Terms and Conditions – Business Customers
- General Provisions
The following General Terms and Conditions shall exclusively apply for all offers, orders, deliveries and other performances carried out by Avantek Computer Limited. (VAT No.:GB 715 1290 61), a corporation organized and existing under the laws of the United Kingdom, with its principal place of business at St Peters Road, ARNESBY, LE8 5WJ ( hereinafter refer to as “Avantek”). Deviations from these terms are only effective if expressly confirmed in writing by Avantek. Terms and Conditions of the customer shall not apply even if the customer refers to such terms in connection with its order and Avantek does not oppose them. In case of deviations or invalidity of one or several of the following clauses the validity of the remaining clauses shall not be affected. However interpretation shall strive to establish a valid provision, which approaches the original intention.
- Offer and Order, Place of performance
All Avantek offers are non-binding. All offers and agreements are subject to these General terms and Conditions as well as the latest edition of the Incoterms as stated in Avantek’s offer or Proforma Invoice. An order shall be deemed accepted only after Avantek has confirmed it in writing or supplied the goods. Prices are subject to change without notice and, unless explicitly stated, do not include V.A.T. and delivery cost. Place of performance for deliveries shall be Eindhoven, The Netherlands.
- Terms of Payment
All payment has to be made according to the conditions on the Proforma Invoice (PI). Payment terms are granted by Avantek on the condition that an adequate credit limit is available for each individual order. In case that the order should exceed this credit limit, Avantek is entitled to demand payment in advance of the remainder of the value of the order. In the event of a subsequent change in the customer´s creditworthiness, Avantek reserves the right to demand cash prepayment or the provision of security and, in case of non-performance, to rescind the contract. In the event of cost increases (e.g. as a result of foreign exchange fluctuations or increased supplier cost), Avantek is entitled to raise the price appropriately. Off-set is only allowed with undisputed claims or claims which have been determined non-appealable by a court of law. If a credit limit has been granted and no other payment agreement reached, payments are due without any deduction whatsoever 14 days after the invoice date. All costs entailed by the collection of the invoice such as postal, telephone charges, internal handling costs, without limitation, as well as the legal cost and the costs of legal assistance shall be for the customer account. Upon the customers failure to pay within the period stated on the Proforma Invoice, interest shall be due without further notice at a rate of 3 % p.a. above the respective 1-year LIBOR calculated on the purchase price. In case of deviation from the payment terms without justified cause, Avantek may, at any time, elect to effect delivery contemporaneously upon payment in cash, against prepayment or to demand the provision of security. All out-standing accounts, including those for which payment by instalment was agreed upon, shall become due and payable immediately.
Delivery dates and periods are approximate and non-binding, unless they are agreed upon in writing and expressly identified as being binding. Avantek is entitled to perform partial delivery. Unless agreed otherwise in writing, Avantek shall decide on the manner of transport, dispatch and packaging without any resulting liability for Avantek. The risk of loss or damage in the goods shall pass to the customer upon delivery of the goods to the carrier. Upon receipt of the goods the customer shall, within 5 working days, advise Avantek of any discrepancy between the terms of the Order, failure to do so shall constitute full acceptance of the delivery. Applicable terms and conditions under CMR shall apply. If case arises, the insurance company can perform additional research if needed. The customer and Avantek have to co-work to provide the request information, documentation to the appointed surveyor on behalf of insurance company. The customers entitlement to claim compensation for default in delivery is excluded in case of slight negligence; in all other respects the amount thereof shall be limited to the amount of foreseeable damage not, however, exceeding a maximum of 1 % of the value of the goods affected by the default in delivery.
5 Retention of Title
All goods delivered shall remain the property of Avantek until complete performance of all obligations of the customer, including future obligations. The customer has the right to on-sell the goods with reserved title in the normal course of business. The customer hereby already assigns to Avantek its future claims arising from the on-sale of such goods with reserved title in the amount of the respective invoice value, as security, pending payment in full of all the claims.
At the request of Avantek the customer shall provide Avantek with details of its respective customers and advise of the type and scope of the claims the customer has against them. The customer is not allowed to pledge or assign as security the goods with reserved title. In the event of attachment by third parties of the goods with reserved title, the customer shall indicate that they are the property of Avantek and advise Avantek thereof immediately in writing. Any combination, amalgamation, processing or transformation of the goods with reserved title shall be effected exclusively for Avantek. In such a case Avantek shall acquire a joint ownership share in the finished goods or the new goods corresponding to the value of the goods with reserved title in proportion to the value of the finished goods or new goods. In the event of default in payment, including payments due on other and future goods or services supplied to the customer by Avantek or if there is any cause to suspect a deterioration in the financial circumstances of the customer, Avantek may upon reasonable notice claim its reserved title and recover the goods with reserved title and, without prejudice to asserting further claims for damages, rescind the purchase contract. The customer shall permit Avantek or other persons assigned by Avantek to enter any land or premises of the customers to recover the goods with reserved title. At the customer’s request Avantek shall release security insofar as such security exceeds the value of the claims to be secured by more than 10 % on aggregate.
The customer shall examine the purchased goods immediately after delivery. Once any defects or damages are found, the customer shall notify Avantek about such defect, damage or other deviation within 5 working days after receipt of the goods and a failure of notification will result in the exclusion of the warranty rights. Avantek reserves the right to repair or replace the purchased goods during the statutory warranty period. In no event shall the customer be entitled to suspend, withhold or off-set any payment by invoking warranty claims or any other similar grounds with respect to the delivered goods.
- Intellectual Property
Avantek retains to the utmost all of its intellectual property rights (“IP-Rights”) including but not limited to copyrights, trademarks, and patents that are contained in the goods. The customer is strictly prohibited from registering any IP-Rights that are relating to Avantek or Avantek’s products; any registered IP-Right that are relating to Avantek or Avantek’s products must be transferred from the Customer to Avantek immediately. Avantek herby disclaims all possible responsibility and liability due to the goods supplied by Avantek regarding intellectual property rights whatsoever asserted or claimed by any third party to the Buyer except that there exists other mutual agreement between Avantek and the Customer which expressly stipulates Avantek’s responsibility related to intellectual property rights
The contractual and statutory liability shall be limited to intent and gross negligence by Avantek, its representatives and its vicarious agents. TO THE EXTENT AS PERMITTED BY THE APPLICABLE LAW, IN NO EVENT WILL AVANTEK BE LIABLE TO THE CUSTOMER FOR ANY SPECIAL, INCIDENTAL OR CONSEQUENTAL DAMAGES, EVEN IF INFORMED OF THE POSSIBILITY THEREOF IN ADVANCE THESE LIMITATIONS APPLY TO ALL CAUSES OF ACTION IN THE AGGREGATE, INCLUDING WITHOUT LIMITATION BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, FRAUD, MISREPRESENTATION AND OTHER TORTS. Only by breaching essential duties Avantek shall be liable for slight negligence, the liability is limited to the damage foreseeable at contract conclusion. The liability for damages arising from injuries of life, body or health remains unaffected by this terms and shall be in accordance to law.
Avantek shall not be liable for any indirect loss, loss of business, profits, savings the customer expected to make, wasted money, wages, fees or expenses, due to late delivery, non delivery, unsuitability, breakdown or stoppage of the Goods or any part of them.
- Income tax, Import turnover tax, VAT
If the customer is domiciled outside the United Kingdom, it shall comply with all rules on profit and income tax / import turnover tax applicable in the relevant economic area, in particular it shall notify Avantek of its turnover tax identification number without requiring any specific request to do so and willingly provide any information necessary. If the goods supplied by Avantek are designated for export outside the European Union, the customer must provide all necessary documentation (shipping documents, export/import documentation, customs documents, etc) which Avantek may require to obtain VAT refund. Avantek is entitled to request the VAT from customer in advance, as security until all necessary documentation has been provided. In case of non-compliance the customer shall compensate Avantek for all expenses and damages caused as a result. Avantek is not responsible for obtaining official permits for export transactions.
- Governing Law, Jurisdiction
The Governing Law is exclusively English Law, without referring to its conflicts of law. The competent courts in the United Kingdom shall have jurisdiction over any and all disputes (including actions arising from bills of exchange or cheques) if the customer is a businessman possessing full commercial capacity. Avantek shall, however, be entitled to seize the courts, which are competent for the customer’s place of business and/or the customer’s responsible branch.