obliged to handle complaints and other complaints with regard to the Goods if the Other Party has complied with all its obligations towards Avingstan.
- The Other Party must be aware that the trade in and application of the Goods requires a great deal of guidance and expertise. He must therefore adhere to the rules drawn up by Avingstan with regard to the handling of the Goods, which the Counterparty will hand over from time to time. Avingstan has the right to change these regulations as often as it deems necessary to ensure the correct handling of the cases.
- The other party is obliged to pass on all regulations, instructions, advice and manuals that it receives from Avingstan to any further customers from him.
- The Other Party indemnifies Avingstan against all third-party claims arising from improper use or use in accordance with the rules of the goods by the Other Party or any person for whom the Other Party is liable or to whom the Other Party should have given instructions.
- Every product undergoes careful checks; The quality of our Goods is impeccable. However, it is not possible for Avingstan to verify the correct application of the Goods. Avingstan cannot therefore give any guarantee. Avingstan therefore disclaims all liability with regard to any insufficient results, damage or disadvantage caused to people, the environment or goods, unless it is undoubtedly proven that the cause of the damage is solely due to a defect of the Goods. The Other Party alone bears all risk regarding the use of the Goods, given that only the Other Party itself makes the decision about how the Goods are applied.
Article 11. Numbers, measurements, weights and further information.
- Minor deviations with regard to specified dimensions, weights, numbers and other such data do not count as shortcomings. In that case, Avingstan still complies with the Agreement.
- Commercial customs determine whether there are minor deviations.
Article 12. Liability.
- Avingstan is liable for damage that the Other Party suffers and that is the result of a shortcoming attributable to Avingstan in the performance of the Agreement. Reimbursement, however, is only eligible for damage for which Avingstan is insured or should have been reasonably insured – given the nature of the Avingstan company and the market in which it operates – and only up to the amount that the insurer pays out as appropriate .
- The following are not eligible for reimbursement:
(a) capital damage, such as – but not limited to – business damage, consequential damage, delay damage and lost profit;
(b) damage to the eyesight, which includes damage caused by or during the execution of the work to items being worked on or to items located in the vicinity of the place where work is being carried out (The Other Party may, if desired, object to this damage properly insured);
(c) damage caused by acts or omissions of the Other Party or third parties in violation of instructions provided by Avingstan or in violation of the Agreement and the Conditions;
(d) damage as a direct result of incorrect, incomplete and / or inadequate information provided by or on behalf of the Other Party to Avingstan.
(e) Damage to poultry caused by improper feeding of BSF-larvae to poultry. The poultry can literally eat themselves to death on the larvae, because they are so fond of them. Therefore, it is necessary that the larvae are fed to the poultry in staggered distribution throughout the house.
(a) it is not possible for Avingstan at the time of entering into the agreement, or not under reasonable conditions, to take out insurance as referred to in Article 12, paragraph 1, or to subsequently extend it under reasonable conditions;
(b) the insurer does not pay out the damage in question;
(c) the damage in question is not covered by the insurance, the compensation for the damage is limited to the amount that Avingstan has agreed with the Other Party for the present agreement (excluding VAT), which amount is always capped at € 25,000 excluding VAT. If the Agreement is a continuing performance contract, the liability is limited to an amount equal to 3 times the total amount stipulated in the context of the assignment in the last 6 months prior to the occurrence of the damage of the Other Party excluding VAT, which amount at all times is capped at € 25,000 excluding VAT.
- Avingstan is not liable for damage to material supplied by or on behalf of the Other Party as a result of improper processing. At the request of the Other Party, Avingstan will carry out the processing again, with new material supplied by the Other Party for its account.
- The Other Party indemnifies Avingstan against all third-party claims for damage caused by or in connection with Services and / or Goods supplied by Avingstan, to the extent that Avingstan would not be liable to the Other Party for such damage.
Article 13. Force majeure
- Force majeure means a shortcoming in the performance of an Agreement that cannot be attributed to Avingstan.
- Force majeure as referred to in Article 13, paragraph 1, is in any case – therefore not exclusively – a shortcoming as a result of (a) problems with and / or serious disruptions of the production process at suppliers, including utilities, (b) failure supply of necessary materials by third parties, (c) intent or gross negligence of auxiliaries, (d) work strike, (e) excessive sickness absence of staff, (f) fire, (g) special weather conditions (such as floods), (h) government measures (both nationally and internationally), including import and export bans and import and export barriers, (i) war, mobilization, riots, riot, martial law, terrorism, (j) sabotage, (k) transport inhibitions, (l) machine breakdown and / or (m) transport delay.
- In the event of force majeure, Avingstan has the choice either to suspend the performance of the Agreement until the force majeure situation has ceased to exist or to partially partially dissolve the Agreement, whether or not after initially opting for suspension. In both cases the other party is not entitled to any compensation. If the period in which compliance with the obligations by Avingstan is impossible due to force majeure lasts longer than thirty (30) days, the Counterparty is also entitled to partially dissolve the Agreement (for the future), on the understanding that Avingstan is entitled in accordance with Article 13, paragraph 4 is to send an invoice for the work already performed. In the event of partial dissolution, there is no obligation to pay for the (possible) damage.
- If, at the commencement of the force majeure, Avingstan has already partially met its obligations or can only partially meet its obligations, it is entitled to invoice that part separately and the Other Party is obliged to pay this invoice as if it concerned a separate Agreement.
Article 14. Applicable law / competent court.
- Dutch law applies to all legal relationships between Avingstan and the Other Party.
- Disputes between Avingstan and the Other Party will be settled exclusively by the Central Court of the Netherlands, location Utrecht.
Article 15. Dutch text prevails.
The Dutch text of these Terms and Conditions prevails over translations thereof.