AVN General TERMS and CONDITIONS OF DELIVERY AND PAYMENT (EN)

1. Introduction

1.1 These general terms and conditions of delivery and payment (hereinafter: the Terms) apply to and govern all offers and/or agreements between A. van Nieuwenhuizen & Zn B.V. (hereinafter: AVN) and its customers (hereinafter: the Buyer).

1.2 Any reference to or reliance on terms and conditions used by the Buyer or other terms and conditions shall not be accepted, unless and insofar as AVN has confirmed in writing to the Buyer that it accepts such terms and conditions.

2. Offers and Agreements

2.1 All offers and price quotations of AVN (hereinafter: Offers) are made without obligation.

2.2 AVN bases its Offers on the information provided by the Buyer at the time of the request. If the Buyer changes and/or supplements the information provided, AVN shall be entitled to amend or withdraw the Offer and issue a new Offer.

2.3 Descriptions, images, drawings, colours, dimensions and specifications in AVN’s Offers are approximate only and no rights may be derived therefrom by the Buyer.

2.4 Prices stated in AVN’s Offers are exclusive of VAT, unless stated otherwise. Prices used by AVN are based on delivery “ex warehouse” and therefore exclude transport, packaging and insurance costs, as well as levies and taxes.

2.5 Agreements between AVN and the Buyer are concluded only after explicit acceptance by AVN by means of written confirmation of the order to the Buyer. Oral promises or agreements made by or with AVN’s staff shall not be binding upon AVN unless and insofar as such promises or agreements have been confirmed in writing by AVN or have been performed.

3. Prices

3.1 Unless otherwise agreed in writing, the most recent prices published by AVN in its price list or elsewhere shall apply. All prices are stated in euros and are exclusive of VAT.

3.2 AVN shall be entitled to pass on to the Buyer any increase of more than 2% in AVN’s cost price arising after the conclusion of the agreement but before delivery to the Buyer.

3.3 If payment between AVN and the Buyer is agreed in a currency other than euros, AVN shall be entitled to pass on to the Buyer any exchange rate change of more than 2% of such currency against the euro occurring between the date of the Offer and the date of payment by the Buyer.

4. Delivery

4.1 Unless otherwise agreed in writing, delivery shall be “ex warehouse” AVN. The Buyer is obliged to collect the purchased goods from AVN’s warehouse within fourteen (14) days. If the Buyer fails to comply with this obligation, AVN shall be entitled to charge storage costs of €150.00 per day.

4.2 If AVN and the Buyer agree that AVN will arrange shipment of the ordered goods, all costs related to shipment shall be borne by the Buyer. The risk with respect to the goods shall transfer from AVN to the Buyer at the moment the goods are loaded for transport.

4.3 Delivery times stated by AVN are approximate. Delivery times are based on working conditions and delivery times of third parties applicable at the time the agreement is concluded. If AVN is unable to meet its delivery obligation within the agreed delivery period due to changes in such working conditions and/or delays in deliveries by third parties and/or circumstances beyond AVN’s control, including in any event the circumstances referred to in Article 9, the delivery time shall be extended by the duration of the delay. Exceeding delivery times shall not entitle the Buyer to dissolve the agreement or to suspend or fail to perform any obligation arising therefrom.

4.4 AVN shall at all times be entitled to deliver in instalments. In such case, AVN may invoice each instalment separately.

5. Payment

5.1 Unless otherwise agreed in writing, payment by the Buyer shall be made by bank transfer to a bank or giro account of AVN within thirty (30) days after the invoice date or after delivery, whichever occurs first, without any right of set-off or suspension.

5.2 Payment shall be made exclusively in the currency in which the agreed prices are expressed. All payment costs shall be borne by the Buyer.

5.3 The Buyer shall not be entitled to set off any claims against AVN against amounts owed by the Buyer to AVN. Even in the event of exceeding the delivery time as referred to in Article 4.3 or an alleged non-performance by AVN, the Buyer shall remain obliged to make full and timely payment as referred to in Article 5.1.

5.4 Payments received from the Buyer shall first be applied, depending on the dates of receipt by AVN, to interest as referred to in Article 5.5 and to judicial and extrajudicial costs as referred to in Article 5.5, and thereafter deducted from the outstanding balance of the oldest invoice.

5.5 The Buyer shall be in default without prior notice of default if AVN has not received full payment within thirty (30) days after the invoice date. In the event of default, the Buyer shall owe AVN statutory interest increased by 1% per month on the outstanding amount. The Buyer shall also owe extrajudicial collection costs, amounting to 15% of the outstanding invoice amount.
5.6 AVN shall be entitled to suspend delivery to the Buyer if the Buyer fails to meet its payment obligations in a timely manner.

5.7 All invoice amounts shall become immediately due and payable in full if the Buyer fails to comply with its payment obligations and/or if the Buyer is declared bankrupt or applies for suspension of payments.

5.8 Upon first request, the Buyer shall be obliged to provide security for the benefit of AVN in respect of all obligations arising from agreements with AVN.

6. Ownership and Retention of Title

6.1 All goods delivered or to be delivered by AVN shall remain, or shall be deemed to (re)become, the property of AVN until the Buyer has fully complied with all obligations arising from all agreements with AVN, including interest and costs.

6.2 The Buyer is not permitted to sell, transfer or encumber goods delivered or to be delivered by AVN and subject to the retention of title referred to in Article 6.1, including by establishing a pledge.

7. Warranty

7.1 AVN warrants the quality and composition of the goods supplied by it, as well as the absence of defects, for a maximum period of twelve (12) months commencing on the date of delivery to the Buyer.

7.2 AVN shall, at its discretion, repair defects free of charge or replace the delivered goods if such defects were not visible upon delivery and result from deficiencies in quality and/or composition, and if such defects become apparent during the warranty period. The Buyer is entitled, but not obliged, to refund the purchase price instead of repair or replacement. The Buyer must notify AVN in writing of any defect within seven (7) days after becoming aware of it, failing which the Buyer shall forfeit any warranty claim.

7.3 In the event of a warranty claim, the delivered goods must be returned to AVN carriage paid.

7.4 With regard to goods supplied to AVN by third parties, AVN’s warranty shall be limited in scope and duration to the warranty granted to AVN by such third parties.

7.5 If the Buyer has repairs and/or restoration work performed by third parties during the warranty period, AVN shall not be obliged to reimburse the associated costs.

7.6 Warranty under these Terms shall be excluded if a defect arises due to improper use, normal wear and tear, or any cause other than defective material and/or composition.

7.7 AVN’s warranty obligations shall not extend to the repair or compensation of damage to goods other than those supplied by AVN or damage arising from or caused by defects in the delivered goods.

7.8 All warranty obligations of AVN shall lapse if the Buyer fails to comply with any obligation under an agreement with AVN.

8. Liability

8.1 AVN shall only be liable for damage suffered by the Buyer in connection with goods delivered by AVN if and insofar as such damage is the direct result of intent or gross negligence on the part of AVN. AVN shall never be liable for business losses, indirect damage, or loss of turnover or profit.

8.2 In all cases where AVN is nevertheless obliged to pay damages, such liability shall be limited to a maximum of €5,000 (five thousand euros) or the equivalent thereof.

8.3 AVN shall be entitled to invoke any liability-limiting, liability-excluding or liability-determining terms imposed by third parties in connection with deliveries to AVN, vis-à-vis the Buyer.

8.4 Any claim against AVN, except for claims expressly acknowledged in writing by AVN, shall lapse by the mere passage of twelve (12) months after the claim has arisen.

9. Sanctions Legislation

9.1 The Buyer guarantees to AVN that the delivery of goods and/or services by AVN to the Buyer does not violate applicable sanctions laws and regulations, including national, European and international sanctions. The Buyer declares that it has verified that no transaction, destination or end user falls under such regulations.

9.2 The Buyer shall fully indemnify AVN against all third-party claims, fines, sanctions, damages and (legal) costs arising from or related to any violation of sanctions legislation in connection with the delivery of goods and/or services to the Buyer.

10. Force Majeure

10.1 AVN shall be entitled to invoke force majeure if performance of one or more of its obligations is wholly or partially prevented or impeded by circumstances beyond its control. Such circumstances include, but are not limited to, government measures, fire, accidents, (temporary) failure of suppliers to deliver, transport difficulties, business disruptions and strikes.

10.2 In the event of force majeure, AVN’s obligations shall be suspended.

11. Dissolution

11.1 If the Buyer fails to perform its obligations under the agreement, fails to do so in a timely or proper manner, is declared bankrupt, applies for (provisional) suspension of payments, proceeds to liquidation or division of its business, or if its assets are wholly or partially seized, AVN shall be entitled to suspend performance of the agreement or to dissolve the agreement in whole or in part by written notice without prior notice of default, without prejudice to its right to compensation for costs, interest and damages.

12. Disputes and Applicable Law

12.1 All agreements between AVN and the Buyer shall be governed by Dutch law, excluding the United Nations Convention on Contracts for the International Sale of Goods (Vienna, 11 April 1980).

12.2 The District Court of Rotterdam shall have exclusive jurisdiction to hear all disputes arising between AVN and the Buyer, as well as disputes relating to these Terms. AVN reserves the right to submit disputes to other courts where the law designates such courts as competent.

12.3 AVN’s administration shall be binding on the parties, subject to proof to the contrary.