Eindhoven, August 2021
Article 1: Definitions and usage
- The following definitions apply for the purposes of these General Terms and Conditions:
- Avular: Avular B.V., registered according to its Articles of Association in Eindhoven, registered in the Commercial Register of the Chamber of Commerce under number 59394285.
- Client: the party or parties to which Avular sells and/or supplies Services and/or Products and/or the party on the instructions of which Avular provides or has provided a performance in any (other) way.
- Intellectual Property Rights: any and all registered and unregistered intellectual and industrial property rights and applications, worldwide, including but not limited to patent rights, trademark rights, database rights, design rights, inventions, processes, formulae, copyrights, business and product names, logos, slogans, trade secrets, industrial models, processes, designs, methodologies, computer programs and software (including all source codes) and related documentation, technical information (including, without limitation, information relating to inventions, discoveries, concepts, methodologies, models, research, development and testing procedures, the results of experiments, tests and trials, manufacturing processes, techniques and specifications, quality control data, analyses, reports and submissions), manufacturing, engineering and technical drawings, know-how and information, copies and tangible embodiments of all the foregoing, in whatever form or medium and any rights and the like associated therewith.
- Products: all goods sold and/or supplied by Avular, such as all electronics, mechanics and/or other hardware for (mobile) robotics, including but not limited to robot controls, drones, driving and/or sailing and/or flying robots, localisation systems, user interfaces, programming tools, accessories and/or parts, all including software in the broadest sense and including any rights such as Intellectual Property Rights.
- Services: all actions of Avular relating to the design, engineering, construction or reconstruction, manufacturing, operating and/or realisation of a robot and accompanying external parts, including but not limited to stationary and mobile robotics with any accompanying navigation systems, user interfaces or charging stations, on land, sea and in the air, or any other form of service provision by Avular to the Client, including any rights such as Intellectual Property Rights.
- These General Terms and Conditions apply to all offers, quotations and contracts (including appendices) concluded or issued by Avular. Changes and additions to the General Terms and Conditions relate only to these and apply only if agreed with Avular in writing.
- The Client acknowledges that it has received these General Terms and Conditions, taken cognizance of their contents and accepts their application. Avular expressly rejects all other (general) terms and conditions, in any form whatsoever.
- If one or more provisions of these General Terms and Conditions are partially or fully null and void at any time or are nullified, the other provisions of these General Terms and Conditions remain applicable in full. Avular will replace the relevant provision by an enforceable provision that, given the objective and purport of these General Terms and Conditions, differs as little as possible from the original provision.
- In the event of a conflict between the content of the (main) contract concluded by the Client and Avular and these General Terms and Conditions, the relevant provisions of that contract take precedence unless otherwise agreed.
Article 2: Conclusion and alteration of a contract
- Avular’s offers and quotations (including appendices) are based (partly) on information provided by the Client. The Client is responsible at all times for the accuracy and completeness of this information.
- All Avular’s offers and quotations (including appendices) are confidential. Disclosure, reproduction, circulation and/or provision of these to third parties is not permitted without Avular’s prior written approval.
- Offers and quotations (including appendices) do not apply if the Client could reasonably have been expected to understand that these contain an apparent mistake or typographical error.
- The Client must provide advance notice of any requirements relating to the Products and/or Services and these must be included in the contract. In the absence of this, Avular is free to determine the realisation and composition of Products and/or Services itself.
- If the parties agree that the contract must be altered or that additions must be made, the Client accepts that this could affect the scheduling.
Article 3: Orders, contracting of work and assistants
- Contracts with Avular that qualify as orders within the meaning of Article 7:400 of the Dutch Civil Code are always accepted and executed by Avular to the exclusion of Articles 7:404, 7:407(2), 7:408(1) and 7:409 of the Dutch Civil Code.
- Contracts with Avular that qualify as contracting of work within the meaning of Article 7:750 of the Dutch Civil Code are always accepted and executed by Avular to the exclusion of Articles 7:752(2), 7:752(3), 7:753(3), 7:754, 7:755, 7:756(1), 7:757(2), 7:760(1), 7:761(2), 7:761(4) and 7:764(1) of the Dutch Civil Code.
- These General Terms and Conditions are drawn up partly for persons involved in the execution of the agreements with Avular and/or persons that have any liability in that regard.
- The Client is deemed to have issued the order to third parties deployed by Avular on its behalf. In the deployment of third parties on behalf of the Client, Avular is authorised to accept a limitation of liability.
- The application of Article 6:76 of the Dutch Civil Code is excluded.
Article 4: Prices
- In as far as possible, the prices quoted by Avular are exclusive of VAT and other government levies. The costs to be incurred in relation to the order (such as travel, accommodation, dispatch and administration costs) are also not included. Such costs and levies will be charged separately.
- A composite price quotation does not oblige Avular to perform part of the order for an equivalent part of the composite price.
- Avular has the right to adjust the agreed prices without the Client having the right to dissolve the contract if the costs of the execution of the contract rise in the course of the execution, for example through an increase in material prices, an increase in payroll costs, taxes and social insurance premiums or other changes in the fiscal regime, a statutory authorisation or obligation or for (other) reasons that were not foreseen at the time of the conclusion of the contract.
Article 5: Payment
- Unless otherwise agreed in writing, payment of invoices (including invoices for pre-payments) must take place within the term shown in the invoice. If no payment term is shown in the invoice, payment must take place within 30 days of the invoice date. Avular may require payment prior to delivery for Products and/or Services to be determined.
- Avular has the right at all time to require pre-payment or security from the Client before service provision or delivery takes place. The Client is immediately in default if it fails to make a prepayment or provide security within the set period.
- Every form of suspension, settlement, set-off and/or discount by the Client is excluded.
- If the Client fails to pay the invoice on time, the Client is immediately in default, by virtue of law. The Client then immediately owes Avular interest. The interest charged is the statutory commercial interest rate plus a surcharge of 2%.
- If the Client fails to pay on time, it owes out-of-court costs that are estimated at 15% of the outstanding amounts. If the actual out-of-court costs incurred are higher than the above calculation, the actual costs incurred are payable.
- Avular reserves the right to deliver and invoice for Products and Services separately or in phases. If it is agreed in advance that deliveries will take place in phases, Avular has the right to suspend the start of work for a subsequent phase until the Client has approved the results of the preceding phase in writing and has paid the invoices relating to the preceding phase.
Article 6: Delivery
- Quoted lead times are estimated lead times for Avular. The lead times quoted to the Client in no case qualify as final delivery dates and exceeding these does not grant the Client any rights to any compensation for e.g. damage and/or costs.
- In the event of circumstances other than those known to Avular at the time when the delivery date and/or during the implementation period were determined, Avular may extend these by the time that it considers necessary in order to execute the order under those circumstances. If the work cannot be included in Avular’s (new) schedule, it will be performed as soon as the schedule permits.
- In the event of additional work, the delivery date and/or implementation period will be extended by the time necessary to deliver the necessary materials and parts or to arrange delivery of these, and the time necessary for the performance of the additional work. If the work cannot be included in Avular’s (new) schedule, it will be performed as soon as the schedule permits.
- In the event of suspension of obligations by Avular, the delivery date and/or implementation period will be extended at least by the suspension period. If continuation of the work cannot be included in Avular’s (new) schedule, it will be performed as soon as the schedule permits.
- If Avular provides for dispatch to the Client, this will take place at the Client’s risk and expense unless expressly agreed otherwise. Avular will charge separately for all the related costs, such as transportation, insurance, packaging and/or reimbursement costs.
- Dispatch to the Client always takes place to the delivery address last known to Avular.
- The Client is required to take receipt of the Products or Services at the time at which Avular makes these available. The Client does not have the right to (any form of) suspension of its obligation to take receipt. If the Client does not take receipt of the Products or Services (in a timely manner), Avular may store these at the Client’s risk and expense.
Article 7: Retention of title
- Pursuant to Article 3:92 of the Dutch Civil Code, Avular reserves full ownership of all goods to be delivered to the Client until all its receivables are settled with regard to (i) the consideration for the goods delivered or to be delivered by Avular pursuant to the contract or contracts with the Client, and (ii) also the work performed or to be performed for the Client pursuant to that contract, and (iii) any shortcomings in the Client’s compliance with such contracts.
- The Products or Services delivered by Avular may not be consumed or resold other than as part of the Client’s normal business operations.
- If Avular wishes to exercise its rights of ownership, the Client hereby grants Avular or third parties that it designates for that purpose unconditional and irrevocable consent in advance to enter all locations at which the goods of Avular are located and to recover those goods, on pain of a daily penalty of 20% of the new value of the goods payable to Avular.
Article 8: Complaints
- All rights claimed by the Client as a result of Avular’s alleged non-compliance with its obligations (including guarantee obligations) must be notified by the Client in writing, with a detailed statement of the nature and grounds for the complaints, within seven days of the date on which the Client detected the defect or could reasonably have been expected to have been able to do so. In the absence of this, the Client’s rights lapse (by virtue of law). The Client’s rights also lapse (by virtue of law) if it has attempted to (arrange to) repair an alleged effect without Avular’s prior written consent.
- Complaints concerning invoices must be reported to Avular by registered mail or by e-mail ([email protected]) within seven days of the invoice date, in the absence of which the Client’s rights in that regard lapse (by virtue of law).
- Complaints do not give rise to the suspension, discount, settlement or set-off of the Client’s payment and other obligations.
- If it is established that a complaint is unfounded, the Client bears the resulting damage and costs incurred by Avular.
Article 9: Guarantee
- Avular guarantees that, with normal use, Products and Services will comply with the contract with the Client for six months. This does not apply in the case of normal wear and tear and/or age defects.
- The Client is required to (arrange to) check Products and Services as soon as these are made available to it. The Client must (arrange to) investigate whether, in its view, the quality and/or quantity thereof complies with the agreed requirements.
- If the delivered Products or Services or a part thereof are not sound, Avular, at its own discretion, will (i) repair the part, or (ii) replace the part, or (iii) credit the Client for a proportional part of the invoice.
- Every form of guarantee lapses if (i) a Product or Service is used in a different manner or for different purposes than those for which it is intended, or is used in an unskilled or improper manner, and/or (ii) the Client has performed or arranged to perform work on a Product or Service without the prior written consent of Avular, and/or (iii) the Client has adjusted or altered a Product or Service or a document, as a result of which it is no longer in its original condition, and/or (iv) the Client has not done everything possible to limit damage, and/or (v) defects are the result of normal wear and tear, and/or (vi) the Client has not performed or provided for any maintenance of a Product or Service, or maintenance has been performed incorrectly, and/or (vii) the Client has stored the delivered Product or Service incorrectly.
- The guarantee period described in this Article applies only to the initial assembly of a particular file or part. This period does not, therefore, recommence if a file or part is replaced.
Article 10: Software
- Products or Services may contain software. Unless otherwise agreed, Avular will grant the Client a non-transferrable and non-exclusive licence for the use of the software, which Avular may revoke at any time. This does not include any guarantee on Avular’s part regarding the (continued) use of this software.
- This licence commences after the conclusion of the contract with the Client and in any event ends by virtue of law after this contract is terminated.
Article 11: Intellectual property rights
- Unless otherwise agreed in writing between Avular and the Client, the Client acknowledges that Avular retains ownership of any Intellectual Property Rights in the performances to be executed by Avular, i.e. the delivery of Products and/or carrying out of the Services, and in any plans, simulation models, specifications (e.g. descriptions, design criteria, quality standards, work instructions and drawings), test models, images, schedules, designs, sketches, drawings, films, software and other material or (electronic) files (the “Information”) made available or produced as part of the performance by Avular and that the Client shall have no rights of exploitation thereof, irrespective of the fact whether they have been handed over to the Client or via the Client to third parties and irrespective of whether the Client charged for the production of such materials.
- Unless the nature of the Information provided by Avular to the Client dictates otherwise, the Information shall be destined to be used by the Client exclusively and shall not be copied or otherwise reproduced, publicly disclosed or disclosed to third parties by the Client without Avular’s prior written consent. Further, the Client may not use any part of the techniques illustrated in such Information to improve its own products or services. The Client shall return the Information at Avular’s first request.
- The Client is not permitted to perform actions contrary to the interests of Avular, its Intellectual Property Rights, the Information and other rights.
- The Client shall not, under any circumstances, (i) reverse engineer the source code of (software of) Products or Services or decompile, copy or change the software, (ii) reproduce Products or Services (including accompanying or embedded software), (ii) make illegitimate use of Products or Services, and (iii) make use of Products or Services in a manner that disrupts or obstructs their integrity or performance, (iv) alter or adjust the Products or Services, and (v) shall not cause damage to or limit the operation of Products or Services or attempt to gain unauthorised access to the Products or Services in other ways.
- The Client will not attempt to seek or claim any interest in Avular’s Intellectual Property Rights, or assist any other party to assert any interest in the Avular’s Intellectual Property Rights. The Client acknowledges that any improvement or enhancement of Avular’s Intellectual Property Rights which may result from work performed by Client shall remain the exclusive property of Avular and the Client irrevocably assigns to Avular all right, title and interest the Client may have in any improvements or enhancements, to Avular’s Intellectual Property Rights. The Client will not hinder Avular in any application or other measure taken by Avular to protect or exploit improvements to Avular’s Intellectual Property Rights. Avular shall have the exclusive right to file patent applications, in its own name or in the name of a third party designated by Avular, for inventions made as part of carrying out of the performances by Avular and Client shall give its full co-operation with respect to such patent applications.
- Avular reserves the right to use the knowledge gained by the execution of the agreement with the Client for other purposes, in so far no confidential information of the Client shall be disclosed to third parties.
- The Client will notify Avular without delay in the event of a breach of Information or Intellectual Property Rights.
- The Client shall comply with all instructions that Avular determines or publishes in connection with the Products or Services.
Article 12: Liability
- Avular is liable only for direct damage to Products or Services themselves, regardless of the basis for liability.
- For example, the following do not qualify for any compensation: (i) damage or injury to persons or goods other than Products or Services themselves, (ii) consequential loss, including damage resulting from business interruption and loss of profit, trading loss and production or contract loss, (iii) third party damage, (iv) damage of any kind arising through errors, inaccuracies or incompleteness of the data, materials or documents provided to Avular by or on behalf of the Client and (v) damage that the Client suffers as a result of errors or omissions by third parties deployed by Avular in relation to the execution of the contract or contracts with the Client.
- All liability of Avular lapses six (6) months after the Products or Services have been delivered or provided.
- The maximum compensation for damage due to the liability of Avular is limited to the lower of (i) the amount paid out by its liability insurer, plus the excess, or (ii) the amount that Avular charged and was paid by the Client (exclusive of VAT) for the relevant contract or contracts.
- Legal action against Avular must be filed within one (1) year of a timely complaint by the Client, on pain of nullification and the lapse of the Client’s rights.
Article 13: Force majeure
- If Avular is unable to meet its contractual obligations to the Client due to force majeure, within the meaning of Article 6:75 of the Dutch Civil Code, Avular is authorised to suspend its obligations for as long as the situation of force majeure persists and it is not liable for compensation for damage.
- Force majeure, within the meaning of Article 6:75 of the Dutch Civil Cod, exists in cases including the following, without prejudice to the other provisions of these General Terms and Conditions: wars, strikes, illness, epidemics or pandemics, power outages, unforeseen ICT problems, legal amendments and policy changes that partially or fully prohibit the supply of or the driving, flying or sailing of Products, as well as all other external causes over which Avular can exert no influence.
- If the force majeure lasts for more than three consecutive months, both Avular and the Client have the right to dissolve the contract, with no obligation to pay the other party compensation for damage.
- In as far as Avular has partially complied with its obligations at the time when the situation of force majeure arises, or can do so partially and the part with which it has complied or will comply has an independent value, Avular has the right at all times to invoice separately for the part with which it has complied or will comply. The Client is then required to settle these invoices as if there were a separate contract.
Article 14: Confidentiality
- The Client shall at all times protect the confidentiality of all information and documents that qualify as confidential or secret unless Avular grants prior written consent for their disclosure.
- Within ten days of the end of the contract, the Client will return confidential information and documents to Avular.
- In the case of default on the part of the Client, or of any employee or representative of the Client, on the obligations arising from this Article, the Client owes Avular a penalty of € 25,000.-, payable on demand with no notice of default being required, for each default, as well as a penalty of € 1,000.- for each day for which the default persists, to a maximum of € 100,000.- per default, without Avular being required to prove any loss or damage and without prejudice to any of its other rights, including the right to claim full compensation for damage.
Article 15: Indemnification
- The Client indemnifies Avular against third party claims for (alleged) damage relating to the execution of the contract, the cause of which is not attributable to Avular. If a third party claim is made against Avular on those grounds, the Client is required to support Avular both in and out of court and to immediately do what can be expected of it in that case. The Client bears the risk and expense of all costs incurred and damage suffered by Avular, in full.
- The Client must defend Avular and indemnify it against all legal and other claims, losses, court judgments, damage and costs (including actual legal fees and costs) arising in relation to a third party claim to the effect that a design, drawing, requirements, technical manual or specification provided to Avular by the Client for the production or delivery of Products or Services breaches patents or applications of that third party and non-patented information, trademarks, copyrights or other intellectual property rights protected on the grounds of contractual agreements, legislation or common law.
Article 16: Termination and suspension of the contract
- Avular is in any event authorised to suspend compliance with its contractual obligations or to dissolve the contract in the following cases, without notice of default or the intervention of a court and without being liable for any compensation for damage:
- The Client is in default regarding compliance with its obligations to Avular and,
- in the case of an application by the Client for, or the granting of an insolvency order, a (provisional) moratorium on payments, a halt to operations, liquidation or similar occurrence, in the case of garnishment or if the Client loses free disposal of (part of) its assets by other means.
- Avular is also authorised to suspend the execution of the contract if Avular has sound reasons to fear that the Client will not (be able to) comply with its obligations.
- The Client must ensure that Avular is provided with all data, documents and equipment for correct realisation of the contractual agreements in a timely manner. If these are not provided to Avular in good time, Avular has the right to suspend the execution of the contract until the Client makes the data, documents and equipment available to Avular after all and/or the Client is charged the extra costs arising from the delay at the customary rates applying at that time.
- If the Client cancels part or all of an order, the Client will be charged for the work that Avular has already performed and the goods ordered or prepared for that purpose, plus any supply, removal and delivery costs for these and for the contractually reserved working hours for the execution, in full.
Article 17: Non-solicitation clause
- During the term of the contract(s) with Avular and for 24 months thereafter, the Client or parties affiliated to the Client are not permitted to offer existing or former Avular employees an employment contract or other contract or to employ them in other ways, on pain of a penalty of € 50,000.- per violation, payable on demand, plus a penalty of € 2,500.- per day, to a maximum of €1,000,000.-, without prejudice to all Avular’s other rights, such as the right to compliance and the right to full compensation for damage.
Article 18: Prohibited use of a Product or Service
- The Client is not permitted to use a Product or Service in contravention of current laws or regulations.
- The Client is also not permitted to use a Product or Service for military purposes or to resell these (directly) to third parties.
- In such cases, or in the event of a suspicion thereof, Avular is authorised to suspend compliance with its contractual obligations or to dissolve the contract, without notice of default or the intervention of a court and without Avular being liable to the Client for any compensation (for damage).
Article 19: Applicable law and disputes
- All legal relationships between Avular and the Client are governed solely by Dutch law. The application of the United Nations Convention on Contracts for the International Sale of Goods (CISG) is excluded.
- All disputes arising between Avular and the Client shall be adjudicated in the first instance by the competent court of the District Court of East Brabant.