1.1 The seller in these conditions will be understood to refer to the private company with limited liability Sonic Equipment B.V.
1.2 The buyer in these conditions will be understood to refer to the other party with whom the seller concludes an agreement.
2. Applicability of the general terms and conditions
2.1 These conditions will apply to all offers, agreements and deliveries made or concluded by the seller, unless the parties have expressly agreed otherwise in writing.
2.2 If upon concluding the agreement the buyer explicitly contests the applicability of these conditions and/orrefers to its own general terms and conditions, the agreement will be regarded as not having been made.
2.3 If upon entering into the agreement the buyer does not explicitly contest the applicability of these conditions, at no time will any general terms and conditions of the buyer apply.
2.4 The general terms and conditions of the buyer will only be binding for the seller at any time provided that the seller has expressly accepted such in writing.
3.1 The offers of the seller will be made in writing at all times and are free of engagement. Pledges made in writing will not serve to bind the seller. The offers will cease to apply if the buyer fails to accept them within a reasonable term. They will in any case cease to apply if the acceptance of the offer is bound to a term laid down by the seller and this term has expired.
3.2 Measurements, weights, illustrations and technical details mentioned in offers, catalogues, circular letters and other advertising material of the seller are free of engagement and will not bind the seller and no rights can therefore be derived therefrom by the buyer. All prices mentioned by the seller are ex-warehouse, exclusive of VAT and including usual packaging costs, unless expressly agreed otherwise.
4.1 After acceptance of the offer, the seller will confirm the order to the buyer in writing.
4.2 The agreement will only be binding for the seller after and insofar as it has confirmed it in writing and signed the written confirmation as having been approved.
5.1 Only those persons with the power to bind the seller pursuant to the articles of association of the seller and/ora listing in the registers of the Chamber of Commerce and Industry intended for that purpose may enter into agreements on behalf of the seller. It is hereby expressly stated that representatives and agents of the seller do not have the power to conclude an agreement that is binding for the seller.
6.1 Changes made to the purchase agreement and variations made to these conditions will only enter into force if they have been agreed by the buyer and the seller in writing.
6.2 In the event that after the conclusion of the agreement between the seller and the buyer, the amount of value added tax, wages, other taxes, import duties, levies, employee contributions, and/orother charges imposed by the government is changed or after the conclusion of a new collective bargaining agreement or in the event of a change to the prices of raw materials and/or the usual materials, the seller will be entitled to change the price agreed with due observance of any legal regulations that exist with regard hereto, if and insofar as the changes concerned are of influence on or may influence the implementation of this agreement. A supplier will also be entitled hereto in the event that the exchange rate of a foreign currencyÂ changes, if and insofar as the seller has purchased or will purchase items abroad in connection with the implementation of the work.
6.3 If the sellerÂ makes use of the afore-mentioned power and wishes to raise the price agreed, within three months as from the conclusion of the agreement, the buyer will be authorised to terminate the agreement with due observance of the legal provisions in that regard, except if the power to raise the price flows from the law.
7. Quality, advertising
7.1 The seller undertakes to supply the buyer with the items, the quality and the amounts described in the order confirmation.
7.2 The seller undertakes to deliver to the buyer items
-Â with the properties described in the offer and
-Â which function in the manner described in the order confirmation.
7.3 All rights of the buyer due to an attributable failure of the seller to fulfil its obligations must be claimed in writing by means of registered letter within eight days of the buyer having discovered the defect or the date on which the buyer could within reason have discovered the defect, failing which the rights of the buyer in this regard will cease to apply. The rights of the buyer in this regard will also cease to apply if without the explicit permission of the seller, the buyer attempts to correct a supposed defect itself or attempts to have a supposed defect corrected.Â
8. Delivery time
8.1 The delivery time will be determined by the seller and will be approximate and not in principle regarded as a strict deadline.
8.2 A strict deadline will only apply if the order confirmation of the seller mentions a precise date on which the delivery must be made, which date is also explicitly indicated as a strict deadline.
8.3 The delivery time will be laid down in the expectation that the items to be obtained from third parties are delivered to the seller in good time. If this expectation appears to be unfounded, even if this is the result of circumstances that could have been foreseen upon the conclusion of the agreement, the delivery time will be extended by the same number of days as the number of days of the delay. The delivery time will also be extended if, upon entering into the agreement, the buyer changes the order or otherwise delays its implementation.
8.4 Failure to meet the approximate delivery time laid down by the seller will not entitle the buyer to damages.
8.5 Failure to meet the approximate delivery time laid down by the seller will not give the buyer the right not to duly fulfil its obligations vis-Ã -vis the seller and/or not to fulfil its obligations vis-Ã -vis the seller on time.
8.6 If the buyer is of the opinion that the failure to meet the approximate delivery time laid down by the seller must be regarded as being unreasonably onerous for it, the buyer will be obliged to set a reasonable delivery time for the seller by means of registered letter or a bailiffâ€™s writ.
8.7 The buyer will be obliged after sending the afore-mentioned notification to enter into consultations with the seller regarding the failure to meet the delivery time.
9.1 The seller undertakes vis-Ã -vis the buyer to package the items properly (unless the nature of the items is incompatible with such packaging) and to protect them in such a way that subject to transport in the usual manner, they reach their destination in good condition.
9.2 The items will be delivered to the seller ex-factory, or will be sent to be delivered to the agreed place or places in the manner determined in the order or agreed at a later date.
9.3 If for the packaging and the transport the seller has supplied containers, packing cases, crates, containers etc. or has had these supplied by a third party, either in exchange for payment of a deposit or otherwise, the buyer will be obliged (unless disposable packaging is concerned) to return these containers etc. to the address stated by the seller, failing which the buyer will owe the seller damages.
9.4 Notwithstanding that stipulated in Article 12, the ownership of and the risk for the items will pass to the buyer upon delivery. Delivery will be understood to mean the time at which the consignment note/ cargo list is signed by the buyer as having been approved.
9.5 The buyer will be liable for the unloading work after delivery by the seller.
9.6 If orders are placed in the Netherlands for an invoice amount under â‚¬ 250 excluding VAT, freight costs will be charged. Orders for an invoice amount from â‚¬ 250 upward excluding VAT will be delivered in the Netherlands carriage paid.
9.7 In the event that the buyer and the seller agree that in contrast to the use mentioned in Article 9.6 the items are sent cash on delivery, if a cash on delivery parcel is refused, with regard to which a statement made in writing by the carrier will constitute sufficient proof, the seller will not be obliged to present the items again before the buyer has paid.
10. Obligation to take delivery of the items purchased
10.1 The buyer will be obliged to take delivery of the items purchased within a term to be further agreed. In the event of failure to take delivery of the items purchased on time, the seller will grant the buyer a last term of one week to take delivery of the items, unless the seller can infer from what the buyer says that it will continue to refuse to take delivery of the items purchased.
10.2 If after a further term has been given the buyer still fails to take delivery of the items purchased, the seller will have the right, at its discretion, either to demand the fulfilment of the agreement, or to terminate the agreement by means of an extrajudicial declaration, without prejudicing its right to damages vis-Ã -vis the buyer.
10.3 In the event that the items are sold on, the buyer will not be authorised to export the items concerned.
- If the items are sold on, the buyer will be obliged to impose on the third-party buyer the obligation not to export the items.
11.1 If for any reason whatsoever the buyer is not able to take receipt of the items at the agreed time while they are ready to be dispatched, if its storage capacity so permits, at the request of the buyer, the seller will keep and safeguard the goods and take all reasonable measures to prevent a deterioration in their quality until they have been delivered to the buyer.
11.2 The buyer will be obliged to pay the seller compensation for the storage costs according to the tariffs usually employed by the seller and failing this, according to the tariffs usually employed in the branch, as from the time at which the items are ready to be dispatched, or if this is a later date, as from the delivery date agreed in the purchase agreement.
12. Retention of title
12.1 The ownership of items delivered or still to be delivered will rest with the seller and will only pass to the buyer once the buyer has paid the price due (including VAT), interest, costs, penalties and damages with regard to the items delivered, including prior deliveries.
12.2 As from the time at which the seller has delivered the sold items to the buyer, the risk of damage and loss of the items and any damage and/or financial loss flowing therefrom will pass to the buyer.
12.3 Before its performance is due, therefore before the time at which ownership of the afore-mentioned items passes to the buyer, the buyer is prohibited from transferring ownership of the items to third parties, either as security or by giving such third parties actual control thereof.
12.4 The buyer will only be entitled to sell on the items subject to retention of title if the seller has expressly given permission herefor in writing, whereby the condition will apply at all times that such selling on will take place in connection with the ordinary business activities of the buyer.
12.5 In the event that the buyer is entitled to sell on the items, but has not yet fulfilled its obligations, the buyer will either be obliged to stipulate that the third-party pay in cash, or to transfer the items subject to retention of title to the third-party buyer, or to acquire security for the payment of the items to the third-party buyer in another manner
12.6 In the event that the afore-mentioned obligations of the buyer are not complied with in time, the full sum will be due and payable forthwith.
12.7 Without prejudicing the afore-mentioned rights accruing to it, the buyer will authorise the seller, if the buyer fails to meet its payment obligations vis-Ã -vis the seller or fails to meet them on time, without any notice of default or judicial intervention being required, to repossess the items it has delivered, or if these have been fixed to movable or immovable property, to disassemble and repossess them.Â
12.8 In the event that in spite of the foregoing the buyer of the items acts in breach of paragraph 13.3, 13.4 and 13.5, it will be obliged to transfer the claim therebyÂ acquired to the seller.
13.1 Unless agreed otherwise, invoices must be paid within 30 days as from the date of the invoice. If the buyer fails to meet its payment obligations on time and moreover fails to comply with a notice of default given for a term of 1 week, the seller will have the power, at its discretion, either to terminate the agreement by means of an extrajudicial declaration, or to demand its fulfilment, whereby statutory interest will be charged on the outstanding claim as from the day of default up to and including the day of full payment.
13.2 Payment may not be subject to any deductions, neither may one debt be substituted for another. The buyer will not be authorised to offset any sum owed against the price due.
13.3 In the event of termination, the buyer will be liable for any damage and/or loss suffered by the seller, including lost profit, transport costs and the costs of giving notice of default.
13.4 In the event of an attributable failure to fulfil an obligation by the buyer on account of failure to pay or failure to pay on time, the seller will be entitled to charge the buyer all extrajudicial costs related to the collection of the sum, which costs the buyer will be obliged to pay. .
13.5 Extrajudicial collection costs will be owed by the buyer as from the time at which the seller has called in legal aid from third parties in connection with the collection of the debt. The collection rates employed will be those determined by the Bar Association in the District of 's-Gravenhage, and will be a minimum of EURO 50, excluding value added tax, per invoice.
13.6 The seller is entitled to require the necessary guarantees for payment by the buyer, who will be obliged to give such guarantees if it fails to meet normal payment terms. .
14. Termination and suspension
14.1 If the buyer fails to fulfil or fails to properly fulfil any obligation or fails to fulfil any obligation on time, which obligation flows for it from the agreement concluded with the seller or a related agreement, the seller will be entitled to terminateÂ the purchase agreement outright by means of an extrajudicial declaration, and moreover claim the damage and/or loss suffered as a result of such termination.
14.2 The seller will also be entitled to terminate the agreement if the buyer is declared bankrupt or suspension of payment or the closing down and winding up of the buyer or his business has been announced, and moreover in the event of the attachment of all or part of the assets of the buyer, if the buyer enters into a debt management arrangement, is placed under guardianship or loses the power of disposition of its assets or parts thereof in another manner, unless the bankruptcy trustee or the administrator acknowledges the obligations flowing fromÂ this purchase agreement as liabilities of estate.
14.3 The termination of the agreement will render any existing claims of either party immediately due and payable.Â The buyer will be liable for any damage and/or loss suffered by the seller, consisting among other things of lost profit and any transport costs.
14.4 If after the conclusion of the agreement circumstances come to light that give the seller good grounds to fear that the buyer will fail to fulfil its obligations, the seller will have the power to suspend the fulfilment of its obligations. In the event of such suspension, the seller will have the power to require that the buyer give sufficient security in connection with the fulfilment of its full obligations.
15. Several liability
15.1 If an item is sold to two or more buyers jointly, these will each be severally liable for the full performance of the agreement concluded.
16.1 The seller will not be liable for any direct or indirect damage and/or loss caused in any way whatsoever to property or persons, one thing and another as a result of or related in the broadest sense to the items delivered by the seller. This will not apply if the damage and/or loss is the result of the gross negligence or intent of the seller.
16.2 The seller will also not be liable for consequential damage and/or loss, including direct trading loss, intangible loss and lost profit.
16.3 There will be no liability for damage and/or loss, as described above, if with regard to the risk of this damage and/or loss, the buyer has entered into an insurance agreement or could within reason have entered into an insurance agreement.
16.4 If pursuant to legal provisions it is established that the seller is still liable, such liability will be restricted at all times to the part insured by the seller.
16.5 In the event of liability mentioned in the previous paragraph, if the seller is not insured for the damage and/or loss, and could not within reason have insured itself therefor, or is not covered due to an insurance policy of the seller, the liability of the seller will be restricted at all times to the sum of the purchase price.
16.5 If the seller is nevertheless held liable by third parties for any damage and/or loss for which pursuant to these general conditions it is not liable and for which the buyer is liable, the buyer must fully indemnify the seller with regard hereto and grant it compensationÂ for all sums that it may be obliged to pay such third party/parties on that account on the grounds of an out-of- court settlement entered into with the permission of the buyer and/or an irrevocable judicial judgment or a similar judgment (such as a binding advice or an arbitral judgment).
17. Force majeure
17.1 In the event of a non-attributable failure on the part of the seller regarding the implementation of the agreement, the delivery time mentioned in Article 9 will be extended by the period by which the seller is prevented from fulfilling its obligations due to such non-attributable failure.
17.2 A failure not attributable to the seller will be understood to mean each occurrence independent of the will of the seller which temporarily or permanently prevents or delays fulfilment, and moreover, insofar as not included therein, war, war risk,Â civil war, rioting, wilful damage, fire, water damage, flooding, strikes, factory sit-ins, lockouts, import and export barriers, governmental measures, machinery defects, power supply disturbances, all circumstances occurring both in the business of the seller and in that or those of third parties from whom the seller has to fully or partially obtain the usual materials or raw materials required, and furthermore in connection with storage or duringÂ transport, in own management or otherwise, and furthermore all other causes that have arisen through no fault of and beyond the control of the seller.
17.3 If due to a non-attributable failure the seller is permanently prevented from performing or the delivery is delayed for a longer period than 2 months, both the seller and the buyer will have the power to fully or partially dissolve the agreement by means of an extrajudicial declaration, with due observance of Article 7.4. In this case, the seller will only have the right to compensation of the costs it has incurred.
17.4 In the event that the force majeure commences when the agreement has already been partially carried out, if as a result of the force majeure the remaining part of the delivery is rendered completely impossible or is delayed by more than 2 months, the buyer will have the power either to keep the items already delivered and pay the price due, or to deem the agreement to have been terminated, also with regard to the part already fulfilled, subject to the obligation to return the items already supplied at its own expense and risk, provided that the buyer can prove that the items already delivered can no longer be used effectively due to the failure to deliver the remaining items.
18. Intellectual Property
18.1 The seller will retain all intellectual property rights to the items, designs, sketches, drawings, models, illustrations, instructions, etc. that it has supplied and/or made.
18.2 The designs, sketches, drawings, models, illustrations and instructions supplied by the seller will remain the property of the seller and notwithstanding explicit permission in writing, may not be reproduced or made known to third parties in any way or converted into cash, such subject to an immediately due and payable penalty of EURO 10,000 per violation, without prejudicing the right of the seller to claim damages insofar as the damage or loss amounts to more than the afore-mentioned penalty.
19.1 In accordance with the conditions described in this article, the seller will give the buyer a ten-year guarantee with regard to construction and material errors in the items delivered upon delivery. The guarantee term will commence as from the purchase of the item(s).
With due observance of paragraph 3 and 4, the guarantee will only apply if the buyer has fully fulfilled all its obligations vis-Ã -vis the seller on time and together with the original bought note, the item is sent to the seller carriage paid for assessment or handed over to the seller.
19.2 If within the guarantee period defects arise that cannot be traced to one of the causes mentioned in paragraph 5, for no consideration and at its own discretion, the seller will either replace the item (s) concerned or repair it or them using similar new or repaired spare parts.
19.3 The guarantee will not cover:
- Â Â Â Â Â Â Â Â Â Â Â Â defects attributable to normal wear and tear;
- Â Â Â Â Â Â Â Â Â Â Â Â defects that have arisen as a result of the improper use or the misuse of the equipment or use in any other way than that regarded as normal use;
- Â Â Â Â Â Â Â Â Â Â Â Â defects that have arisen as a result of force majeure or due to another cause not in the control of the seller.
19.4 The duty to provide a guarantee will cease to apply if others than oneâ€™s own personnel make changes to or repair the sold items in any way.
19.5 If in connection with the fulfilment of the guarantee spare parts are used which improve the item concerned, the seller can charge the buyer with the costs incurred in connection herewith.
19.6 At no time will the fulfilment of the guarantee lead to the crediting of the invoices relating to the product for which the guarantee provision is invoked.
20. Final stipulations
20.1 All agreements to which these conditions fully or partially apply will be subject to Dutch law exclusively.
20.2 All disputes that may arise in connection with an agreement to which these conditions fully or partially apply or further agreements which may flow from such agreements will be settled by the competent court in Alkmaar exclusively.