Article 1 - Definitions
1.1 Akoestiekspecialist: user of these terms and conditions, established in Kerkrade and registered in the trade register of the Chamber of Commerce under Chamber of Commerce number 77088425 and VAT identification number: NL003145008B86
1.2 Other party: the natural person or legal entity in the exercise of a profession or business with whom Akoestiekspecialist has concluded or wishes to conclude an agreement.
1.3 Agreement: every agreement between Akoestiekspecialist and the other party by which Akoestiekspecialist has undertaken to deliver products and/or carry out work.
1.4 Work: all work performed by Akoestiekspecialist for the benefit of the other party, including consultancy work, noise measurements and installation of products.
1.5 Products: all goods to be delivered and possibly installed by Akoestiekspecialist within the framework of the agreement.
Article 2 - General
2.1 These general terms and conditions apply, to the exclusion of any general terms and conditions of the other party, to every offer made by Akoestiekspecialist and all agreements concluded with Akoestiekspecialist.
2.2 Any applicability of the general terms and conditions of the other party is expressly rejected.
2.3 These general terms and conditions shall also apply if the performance of the agreement is (partly) contracted out to third parties.
2.5 In the event that any provision of these general terms and conditions is invalid or is nullified, this shall not affect the validity of the remaining provisions. Parties will then consult in order to agree on new provisions to replace the void or voided provisions, whereby the purpose and meaning of the original provision will be taken into account as much as possible.
2.6 If Akoestiekspecialist does not always require strict compliance with the general conditions, this does not mean that the provisions would not apply or that Akoestiekspecialist would lose the right to require strict compliance with the provisions of these general conditions in other cases.
Article 3 - Offer, conclusion of agreement
3.1 An offer made by Akoestiekspecialist is always free of obligations, unless a term for acceptance is mentioned.
3.2 Akoestiekspecialist cannot be held to an offer if the other party can reasonably understand that the offer or a part thereof contains an apparent mistake or error, or if this offer is based on incorrect or incomplete information provided by the other party.
3.3 The prices mentioned in an offer are always exclusive of VAT, any transport costs, any costs for electrical and installation work and any costs for using hoisting and lifting equipment, unless explicitly stated otherwise.
3.4 The agreement for the delivery of products and/or the performance of work is established by offer and acceptance. For products ordered via the webshop, the purchase agreement is only concluded after the other party has received confirmation of his or her order by email.
3.5 A composite offer does not oblige Akoestiekspecialist to carry out part of the order for a corresponding part of the price quoted.
3.6 The other party entering into the agreement with Akoestiekspecialist declares to be authorised to do so.
Article 4 - Obligations of the other party with regard to activities
4.1 The other party is obliged to provide all information which Akoestiekspecialist indicates to be relevant or which the other party
should reasonably understand to be relevant for a proper execution of the agreement. Akoestiekspecialist is not liable for any damage resulting from incorrect or incomplete information provided by the other party.
4.2 The other party shall be obliged to cooperate fully and to take all reasonable measures necessary for the proper execution of the agreement.
4.3 If the agreement provides for noise measurements to be carried out on location, the other party must ensure that no persons are present in the building at the time of the noise measurements. This is because sound measurements can cause damage to hearing. The other party is obliged to inform its personnel and any third parties in good time about the day and time at which the work will be carried out and the risks of hearing damage. Akoestiekspecialist shall not be liable for any damage which may arise due to the fact that persons are present in the building at the time of the sound measurement.
4.4 The other party is obliged to ensure that all safety and precautionary measures are taken so that the persons employed by Akoestiekspecialist can perform their work in a safe and responsible manner.
4.5 Unless parties have agreed otherwise, the other party shall ensure that:
- the persons employed by Akoestiekspecialist are given access on the agreed day and time to the location where the work is being carried out.
- a container is made available free of charge for the waste produced in the performance of the contract.
- the persons employed by Akoestiekspecialist can make use of the necessary facilities free of charge, such as gas, water and
- a (lockable) storage room is made available at the location or in the immediate vicinity thereof to the persons employed by Akoestiekspecialist, in which tools and other items can be stored.
4.6 The persons employed by Akoestiekspecialist may have to stand on tables, desks or other objects when carrying out the assembly work. These items as well as the floor will not be covered. The opposing party agrees to this, unless explicitly indicated otherwise. In that case the other party shall ensure removal of the aforementioned items.
Article 5 - Execution of agreement
5.1 Akoestiekspecialist shall make every effort to carry out the agreement to the best of his knowledge and ability in accordance with the requirements of good craftsmanship. Akoestiekspecialist shall only undertake a best efforts obligation and shall never guarantee the achievement of a certain result, unless this has been expressly agreed between the parties.
5.2 Any calculations made as a result of noise measurements only give an indication of the expected acoustic values. The actual values may deviate. Such deviations cannot be regarded as a shortcoming of Akoestiekspecialist.
5.3 If the parties have agreed a term for certain work, this term shall only commence after Akoestiekspecialist has received all information relevant to the execution of the agreement. This shall never be a deadline. If a term is exceeded, the other party shall give Akoestiekspecialist written notice of default. The default only comes into effect after Akoestiekspecialist has been given a reasonable term to fulfil the obligations and compliance has not been achieved after this term has expired.
5.4 Akoestiekspecialist has the right to involve third parties for the execution of the agreement. Akoestiekspecialist is completely free in the choice of third parties to cooperate with. The applicability of sections 7:404 and 7:407(2) of the Netherlands Civil Code is explicitly excluded.
Article 6 - Sale of products
6.1 The delivery of ordered products takes place by delivery to the address given by the other party, unless parties have agreed otherwise. The other party is responsible for providing the correct data, including the correct specification of names and delivery addresses.
6.2 Akoestiekspecialist determines the way the products are transported and packed. The transport costs are for the account of the other party, unless otherwise agreed.
6.3 The risk of loss and damage to the products shall pass to the other party at the moment at which the products are delivered and have thus come under the control of the other party or a third party designated by the other party.
6.4 The opposing party is obliged to accept the purchased products at the moment these are delivered or made available to him. If the opposing party refuses to accept the products or has provided no or incorrect information necessary for the delivery of the products, Akoestiekspecialist shall store the products for account and risk of the opposing party. The other party shall owe Akoestiekspecialist a reasonable compensation for the storage and possible transport of the products.
6.5 The properties of the products may deviate on minor points from what was agreed. Subordinate points are understood to mean
minor deviations, such as minor deviations in colour, shape and dimensions. Minor deviations do not provide the other party with a ground for suspension, compliance, compensation or dissolution of the agreement.
6.6 Ordered products cannot be returned.
Article 7 - Warranty
7.1 The other party can only make claims under explicitly agreed guarantees.
7.2 In the event of a manufacturer's warranty, the other party must approach the manufacturer directly.
7.3 Any guarantee provided shall lapse if the defect is the result of incorrect use of the products or use contrary to the instructions or user instructions provided.
7.4 In order to be able to make a claim under the guarantee, the other party must lodge a complaint in good time, i.e. within the term stipulated in Article 11.1.
7.5 Products which are to be sent for examination to the supplier of Akoestiekspecialist and/or the manufacturer, whether or not under guarantee, must be insured by the other party at its expense. The shipping costs are for the account of the other party, unless agreed otherwise.
Article 8 - Retention of title
8.1 All products sold and delivered by Akoestiekspecialist shall remain the property of Akoestiekspecialist until the other party has fulfilled its obligations under the agreement in full.
8.2 The other party shall not be permitted to sell, pledge or encumber in any other way the products which are subject to retention of title.
8.3 If third parties seize the products that are subject to retention of title and/or wish to establish rights to them, the other party is obliged to report this to Akoestiekspecialist without delay.
8.4 The other party is obliged to insure the products which are subject to retention of title and to keep them insured against damage (fire, water, etc.) and against theft.
8.5 If the other party fails to fulfil its obligations under the agreement and it is in default, Akoestiekspecialist shall be entitled to take back the products on which the retention of title rests. All reasonable costs involved shall be borne by the other party.
Article 9 - Amendment of the Agreement
9.1 It may occur that during the execution of the agreement it appears that for a proper execution it is necessary to adapt the agreement. Parties will proceed to adjust the agreement in time and in mutual consultation. This may have consequences for what the parties originally agreed, for example, with regard to the price and/or term of execution or delivery.
9.2 If the other party wishes to carry out changes during the execution of the agreement, the additional costs involved shall be borne by the other party. A request by the other party to amend the agreement can be refused by Akoestiekspecialist if it cannot reasonably be demanded from Akoestiekspecialist to agree to it.
9.3 If, after the agreement has been concluded, it turns out that there are costprice-increasing circumstances that can be attributed to the other party (for example due to negligence in the provision of information), the extra costs that may arise as a result shall be borne by the other party.
9.4 If after the conclusion of the agreement changes occur in VAT rates or other government levies, Akoestiekspecialist is entitled to pass these changes on to the other party.
Article 10 - Cancellation of agreement
10.1 If the other party cancels the agreement, it shall be obliged to reimburse all costs reasonably incurred and to be incurred by Akoestiekspecialist as well as the fee of Akoestiekspecialist in proportion to the part of the agreement already executed, all this without prejudice to the right of Akoestiekspecialist to claim compensation for loss of profit and other damage arising from the cancellation.
10.2 In the event of cancellation of products, the other party shall remain liable for the full purchase price.
Article 11 - Research and advertising
11.1 The other party is obliged to check immediately upon delivery of the products or upon completion of the work whether the delivered/provided goods meet the requirements of the agreement. If in the opinion of the opposing party, this is not the case, the opposing party shall notify Akoestiekspecialist thereof without delay, in any case within 7 days after the opposing party discovered or could have discovered the defect.
11.2 Failure to lodge a complaint in time shall result in the lapse of any rights of the other party arising from such a complaint and the lapse of any obligations of Akoestiekspecialist.
11.3 Even if the other party submits a complaint in time, the other party remains obliged to fulfil its obligations arising from the agreement, including the obligation to pay the agreed amount.
Article 12 - Payment and consequences of late payment
12.1 The term of payment is 30 days after the invoice date, unless otherwise agreed.
12.2 The other party undertakes to make payment without any set-off or appeal to suspension.
12.3 Akoestiekspecialist is always entitled to demand full or partial payment in advance of the agreed price and is entitled to start the (further) execution of the agreement only after the relevant advance payment has been made in full.
12.4 Partial invoicing is possible at all times, unless explicitly excluded in writing.
12.5 If the term of payment is exceeded, the other party is legally in default. From the day on which default commences, the other party shall owe contractual default interest of 1% per month over the outstanding amount, whereby part of a month shall be counted as a whole month. The other party shall also owe a fee of 15% of the principal sum with a minimum of
€ 375,- for obtaining payment out of court.
12.6 Akoestiekspecialist shall be entitled to suspend the work until full payment of the outstanding invoices has been made,
with the exclusion of any liability for damage that may arise as a result.
12.7 If the other party disagrees with the amount of the invoice, it shall notify Akoestiekspecialist in writing within fourteen days from the invoice date, in default of which the invoice shall be binding and any right of the other party to complain shall lapse.
Article 13 - Suspension and dissolution
13.1 In the following cases Akoestiekspecialist shall be entitled to suspend its obligations under the agreement or to dissolve the agreement in whole or in part, without any notice of default, without judicial intervention and without being obliged to pay any compensation, all this without prejudice to the other rights of Akoestiekspecialist, including the right to claim compensation:
- if the other party does not fulfil its obligations towards Akoestiekspecialist or does not do so properly or in time,
- provided the other party has been declared bankrupt or a request to that effect has been filed with the court,
- when the other party has applied for or been granted suspension of payment,
- if the other party's goods are seized,
- if the other party cannot freely dispose of its assets in any other way,
- if unaltered maintenance of the agreement cannot be required from Akoestiekspecialist,
Article 14 - Force majeure
14.1 Akoestiekspecialist cannot be held to fulfil any obligation under the agreement if a circumstance arises that is beyond Akoestiekspecialist's control.
14.2 The circumstances referred to in article 14.1 may include strikes, illness of personnel, failure of suppliers, transporters or other third parties on which Akoestiekspecialist depends, natural disasters, bad weather, fire, lightning strike, COVID-19 or other viruses that affect business operations.
14.3 In the event of force majeure, fulfilment of the relevant obligation(s) shall be fully or partially suspended for the duration of the force majeure, without Akoestiekspecialist being obliged to pay any compensation.
14.4 If the force majeure lasts longer than a period of thirty (30) days, both the other party and Akoestiekspecialist shall be entitled to rescind the agreement without either party being obliged to pay any compensation. That which has already been performed shall be settled proportionately.
Article 15 - Liability and indemnity
15.1 Akoestiekspecialist shall not be liable for any damage caused to the other party, unless there has been intent or gross negligence on the part of Akoestiekspecialist or the persons engaged by Akoestiekspecialist. In particular, Akoestiekspecialist shall not be liable for
a) a shortcoming of a third party engaged by Akoestiekspecialist,
b) damage or errors, shortcomings or delays in the execution of the agreement that are the result of behaviour and actions of the other party,
c) damage arising because Akoestiekspecialist has relied on incorrect and/or incomplete information provided by the other party.
15.2 If Akoestiekspecialist is liable, then any liability shall be explicitly limited to the amount paid out in the relevant case under the (professional) liability insurance(s) taken out by Akoestiekspecialist, increased by any excess amount of Akoestiekspecialist.
15.3 If and insofar as no payment is made under the aforementioned insurance for whatever reason, any liability of Akoestiekspecialist shall be limited to the invoice value or at least to that part of the agreement to which the liability of Akoestiekspecialist pertains, with a maximum of € 5,000.
15.4 If Akoestiekspecialist is liable despite the provisions in these general conditions, Akoestiekspecialist shall only be obliged to compensate direct damage. Direct damage is exclusively understood as: reasonable costs to determine the cause and extent of the damage, reasonable costs incurred to have the performance fulfil the agreement and reasonable costs incurred to prevent further damage. Akoestiekspecialist is never obliged to compensate indirect damage, including damage due to loss of profit or suffered loss, missed savings or damage as a result of business stagnation.
15.5 Akoestiekspecialist shall always be entitled to limit or undo the damage suffered by the other party. The other party is obliged to cooperate in this.
15.6 All liability lapses by the expiry of 6 months from the moment the products have been delivered or the work has been completed.
Article 16 - Intellectual property
16.1 Akoestiekspecialist or third parties engaged by Akoestiekspecialist reserve all rights of intellectual property in respect of the works produced by them and provided to the other party, including advice and reports.
16.2 The other party shall not be permitted to reproduce, duplicate, publish or otherwise make these works available to third parties without prior written permission from Akoestiekspecialist.
Article 17 - Amendment of general terms and conditions
17.1 Akoestiekspecialist reserves the right to change or supplement these general conditions.
17.2 The amended general terms and conditions shall be deemed to have been accepted if the other party has not objected to them within 30 days after the amended general terms and conditions have been sent to him/her or have been made known via the website of Akoestiekspecialist or via electronic notification.
Article 18 - Applicable law
18.1 Disputes arising from the agreement shall be governed by Dutch law.
18.2 The District Court of Limburg has exclusive jurisdiction to hear disputes arising from the assignment, unless mandatory legal provisions dictate another court.