Avular General Terms & Conditions

January 2020

I. GENERAL PROVISIONS

ARTICLE 1: GENERAL

1.01         The following definitions are used in these General Terms and Conditions:

  • Avular: Avular B.V., with registered offices in Eindhoven, registered in the Trade Register of the Chamber of Commerce under number 59394285.
  • Services: all agreements and other actions that relate to the design and possible construction of a robot, including but not limited to stationary and mobile robotics with any associated navigation systems, on land, at sea and in the air, and in connection with the provision of services by Avular or any form of consultancy work to be provided by Avular to the Client.
  • Client: purchaser of goods in the broadest sense of the word, or the party on whose behalf Avular provides services or performs actions in other ways, or the contracting party of Avular.
  • Products: the electronics, mechanics and software for (mobile) robotics including, but not limited to, robot control, drones, moving and/or sailing robots, localisation systems, and/or accessories and/or parts, including software, all in the broadest sense of the word.

1.02         These General Terms and Conditions apply to all proposals, quotes and contracts (including any appendices) entered into or provided by Avular. Amendments and additions to any provision in the General Terms and Conditions shall only apply to the contract in question and shall only apply if they have been agreed upon by Avular in writing.

1.03         When entering into a contract with Avular, the Client acknowledges that they have received a copy of the General Terms and Conditions of Avular, have reviewed the content and accept the applicability of these General Terms and Conditions.

1.04         If at any time one or more of the provisions in these General Terms and Conditions should be fully or partially voided or annulled, then the remaining provisions in these General Terms and Conditions will remain in full force. Avular will replace the relevant provision with an enforceable and executable provision which, given the purpose and purport of these General Terms and Conditions, deviates as little as possible from the original provision.

1.05         In the event of any conflict between the content of the contract entered into by the Client and Avular and these general terms and conditions, the provisions of the contract shall prevail.

ARTICLE 2: FORMATION OF THE AGREEMENT, AMENDMENT

2.01         The quotes and proposals provided by Avular are (or may be) based on information provided by the Client. In any circumstance, the Client is responsible for the correctness and completeness of the data and documents provided by them.

2.02        An agreement is concluded after written confirmation from the Client by means of a signed proposal.

2.03        All proposals and quotes provided by Avular are confidential and publication, reproduction, distribution and/or provision of this information to third parties by the Client is not permitted, unless this has been approved in writing by Avular.

2.04        Avular cannot be bound to a proposal or quote in situations where the Client could reasonably have understood that the quote contained an obvious mistake or typographical error.

2.05        Any requirements set by the Client for the Products and/or Services must be explicitly included in the agreement. In the absence of an explicit statement, Avular is free to determine the interpretation of the Services and/or composition of the Products at its own discretion.

2.06        If the parties agree that the agreement must be amended or supplemented, the Client accepts that the timeline for delivery may be affected.

ARTICLE 3: PRICING

3.01         The prices quoted by Avular are exclusive of VAT and other government levies. In addition, the costs to be incurred within the framework of the assignment (such as travel, accommodation, shipping and administrative costs) are not included. Such costs and levies will be charged to the Client separately.

3.02        A provided quote does not oblige Avular to carry out part of the assignment for a corresponding part of the quote in question.

3.03        Avular has the right to adjust the agreed prices, without the Client being able to dissolve the contract if, during the execution of the order, the costs involved in its execution increase, for example as a result of an increase in the price of materials, an increase in employee costs, taxes and contributions or other changes in the tax regime, a power or obligation pursuant to legislation or regulations or for other reasons that could not have been foreseen at the time the contract was concluded.

ARTICLE 4: PAYMENT

4.01         Unless   otherwise agreed in writing, (advance) payments of invoices must be made as indicated by Avular within the term of payment stated on the invoice. If no payment terms are listed on the invoice, payment must be made within 30 days of the invoice date. Avular may require that payment for Products and/or Services to be specified must be made prior to the provision of those Products and/or Services.

4.02        Avular is always entitled to require an advance payment or security deposit before proceeding with the provision of services or products. If the Client does not pay in advance or provide a security deposit within the set period for said advanced payment or security deposit, the Client will be in default immediately. In that case, Avular is entitled to dissolve the contract and to claim damages from the Client.

4.03        Set-off against any claim against Avular is prohibited.

4.04        If the Client fails to pay the invoice on time, the Client will be legally in default. The Client shall then immediately owe Avular interest. The interest rate is set at 1.5% per month, but shall be equal to the statutory commercial interest rate if this is higher.

4.05        If the Client fails to pay the invoice on time, the Client will owe all extrajudicial costs, estimated at 15% of the outstanding invoice. If the actual extrajudicial costs incurred are higher than those resulting from the above calculation, the actual costs incurred will be owed.

4.06        Avular reserves the right to deliver and invoice Products and Services carried out separately or in stages. If it has been agreed in advance that the Products and/or Services will be delivered in stages, Avular is entitled to suspend the commencement of the work relating to a subsequent stage until the Client has approved the results of the previous stage in writing and has paid the invoices relating to that preceding stage.

ARTICLE 5: COMPLAINTS

5.01         All rights asserted by the Client as a result of Avular’s failure to comply with its obligations (including the warranty provision) must be recorded and sent in writing, accurately stating the nature and grounds for the complaints, no later than 7 days after the Client has discovered or could reasonably have discovered the defect. Failing to provide the complaint within the above mentioned period will lapse the Client’s rights in this respect. The Client’s rights will also lapse if they have attempted to repair an alleged defect (or have it repaired) without Avular’s express written consent.

5.02        Complaints relating to invoices must be reported to Avular in writing, stating the reasons, within 8 days of the invoice date. Failing to file the complaint within the mentioned period will lapse the Client’s rights in this regard.

5.03        The above-mentioned complaints do not suspend the Client’s (payment) obligations.

5.04        If it is established that a complaint is unfounded, the costs incurred by Avular as a result shall be borne by the Client.

ARTICLE 6: RETENTION OF TITLE

6.01        The Products and Services delivered under the contract remain the property of Avular until the Client has paid the agreed price and any other claim by Avular, as referred to in Article 3:92(2) of the Dutch Civil Code.

6.02        The goods delivered by Avular, which are subject to retention of title pursuant to paragraph 1, may not be resold or used as a means of payment. The Client is not authorised to pledge or otherwise encumber the goods that are subject to the retention of title.

6.03        In the event that Avular wishes to exercise the property rights referred to in this article, the Client hereby unconditionally and irrevocably authorises Avular, or third parties to be appointed by Avular, to enter all those places where Avular’s property is located and to take back those items. Failure to comply with this right is subject to a penalty of 20% of the new value of the items per day.

II. SPECIFIC SALES CONDITIONS

ARTICLE 7: DELIVERY

7.01         The delivery times for the goods to be delivered by Avular are estimates. Delivery times stated are therefore approximate and shall never be regarded as deadlines.

7.02
(i) In the event of circumstances other than those Avular was aware of at the time it determined the delivery date and/or execution period, Avular may extend the delivery date and/or execution period by the time it deems necessary to carry out the order or services under those circumstances. If the work cannot be included in Avular’s schedule, it will be carried out as soon as the schedule allows.
(ii) In the case of additional work, the delivery date and/or work period shall be extended by the time necessary to deliver the required materials and parts and by the time required to carry out the additional work. If the work cannot be included in Avular’s schedule, it will be carried out as soon as the schedule allows.
(iii) In the event of suspension of obligations by Avular, the delivery date and/or implementation period will be extended by the suspension period. If continuation of the work cannot be included in Avular’s schedule, this will be carried out as soon as the schedule allows.

7.03        Under no circumstances shall any compensation be owed by Avular if they exceed the agreed delivery date and/or implementation period.

7.04        If Avular dispatches the Products, they shall always be dispatched to the delivery address most recently provided to Avular by the Client.

7.05 If Avular is to carry out the delivery/dispatch of Products, this shall be entirely at the expense and risk of the Client. Avular will always charge all related costs, such as transport costs, insurance costs, packaging costs and/or cash on delivery costs, to the Client separately.

7.06        The Client is obliged to purchase the Products and/or Services at the moment they are made available. Suspension by the Client of the acceptance of the delivered goods is prohibited. If the Client does not purchase the Products and/or Services (on time), they will be stored at the Client’s own risk and expense.

ARTICLE 8: WARRANTY

8.01        The Client is obliged to check the work provided by Avular or to have it checked when the Products are made available. In doing so, the Client must verify whether the quality and/or quantity of the Products corresponds to what has been agreed upon and meets the requirements that the parties have agreed upon in this respect.

8.02        If (a component of) the Products delivered are not acceptable (in the opinion of Avular), Avular will at its discretion either:
(i) repair the component;
(ii) replace the component; or
(iii) credit a proportional part of the invoice to Client.

8.03        Any form of warranty lapses if:
(i) a Product is used in a manner or for purposes other than its intended use, or at least injudiciously or improperly;
(ii) The Client has carried out work on the Products or has let work be carried out on the Products without the prior written consent of Avular;
(iii) the Client has modified a document or changed a Product without the prior written consent of Avular, as a result of which it is no longer in its original state;
(iv) the Client has not done everything possible to limit damage;
(v) defects are the result of normal wear and tear;
(vi) the Client has failed to perform maintenance or has performed incorrect maintenance on the Products either directly or through a third;
(vii) the Client has stored the delivered Product incorrectly.

8.04        The warranty period described in this article only applies to the first assembly of a particular component or part. Therefore, this period does not restart when a component or part is replaced.

8.05        The Client can no longer invoke any warranty after a period of 365 days after delivery of the Product in question.

ARTICLE 9: LICENSED SOFTWARE, RESTRICTIONS

9.01        The Products and/or Services may contain software. Subject to these terms and conditions and to the extent applicable, Avular grants the Client a non-exclusive licence to this software. The Client must always strictly comply with the rules for use set out in these general terms and conditions.

9.02        The        licence commences after the conclusion of an agreement and ends after the agreement has been terminated.

9.03 All intellectual and industrial property rights to the products developed or made available pursuant to the contract and other goods are vested exclusively in Avular. The Client only acquires the rights of use expressly granted by these General Terms and Conditions and by law. Any other or more extensive right of the Client to reproduce software, websites, data files or other materials is explicitly excluded.

9.04        The Client shall in no way reverse engineer the source code of the software, decompile, copy or modify the software or otherwise transfer any property rights or other rights with respect to the Products.

9.05        The Client will further:
(i) not reproduce the Products and/or Services (including associated or embedded software);
(ii) not use the Products and/or Services unlawfully;
(iii) not use the Products and/or Services in a manner that disrupts or impedes the integrity or performance of the Products and/or Services;
(iv) not modify or adapt the Products and/or Services; or
(v) not cause damage or limit the operation of the Products and/or Services, or otherwise attempt to gain unauthorised access to the Products and/or Services.

9.06        The Client shall comply with           any notice that Avular makes and/or publishes in relation to the Products and/or Services.

III. SPECIFIC PROVISIONS RELATING TO SERVICES

ARTICLE 10: ASSIGNMENT

10.01       Avular will make every effort to perform the contract to the best of their knowledge and ability and in accordance with the requirements of good workmanship.

10.02      All Services are accepted and performed by Avular to the exclusion of Articles 7:404, 7:407(2) and 7:409 of the Dutch Civil Code.

10.03      These General Terms and Conditions apply to all contracts between Avular and the Client. All stipulations in these General Terms and Conditions are also made for the benefit of persons involved in the execution of the assignments and/or persons who have any liability in that respect.

ARTICLE 11: RELATIONSHIP

11.01        Avular will endeavour to perform the Services with the required care and expertise. The Client shall provide Avular, on request or otherwise, with all information that may be relevant to the correct execution of the Services. The Client guarantees the accuracy and completeness of all information provided to Avular.

11.02       The Client shall always be deemed to have given the assignment to third parties engaged by Avular on its behalf. Avular is authorised to accept a limitation of liability on behalf of the Client when engaging third parties. The applicability of Article 6:76 of the Dutch Civil Code is excluded.

IV. OTHER STIPULATIONS

ARTICLE 12: LIABILITY

12.01       Avular is only liable for direct damage suffered by the Client, which direct damage is the exclusive result of a shortcoming attributable to Avular.

12.02       The compensation for damage due to Avular’s liability is limited to the amount paid out by its liability insurer, increased by the deductible. Compensation for damages is at all times limited to the amount charged by Avular for the relevant contract (excluding VAT).

12.03 Not eligible for reimbursement:
a. consequential damage, including damage as a result of stagnation and loss of profit, trading loss and loss of contract;
b. damage, of whatever nature, caused by errors and/or inaccuracies and/or incompleteness in the data, materials, documents, etc. provided to Avular by or on behalf of the Client;
c. damage suffered by the Client as a result of errors or omissions on the part of third parties engaged by Avular in the context of the execution of the contract;

12.04       Avular’s liability expires in any case 6 months after the Products and/or Services have been delivered.

12.05       The limitations of liability included in this article 12 do not apply if the damage is due to intent or gross negligence on the part of Avular.

ARTICLE 13: FORCE MAJEURE

13.01       In the event that Avular is unable to fulfil their obligations under the contract due to force majeure as defined by Article 6:75 of the Dutch Civil Code, Avular is authorised to suspend its obligations under the contract for as long as the force majeure continues, and is not liable to pay compensation.

13.02       Force majeure as referred to in Article 6:75 of the Dutch Civil Code applies in at least, but not limited to, the following cases and without prejudice to the provisions elsewhere in these conditions: strikes, illnesses, epidemics, loss of electricity, unforeseen IT problems, legislative and policy changes that prohibit the supply and/or flight of drones in whole or in part, and all other external causes over which Avular cannot exercise any influence.

13.03       If the force majeure lasts longer than two months, each of the parties is entitled to dissolve the agreement, without any obligation to pay damages to the other party.

13.04       Insofar as, at the time of the commencement of force majeure, Avular has already partially fulfilled its obligations under the contract or will be able to do so, and the part that has been or will be fulfilled has independent value, Avular is entitled to invoice the part that has already been or will be fulfilled separately. The Client is obliged to pay this invoice as if it were a separate agreement.

ARTICLE 14: CONFIDENTIALITY

14.01       The parties shall observe confidentiality with regard to all documentation and information that is regarded by one party as its own property or as confidential, unless they have the prior written consent of that party.

14.02       The Client shall return Avular’s data and information to Avular within   ten days of termination of the contract.

ARTICLE 15: PENALTY

In the event of a breach by the Client or any employee or representatives of the Client of the obligations arising from Article 14, the Client shall, without any notice of default being required, owe Avular an immediately payable penalty of EUR 25,000.00 for each breach and a penalty of EUR 1,000.00 for each day that the breach continues with a maximum of EUR 100,000.00, without Avular having to prove any loss or damage and without prejudice to Avular’s right to claim other and/or full compensation in addition.

ARTICLE 16: INDEMNIFICATION

16.01       The Client indemnifies Avular against claims from third parties who (claim to) suffer damage in connection with the execution of the contract and whose cause is not attributable to Avular. In the event that Avular is sued for this reason by third parties, the Client is obliged to assist Avular both out of court and in court and to immediately do everything that may be expected of them in such a case. If the Client fails to take adequate measures, Avular is entitled to do so themselves, without notice of default being required. All costs and damage incurred by Avular and third parties as a result of this are entirely at the Client’s expense and risk.

16.02      The Client must defend and indemnify Avular against any legal claim, claim, loss, judicial decision, damage or costs (including actual fees and costs for an attorney) that arise from or are otherwise related to a claim of a third party, meaning that a design, drawing, requirement, technical handbook or specification provided by the Client to Avular for the manufacturing or supply of Products and/or Services violates patents or patent applications of that third party, as well as non-patented information, trademarks, trade dress, copyrights or other intellectual property rights that are protected on the basis of national legislation or customary law.

ARTICLE 17: INTELLECTUAL PROPERTY

17.01       All intellectual property rights and related powers, whether or not developed during the term of this contract and whether or not related to the Products or Services, are vested exclusively in Avular.

17.02       In the event of infringement of an intellectual property right, the Client shall immediately inform Avular thereof.

17.03       The Client is not permitted to carry out actions that are contrary to the interests of Avular or to Avular’s intellectual property rights.

ARTICLE 18: TERMINATION OF THE AGREEMENT, SUSPENSION

18.01       In the following cases, Avular is authorised to suspend the fulfilment of its obligations or to dissolve the contract, without any notice of default, without judicial intervention and without Avular being obliged to pay any compensation:
(i) if the Client is in default of proper fulfilment of their obligations towards Avular. In that case, Avular’s claims against the Client are immediately due and payable;
(ii) in the event of bankruptcy, (an application for) (provisional) suspension of payments, cessation and/or liquidation (or a similar event) by the Client, in the event of attachment or if the Client otherwise loses free control over (part of) its assets.

18.02      As a result of termination, any existing mutual claims will become immediately due and payable.

18.03      Avular is authorised to suspend their performance if the Client fails to fulfil one or more of their obligations towards Avular or if Avular has good reason to fear that the Client will fail to fulfil their obligations.

18.04      The Client shall ensure that all data, documents and equipment are provided to Avular in good time for the proper execution of the agreements arising from the contract. If the information required for the execution of the contract has not been provided to Avular on time, Avular has the right to suspend the execution of the contract until the Client has made the information available to Avular and/or to charge the Client for the additional costs resulting from the delay at the then-applicable rates.

18.05      If the Client cancels all or part of an order that has been placed, the Client shall be charged in full for the work already carried out by Avular and the items ordered or prepared for it, plus any costs for the supply, removal and delivery thereof and the working time reserved for the execution of the contract.

ARTICLE 19: NON-APPLICATION

The Client or parties affiliated with the Client are not permitted to offer employees of Avular an employment contract or to work with them in any other way during the term of the agreement and for a period of 12 months thereafter.

ARTICLE 20: APPLICABLE LAW AND DISPUTES

20.01      All legal relationships between Avular and the Client are exclusively governed by Dutch law. The applicability of the Vienna Sales Convention is excluded.

20.02      All disputes that may arise between Avular and the Client shall be settled by the competent court in the district of East Brabant.