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General Terms and Conditions Businesses

General Terms and Conditions of AurAir Business (2021)

Definitions
In these General Terms and Conditions the following terms have the following meanings:

  1. Seller: AurAir B.V. , located in Nijmegen, Chamber of Commerce number 72540508.
  2. Buyer: the party, not being a consumer, to whom the Seller makes an offer and/or the party with whom the Seller concludes an agreement for the delivery of products.
  3. Agreement: any agreement that is concluded between Seller and buyer, any amendment or addition there to, as well as all (legal) acts in preparation for and implementation of that agreement and the associated products and/or services.
  4. Product: the item that is the subject of the agreement and all associated services and/or services.
  5. In Writing: written notifications are understood to be all notifications made by letter, by fax, by e-mail or via facilities provided for that purpose on the Seller’s website.
  6. Parties: both Seller and buyer.

Article 1 Applicability
1.1. All quotations will take place under the applicability of these general terms and conditions, both the offer and its acceptance and on the thus established agreement.
1.2. All quotations are valid for one month, unless the quotation states otherwise.
1.3. The agreement is concluded as soon as the acceptance of the offer has reached the Seller; this acceptance must show that the buyer agrees with the applicable statement of these general terms and conditions of delivery and payment and that, if necessary, he waives an applicable statement of his own purchase conditions.
1.4. If, in the acceptance, reservations or changes are made with respect to the quotation, the agreement will only be concluded, contrary to the provisions of the previous paragraph, if the Seller has informed the buyer that he agrees to these deviations from the quotation.

Article 2 Changes
2.1. Changes to the purchase agreement and deviations from these general terms and conditions of sale will only be effective if they have been agreed In Writing between the Buyer and Seller.
2.2. If changes lead to an increase or decrease in costs, the resulting change in the purchase price must be In Writing between the Parties to be agreed.
2.3. In the absence of agreement on the change in the purchase price, there is a dispute between the Parties, on which Article 15 of these General Terms and Conditions of sale applies.

Article 3 Quality and description
3.1. The Seller delivers the Products to Buyer in accordance with the description, quality and quantity as further described in the quotation (possibly amended later).
3.2. The Seller undertakes to supply the Buyer with Products, which:
a. are made of solid materials and are of solid construction;
b. are in all respects at least equivalent to any samples or models made available or provided by the Seller and/or the Buyer;
c. deliver the performances (capacity, efficiency, speed, finish, etc.), as described in the offer.
3.3. The Seller does not guarantee that the Products are suitable for the purpose for which the Buyer wishes to use them, not even if this purpose has been made known to the Seller, unless the Parties have agreed otherwise.

Article 4 Packaging and shipping
4.1. The Seller is responsible for properly packaging the Products (unless the nature of the Products dictates otherwise) and to secure them in such a way that they reach their destination in Products condition during normal transport.
4.2. The Products will be delivered by the Seller or sent for delivery to the agreed place or places in the ways as determined in the order or agreed afterwards.
4.3. If the Seller has made pallets, packing cases, crates, containers, etc. available for packaging and transport or has them made available by a third party – whether or not against payment of a deposit – the Buyer is obliged (unless it concerns one-time packaging) to return these pallets etc. to the address specified by the Seller, failing for which the Buyer will owe the Seller compensation.

Article 5 Storage
5.1. If, for any reason whatsoever, the Buyer is unable to receive the Products at the agreed time and they are ready for shipment, the Seller will, if its storage options permit, at the Buyer’s request, keep the Products, secure and take all reasonable steps to prevent deterioration in quality until they are delivered to the Buyer.
5.2. The Buyer is obliged to reimburse the Seller for the storage costs according to the Seller’s usual rate and, in the absence thereof, according to the usual rate in the industry, from the time that the Products are ready for shipment, or, if that is a later date, from the delivery date agreed in the purchase Agreement.

Article 6 Transfer of ownership and risk
6.1. The risk for the Products will transfer to the Buyer upon delivery.
6.2. As long as the Buyer has not paid the full amount of the purchase price plus any additional costs or has not provided security for this, the Seller retains ownership of the Products. In that case, ownership passes to the Buyer as soon as the Buyer has fulfilled all obligations towards the Seller. If the Buyer paid before the Products are delivered, the ownership of the Products will transfer upon delivery.
6.3. If there is reasonable doubt on the part of the Seller about the Buyer’s payment capacity, the Seller is authorized to delay the delivery of Products pursuant to Article 4.2 of these General Terms and Conditions until the Buyer has provided security for payment. The Buyer is liable for the damage suffered by the Seller as a result of this delayed delivery.
6.4. If the Seller, at the request of the Buyer, in accordance with the provisions of art. 5 of these General Terms and Conditions, postpones the shipment, the Products will remain the property of the Seller and remain at his risk until the Products have been delivered to the Buyer and delivered to the intended place or places indicated in Article 4.2 of these General Terms and Conditions.

Article 7 Time of delivery
7.1. The Seller will deliver the Products at the time, or immediately after the end of the delivery period, which is specified in the order. If a delivery period has been agreed, it will commence on the date on which the Seller has confirmed the order.

Article 8 Force majeure
8.1. The in Article 7 of these General Terms and Conditions referred to delivery term is extended by the period during which the Seller is prevented from fulfilling his obligations due to force majeure.
8.2. Force majeure on the part of the Seller occurs if the Seller is prevented from fulfilling his obligations under this Agreement or the preparation thereof after the conclusion of the purchase Agreement as a result of (civil) war, danger of war, terrorism, riots, acts of war, fire, water damage, flood, strike, business occupation, lockout, import and export barriers, government measures, defects in machinery, failures in the supply of energy, all in the Seller’s company and third Parties, from whom the Seller wholly or partially obtains the necessary materials or raw materials, as well as during storage or during transport, whether or not under own management, and furthermore all causes arisen beyond the Seller’s fault or risk.
8.3. If the delivery is delayed by more than two (2) months due to force majeure, both the Seller and the Buyer are entitled to consider the Agreement as terminated. In that case, the Seller is only entitled to reimbursement of the costs incurred by him.
8.4. If the force majeure occurs while the Agreement has already been partially performed, the Buyer, if the remaining delivery is delayed by more than two months due to force majeure, is authorized to either keep the part of the Products already delivered and to pay the purchase price owed for it or to consider the Agreement to be terminated for the part already performed under the obligation to return what had already been delivered to the Seller at the expense and risk of the Buyer, if the Buyer can demonstrate that the part of the Products already delivered can no longer be used effectively by the Buyer as a result of the non-delivery of the remaining Products.

Article 9 Compensation and Liability
9.1. The Seller is neither contractually nor extra-contractually liable for damage to the Buyer that could be the result of any defects in the Products delivered on the basis of or as a result of this Agreement, including related services, except in the case of intent or deliberate recklessness on the part of the Seller or a statutory director of the Seller. This also applies to any assistants and subordinates involved by the Seller in this Agreement or execution thereof.
9.2. The Seller is in no way liable in the opinion of both Parties (as seen in Article 9.1 of these General Terms and Conditions). Might the judge disagree, alternatively this liability is limited to that which is laid down in this provision.
9.3. If Seller is liable for direct damage, then the maximum liability is limited to the amount to be paid out by Seller’s insurers, also to the equivalent of the total amount invoiced, and also to that part of the order which is affected by the liability. The liability of Seller for direct damage is at all times limited to a maximum of € 10.000,-.
9.4. In contrast to what was laid down in Article 9.3 of these General Terms and Conditions, in the case of orders spread over a timeframe of more than three months, the liability is limited further to the invoiced amount over the last three months.
9.5. Direct damage means exclusively:
a. the reasonable costs to establish the cause and scope of the damage, in so far as this relates to damage in the sense of these conditions;
b. the possible reasonable costs incurred to ensure that the defective Product rendered by Seller comply with the Agreement, unless these are not attributable to Seller;
c. reasonable costs, incurred to prevent or limit the damage, in so far as the customer that these costs led to limiting the direct damage as referred to in these general conditions.
9.6. Seller is never liable for indirect damage, including consequential damage, lost profit, lost savings and damage as a result of business stagnation.
9.7. Seller is never liable for any damage caused in an end user situation by the Sellers Product when any part of the original AurAir hardware or software has been altered, enhanced or extended in any way or form by Buyer before resale to its end-users.
9.8. The limitations of the liability for direct damage contained in these conditions do not apply in case the damage is caused by intent or gross negligence on the part of Seller or its employees.

Article 10 Price and payment
10.1. For all individual orders that consist of exact multiples of twenty (20) units per type of AurAir meter (Base or Pro), handling and shipping fees (within the borders of the Netherlands) will be paid by Seller. For all other orders Seller will charge a fixed fee for handling and shipping (within the borders of the Netherlands) of €25,- exclusive VAT per order.
10.2. The Buyer is obliged to pay the purchase price no later than fourteen (14) days after delivery. He is not authorized to deduct any amount from this purchase price on account of a counterclaim made by him.
10.3. If the Buyer does not fulfill his payment obligations on time and does not follow up on a notice of default with a term of one (1) week, the Seller is entitled to consider the purchase Agreement as dissolved without judicial intervention. In that case, the Buyer is liable for the damage suffered by the Seller, consisting, among other things, of loss of profit, transport costs and the costs of the notice of default. If the Buyer remains in default in respect of the notice of default, then the Buyer is legally in default and for that reason liable to pay statutory commercial interest rate (‘wettelijke handelsrente’) over the outstanding amount. In addition, Seller has the right to suspend the execution of the order with immediate effect.
10.4. If the Seller takes extrajudicial measures in the event of default of the Buyer, the costs thereof will be borne by the Buyer. This concerns the costs over the principal sum in accordance with the Decree for reimbursement of extrajudicial collection costs of 1 July 2012. These extrajudicial costs amount to fifteen percent (15%) of the invoice amount, with a minimum of €250,-.
10.5. The Buyer, who makes use of his storage right as referred to in Article 5 of these General Terms and Conditions, remains obliged to pay the purchase price at the time stated in Article 10.2 of these Terms and Conditions.
10.6. If the Buyer does not fulfill his payment obligations on time and does not follow up on a notice of default with a term of one (1) week, Seller is allowed to change the payment terms for all following orders into upfront payment before delivery. It will be Sellers sole decision when the original terms will be reinstalled.

Article 11 Legal requirements
11.1. The design, composition and quality of the Products, which must be delivered on the basis of the order, will comply in all respects with all applicable requirements set by laws and / or other government regulations that are in effect at the time of the conclusion of the purchase Agreement.
11.2. The provisions of Article 11.1 of these General Terms and Conditions also apply to the normal use of the Products.

Article 12 Dissolution
12.1. Without prejudice to the provisions of Article 10 of these General Terms and Conditions, the purchase Agreement is dissolved without judicial intervention after a written statement at the time when the Buyer is declared bankrupt, applies for a temporary suspension of payments, or a request from the Seller, a natural person, is granted by the court to declare application of the debt repayment scheme, or through seizure, placing under guardianship or otherwise loses the power of disposal of its assets or parts thereof, unless the trustee or administrator recognizes the obligations arising from this purchase Agreement as an estate debt.
12.2 The Agreement will also be dissolved if the Buyer cannot submit In Writing a copy of a valid registration in the trade register of the Chamber of Commerce at the Seller’s first request.
12.3. Due to the dissolution, reciprocal claims become immediately due and payable. The Buyer is liable for damage suffered by the Seller, including loss of profit and transport costs.

Article 13 Intellectual property rights
13.1. All intellectual property rights concerning the Products of AurAir will stay with AurAir at all times.

Article 14 Applicable law
14.1 This Agreement is subject to Dutch law. The Vienna Sales Convention (Convention of the United Nations on international sales contracts, Vienna 11 April 1980, Treaty Series 1981, 184 and 1986, 61) does not apply to the Agreement.

Article 15 Applicability of these general terms and conditions
15.1 These General Terms and Conditions apply to all offers and acceptances on the part of the Seller. Insofar as the Seller would refer to other conditions in his offer or acceptance, the applicability thereof is explicitly rejected.

Article 16 Disputes
16.1 All disputes that may arise between the Parties, as a result of their Agreement or further Agreements and other acts in connection with this Agreement, such as, but not limited to, wrongful acts, undue payments and unjustified enrichments, will be settled by the Court in Arnhem, except insofar as mandatory rules of competence would prevent this choice.
16.2. A dispute is deemed to exist as soon as one of the Parties so declares.