Terms & conditions
GENERAL TERMS AND CONDITIONS OF DELIVERY
1. For the purposes of these general terms and conditions of delivery “Aako” is deemed to refer to the private company with limited liability, Aako B.V., which has its registered office in Amersfoort in accordance with its articles of incorporation and its place of business in Leusden, both in the Netherlands.
2. For the purposes of these general terms and conditions of delivery “Buyer” is deemed to refer to any legal entity that enters into an agreement with Aako or wishes to do so, as well as any representative, authorised representative or legal successor to such person or entity.
II. GENERAL AND APPLICATION
1. These terms and conditions shall apply to all offers, quotations, agreements , deliveries and work provided, issued, entered into, effected or carried out by or with Aako, unless the parties explicitly agree otherwise in writing.
2. Any supplement to and/or deviation from these terms and conditions shall only apply, if Aako explicitly agrees to same with a Buyer in writing.
3. The scope of application of any of a Buyer’s terms and conditions of procurement or otherwise is expressly rejected.
III. OFFERS AND CONCLUSION OF AGREEMENT
1. Any offer made or purchase price cited by Aako shall be free of obligation and shall therefore not be binding on Aako, unless the contrary is stated in writing.
2. An agreement shall only be deemed to have been concluded at such time as Aako confirms a Buyer’s order in writing or starts to fulfil such order.
3. A composite quotation shall not impose a duty on Aako to fulfil part of an order in consideration of a corresponding part of the quoted price.
4. An offer or quotation shall not automatically apply to any future order.
5. Any statement made by or on behalf of Aako with regard to the quality, composition, treatment in the broadest sense of the term, potential uses, properties and so forth of any goods, shall not be binding on Aako, unless this is done in writing and explicitly in the form of a warranty.
1. Delivery shall be effected ex works (EXW, Incoterms 2020), unless explicitly agreed otherwise in writing.
2. Any agreed delivery time (lead time) will not be considered as absolute, unless explicitly agreed otherwise in writing. Aako shall use its best efforts to execute any agreement within the term agreed upon and shall forthwith notify Buyer in case of an expected delay. For exceeding of any delivery time by Aako, Buyer shall not be entitled to any damages, nor will Buyer be entitled to suspend, rescind or terminate the agreement.
3. In the event that a Buyer fails to ensure the timely supply to Aako of the information required for the purposes of effecting delivery, the delivery date shall be delayed by the equivalent period of time during which Aako is required to wait for such information.
4. Aako shall be entitled to execute an agreement in installments and to issue a separate invoice for each installment that has been executed. Where an agreement is executed in installments, Aako may suspend execution of any part which falls within a subsequent installments, until the Buyer concerned complies with all of his obligations towards Aako.
V. PACKAGING AND PACKAGING MATERIALS
1. Aako shall exercise due care in its capacity as a business in accordance with the applicable provisions of the law when deciding on packaging and labelling products that are to be delivered.
2. A Buyer shall be responsible for the storage or processing of empty or used packaging materials in accordance with the applicable provisions of the law.
1. Unless explicitly agreed otherwise in writing, all prices shall be stated in euros, net of handling and shipping charges and exclusive of VAT.
2. If an agreement is entered into and no definite price has been agreed upon, the agreement will be executed at the prices which are valid at the time of the conclusion of the agreement.
3. In the event that any costs rise following the conclusion of the agreement , Aako shall be entitled to raise its prices accordingly. This shall also apply, if such increase was foreseeable at the time when the relevant agreement was concluded.
4. Nevertheless, where the price increase referred to in Clause (3) exceeds 15%, the Buyer shall be entitled to cancel the relevant part of the agreement within three (3) working days after the time when he becomes aware of it or could have been aware of it.
VII. RETENTION OF OWNERSHIP
1. Notwithstanding the actual delivery, the title to the goods will pass to Buyer only after it has fully paid any amounts in connection with the goods delivered or to be delivered due to Aako, including the price for the goods, any surcharges, interest, taxes and expenses that may be due in accordance with the agreement as well as any activities that may have been performed or are to be performed by virtue of the agreement. The subject to retention of title delivered goods will be for the account and risk of the Buyer.
2. As long as ownership of such goods has not passed to the Buyer, the latter may not pledge them or assign any other right to them to some other party, except where this occurs pursuant to the normal conduct of its business. When first so requested by Aako, the Buyer shall have a duty to assist with pledging any amounts which the Buyer is or will become entitled to claim from his customers pursuant to the supply of the goods.
3. The Buyer shall have a duty to exercise due care to store any goods that have been delivered subject to retention of ownership as the recognisable property of Aako.
4. In the event that a Buyer fails to comply with his duty to effect payment, or finds or is in danger of finding himself in financial difficulties, Aako shall be entitled to take back any goods that have been delivered subject to retention of title and which the Buyer still has in his possession. The Buyer shall at all times grant Aako unrestricted access to his property and/or buildings to inspect the relevant goods and/or to enable Aako to exercise its rights.
5. The foregoing provisions of Clauses (1) to (4) shall not affect any other rights which Aako may have.
Provisions for deliveries in Germany:
6. In the event that a Buyer is based in Germany and/or any products sold and delivered by Aako are brought within the legal jurisdiction of Germany, Clauses 6.1 to 6.9 below shall apply. In this case these clauses shall apply instead of the provisions of Article VII(1) to (5).
6.1 Das Eigentum an den gelieferten Waren bleibt zur Sicherung aller Ansprüche vorbehalten, die uns aus der gegenwärtigen und künftigen Geschäftsverbindung bis zum Ausgleich aller Salden gegen den Abnehmer und seine Konzerngesellschaften zustehen.
6.2 Unser Eigentum erstreckt sich auf die durch Verarbeitung der Vorbehaltsware entstehende neue Sache. Der Abnehmer stellt die neue Sache unter Ausschluss des eigenen Eigentumserwerbs für uns her und verwahrt sie für uns. Hieraus erwachsen ihm keine Ansprüche gegen uns.
6.3 Bei einer Verarbeitung unserer Vorbehaltsware mit Waren anderer Lieferanten, deren Eigentumsrechte sich ebenfalls an der neuen Sache fortsetzen, erwerben wir zusammen mit diesen Lieferanten – unter Ausschluss eines Miteigentumserwerbs des Abnehmers – Miteigentum an der neuen Sache, wobei unser Miteigentumsanteil dem Verhältnis des Rechnungswertes unserer Vorbehaltsware zu dem Gesamtrechnungswert aller mitverarbeiteten Vorbehaltswaren entspricht.
6.4 Der Abnehmer tritt bereits jetzt seine Forderungen aus der Veräußerung von Vorbehaltsware aus unseren gegenwärtigen und künftigen Warenlieferungen mit sämtlichen Nebenrechten im Umfang unseres Eigentumsanteils zur Sicherung an uns ab.
6.5 Bei Verarbeitung im Rahmen eines Werksvertrages wird die Werklohnforderung in Höhe des anteiligen Betrages unserer Rechnung für die mitverarbeitete Vorbehaltsware schon jetzt an uns abgetreten.
6.6 Solange der Abnehmer seinen Verpflichtungen aus der Geschäftsverbindung an uns ordnungsgemäß nachkommt, darf er über die in unserem Eigentum stehende Ware im ordentlichen Geschäftsgang verfügen und die an uns abgetretene Forderungen selbst einziehen.
6.7 Bei Zahlungsverzug oder begründeten Zweifeln an der Zahlungsfähigkeit oder Kreditwürdigkeit des Abnehmers sind wir berechtigt, die abgetretenen Forderungen einzuziehen und die Vorbehaltsware zurückzunehmen.
6.8 Scheck-/Wechselzahlungen gelten erst nach Einlösung.
6.9 Hinsichtlich der Vereinbarung von Eigentumsvorbehaltsrechten gilt ausschließlich deutsches Recht.
1. Unless otherwise explicitly agreed in writing, all payments shall be effected within thirty (30) days after the relevant invoice date without any right of Buyer to deduction, setoff or discount.
2. In the event that full payment is not effected within the stipulated period of time, the Buyer shall be in default in relation to Aako by the operation of the law without the need for any notice of default and, subject to any other right which Aako may have, the implications of this shall be as follows:
a. any other outstanding amount payable by the Buyer to Aako shall fall due with immediate effect;
b. as of the date on which such default commences until the date on which payment is made in full, in respect of which the time involved shall be counted in full months, Aako shall be entitled to charge default interest on the amount referred to in the invoice at the rate of 1% per month, unless the legally stipulated interest exceeds this, in which case the legally stipulated interest shall be payable;
c. the Buyer shall be liable for any reasonable costs incurred by Aako for the purposes of obtaining extrajudicial payment, which is deemed to include debt collection fees equivalent to 15% of the outstanding invoiced amount. In the event that any actual extrajudicial debt collection fees that are reasonably incurred exceed this amount, the Buyer shall have a duty to pay Aako such higher fees;
d. the Buyer shall also be liable to pay interest on the debt collection fees that he owes as provided for in Sub-clause (b).
3. In the event that a Buyer is in default, Aako reserves the right to suspend any further deliveries to that Buyer, while it is in default.
4. Aako shall at all times be entitled (i) to require the Buyer to give proper security for the performance of all its obligations under the agreement in a manner as will be deemed sufficient by Aako or (ii) to demand that the Buyer pays the purchase price in advance. Failing immediate provision of such security or advance payment, Aako will be entitled to suspend further execution of the agreement until such time as the Buyer will have provided the required security or payment in advance.
IX. TERMINATION OF AGREEMENT
1. Without prejudice to any rights which Aako may have, whether under the provisions of this general terms and conditions, the agreement, in law, or in equity, or otherwise, Aako reserves the right to terminate any agreement with the Buyer with immediate effect by giving written notice, but without judicial intervention, in the event that:
a. the Buyer is declared bankrupt, requests suspension of payment, files for bankruptcy, is declared commercially incompetent by order of the court, compounds with its creditors or is unable to pay its debts as they mature, or is involved in any insolvency or reorganisation proceedings supervised by a court;
b. the Buyer fails to ensure proper or timely compliance with any obligation (financial or otherwise) pursuant to this general terms and conditions and/or the relevant agreement;
c. the Buyer decides to liquidate and/or close down his business;
d. the Buyer ceases to enjoy free disposal over his assets in any way;
e. circumstances occur which are of such a nature that compliance with this general terms and conditions and/or the relevant agreement becomes impossible or insecure in the opinion of Aako, or some other circumstances occur which are of such a nature that Aako cannot reasonably be expected to allow the relevant agreement to remain in effect in unamended form.
2. Furthermore, Aako reserves the right referred to in Clause IX. (1) in the event that:
a. circumstances come to Aako’s knowledge following the conclusion of an agreement which give it good grounds to fear that the Buyer concerned will be unable to comply with his obligations;
b. a Buyer is asked to tender security when an agreement is concluded to secure compliance with his obligations pursuant to that agreement and such security is not forthcoming or is inadequate in the opinion of Aako;
c. because of a delay on the part of a Buyer Aako can no longer be expected to comply with the relevant agreement based on the terms and conditions that were originally agreed on.
3. All of the amounts that the Buyer owes to Aako when any of the circumstances referred to in Clause IX (1) and/or (2) occur, shall fall immediately due to Aako’s without prejudice to any other right which Aako may have under this general terms and conditions, the agreement and the applicable law.
4. In the event of termination of the agreement by Aako under the terms of Clause IX (1) and/or (2), Aako shall not in any way be liable to provide any compensation to the Buyer.
X. FORCE MAJEURE
1. Aako shall not be liable for failure to perform its part of any agreement with the Buyer when such failure is due to fire, explosion, flood, hurricane, typhoon, earthquake, war, acts of terrorism, riots, governmental acts or orders or restrictions, strikes, lockouts, epidemic, pandemic, non-availability or lack of raw materials, shortage of supply, failures of suppliers, transport problems, or any cause beyond the reasonable control of Aako.
2. In case of temporary force majeure the obligations of Aako shall be suspended until the hindrance is eliminated. Where force majeure persistently prevents fulfilment, by which parties also understand a force majeure situation, which lasts for more than ninety days, the relevant agreement shall end by right. The Buyer shall then have no right to fulfilment, compensation for this reason and/or postponement.
XI. INSPECTION, COMPLAINTS, WARRANTY, LIABILITY AND INDEMNIFICATION
1. The Buyer must examine (each batch of) the goods in accordance with the nature of the goods as soon as possible.
2. Aako has the right, but not the obligation, to inspect the goods within a reasonable period and as is practicable in the circumstances.
3. Aako shall be informed in writing of any complaints concerning the goods, specifying (i) the relevant goods, (ii) the date of purchase and (iii) the nature of the defect.
4. In case of visible deficiencies in the goods and/or failing quantities of the goods, the Buyer must submit a complaint to Aako in writing within five working days after receipt of the goods and record these deficiencies and/or shortfalls on the relevant transport document.
5. For all other complaints with regard to the goods a term of five working days after the date on which the deficiencies and/or shortfalls became known or reasonably should have been known to the Buyer applies.
6. The Buyer must notify Aako in writing of any complaints relating to the level of the invoiced amount within five working days after receipt of the invoice, giving a description of the complaints.
7. Any failure by the Buyer to complain in conformity with the above, shall result in the loss of any claims whatsoever in this respect.
8. Complaints of any nature whatsoever will not postpone the Buyer’s obligations towards Aako under the relevant agreement.
9. Aako warrants that the goods during the shelf life thereof are:
a. of the quantity, quality and description required by the agreement;
b. in conformity with the specifications agreed upon;
c. free from defects in materials and workmanship;
d. in conformity with Dutch law and good manufacturing practices,
10. Aako does not guarantee that the goods are fit for any particular purpose.
11. The warranty does not cover the following causes of damage:
a. the goods show one or more deficiencies or deviations which fall within a reasonable tolerance;
b. the goods have been used for a purpose other than that for which they normally are intended;
c. the goods have been used, mixed, processed, stored or transported injudiciously;
d. the defect is caused by normal wear and tear;e. the damage is caused by negligence of the Buyer or an end user, or by having acted contrary to Aako’s instructions, indications and advice;
f. the defects ensue from any government regulation with regard to the goods or the manufacturing or use thereof;
g. unsuitable environmental conditions, excessive or inadequate heating or excessive air conditioning or other irregularities.
12. In the event of a justified warranty claim during the warranty period and a timely notification thereof, Aako shall replace the non-conforming goods by conforming goods Ex Works (EXW) of the ICC Incoterms 2020 or send a credit invoice to the sole discretion of Aako as soon as reasonably practicable. The relevant goods must be made available to Aako for examination upon first request, freight pre-paid by the Buyer.
13. The buyer’s exclusive remedy and Aako’s total liability for breach of the warranty provided above shall be those set in forth in this clause. The Buyer explicitly waives all other rights or claims it may have against Aako under the applicable laws.
14. Any liability on the part of Aako for an imputable failure to comply with the general terms and conditions and/or the agreement or on any other grounds is limited to the amount that Aako receives from its insurer under its commercial liability insurance in relation to the damage for which the Buyer has held Aako liable.
15. If no insurance payments are made in relation to the damage in question, the liability of Aako regarding non-conformity is limited to the warranty settlement provided in Clause XI. With regard to any other liability of Aako, the liability will not exceed the net selling price or invoiced amount of the goods in question.
16. In no circumstances will Aako be liable to the Buyer for any special, consequential, indirect, criminal or incidental loss, including but not limited to losses caused by delays, lost profits, lost savings, increased operational costs, loss of customers, loss of goodwill, etc., howsoever caused, regardless of the ground of liability, and regardless of whether it was advised in advance of the possibility of such damages arising in any way from the agreement or otherwise.
17. The restrictions and exclusions referred to in paragraphs 8 – 10 above do not apply insofar as the damage in question is caused by an intentional act or gross negligence on the part of the management of Aako.
18. The Buyer’s right to any damage compensation is conditional to the notification thereof to Aako immediately upon occurrence.
19.Save where compliance by Aako is permanently impossible, Aako’s liability on the grounds of imputable failure to comply with the general terms and conditions and/or the agreement arises only if Aako receives notice of default in writing from the Buyer, in which a reasonable period is allowed to remedy the failure, and Aako remains in default of its obligations after the aforesaid period.
20. Any claim for damages against Aako is extinguished automatically twelve months after the inception of the claim.
21. The Buyer indemnifies Aako against any claims and impending claims by third parties against Aako, the costs (including reasonable legal fees) of defense against such claims, and any obligations Aako may have to third parties if such claims, costs and obligations are based on, arise from or in connection with any act or omission or any use of the goods by the Buyer or any third party engaged or employed by Buyer and/or any failure to properly perform (any of) the terms of the agreement.
1. The parties shall treat all data and/or information about each other’s business which is marked ‘Confidential’, ‘Proprietary’, is stated by the disclosing party to be confidential or is of such a nature that the receiving party in the exercise of reasonable business judgment should know is confidential in the strictest confidence and shall not disclose same to any other party, and shall not use such information and data other than for the execution of the agreement.
2. These obligations shall not apply in the following cases: these data and/or information was known to the recipient before the relevant agreement was concluded and this can be shown to be the case, was supplied by some other party and the latter did not breach a duty of non-disclosure in this respect, or must be deemed to be common knowledge. If requested to do so, the Buyer shall sign a confidentiality undertaking provided by Aako.
XIII. GOVERNING LAW AND DISPUTES
1. With the exception of Article VII(6) any agreement entered into by Aako and the Buyer shall be solely governed by and construed in accordance with the law of the Netherlands. The scope of application of the Vienna Convention on Contracts of Sale (CISG) 1980 is explicitly precluded.
2. Any dispute which may arise pursuant or in relation to these general terms and conditions and/or an agreement shall be adjudicated by a competent court of law in Utrecht, the Netherlands.
XVI. FINAL CLAUSE
Aako shall have the right to amend or modify these general terms and conditions at any time upon a written notice to the Buyer.