Terms and Conditions for delivery and payment of Noizezz B.V. (Noizezz)
filed on 4 November 2014 at Registry of the court in the province of North Holland under number 20/2014.
These Terms and Conditions for delivery and payment, hereinafter ‘Conditions, are part of all by Noizezz released quotations, special offers and/or (resulting) agreements. Deviations from, or additions to, these conditions require the explicit written permission from Noizezz. “Other Party” shall mean every (legal) person, its representatives, agents, legal successors or heirs, who have concluded or wish to conclude an Agreement with Noizezz. Noizezz accepts no applicability of general purchasing, tender or other conditions of the Other Party.Should any provision of these conditions or part thereof become void or voidable, the remaining provisions or the remainder shall remain in force. Noizezz and the Other Party agree to replace the void or voidable provision by a provision that they would have agreed upon, if if they would have known the voidability or the voidness.If these conditions have been drawn up both in Dutch and in English, in case of any dispute about the contents or scope of these conditions, the Dutch text shall prevail.
SPECIAL OFFERS, FORMATION, CONTENT AND IMPLEMENTATION OF THE AGREEMENT
Noizezz reserves the right to refuse orders without giving any reasons.The quotations offered by Noizezz are valid for a period of 30 days, unless stated otherwise. It is not possible to buy products for the special offer price outside this period.The documents issued by Noizezz that accompany the special offers remain the property of Noizezz. This may not be copied, nor handed to third parties without the express consent.An agreement with Noizezz is only concluded if an assignment has been accepted verbally, or it is confirmed in writing. The order confirmation is deemed to display the agreement accurately, unless the Other Party objects against it immediately or in any case within 7 days in writing.The powers to conclude binding agreements is solely reserved to the directors of Noizezz. Agreements concluded by anyone other than the directors are only binding if they are confirmed by the directors.After the conclusion of the agreement additional agreements are deemed to be part of the agreement.If no quotation or order confirmation is sent, the invoice is deemed to display the agreement accurately, except when objected to within 7 days after the invoice date.Each agreement is established under the suspensive condition that the Other Party is sufficiently creditworthy for the monetary fulfilment of the agreement. The assessment thereof shall be on the side of Noizezz. Noizezz is entitled to demand a collateral from the Other Party, so both the monetary, as well as the other obligations will be met, regardless of the situation in the execution of the Agreement.In respect of the proper execution of the Agreement the Other Party has an information obligation. In case of incomplete and/or inaccurate information Noizezz shall not be liable for any inaccuracies in the execution.Noizezz is free to engage third parties for proper execution of the Agreement. These costs shall borne by the Other Party.If the Other Party uses an order of goods on site, the Other Party shall ensure a suitable location and all necessary facilities, that enable the proper execution of the Agreement.
All prices are stated in Euros and exclude VAT, any other government-imposed levies and transport / packing / shipping costs.An increase of one or more cost price factors will be charged in the order price; all this with due observance of any existing legal regulations. Any already known future price increases must be stated at the order confirmation.Any costs incurred due to reasons beyond the company’s OR Noizezz control and that require a change in the work, may be charged at the Other Party. Also the entry into force of government regulations, that were and/or could not have been known at the time of concluding the Agreement, could cause additional costs to be borne by the Other Party.
If the Other Party – after an Agreement has been established – wishes to cancel this Agreement, Noizezz shall be entitled to charge 10% of the order price (excl. VAT) as a cancellation fee, without prejudice to the right to full compensation including loss of profit.No cancellation shall be possible with regard to the goods originating from Noizezz as these are customized products.
All word- and/or trademarks, trade and/or fantasy names and/or a combination of words in which the word or trademarks, trade names and fantasy names of Noizezz or one of its affiliated companies, patents and/or patent applications, drawings, calculations, descriptions, models, moulds, tools, software, know-how, work methods, methods and technology, developed and/or filed and/or obtained by Noizezz and of which the Other Party has obtained knowledge, are and remain the property of Noizezz. The information that is based on, or is the basis of, the manufacturing and construction methods, products etc., remains exclusively reserved to Noizezz, even if these are subject to charges.The Other Party warrants that said information, except for the implementation of the Agreement, is not used, copied, registered, filed, shown to third parties, disclosed or otherwise controls without the written consent from Noizezz.Any images, drawings, sizes and measurements etc. details stated in catalogs only bind Noizezz if and to the extent that these are included in an agreement or order confirmation signed by Noizezz.
Unless agreed otherwise in writing, delivery will take place within the Netherlands carriage paid (in accordance with Incoterms 2010) and outside Netherlands Ex Works (in accordance with Incoterms 2010).The delivery time, with respect to the delivery and installation of devices or otoplastics for deaf and hearing impaired persons during which the execution of the work is carried out, will be estimated by Noizezz to the best of its ability, unless expressly agreed otherwise in writing.The specified delivery times do not commence before receiving the agreed advance payments and all data and documents to be provided by the Other Party have been received.Noizezz reserves the right to terminate the deliveries agreed with the Other Party if the Other Party fails to pay outstanding claims regarding the deliveries of Noizezz.Exceeding the estimated delivery time or the time at which the work will commence, will not entitle the Other Party to claim compensation for damage, right on full or partial termination of the Agreement, except in the event of intent or gross negligence on the part of Noizezz. In case of excessive overruns of the delivery time Noizezz will consult with the Other Party.A duty of information applies for the Other Party and an adequate insurance obligation with respect to goods which are placed at third parties. Noizezz wishes to be informed at any time where the delivered goods are located. For such goods also a duty to cooperate applies for the Other Party. The Other Party will therefore have to respond to the request of Noizezz when Noizezz wishes to receive goods.
RISK AND RETENTION OF TITLE
Immediately after delivery within the meaning of Article 6 the Other Party shall bear the risk for all direct and indirect damage that that may arise from or through the products provided, except in the event of gross negligence on the side of Noizezz.The ownership of all delivered materials and any goods/products still to be delivered is only transferred to the Other Party at the time of full payment by the Other Party that is payable to Noizezz which Noizezz under the Agreement concluded between Noizezz and the Other Party, including in any case the claims mentioned in Article 3:92 Paragraph 2 Dutch Civil Code, including interest and costs.In the event of moratorium, bankruptcy, Dutch Natural Persons Composition Act (Wet schuldsanering natuurlijke personen), suspension of payment, liquidation of the company of the Other Party or death if the Other Party is a natural person, Noizezz shall be entitled to claim back the delivered goods, however not (fully) paid goods without further notice of default or judicial intervention, offsetting any already paid, but without prejudice to all rights to claim damages. The Other Party shall cooperate with Noizezz in order to execute the retention of title as set out in Paragraph b by Noizezz by taking back any goods that are not yet (fully) paid.At the time of the claim Noizezz acquires the property-free pledge on all goods in which materials are processed or materials are part of. The order confirmation signed by the Other Party applies as the required private deed.If Noizezz enters into a Lease Agreement, or loan for use agreement with the Other Party all goods delivered under the Lease Agreement remain the property of by Noizezz. However, Noizezz offers the opportunity, if the Lease Agreement is terminated for whatever reason, that the Lease Agreement is converted into a purchase agreement, however not without prior consent. Also in the case of a loan for use agreement the ownership of the delivered goods remains at Noizezz.
EXCHANGE AND RETURN
At Noizezz you can exchange or return your purchases within 14 days after purchase in the original packaging.This except for special orders/customized items, such as customized hearing protection equipment and earpieces.
Complaints with respect to invoices and the delivered and installed work must be made in writing, within 7 days after the invoice date respectively after the delivery and the installation of the work. Upon expiry of this period the invoice is deemed to have been approved.Admissibility and merits of the complaint can only lead to delivery of the agreed performance.Complaints shall not suspend the obligation to make payment. If the complaint is found to be justified, the payment obligation can only be suspended to the extent that this relates to the part to which the complaint relates.
Payment must be made, without any discount, deduction or offsetting, cash upon delivery or by transfer to a bank or girobank account number designated by Noizezz within 14 days after the invoice date, unless agreed otherwise in writing. The currency date will be determined as the date of payment.Payments made by the Other Party are primarily due as payment for the due interest and costs incurred. After payment of these costs, payments will be deducted on the outstanding invoice.If payment has not been made within the agreed period, the Other Party shall be legally in default and interest will be owed on the outstanding amount from the date of invoice. Noizezz shall be entitled to charge contractual interest of 1% per month (or part thereof). In addition, all extrajudicial and judicial costs incurred or to be incurred shall be borne by the Other Party. The extrajudicial costs amount to 15% of the invoice amount due and interest with a minimum of € 80.-.
Warranty is given on products and work delivered by Noizezz under the following conditions:– warranty can only relate to manufacturing defects, no warranty will be granted on products that show defects resulting from to wear, use or improper use.– there is no warranty if changes to the work have been made by third parties or the Other Party;–for parts not delivered by Noizezz, but by third parties only the warranty period that the third parties have granted Noizezz, applies;A warranty with respect to the work carried out by Noizezz is issued for a period of one year, unless there are circumstances on in which an appeal to the warranty terms is excluded. This may include damages caused by others.With respect to products coming from Noizezz a warranty period of three months applies. If the Other Party has problems with the customized product, the product must be returned to Noizezz within a period of 3 months. Noizezz will ensure a proper replacement of the product. The Other Party will receive a replacement product which the same performance as the product initially ordered.The ownership of components replaced under warranty is at Noizezz.If the Other Party fails to fulfill its contractual obligations, Noizezz shall not be bound to give warranty.
The liability of Noizezz is limited to the fulfilment of the warranty obligation set out in Article 10. Our liability will never exceed the total amount of the order in question.Except for intent or gross negligence and subject to the provisions of the previous paragraph, all liability of Noizezz for (direct and indirect) damage, both at the Other Party, as well as at third parties, is excluded.If and to the extent that Noizezz is liable for any reason, Noizezz shall in no event be obliged to pay compensation of more than the contract amount per event, considering a series of events as one event.For deliveries whereby Noizezz uses third parties, Noizess shall never be held liable with respect to damages and failures arising from third party acts.Noizezz can never be liable if it appears that the Other Party is allergic to certain substances that Noizezz uses for the ordered product.The Other Party is obliged to indemnify Noizezz respectively for all third-party claims for compensation of damage, costs and interest, for which the liability of Noizezz in these conditions in relation to the Other Party is excluded.
Force majeure shall mean any independent or unforeseeable circumstance beyond the control of Noizezz as a result of which fulfilment of the Agreement permanently or temporarily in whole or in part can no longer be expected.Any force majeure event gives Noizezz the right to suspend its obligations arising from the Agreement during the force majeure event, until the circumstance that causes the force majeure no longer exists.If the force majeure situation is of a permanent nature, the parties shall have the right to terminate the Agreement, without being entitled to compensation for any damage.The party who believes to be in a majeure situation, must inform the Other Party immediately.
Without prejudice to all its other rights, including the right to compensation for any damage suffered or to be suffered, and without being held to pay any compensation or give warranty, Noizezz has the right to terminate the Agreement in whole or in part out of court or suspend its obligations without notice of default and without judicial intervention, if– the Other Party is declared bankrupt, has applied for, or has been granted moratorium, goes into liquidation, a seizure is imposed upon the Other Party, or transfers or ceases its business activities or changes its objective;– the Other Party for whatever reason fails to fulfil one or more obligations arising from the Agreement concluded with Noizezz;– the Other Party dies or is placed under guardianship.In case of an event as referred to in Paragraph 1, all claims of Noizezz towards the Other Party shall be immediately and completely claimable and Noizezz shall be entitled to take the already delivered goods back.
APPLICABLE LAW AND COMPETENT COURT
All agreements concluded with Noizezz, implementations thereof and these terms are governed by Dutch law, with the exclusion of the CISG 1980 (CISG).All disputes, arising from an agreement concluded with Noizezz, shall be settled exclusively by the court in Amsterdam.