Conditions of Sales for AVES Collective GmbH, Nymphenburgerstraße 86, 80636 München.
- APPLICATION OF THESE GENERAL CONDITIONS OF SALE
These general conditions of sale, together with any other terms agreed by the parties in a writing signed by an authorized representative of each party, form the exclusive terms ("Conditions") governing all Contracts (defined below) and the fulfillment of all orders for Aves Collective products ("Products") transmitted to Aves Collective GmbH ("Aves Collective", "we", "us" or "our") by the individual or legal entity ("you" or "your") identified on any relevant Order (defined below), including those transmitted electronically. Notwithstanding any provision you have or will communicate in any way to Aves Collective, including, without limitation, any additional or different terms or conditions contained in your purchase order or your own general terms of purchase, any shipping instructions, compliance requirements, or similar communication, you agree that these Conditions will exclusively control our relationship. Aves Collective’s acceptance of any Order placed by you is strictly conditioned upon your acceptance of these Conditions, and by placing an Order you signify your unconditional acceptance of these Conditions and waiver of all other terms. Aves Collective’s failure to object to any provision contained in any communication from you shall not be deemed a waiver of any provision hereof.
- ORDERS AND CONTRACTS
2.1 Orders shall be placed on the basis of our standard line list worksheet, our sales order processing system (for orders placed at our showrooms), our re-order form or any other order processing system we may put in place, in each case identifying the nature and references of the Products ordered, the quantity of each item ordered, the list price and the period during which delivery can take place ("Orders").
2.2 Any modification or cancellation of a Pre-Book Order, requested by you, will only be considered if you notify us in writing no later than eight (8) calendar days after it was placed by you. Any other Orders, including re-orders, may never be modified or cancelled. In any event, no Order which has been accepted by us may be changed or cancelled without our prior written agreement.
2.3 Orders are only deemed accepted once we have explicitly accepted them by a written acceptance (“Order Confirmation”). The acknowledgement of receipt of your Order is no declaration of acceptance. A "Contract" shall only be formed when we issue our Order Confirmation. A Contract comprises these Conditions and our Order Confirmation.
2.4 We do not accept any return of Products except for the circumstances described in Clause 9. In any event, all returns shall be at your risk and expense.
2.5 We may, at our absolute discretion, refuse all or part of any Order placed by you, including without limitation (i) if you are not or are no longer part of our accredited retailer network; (ii) if the request is abnormal and/or cannot be satisfied by us under normal conditions; (iii) if the Order is not made in good faith; or (iv) where you are, or may become, in Aves Collective’s assessment, not sufficiently solvent. If full quantities of ordered Products are not available, we will ship you quantities allocated to you if an allocation program is in effect; otherwise we will ship you all available quantities.
2.6 All information, prices and specifications shown in our catalogues, advertisements, brochures, standard line list worksheet, sales order processing system or on our website are indicative, subject to change without notice and shall under no circumstances bind us. Any oral undertakings or instructions issued and/or received by our staff shall not bind us unless we have confirmed them in writing.
3.1 Unless otherwise indicated by us on the Order Confirmation, the Products shall be deemed deliverable to your premises. On delivery, you shall sign the delivery note presented to you by the carrier, or any similar transport documentation, recording any reservations in accordance with Clause 4 below. The carrier shall not be deemed an agent of Aves Collective.
3.2 Any delivery windows and/or delivery dates mentioned on our standard line list worksheet, our sales order processing system, our Order Confirmation or otherwise are only indicative and shall be without obligation. Time for delivery shall not be of the essence. Notwithstanding should a fixed period or date for delivery have been agreed in writing, and should we default with the supply, you shall grant us a reasonable respite, normally three (3) weeks. Late delivery and partial or allotted deliveries due to a cause described in Clause 11 or to any other cause whatsoever beyond our control shall never entitle you to damages, cancellation of the Contract or non-fulfillment of any of your obligations arising from the Contract or from any other agreement connected herewith.
3.3 We may conduct partial deliveries and also opt for separate invoices for each one.
3.4 The risk of loss and damage to the Products shall pass to you on delivery.
3.5 Notwithstanding delivery and the passing of risk in any Products, legal and beneficial title to the Products shall not pass to you and shall remain with us until their Sale Price (as defined below) has been paid in full, together with any Value Added Tax, duties, late payment interest, and any other additional costs and charges.
3.6 So that we shall be at all times in a position to recover the Products sold to you and that are subject to retention of title, you shall (i) hold the Products on a fiduciary basis as our bailee; (ii) ensure that the Products continue to be separately identifiable until they have been paid for in full; and (iii) ensure they are always kept in good condition. We reserve the immediate right of repossession of any Products which have not been paid for to which we have retained title as aforesaid exercisable at any time after delivery or collection of Products.
- DUTY TO INSPECT
You must inspect the Products on delivery for visible defects, quantity shortages, incorrect Product shipments and/or any other discrepancies with the Order Confirmation, all of which must be notified to Aves Collective in writing within seven (7) calendar days of delivery. Missing and/or damaged parcels must also be reported on the documentation presented by the carrier (delivery note or any similar transport document). Failure to do so within such period shall be deemed your unconditional acceptance of the Products and an unqualified waiver of any rights to return Products on the basis of any of the aforementioned reasons and you will be automatically denied the right to any claim or compensation, without prejudice to Clauses 8, 9 and 10. Any claims pursuant to this clause must be submitted, and will be handled, in accordance with the terms of Clause 9.2. You further agree to fully cooperate in our investigation of your claim.
5.1 The Products shall be sold and invoiced at the price valid on the date of our Order Confirmation and indicated therein ("Sale Price"). We are not obliged to meet subsequent Orders at the same price as that indicated on a previous Order Confirmation.
5.2 The Sale Price of the Products is, unless stated otherwise in writing, inclusive of charges for transport to your premises, packaging and insurance, but exclusive of Value Added Tax and any other present or future applicable taxes, duties and charges (including costs related to special handling requests such as reconditioning or express delivery), which shall be payable by you.
5.3 You agree that we may increase in our Order Confirmation by no more than ten per cent (10%) the Sale Price in effect at the time the Order was placed, such increase to be in accordance with rises in the costs of raw materials, insurance, freight, packaging and labor, and/or in accordance with exchange rate fluctuations, and/or any other element which affects the setting of the Sale Price. Where the rise is higher than ten percent (10%) we will notify the increase to you and you will have the right to cancel the Order by registered letter with acknowledgement of receipt sent no later than ten (10) calendar days following our notification of the new Sale Price, without any right for you to request any damages, indemnities, or compensation whatsoever. Failure by you to follow the above procedure shall constitute acceptance of the increased Sale Price.
- PAYMENT 6.1 Invoices are payable in full within fourteen (14) calendar days from the date of invoice, unless otherwise agreed or directed by us in writing. Whatever the means of payment used, payment shall not be deemed effected until the amount has been fully and irrevocably cleared into our bank account. 6.2No skonto or discounts are granted if not stated otherwise in writing by us. 6.3 In the event of late payment, we shall be entitled to, without prejudice to any other right or remedy available to us and without necessity of any previous reminder to you: (i) suspend deliveries and/or performance of the Contract and/or immediately cancel or terminate the Contract by written notice; and/or (ii) charge you interest (both before and after any judgment) at an annual rate of eight percentage points (8%) over the official dealing rate of the Europäische Zentralbank § 247 BGB or the maximum rate permitted by law, whichever is higher, computed on all unpaid amounts calculated on a day to day basis until the actual date of payment; and/or (iii) recover the concerned Products and sell or otherwise deal with or dispose of all any or part of them.
6.4 Where payment has not been made by the due date, or in the case of payment by check, bill of exchange or letter of credit, where either of them has been dishonored or has been incorrectly drawn up, all amounts owed by you to us for whatever reason and at whatever date shall become immediately payable, without prejudice to any other right or remedy available to us.
6.5 We are entitled to use your payment for the settlement of your oldest debts, and in the following order: costs, interest, damages, loss, any other remedy and lastly our principal claim.
6.6 In the case of your default, all reminder costs, information costs and any other fees and costs incurred in connection with the collection of the claim shall be borne by you. Should we deem it necessary to place your account with a collection agency, or an attorney, for collection, you agree to pay all collection costs, including reasonable attorney’s fees and court cost.
6.7 Notwithstanding the provisions of this Clause 6, should we estimate that your financial situation is not sufficient to meet your payment obligations in a timely fashion, we reserve the right to make delivery of all or part of the Products subject to satisfactory payment guarantees or pre-payment (payment before delivery of Products) including the applicable taxes, duties and all additional costs. Should you, once required to pre-pay for Products or provide satisfactory payment guarantees, not be in a position to do so, we may immediately cancel or terminate the Contract. In case you request a splitting up of the deliveries, which is accepted by us, you shall loose all rights to any prompt payment discounts mentioned in Clause 6.2.
6.8 All amounts due hereunder shall be paid in full by you without deduction, withholding, set-off or counterclaim for any reason whatsoever, whether arising in contract, tort (including negligence), breach of statutory duty or otherwise, save as may be required by law. Counterclaims may only be set-off with our prior written agreement or by court order after the concerned claim has become res judicata.
Transfer has to be made to:
Kreissparkasse München Starnberg Ebersberg
DE73 7025 0150 0028 7805 75
- FACTORING We may engage the services of a factoring company without recourse to you. In such case, you shall send to us on request all financial references and documents required for this procedure. Where the appointed factoring company refuses to accept you as a debtor, you shall provide security which is acceptable to us.
8.1 We warrant that the Products will correspond in all material respects with our specification at the time of delivery. This warranty and the remedies set forth herein are conditioned upon (i) proper storage, absence of your negligence or any unauthorized handling or alteration of the Products after they have left our control; (ii) compliance with any recommendations and/or instructions of Aves Collective; and (iii) you promptly notifying Aves Collective of any defects in strict accordance with the procedure set forth herein. In any event, we shall be under no liability in respect of any defect in Products arising from normal wear and tear or deterioration.
8.2 These Conditions set forth the full extent of the parties’ obligations and liabilities arising out of or in connection with the Conditions, a Contract or any collateral contract, and there are no conditions, warranties, representations, or terms, express or implied, that are binding on the parties except as specifically stated or pointed in these Conditions. Any condition, warranty, representation or other term which might otherwise be implied into or incorporated into these Conditions, a Contract or any collateral contract, whether by statute, common law, or otherwise, is hereby expressly excluded.
9.1 Defects which, in spite of careful examination, could not be discovered within the seven (7) calendar days period set forth in Clause 4, namely hidden defects, and claims based on breach of the warranty in Clause 8.1 shall be notified in writing immediately upon discovery but not later than twelve (12) months after delivery. Notifications of any defect must include enough supporting evidence, samples, packing slips and reference to the number and date of the concerned invoice. The burden of proving that a defect is a hidden defect shall rest with you.
9.2 Where any valid claim according to Clauses 4, 8.1 or Clause 9.1 is notified to us, we shall at our sole discretion either: (i) replace and/or ship the concerned Products free of charge, or (ii) issue a credit for the purchase price of the affected Products. Any credit issued according to this Clause 9 must be used by you within one (1) year of its issuance; if not, the remaining balance shall be cancelled and Aves Collective shall have no further liability to you. Solely upon our request and according to the instructions you receive from Aves Collective, you shall return the affected Products to Aves Collective or send to Aves Collective any part or piece of them (including, without limitation, the labels). Replacement, shipment or credit as described in this Clause 9.2 shall be Aves Collective’s sole responsibility and your exclusive remedy arising out of or related to any claim pursuant to Clauses 4 and/or 9.1 and/or breach of warranty pursuant to Clause 8.
- LIMITATION ON LIABILITY
10.1 Without prejudice to Clause 10.3, we shall have no liability to you for lost profits, revenue or income, lost business or goodwill, loss of actual or anticipated savings, loss of contracts, or any similar or comparable loss, or for any incidental, special consequential or indirect loss or damage of any type, in each case however arising, irrespective of whether or not such loss or damage was foreseeable or in the contemplation of the parties, and whether arising in contract, tort (including negligence), from an actual or alleged breach of statutory duty, warranty, indemnification, product liability, or strict liability or any other legal theory. We shall have no liability to you for any loss or damage arising as a result of or in connection with minor negligent breaches that are not crucial to the object of the Contract.
10.2 Our maximum aggregate liability under or in connection with any Contract and/or the use of the Products, whether arising in contract, tort (including negligence), statutory duty, or otherwise, shall in no event exceed the total amount payable under or in connection with that Contract, excluding any ancillary costs such as taxes, duties, storage and/or any other additional costs. This limitation of liability reflects a deliberate and bargained-for allocation of risks between Aves Collective and you and constitutes the basis of the parties’ bargain, without which Aves Collective would not have agreed to the Sale Price or terms of the Contract.
10.3 Nothing in these Conditions shall exclude or limit our liability for (i) fraud, (ii) death or personal injury caused by our negligence, (iii) breach of terms regarding title implied under the Sale of Goods Act 1979 and/or Supply of Goods and Services Act 1982, or (iv) any other liability to the extent that the same may not be excluded or limited as a matter of law.
- FORCE MAJEURE
Neither party shall be responsible nor liable to the other (and no event of default shall be deemed to have occurred) for any loss or damage suffered or incurred by the other, if uncontrollable events (such as, but not limited to, war, strikes, epidemics, forces of nature, governmental restrictions, power failures, disruption to our manufacturing and/or delivery services, stoppage in transit, scarcity, shortage or lack of personnel and/or raw materials, the carrier’s failure to fulfill its responsibilities, theft, seizure, sequestration, or accidental destruction of some or all of the Products on our premises or during transport to your premises, import or export problems which are not our fault¸ any circumstance having the characteristics of an Act of God), make it impracticable or commercially unreasonable for such party to perform under the terms of these Conditions or any Contract, provided no force majeure shall apply to your obligation to pay in a timely manner for Products. If such an event of force majeure occurs, delivery or performance shall be extended for a period equal to the time such event or circumstance lasts or persists. The same applies in the event that these events or circumstances occur to our providers, subcontractors and/or agents. In the event that any of the above events or circumstances lasts more than thirty (30) calendar days, we shall be entitled to cancel the Contract by written notice to you.
- RESALE OF PRODUCTS In accordance with the selective nature of our distribution network, Products are for resale only to individual consumers or to our other accredited retailers, but not otherwise.
13.1 Failure by us to assert, exercise or enforce any rights under a Contract and/or these Conditions or failure to insist upon compliance with any term or condition shall not be deemed to be a waiver of such right or excuse any subsequent non-performance of any such term or condition by you nor operate so as to bar the exercise or enforcement thereof at any time thereafter.
13.2 If any term or condition of a Contract or these Conditions or any accompanying terms and conditions are held invalid, illegal, or unenforceable, then such terms and conditions shall be reformed to be made valid, legal or enforceable, or if not possible, deleted, but the remaining terms and conditions shall remain in full force and effect.
13.3 You may not transfer, assign or sub-contract all or any of your obligations and rights under any Contract or derived thereunder. We may transfer and/or assign any Contract, in whole or in part, and all our rights and obligations thereunder to any company within the Aves Collective Aves Collective group, without your agreement.
13.4 Any changes in these Conditions or in any document or agreement referred to herein, must be specifically agreed to in a writing signed by an authorized representative of Aves Collective.
13.5 You hereby acknowledge and agree that any data in relation with the business relationship between you and us may be stored and/or processed by us, in compliance with applicable laws and regulations.
- GOVERNING LAW, JURISDICTION
All Contracts and these Conditions shall be governed by and construed in accordance with the substantive laws of England and the parties expressly and irrevocably submit to the exclusive jurisdiction of the courts of London, but Aves Collective shall be entitled to bring a claim against you in any court of competent jurisdiction. Both you and we contract as principals and no other person shall have any rights or obligations or be entitled to sue or be liable or be sued, under these Conditions or any Contract, and neither the Contracts (Rights of Third Parties) Act 1999 nor the UN Convention on Contracts for the International Sale of Goods (CISG) shall apply.