General terms & Conditions
GENERAL TERMS AND CONDITIONS OF DELIVERY AND PAYMENT OF SOUNDS PERFECT B.V. (NOIZEZZ) DATED JUNE 2020
Filed with the Chamber of Commerce in Amsterdam under registration number 77340582
a. Only these terms and conditions are applicable to all offers, confirmations, deliveries of services and goods (including customer support), subscriptions and invoices from Sounds Perfect B.V. (hereinafter: “Noizezz”) to the other party, to every order from the other party, to all agreements between Noizezz and the other party, and to every amendment thereof, as well as to every request from the other party for delivery of services and/or goods, regardless of whether an agreement is or has been concluded between Noizezz and the other party.
b. Any general terms and conditions or other conditions used by the other party will not apply. The other party can only appeal to clauses that deviate from these conditions and/or supplement these conditions if and as far as they have been expressly accepted by Noizezz in writing. Such agreed deviating and/or additional clauses will not affect the applicability of the other clauses of these conditions and will only apply to the agreement for which this has been expressly agreed in writing.
c. By accepting these conditions, the other party also agrees to the applicability of these conditions to all future agreements between Noizezz and the other party and to all offers, confirmations, and to (requests for) delivery of services and/or goods.
d. The “other party” is defined as any legal entity or person, their representatives, agents, assigns or heirs, who has concluded or wishes to conclude an agreement with Noizezz.
e. Noizezz will be entitled to change or supplement these conditions at any time. The most current conditions will be available on the website of Noizezz (https://www.noizezz.eu/algemene-voorwaarden/). An amendment of these conditions will not result in Noizezz being liable to pay any damages to the other party.
f. If any provision of these conditions or part thereof is void or voidable, the other provisions or the remainder will remain in full force and effect. Noizezz and the other party agree to replace the void or voidable provision by a provision they would have agreed upon, if they would have known the voidness or voidability.
g. If these conditions have been drawn up both in Dutch and in English, the Dutch text will be binding in case of any dispute about the contents or purport of these conditions.
2. OFFERS, FORMATION AND CONTENT OF THE AGREEMENT
a. Noizezz reserves the right to refuse orders without giving reasons.
b. The offers issued by Noizezz are valid for a period of 30 days, unless otherwise stated. It is
a. All prices are stated in Euros and are exclusive of V.A.T., all other government levies and transport/packaging/shipping costs.
b. An increase in one or more cost price factors will be passed on in the order price; all this with due observance of any existing statutory regulations. Already known future price increases must be stated with the order confirmation.
c. Costs that are caused through no fault of Noizezz and that cause a change in the work/deliveries can be charged.
may be charged to the other party. Also the coming into force of government regulations, which were not and/or could not have been known at the time the agreement was concluded, may cause additional costs, which will be charged to the other party.
4. CANCELLATION / TERMINATION
a. If the other party – after an agreement has been concluded – wishes to cancel or terminate it, Noizezz will be entitled to charge 10% of the order price (excluding VAT) as cancellation costs, without prejudice to the right to full compensation for damages, including lost profit.
b. With respect to the items that originate from Noizezz, after the conclusion of the agreement, cancellation or cancellation by the other party is not possible, because with respect to these items it concerns custom-made products.
c. Noizezz will at all times be entitled to cancel the agreement with immediate effect.
d. Under no circumstances will Noizezz be liable for any compensation, in whatever form, in case of (premature) termination or the end of the agreement.
5) INTELECUAL PROPERTY
a. All word and/or pictorial trademarks, trade names and/or fantasy names and/or a combination of words in which the word or pictorial trademarks, trade names and fantasy names of Noizezz or a company affiliated to Noizezz, patents and/or applications for patents, drawings, calculations, descriptions, models, moulds, tools, software, know-how, methods and techniques, developed and/or filed and/or obtained by Noizezz and of which the other party has become aware, are and will remain the property of Noizezz. The information contained in the foregoing or underlying the manufacturing and construction methods, products, etc., will remain exclusively reserved to Noizezz, even if costs have been charged.
b. The other party guarantees that, except for the implementation of the agreement, the information referred to will not be used, copied, registered, filed, shown to third parties, made known or otherwise disposed of, other than with the written permission of Noizezz.
c. Data mentioned in catalogs, images, drawings, size and weight specifications etc. will only bind Noizezz if and as far as they have been included in an agreement or order confirmation signed by Noizezz.
a. Unless agreed otherwise, for orders with a value of over 250 euro, delivery within the Netherlands will take place carriage paid (in accordance with Incoterms 2010) and outside the Netherlands Ex Works (in accordance with Incoterms 2010).
b. The delivery time, regarding the delivery and installation of aids or otoplastics for the deaf and hard of hearing within which the performance of the work is carried out, will be determined approximately by Noizezz to the best of its ability, unless expressly agreed otherwise in writing.
c. The indicated terms of delivery will not commence until after the agreed advance payments have been received and all information and documents to be provided by the other party have been received.
d. Noizezz reserves the right to stop deliveries agreed upon with the other party if the other party fails to pay outstanding claims regarding Noizezz deliveries.
e. Exceeding of the approximate delivery time or the time when the work will start, will not entitle the other party to compensation for damages, nor to full or partial dissolution of the agreement, except in case of intent or gross negligence on the part of Noizezz. In case of excessive exceeding of the delivery time, Noizezz will consult with the other party.
f. The other party has an obligation to provide information and an adequate insurance with respect to goods placed with third parties. At all times, Noizezz wishes to be informed where the delivered goods are located. Also, with respect to such goods
7. RISK AND RETENTION OF TITLE
a. Immediately after delivery as referred to in article 6, the other party will bear the risk for all direct and indirect damages that may be caused to or by the delivered products, except to the extent attributable to gross negligence of Noizezz.
b. The ownership of all delivered materials and any goods/products yet to be delivered will first pass to the other party at the moment of full payment by the other party to Noizezz of all that Noizezz owes under the agreement concluded between Noizezz and the other party, including in any case the claims mentioned in Article 3:92 paragraph 2 of the Civil Code, including interest and costs.
c. In case of suspension of payment, bankruptcy, Natural Persons Debt Rescheduling Act, suspension of payment, liquidation of the other party’s company, or death if the other party is a natural person, Noizezz will be entitled to reclaim the delivered, yet not (fully) paid for goods without further notice of default or judicial intervention, with settlement of any already paid, but without prejudice to all rights to claim damages. The other party should give Noizezz all cooperation in order to have Noizezz exercise the retention of title included in paragraph b by taking back the goods not yet (fully) paid for.
d. At the moment the claim arises, Noizezz will acquire the non-possessory (reserved) pledge on all goods in which materials have been processed or materials are part of, as security for everything Noizezz has to claim for whatever reason, also in the future. The order confirmation signed by the other party will serve as the required private deed of pledge.
e. When Noizezz enters into a lease agreement or loan agreement with the other party, all goods delivered with respect to the lease agreement will remain the property of Noizezz at all times. However, Noizezz offers the possibility, when the lease agreement is terminated for whatever reason, that the lease agreement will be converted into a purchase agreement, but not without our prior consent. Also in case of a loan agreement, the ownership of the delivered goods will remain with Noizezz.
a. Complaints regarding invoices and the delivered and installed work must be submitted in writing, within 7 days after the invoice date or after the delivery and installation of the work, respectively. After the expiration of this period, the invoice shall be deemed approved.
b. Justification of the complaint can only lead to still delivering the agreed performance.
c. Complaints do not suspend the payment obligation. If the complaint is found well-founded, the payment obligation can only be suspended insofar as it relates to the part to which the complaint relates.
a. Payment should, without any discount, deduction or settlement, be made in cash upon delivery or by deposit into a bank or giro account number designated by Noizezz within 14 days after the invoice date, unless agreed otherwise in writing. The value date will be decisive here as the day of payment.
b. Payments made by the other party shall first be applied to settle the interest owed and costs incurred. After payment of these costs, payments will be debited to the outstanding invoice.
c. If payment has not been made within the agreed period, the other party will be in default by operation of law and will owe interest on the outstanding amount from the invoice date. Noizezz will be entitled to charge contractual interest of 1% per month (or part thereof). In addition, all extrajudicial and judicial costs made and to be made will be charged to the other party. The extrajudicial costs are 15% of the invoice amount due and interest with a minimum of € 80. The above is without prejudice to Noizezz’s other rights, including the right to fulfillment and full compensation.
a. Warranty will be granted on the 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 as
due to wear and tear, consumption or improper use are defective. Nor is there any guarantee if changes have been made to the work by third parties or the other party itself;
– On parts that have not been delivered by Noizezz, but by third parties, only the warranty period that the third parties have granted Noizezz will apply.
Noizezz have granted;
– A guarantee with respect to the work done by Noizezz will be given for the duration of one year, unless there are circumstances on which a call on the guarantee provisions is excluded. This includes damages caused by others.
– With respect to products coming from Noizezz, a warranty period of three months will apply. When the other party has problems with the custom-made product, that product should 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 that will have the same design as the product that was ordered in the first place.
b. The ownership of parts replaced under warranty will belong to Noizezz.
c. If the other party does not comply with its contractual obligations, Noizezz will not be held to any warranty.
a. Noizezz shall not be liable for damage (i) as a result of a shortcoming towards the other party, regardless of whether it is attributable or not, (ii) as a result of an unlawful act towards the other party or (iii) on the basis of any other (legal) basis.
b. In no case will Noizezz be liable for corporate, consequential and/or indirect damages (including but not limited to loss of profit and turnover, missed savings, compensation for damages, personal injury, reputation damage and immaterial damage), decreased goodwill, damage due to business stagnation and damage as a result of claims of clients of the other party. Neither shall Noizezz be liable for damages resulting from the fact that the other party has provided Noizezz with incorrect, incomplete or unreliable information or data, or damages that can be attributed to an act or omission, other than mentioned in this sentence, of the other party. Moreover, Noizezz will not be liable for any damage related to mutilation, destruction or loss of data and documents.
c. Without prejudice to the above, Noizezz’s liability will in all cases be limited to its warranty obligation, the contract price charged per event (whereby a series of events will be considered as one event), or – if it is less – the amount covered by Noizezz’s (business) liability insurance and paid out in the case concerned.
d. The exclusions and limitations of liability of Noizezz described in Article 11 under a through c will not affect the other exclusions and limitations of liability as described in these conditions.
e. If it turns out that the other party is allergic to certain substances Noizezz uses for the ordered product, Noizezz will never be liable for this.
f. The other party will indemnify Noizezz against all claims of third parties, including the costs of legal assistance, that are in any way related to the services and/or goods delivered and to be delivered by Noizezz to the other party.
g. The other party is fully responsible for the correctness and completeness of the information provided and exchanged with third parties in the context of the services and/or matters. The other party will indemnify Noizezz against all claims of third parties in this respect, unless the other party can demonstrate that the facts underlying the claim are fully and exclusively attributable to Noizezz.
a. A failure in the fulfillment of its obligations cannot be attributed to Noizezz, if this failure is the result of force majeure.
b. Force majeure is understood to mean any circumstance beyond Noizezz’s control, even if this circumstance could already be anticipated at the time of the conclusion of the agreement between Noizezz and the other party, which prevents the fulfillment of the agreement, in whole or in part, permanently or temporarily. This includes (but is not limited to): fire, accidents, war (danger and damage), terrorism, mobilization, state of siege and other disturbances, riots, insurrection, molestation, epidemics, pandemics, endemics, natural disasters, weather conditions, government measures, occupation, theft and/or loss of tools, materials or information, serious disturbances in the company and/or system of Noizezz, including strike, blockade, boycott, excessive absenteeism, cyber attacks and criminality, failures or delays at internet providers as well as the impossibility of the fulfillment of the agreement as a result of shortcomings of Noizezz’ (suppliers of Noizezz) or (auxiliary) persons or items brought in by Noizezz for the implementation of the agreement, import and export bans or other legal impediments at home and/or abroad as well as facts and circumstances of an economic nature.
c. Each force majeure situation will only give Noizezz the right, without any judicial intervention being required, at its own discretion: (i) to suspend its obligations under the agreement for the duration of the force majeure situation. If the circumstance causing the force majeure no longer occurs, Noizezz will fulfill its obligations as soon as its planning allows; (ii) to suspend or dissolve the agreement in whole or in part with immediate effect. Such suspension or cancellation/dissolution will not result in Noizezz being held liable for any damages. A reliance by the other party on force majeure is expressly excluded.
13. INTERIM TERMINATION
a. Without prejudice to all its other rights, including the right to compensation of all damages suffered or to be suffered, and without being bound to any compensation or guarantee, Noizezz has the right, without notice of default and without judicial intervention, to dissolve the agreement entirely or partially out of court, or to suspend its obligations, if 1. the other party is declared bankrupt, has applied for or obtained a moratorium, goes into liquidation, is seized at his expense, or transfers or ceases his business activities or changes his objective; 2. the other party, for whatever reason, fails to comply with one or more obligations resulting from the agreement entered into with Noizezz; 3. the other party dies or is placed under guardianship.
b. If an event as referred to in paragraph 1 occurs, all claims of Noizezz against the other party will be immediately and fully claimable and Noizezz will be entitled to take back goods already delivered.
14. PROTECTION OF PERSONAL DATA
a. In this Article, “Data Protection Legislation” refers to all legislation applicable to the processing of personal data under the Agreement, including the Telecommunications Act and the General Data Protection Regulation (GDPR) as applicable as of May 25, 2018.
b. Noizezz will process personal data in accordance with the Data Protection Legislation.
c. Noizezz will take appropriate technical and organizational measures in accordance with the Data Protection Legislation to secure the personal data against loss or against any form of unlawful processing.
d. The other party guarantees that all legal obligations to which it is subject under the Data Protection Legislation are strictly observed. In particular, the other party guarantees that data subjects of whom he provides data to Noizezz have been informed about the processing by the other party and Noizezz in such a way that both the other party and Noizezz comply with their obligations under Articles 13 and 14 AVG and that, where required, permission to process personal data has been obtained in accordance with the Data Protection Legislation. The other party will promptly provide Noizezz with all information requested in this regard in writing.
e. The other party shall indemnify Noizezz against all claims of third parties, including claims of persons to whom the personal data processed in the context of the provision of services and/or matters of Noizezz relate, due to violation of the Data Protection Legislation, unless the other party can prove that the facts underlying the claim are fully and exclusively attributable to Noizezz.
15. APPLICABLE LAW AND COMPETENT COURT
a. To all commitments between Noizezz and the other party, to these terms and conditions and to all resulting or related extra-contractual obligations, Dutch law shall apply, with the exception of Dutch private international law rules of conflict of law. The applicability of the Vienna Verpakking bevat 4 matens Convention 1980 (CISG) is expressly excluded.
b. All disputes concerning or resulting from or related to an agreement concluded by Noizezz, offer or confirmation to which these conditions apply in whole or in part, these conditions as well as to all resulting or related extra-contractual obligations, shall be submitted exclusively for settlement to the competent court in Amsterdam (the Netherlands).
NOIZEZZ | Sounds Perfect B.V.
+31 (0) 23 554 40 10
Wijkermeerstraat 16 2131 HA Hoofddorp Nederland
023 – 55 44 010