Terms & Conditions
AVES & AVIAN ONLINE SALE TERMS AND CONDITIONS
Article 1: Definitions
- Aves New Products, with its registered office, Drostenkamp 3, 8101 BX Raalte, Netherlands, Chamber of Commerce number 38018588, shall hereinafter be referred to as Seller.
- The other contracting party shall hereinafter be referred to as Buyer.
- Seller and Buyer are hereinafter also collectively referred to as Parties.
- The Agreement refers to the purchase agreement between both Parties.
Article 2: Applicability of these Terms and Conditions
- These Terms and Conditions apply to all quotations, offers, agreements, services, and goods provided or delivered by or on behalf of Seller.
- Deviations from these Terms and Conditions may only be made if explicitly agreed between Parties in writing.
Article 3: Payment
- The full purchase price shall always be paid in the store immediately. Reservations may require a down payment. In that case, Buyer shall receive proof of the reservation and down payment.
- In case Buyer fails to pay on time, they are in default. If Buyer remains in default, Seller shall be authorised to suspend the fulfilment of their obligations until Buyer has fulfilled their payment obligation.
- If Buyer remains in default, Seller shall proceed to collection. The costs incurred for such collection shall be borne by Buyer. Such collection costs shall be calculated in accordance with the Dutch Extra-judicial Collection Costs Decree (Besluit vergoeding voor buitengerechtelijke incassokosten).
In case Buyer is liquidated, declared bankrupt, or granted a moratorium, or in case Buyer's possessions are attached, all of Seller's claims against Buyer shall be due immediately.
- In case Buyer refuses to assist in Seller's performance of the assignment, Buyer is still liable to pay Seller the agreed purchase price.
Article 4: Offers, quotations, and price
- Offers are free of obligation, unless a term of acceptance is stated in the offer. If the offer is not accepted within the stated term, the offer expires.
- Lead times stated in quotations are estimations and shall not give Buyer any right to dissolve the Agreement or claim damages in case those lead times are not complied with, unless Parties have explicitly agreed otherwise in writing.
- Offers and quotations do not automatically apply to follow-up orders. Follow-up orders are to be agreed between Parties explicitly and in writing.
- The price stated in offers, quotations, and invoices consists of the purchase price and any due VAT or other government-imposed levies.
Article 5: Right of withdrawal
- The consumer has the right to dissolve the Agreement within 14 days after receipt of the order, without stating reasons (right of withdrawal). This term starts the moment the consumer receives the complete order.
- The right of withdrawal does not apply if the products are custom-made or perishable.
- The consumer may use Seller's withdrawal form to exercise the right of withdrawal. Seller shall provide Buyer with this form immediately upon receipt of Buyer's request.
- During the reflection period, the consumer shall handle the product and packaging with care. They shall only unpack or use the product to the extent necessary to be able to assess the product and decide if they want to keep it. In case they decide to exercise their right of withdrawal, the consumer shall return the product to Seller unused and undamaged, with all included accessories and - if reasonably possible - in the original packaging, in accordance with the contractor's reasonable and clear instructions.
Article 6: Changes in the Agreement
- In case it turns out, during the performance of the Agreement, that a proper completion of the assignment requires a change of or addition to the work to be carried out, Parties shall change the Agreement accordingly, on time and by mutual agreement.
- In case Parties agree a change of or addition to the Agreement, this may affect the time of completion of the assignment. Seller shall notify Buyer of this as soon as possible.
- In case the change of or addition to the Agreement has financial and/or qualitative consequences, Seller shall notify Buyer of this beforehand and in writing.
- In case Parties agreed a fixed price, Seller shall also inform Buyer about the extent to which the change of or addition to the Agreement will result in an increase of that price.
- In contravention to the provisions of the third paragraph of this article, Seller may not charge additional costs in case the change or addition is the result of circumstances beyond Seller's control.
Article 7: Delivery and transfer of risk
- As soon as Buyer receives the purchased products, the risk is transferred from Seller to Buyer.
Article 8: Inspection, claims
- Buyer shall inspect the delivered products (or have them inspected) at the moment of delivery, or at least as soon as possible afterwards. During this inspection, Buyer should check if the quality and quantity of the delivered products conform to the Agreement, or at least if the quality and quantity meet the generally accepted standards.
- Claims with regard to any damage, deficit, or loss of the delivered products must be submitted to Seller in writing, within 10 days after the day of delivery of those products.
- In case the complaint is sustained within the fixed term, Seller may choose to repair the damage, or make a new delivery, or to cancel the delivery and send Buyer a credit note for the corresponding part of the purchase price.
- Minor and/or common defects and differences in quality, quantity, size, or finish cannot be counted against Seller.
- Complaints with regard to a certain product shall not affect any other products or parts under the same agreement.
- After Buyer has processed the products, claims shall no longer be accepted.
Article 9: Samples and models
- Any sample or model provided to Buyer shall be understood to be no more than an indication; the product to be delivered does not have to be as per sample. This is different if Parties have explicitly agreed that the product to be delivered does have to be as per sample.
- An indication of surface area or other measurements in agreements regarding real estate shall also be understood to be no more than an estimation; the real estate to be delivered does not have to match these measurements.
Article 10: Delivery
- Delivery shall be made 'ex factory/shop/storehouse'. This means that all costs shall be borne by Buyer.
- Buyer is obliged to buy the products at the moment that Seller delivers them or has them delivered to Buyer, or at the moment these products are made available to Buyer in accordance with the Agreement.
- In case Buyer refuses to buy the products or fails to provide information or instructions necessary for their delivery, Seller is authorised to store the products at Buyer's risk and expense.
- In case the products are shipped, Seller is authorised to charge shipping costs.
- In case Seller needs information from Buyer for the performance of the Agreement, the lead time starts after Buyer has provided Seller with that information.
- A lead time stated by Seller shall be understood to be an estimation. It is never a deadline. In case the lead time is exceeded, Buyer shall send Seller a written notice of default.
- Seller is authorised to make partial deliveries, unless Parties have agreed otherwise in writing or partial deliveries do not have any independent value. In case of partial deliveries, Seller is authorised to invoice the different parts separately.
Article 11: Force majeure
- In case Seller is unable to comply with their obligations under the Agreement, on time, properly, or at all, due to force majeure, Seller is not liable for any damage suffered by Buyer.
- Parties agree that force majeure includes in any case all circumstances that Seller could not foresee at the time of making the Agreement, or as a result of which Buyer cannot reasonably expect the normal performance of the Agreement, such as sickness, war or war risk, civil war and revolt, molestation, sabotage, terrorism, energy network breakdown, flood, earthquake, fire, sit-down, strike, lock-out, changed government measures, transport difficulties, and other business interruptions at Seller's company.
- Additionally, Parties agree that force majeure includes the circumstance that suppliers on whom Seller depends for the performance of the Agreement fail to comply with their contractual obligations to Seller, unless this circumstance can be imputed to Seller.
- In case of a situation as referred to above, as a result of which Seller is unable to comply with their obligations to Buyer, those obligations shall be suspended for as long as Seller is unable to comply with them. When the situation described in the previous sentence has continued for 30 calendar days, Parties are authorised to dissolve the Agreement, partially or in whole, by giving the other Party written notice.
- In case the force majeure continues for more than three months, Buyer is authorised to dissolve the Agreement with immediate effect. Dissolution is only possible by registered letter.
Article 12: Transfer of rights
- A Party's rights under this Agreement may not be transferred without the other Party's prior written consent. This provision is a clause with property-law validity within the meaning of article 3:83, second paragraph of the Dutch Civil Code.
Article 13: Retention of title and lien
- Products in Seller's possession and delivered products, as well as parts thereof, remain Seller's property until Buyer has paid the agreed purchase price in full. Until that time, Seller may claim retention of title and recover the products.
- In case the agreed down payments are not satisfied, in full or at all, Seller is authorised to suspend the work until the agreed part has been satisfied. This suspension is called creditor's default. In that case, a late delivery cannot be imputed to Seller.
- Seller is not authorised to pledge or otherwise encumber the products that are subject to retention of title.
- Seller undertakes to insure the products delivered to Buyer under retention of title against fire, explosion, and water damage, as well as theft, and to keep them insured, and to provide a copy of the policy for Buyer's inspection at Buyer's first request.
- In case products have not yet been delivered, but the agreed down payment or purchase price has not been satisfied as agreed, Seller has a lien. In that case, the product shall not be delivered until Buyer has paid in full and in accordance with the Agreement.
- In case Buyer is liquidated, declared insolvent, or granted a moratorium, all of Buyer's obligations shall be due immediately.
Article 14: Liability
- Any and all liability for damage, resulting from or related to the performance of the Agreement, is always limited to the sum paid out for the incident in question under the liability insurance policy taken out. This sum shall be increased by the applicable policy excess.
- Seller's liability for damage resulting from Seller's deliberate or reckless actions, or those of Seller's managing employees, is not excluded.
Article 15: Complaint duty
- Buyer is obliged to report any complaints about the completed work to Seller immediately. The complaint must contain a description, as detailed as possible, of the defect, so that Seller is able to respond adequately.
- In case a complaint is sustained, Seller shall repair or replace the product.
Article 16: Warranties
- The following applies if the Agreement contains warranties. Seller guarantees that the sold products are as per agreement, that they will function without defects, and that they are appropriate for the purposes for which Buyer intends to use them. This warranty is valid for a period of two calendar years after Buyer receives the sold products.
- Said warranty is meant to establish such risk allocation between Seller and Buyer that the consequences of any breach of a warranty is always at Seller's full risk and expense, and that Seller can never invoke article 6:75 of the Dutch Civil Code with regard to such breach of a warranty. The provisions of the previous sentence apply even if Buyer was or could have been aware of the breach by performing an inspection.
- The mentioned warranty does not apply in case the defect is the result of improper use, or in case Buyer or a third party modified or attempted to modify the bought product or used it for purposes for which it is not intended without Seller's permission.
- In case the warranty given by Seller relates to a product manufactured by a third party, this warranty is limited to the warranty given by that manufacturer.
Article 17: Applicable law
- This Agreement between Seller and Buyer is governed exclusively by Dutch law, and falls under the jurisdiction of the Dutch judge.
- The applicability of the United Nations Convention on Contracts for the International Sale of Goods is excluded.
- In case one or more of the provisions of these Terms and Conditions are declared unreasonably onerous in court, the other provisions shall remain in full force.
Article 18: Jurisdiction
All disputes resulting from this Agreement shall be brought exclusively before the competent judge of the Overijssel District Court.