Terms and Conditions

General Conditions of Sale of Alrec

1: General

1.1 “General Conditions” means the terms and conditions set out in this document.
1.2 For the purpose of these General Conditions “Alrec” means Alrec B.V., Alrec In-Store Sp. z o.o., Alrec In-Store GmbH, Alrec In-Store Ltd, an affiliated company of one or more of these entities and/or a legal successor of one or more of these entities.
1.3 A reference to “in writing” or “written” in these General Conditions includes documents delivered by post or hand, facsimile transmission and e-mail.
1.4 For the purpose of these General Conditions “the other party” means the person or company to whom Alrec’s quotation, offer and/or order confirmation is addressed, the person or company nominated as such in an agreement with Alrec and/or the person or company to whom Alrec factually delivers its products and/or services.
1.5 References to clauses or articles are to the clauses/articles of these General Conditions unless specifically indicated otherwise.
1.6 Any phrase introduced by the terms “including”, “included”, “in particular”, “e.g.”, or words of similar meaning, is illustrative and not limited to the words preceding or following.

2: Scope

2.1 These General Conditions apply to all legal relationships, e.g. quotations, offers and agreements, in which Alrec is, or is potentially, the vendor and/or supplier of goods and/or provider of services.
2.2 The general conditions of the other party are not applicable to such legal relationships. By entering into a legal relationship with Alrec, the other party waives the application of any conditions used by it, howsoever denominated, so that all legal relationships with Alrec shall exclusively be governed by these General Conditions.
2.3 Only variations or modifications to these General Conditions which are made in writing and signed by Alrec and the other party shall be applicable.
2.4 In the event that the General Conditions and a quotation, offer or agreement should contain contradictory clauses, the quotation, offer or agreement prevails.
2.5 In the event that one or more of the clauses of these General Conditions should be invalid, in breach of the law or unenforceable in any other way, such provision or part of a provision shall, insofar as it is severable from the remaining terms, be deemed omitted from these terms and shall in no way affect the legality, validity or enforceability of the remaining terms.

3: Offers and the conclusion of an agreement

3.1 All quotations and offers issued by Alrec in whatever form, shall not impose any obligation on Alrec. An agreement shall not be formed until Alrec has issued a written order confirmation or until factual delivery / performance by Alrec.
3.2 The order confirmation is considered to be correct and accepted by the other party, unless Alrec receives a written objection from the other party within five (5) working days. If Alrec receives such an objection, no agreement is concluded unless on the basis of a new order confirmation from Alrec.

4: Additions and amendments to and cancellation of the agreement

4.1 Article 3 also applies to any additions or changes to the original agreement.
4.2 Alrec will, on written request by the other party, make changes to the quotation, offer or agreement, provided that these changes can (still) be reasonably executed. In that case, Alrec has the right to adjust the (agreed) price and/or extend the term for delivery or performance accordingly.
4.3 If the other party cancels all or part of an order or assignment, Alrec will be entitled to charge all expenses it has incurred with a view to executing the order/assignment, including but not limited to those connected with development, preparation, storage and procurement of materials, and any additional services ordered, intended for executing the order/assignment, at the prices adopted by Alrec in its costing, without prejudice to its right to compensation for loss of profit.
4.4 If the agreement includes installation services performed by or on behalf of Alrec and installation is cancelled or postponed by the other party, Alrec is entitled to charge costs in accordance with its cancellation conditions.

5: Prices

5.1 All prices charged by Alrec are understood to be exclusive of VAT.
5.2 Prices related to the production of physical materials are Ex Works, unless explicitly agreed otherwise.
5.3 Alrec is entitled to adjust all prices agreed upon in the event the costs of e.g. raw materials, labour and/or components change, in the event taxes or levies increase and/or in the event of fluctuating exchange rates.
5.4 For separate orders below the value of € 500, Alrec is entitled to charge € 50 administration fee (price level 2019).

6: Delivery and delivery period of products & performance of services

6.1 Delivery of products will be made Ex Works at Alrec’s site in Mijdrecht or Lodz Poland, or another location defined in the agreement, as provided by the Incoterms of the International Chamber of Commerce, unless agreed upon otherwise in writing.
6.2 Alrec is discharged of its duty of delivery as soon as the products ordered are ready on its industrial site for dispatch to, or collection by (or on behalf of) the other party and the other party has been duly notified thereof. From that point, Alrec will keep the products at the other party’s risk and expense.
6.3 If Alrec, by further arrangement, takes care of dispatch of the products ordered to an address provided by the other party, installs the products at the address provided by the other party or performs other services, the latter will bear all costs and risks thereof unless agreed upon otherwise in writing.
6.4 If Alrec, by further arrangement, takes care of dispatch of the products ordered, installs the products or performs other services, Alrec is discharged of its obligations as soon as the products have been dispatched, installed or the other services have been performed.
6.5 A delivery period agreed upon with Alrec is approximate; Alrec will aim to deliver the products ordered and/or perform the services assigned to it within that period, but it is not a deadline for delivery or performance unless agreed upon otherwise in writing.
6.6 In any case, the other party is not entitled to terminate the agreement, claim damages or suspend the performance of any obligation on its part towards Alrec, including obligations which are not related to the agreement, should the products or services ordered not be delivered / performed within the agreed delivery period.
6.7 Alrec will be discharged of its obligations towards the other party if the latter fails to provide all necessary cooperation for delivery of products or performance of services by Alrec within 14 days after a request thereto from Alrec.

7: Warranty & complaints

7.1 The quality of the delivered and assembled products, meaning that the products as regards materials and workmanship shall be free from significant defects and in accordance with the agreed quantities, types and other product specifications as stipulated in the agreement, is guaranteed by Alrec under normal use and maintenance for a period of one (1) year from date of completion, unless otherwise agreed upon in writing.
7.2 This warranty does not cover any defect that is caused by normal wear and tear, improper use, misuse or abuse, improper storage or maintenance, improper transportation and/or installation not performed by or under the authority of Alrec, or other acts not resulting from defects in material or workmanship.
7.3 If the products are installed by a third party not under the authority of Alrec, any defect shall be assumed to be caused by that third party and shall therefore not be covered by this warranty, unless the other party proves otherwise.
7.4 The other party is obliged to verify upon delivery or performance whether the products ordered or services performed comply with the agreement with Alrec. Complaints with regard to the products or services provided by Alrec must be made in writing as quickly as possible after delivery / performance – and in any event within three (3) working days thereafter – stating its reasons.
7.5 A failure to verify and/or complain in accordance with article 7.4 above, qualifies as a failure to complain within due time (bekwame tijd) within the meaning of article 6:89 of the Dutch Civil Code (Burgerlijk Wetboek).
7.6 If the product or service delivered does not comply with the agreement, Alrec will at its discretion repair, mend or replace the (part of the) product concerned.

8: Discrepancies on delivery

8.1 A discrepancy in the quantity of the product delivered and other minor discrepancies with regard to the quoted dimensions, quantities, colours, services and other similar data are not regarded as a defect or failure on Alrec’s part to perform its obligations. Settlement will be made for the quantity delivered short or in excess at the agreed price per unit.
8.2 Whether there are minor discrepancies within the meaning of this article will depend on trade usage.

9: Payment

9.1 Alrec’s invoices will be paid within 30 days, unless agreed upon differently, following the invoice date or within the period indicated on the invoice and in the way indicated by it. Payment will be made net, i.e. without any offset, discount and/or delay and in the agreed currency.
9.2 In the absence of prompt settlement, all the other party’s payment obligations will become immediately due, whether or not Alrec has already invoiced them, and the other party will owe interest on the capital amount of its total indebtedness to Alrec at the statutory commercial interest rate (article 6:119a Dutch Civil Code).
9.3 In the event payment is not effected in time, whether a reminder or notice of default has been sent or not, Alrec shall be entitled to have the claim collected by a third party and the cost of such debt collection, including VAT, shall be reimbursed by the other party. The other party shall, in addition to the cost of debt collection, owe Alrec any and all other costs incurred by Alrec in collecting its claim, including legal costs.
9.4 Payments by or on behalf of the other party will be used consecutively to cover the non-legal and collection costs, the legal costs, the interest due and subsequently, in order of age, the outstanding capital sums, payable to it, irrespective of any indication or direction otherwise from the other party.
9.5 The other party may object to the composition and amount of the invoice only within 30 days following invoice date.

10: Retention of title

10.1 Alrec delivers all goods and products subject to retention of title up to the moment of complete payment by the other party of:
a. any amount due under any agreement with the other party, including damages, costs and interest;
b. claims with respect to the other party’s failure to perform its obligations towards Alrec; and irrespective of whether security for payment was provided.
10.2 Should the other party produce a new product from or by recourse of the goods and products referred to in article 10.1 above, the product will be regarded as one created by Alrec for itself and the other party will hold it for Alrec as owner until all obligations referred to in article 10.1 above have been performed.
10.3 As long as Alrec has not received complete payment from the other party as mentioned in article 10.1 above, the other party is not entitled to sell, lease or lend out the products / goods to third parties outside its normal course of business, to transfer them in property, to burden them and/or to provide third parties with the goods in any (other) way.
10.4 Should the other party not fulfil any obligation towards Alrec, Alrec has the right to repossess the goods / products subject to the retention of title and dismantle any activated services related thereto, at the other party’s expense, without any given previous notice of default or (other) legal measures and without prejudice to Alrec’s entitlement to payment of costs, damages and interest. The other party is obliged to render its complete collaboration to such repossession and return the goods on first request of Alrec.

11: Security

11.1 In the event that Alrec expresses reasonable doubt as to the ability of the other party to perform its obligations towards Alrec, the other party shall, at Alrec’s request, provide security in the form desired by Alrec. Until the other party has provided such security, Alrec will be entitled to suspend the performance of its obligations towards the other party.
11.2 In the event that the other party fails to follow up a request in accordance with Article 11.1 above within 14 days after receiving a written reminder to that effect, all obligations of the other party towards Alrec will become immediately payable.

12: Intellectual property and know-how

12.1 Alrec reserves all its intellectual property rights (including any copyright, (registered and non-registered) design rights, trademark rights, patent rights, rights to knowhow and performance on a par with patentable inventions, claims or applications regarding the previous rights and any other exclusive rights) that may accrue to Alrec with regard to the products and services designed and/or produced and/or supplied by it on instructions from the other party (including sketches, design drawings, mock-ups, models, photos, end-products, IT (software) services etc). The other party may not derive rights of any kind concerning the intellectual property rights referred to in this article from the order passed by the other party to Alrec, the acceptance thereof and/or the delivery of product(s) or services by Alrec. Agreements governed by these General Conditions do not contain, nor can they be interpreted as, a transfer of any intellectual property rights and/or the grant of a license concerning such rights, extending beyond those referred to in Article 12.4.
12.2 The other party guarantees that the specifications in connection with an order placed with Alrec to produce a product of any kind (including specifications concerning the appearance of the product and the method of manufacture and/or design) provided by the other party to Alrec, do not infringe any third party (intellectual property) rights. The other party holds Alrec harmless against all prejudicial consequences, if any, of third party claims related to such rights.
12.3 The other party will not rely on or invoke exclusive rights against Alrec resulting from any specifications referred to in Article 12.2.
12.4 Insofar as the other party may claim protection by way of intellectual property rights (such as copyrights) in connection with such specifications and/or be regarded as joint holder of copyright to the product to be produced and/or supplied by Alrec, the other party by concluding the agreement governed by these General Conditions transfers such intellectual property rights fully to Alrec, which transfer Alrec hereby accepts. To the extent permitted by law, the other party hereby renounces any and all moral rights as mentioned in article 25 of the Dutch Copyright Act (Auteurswet).
12.5 The other party is entitled to use the product produced and/or supplied by Alrec on its instructions, as has been expressly permitted under a separate agreement and/or which use necessarily results from the nature of the agreement governed by these General Conditions. The other party is not in any event entitled to (have a third party) reproduce and/or alter the products designed, produced and/or supplied by Alrec.
12.6 The other party undertakes to keep confidential all data, drawings, product(specifications) and information concerning Alrec’s business, including but not limited to the production methods and processes adopted by it, that may come to its knowledge through the execution of the agreement governed by these General Conditions.
12.7 Alrec is not liable for any consequences to the other party as a result of the other party being faced with third party claims based on (alleged) breach of third party (intellectual property) rights.

13: Termination and suspension

13.1 Alrec will be entitled – at its discretion, without any obligation to pay damages and without prejudice to any of its other rights – to terminate the agreement in whole or in part or suspend execution or further execution thereof, in the event that:
a. the other party is declared bankrupt, files moratorium on payment of its debts or offers its creditors a composition outside bankruptcy;
b. the other party ceases its activities, loses its legal personality or transfers or merges its business;
c. any of the other party’s assets are seized and the seizure is not lifted within 30 days; or
d. the other party fails to perform any of its obligations towards Alrec, completely, properly or on time, and fails to remedy such default within seven days after given a notice of default by Alrec.
13.2 Alrec will also be entitled to terminate the agreement or suspend performance of its obligations, without any obligation to pay damages, if proper performance of its obligations under the agreement is wholly or partially frustrated as a result of one or more circumstances beyond its control.
13.3 Circumstances within the meaning of Article 13.2 above for which Alrec is not in any event responsible include work performed by third parties not contracted by Alrec, strike, lock-out, a ban on imports, exports and/or transits, natural and/or nuclear catastrophe and war and/or threat of war.

14: Liability and indemnity

14.1 The liability of Alrec, its employees and (other) persons for whom Alrec is responsible and/or liable, is at all times – irrespective of the cause, nature and extent of the damages – limited to the net amount of the order or assignment concerned or the amount covered by Alrec’s insurance, whichever is the lesser amount, and in any case to a maximum of €1,000,000.
14.2 Alrec is never liable for consequential damages, including loss of turnover, loss of profit, loss of goodwill and damages resulting from the use of products supplied by Alrec unless these damages are attributable to deliberate intent or recklessness on its part, in which case Alrec’s is only liable for personal injury or damage to property.
14.3 The other party shall indemnify Alrec against all claims by third parties resulting from or connected with the agreement, including claims regarding the products supplied or services provided by Alrec to the other party.

15: Jurisdiction and applicable law

15.1 All legal relations between Alrec and the other party are governed by Dutch law, irrespective of which Alrec entity is involved, the other party and the place of delivery / performance. The applicability of the United Nations Convention on Contract for the international Sale of Goods is explicitly excluded in its entirety.
15.2 All disputes arising out of or in connection with a legal relation to which these General Conditions apply, or the General Conditions themselves, will – at Alrec’s choice – be resolved by either (a) the competent (regular) court in Amsterdam or (b) the Amsterdam District Court following proceedings in English before the Chamber for International Commercial Matters (Netherlands Commercial Court or NCC). An action for interim measures, including protective measures, available under Dutch law may be brought in (a) the competent judge of the district court of Amsterdam or (b) the NCC’s Court in Summary Proceedings (CSP) in proceedings in English. In case of a dispute, which cannot be resolved by agreement, Alrec will inform the other party about its preference for (a) or (b) within 4 weeks, or in case of an action for interim measures within 1 week, after receiving a request to that end from the other party.

16: Miscellaneous

16.1 Alrec is entitled to engage third parties in the performance of its obligations towards the other party without the other party’s (prior) consent.
16.2 The other party cannot offset any obligation payable on its part with an obligation of Alrec towards the other party.
16.3 All claims of the other party against Alrec shall be barred and become extinct by the simple lapse of twelve months. This period shall commence on the day the other party becomes aware or should have become aware of the existence of such a claim.
16.4 The other party is not entitled to assign any of its rights and/or obligations under a legal relationship to which these General Conditions apply to a third party.
16.5 Alrec can at any time amend these General Conditions. The amendments will become effective on the specified effective date and apply to all legal relationships concluded after that date. In the event an agreement was concluded before that date, the amendments will apply from the day on which the other party was informed about the amendments / the amended version of these General Conditions.