General conditions EASY Noise Control B.V.
ARTICLE 1. | DEFINITIONS
The following terms are used in these general conditions with the following meaning, insofar nothing else arises from the nature or scope of the provisions.
Easy Noise Control: Easy Noise Control BV, the user of these general conditions, established at De Meern, registered at the Trade Register under Chamber of Commerce number 56239092.
Counterparty: the natural person or legal entity, at least acting in the course of a profession or business, with whom Easy Noise Control has concluded or intends to conclude an agreement.
Agreement: Any agreement concluded between the counterparty and Easy Noise Control, whereby Easy Noise Control has committed itself, against a price to be further agreed, to perform work activities, to provide services and/or the delivery of products.
Work activities/services: all work activities and services to which Easy Noise Control has committed itself towards the counterparty in the context of the agreement, including but not limited to consultancy, noise measurements and assembly.
Products: all goods to be delivered and/or assembled by or on behalf of Easy Noise Control in the context of the agreement, including but not limited to construction material, acoustic materials, acoustic floor, walls and ceiling, all this in the broadest sense of the word.
Written: both traditional written communication as digital communication to be stored on a durable data carrier such as e-mail communication.
ARTICLE 2. | GENERAL PROVISIONS
These general conditions apply on any offer of Easy Noise Control and any concluded agreement.
These general conditions also apply on agreements for which third parties are engaged for the performance.
The applicability of the general or other terms and conditions of the counterparty are explicitly rejected.
The provisions in these general conditions can only be waived in writing. If and insofar that what parties have explicitly agreed in writing differs from the provisions in these general conditions, that what parties have explicitly agreed in writing applies.
If one or more of these provisions are void or annulled, the validity of the remaining stipulations is not affected. In an occurring case the parties are obliged to have a mutual consultation in order to come up with an alternative provision regarding the affected stipulation. The objective and the scope of the original provision will be considered with this as much as possible.
ARTICLE 3. | OFFER AND CONCLUSION OF THE AGREEMENT
Any offer of Easy Noise Control is without any obligations, unless it states an acceptance period.
Apparent errors and mistakes in the offer of Easy Noise Control will not bind them.
The counterparty cannot derive any rights from an offer of Easy Noise Control that is based on incorrect or incomplete information provided by the counterparty.
The agreement is concluded by offer and acceptance. If the acceptance of the counterparty differs from the offer of Easy Noise Control, the agreement is not concluded conform this deviating acceptance, unless Easy Noise Control indicates otherwise.
A product order through the webshop of Easy Noise Control is confirmed by Easy Noise Control electronically after it has been placed, at which moment the purchase agreement is concluded.
A combined quotation does not oblige Easy Noise Control to comply with a part of the offer against a proportional part of the specified price.
If the counterparty concludes the agreement on behalf of another natural person or legal entity, he declares to be authorised thereto by concluding the agreement. In addition to this person/legal entity, the counterparty is jointly and severally liable for all obligations arising from this agreement.
ARTICLE 4. | THIRD PARTIES AND TERMS
Easy Noise Control always has the right to have the agreement completely or partially performed by third parties. The applicability of the article 7:404 and 7:407 paragraph 2 of the Civil Code is excluded.
If and insofar Easy Noise Control is involved in agreements concluded between the counterparty and third parties in the context of its business operations, Easy Noise Control is not a party with these agreements and Easy Noise Control does not accept any liability for damage related to shortcomings attributable to these third parties.
All mentioned performance and delivery/completion terms are always indicative, no deadlines. Easy Noise Control will only be in default after the counterparty has given a written notice of default to Easy Noise Control, in which notice a reasonable period is mentioned in which Easy Noise Control can still comply with the agreement and if they fail to comply after the latter period has expired.
Performance and delivery/completion terms will only start after Easy Noise Control has received all data from the counterparty that is necessary for the delivery/completion or performance of the agreement.
ARTICLE 5. | WORK ACTIVITIES AND SERVICES: OBILIGATIONS OF THE COUNTERPARTY
If and insofar this is required for a proper setup and/or performance of the agreement, the counterparty, whether or not at the request of Easy Noise Control, is always obliged, as soon as is required for the performance of the agreement, to provide all information to Easy Noise Control that is relevant thereto, in the way prescribed by Easy Noise Control. Furthermore, the counterparty must always give Easy Noise Control all cooperation that is required for the performance of the agreement. Easy Noise Control is never liable for damage caused by incorrect or incomplete data provided by the counterparty.
The counterparty is obliged to inform Easy Noise Control as soon as possible of all facts and circumstances that may or may not be disclosed after the agreement has been concluded and of which it is reasonably known that these facts or circumstances affect the timely and/or proper performance of the agreement.
Insofar the agreement provides in the performance of noise measurements, the counterparty guarantees that there are no persons present in the room where these work activities are performed, during the performance, other than with prior approval of Easy Noise Control. Noise measurements can damage the hearing of people, for which Easy Noise Control is not liable.
Insofar reasonably relevant, the counterparty is responsible for informing his staff and other third parties on time about the performance of the work activities by or on behalf of Easy Noise Control, among others with respect to the risks that are involved with the performance of the agreement in case they are present at or near to the performance of the work activities.
The counterparty provides a container to Easy Noise Control, free of charge, to remove waste and packaging material used and/or processed with the performance of the work activities.
The counterparty guarantees that he will grant all cooperation to enable the people employed by Easy Noise Control to timely and properly perform the (assembly) work activities. The counterparty must ensure that all installations, facilities and other conditions that are necessary for the performance are correctly implemented on time. Furthermore, the counterparty must ensure, for his own account and risk, that:
the people employed by Easy Noise Control gain access to the place of performance at the agreed time and that they can perform the work activities during the normal working hours. If this is considered necessary, the counterparty must provide the opportunity to perform the work activities outside the normal working hours. Easy Noise Control will announce this on time, as much as possible;
the people employed by Easy Noise Control have free access to all facilities, such as water and electricity (230/380V) that are reasonably required for the performance of the work activities.
all reasonable safety measures and precautions have been taken and are maintained during the performance of the work activities;
the floor where the assembly work activities are performed is clear, clean and smooth;
the people employed by Easy Noise Control have access to a dry and broom clean room nearby the location of the performance of the work activities, for the temporary storage of goods, tools and other materials. The counterparty guarantees that this room will not be accessed by third parties to prevent damage to the stored goods.
During the performance of assembly work activities it is possible that the people employed by Easy Noise Control have to stand on tables, desks or other items that are present at the location of the performance. If the counterparty does not want this, the counterparty must make sure that these items are removed on time. The aforementioned items as well as the floors are not covered by or on behalf of Easy Noise Control. Any liability of Easy Noise Control for damages caused to items of the counterparty is excluded, except in case of intent and conscious recklessness on the side of Easy Noise Control.
(Noise) hinder is limited by the people employed by Easy Noise Control as much as possible, without Easy Noise Control being able to provide any guarantee regarding the limitation of (noise) hinder.
ARTICLE 6. | CANCELLATION OF AGREEMENTS
In case of complete or partial cancellation of services or work activities, the counterparty must inform Easy Noise Control of this in writing and he is obliged to compensate all reasonable made or still to be made costs in view of the agreement, supplemented by the fee of Easy Noise Control in proportion to the already performed part of the agreement, all this without prejudice to the right of Easy Noise Control to claim compensation due to loss of profit, as well as all other damage arising from the cancellation.
Insofar the agreement provides in the purchase of goods, the counterparty still owes the total agreed purchase price with cancellation of the order.
ARTICLE 7. | CONSULTANCY AND NOISE MEASUREMENTS
Easy Noise Control commits itself to perform the agreements related to consultancy, noise measurements and other agreements that in the sense of article 7:400 of the Civil Code are marked as assignment agreements, to its best insight and ability. However, in this respect Easy Noise Control only commits itself to an effort obligation and can never guarantee the results that the counterparty intends to achieve with the conclusion of the agreement.
All calculations mentioned in connection with the performance of noise measurements are only an indication of the acoustic values to be expected. When putting these calculations together the dimensions of the room and the absorption equipment present therein are considered as well as possible. However, calculated values may show deviations in comparison with the practice. Such deviations cannot be marked as shortcomings of Easy Noise Control.
ARTICLE 8. | SALE OF PRODUCTS
Unless explicitly agreed otherwise, or the products with the performance of the work activities are brought by or on behalf of Easy Noise Control, the delivery of the ordered products takes place through delivery thereof at the delivery address specified by the counterparty. In the absence of a delivery address the invoice address is marked as delivery address.
Unless explicitly agreed otherwise, Easy Noise Control determines the way of transport and the packaging of the products.
The risk of loss and damage of the products transfers to the counterparty, unless otherwise arises from an explicitly agreed delivery condition, at the moment that the products have been received by the counterparty or by a third party appointed by him.
The counterparty is obliged to take the purchase products at the moment that these are available to him or delivered to him. If the counterparty refuses the purchase for whatever reason or fails to provide the information or instructions, necessary for the delivery, the products will be stored for the account and risk of the counterparty after Easy Noise Control has warned him about this. In that case the counterparty owes, in addition to the purchase price, reasonable costs for storage and transport of the products.
Easy Noise Control is allowed to deliver orders in parts. If the orders are delivered in parts, Easy Noise Control has the right to separately invoice every part.
Mentioned, showed and/or agreed features of products, whether or not produced or processed conform the specification of the counterparty, can deviate at minor points from what has actually been delivered. Minor points include all slight deviations in features of the goods which are not reasonably offensive for the counterparty and should be reasonably accepted by him, such as deviations in colours, designs and dimensions. The presence of a minor deviation does not offer the counterparty any reason to suspend his obligations from the agreement, to completely or partially dissolve the agreement, or to claim damage compensation or any other compensation.
ARTICLE 9. | ADJUSTMENT OF THE AGREEMENT AND ADDITIONAL WORK
If it appears, after the agreement has been concluded, that it is necessary for a proper completion to adjust or complement the agreement, parties will proceed to adjust the agreement on time and in mutual consultation. If the nature, scope or content of the agreement is changed in terms of quality and/or quantity, this can have consequences for that what was originally agreed. Therefore, the original agreed price can be increased or reduced. Easy Noise Control will provide a quotation for this in advance as much as possible.
In case of additions or adjustments in the agreements requested by the counterparty, the additional costs related to this will be for the account of the counterparty. Easy Noise Control will inform the counterparty on time about the necessity to charge the aforementioned costs, unless the counterparty should have understood the necessity himself.
By adjusting the agreement the originally specified performance term can change. The counterparty accepts the possibility of adjustment of the agreement, including the adjustment in price and performance term. If the agreement is adjusted or complemented, Easy Noise Control has the right only to perform this after the counterparty has agreed to the adjusted price and other conditions, including the time when the agreement will be performed. Not or not immediately performing an adjusted agreement does not mean a shortcoming of Easy Noise Control and is no reason for the counterparty to dissolve the agreement.
If cost-increasing circumstances occur or emerge after the agreement has been concluded, which can be attributed to the counterparty based on providing incorrect data, the additional costs are for his account, unless Easy Noise Control should have noticed the incorrectness of the data provided by the counterparty before determining the price. Easy Noise Control will inform the counterpart on time about the necessity to charge these costs as meant here.
Without being in default, Easy Noise Control can refuse a request to adjust the agreement if compliance with the adjusted agreement cannot reasonably be requested from them.
Agreements that extend to additional work are made in consultation, subject to the provisions in this article, and will be recorded in writing as much as possible.
ARTICLE 10. | INVESTIGATION AND RECLAMATIONS
With the delivery of products or completion of the work activities the counterparty is obliged to immediately check if the nature and the quantities of the products or the completed work activities comply with the agreement.
If, by the opinion of the counterparty, the delivered goods or completed work activities do not comply with the agreement, he must immediately report this to Ease Noise Control.
If a defect could reasonably not be visible upon delivery/completion, the counterparty must report this to Easy Noise Control in writing within seven days after the defect was discovered, or could reasonably have been discovered.
If the counterparty does not make reclamations on time, no obligations for Easy Noise Control will arise from such a reclamation.
Even if the counterparty makes reclamations on time, the payment obligation of the counterparty and further compliance with the agreement remains to exist.
Products can only be returned to Easy Noise Control after prior written approval. Products are returned for the account of the counterparty.
ARTICLE 11. | WARRANTY
The counterparty is only entitled to the possible explicitly agreed warranty and/or factory warranty provided by the manufacturer of the products.
Any provided warranty expires in any case if a defect is the result of an external cause or otherwise cannot be attributed to Easy Noise Control or its suppliers. Including but not limited to, defects due to damage, incorrect or improper use and use in breach with the use instructions or other instructions from or due to Easy Noise Control.
To validate his claim for warranty, the counterparty must submit a reclamation to Easy Noise Control in this respect within the period as meant in article 10.3.
In case Easy Noise Control has provided explicit noise guarantees and the completed work activities do not appear to comply with this, Easy Noise Control is only liable for free repair of the completed work activities. In case repair is not possible, Easy Noise Control will apply a discount to be determined by fairness for the benefit of the counterparty. Easy Noise Control is not obliged to free repair of the completed work activities in case repair, at the discretion of Easy Noise Control, leads to a disproportional costly solution.
Paragraph 6 of the previous article equally applies on the possible warranty claims of the counterparty.
The provisions in this article does not affect the possible explicitly stipulated warranty conditions.
ARTICLE 12. | FORCE MAJEURE
Easy Noise Control has the right to suspend the performance of the agreement if and insofar it is hindered to (further) perform the agreement as a result of force majeure, without the counterparty being entitled to any form of damage compensation. Easy Noise Control will report the force majeure situation to the counterparty as soon as possible.
Force majeure includes any circumstance that cannot be attributed to Easy Noise Control by law, a legal action or prevailing opinions, such as strike, occupation, blockade, sickness of personnel, failure of transporters or other third parties on whom Easy Noise Control depends, failure of communication tools such as telephone and internet, natural disasters, bad weather, lightening, flood or fire.
If it is permanently impossible to comply with the agreement due to the force majeure situation, the parties have the right to dissolve the agreement for that part to which the force majeure is related, without any party being entitled to any form of damage compensation.
For already provided performances or any performances still to be provided, the counterparty, also in case of force majeure, owes the agreed price, unless no independent value belongs to these performances.
ARTICLE 13. | SUSPENSION AND DISSOLUTION
Easy Noise Control is, if the circumstances justify this, authorised to suspend the performance of the agreement or to completely or partially dissolve the agreement with immediate effect, if and insofar the counterparty does not, not fully, not on time comply with his obligations from the agreement, or if Easy Noise Control has become aware of circumstances, after the agreement has been concluded, that are a good reason to fear that the counterparty will not comply with his obligations.
If the counterparty is declared bankrupt, his goods have been seized or he cannot otherwise freely dispose of his assets, Easy Noise Control has the right to dissolve the agreement with immediate effect, unless the counterparty has provided sufficient security for the payment(s).
Furthermore, Easy Noise Control has the right to dissolve the agreement if and insofar circumstances occur which are of such nature that compliance with the agreement is impossible or unchanged conservation thereof cannot reasonably be requested from them.
The counterparty is never entitled to any form of damage compensation related to the suspension or dissolution right executed by Ease Noise Control based on this article.
Insofar it can be attributed to him, the counterparty is obliged to compensate the damage that Easy Noise Control suffers as a result of the suspension or dissolution of the agreement.
If Easy Noise Control dissolve the agreement based on this article, all claims on the counterparty are immediately payable.
ARTICLE 14. | PRICES AND PAYMENTS
Unless explicitly stated otherwise, all prices mentioned by Easy Noise Control are exclusive VAT and, in case of delivery of goods, the possible delivery costs thereof. Furthermore, the agreed prices are not inclusive, the costs of:
all possible architectural work activities on existing constructions;
all possible electro and installation technical work activities, such as moving smoke detectors, lighting and/or (wall) sockets;
use of lifting and hoisting equipment;
internal and vertical transport;
safety instructions given by mechanics for more than one hour.
If increases occur in VAT rates or other government charges after the agreement has been concluded, Easy Noise Control has the right to adjust the agreed prices accordingly.
Easy Noise Control has the right to charge price increases of cost factors, that occur after the agreement has been concluded, though before the completion thereof, to the counterparty.
Easy Noise Control always has the right to demand full or partial prepayment of the agreed price. Easy Noise Control is only obliged to (further) perform the agreement after the relevant prepayment has been fully paid.
Payments must be made within the term mentioned on the invoice, in the way prescribed by Easy Noise Control.
In case of late payment the counterparty is legally in default. From the day that the counterparty is in default, the counterparty owes 1% per month over the outstanding amount, whereby a part of a month is marked as a full month.
All reasonable costs, such as legal, extrajudicial as execution costs, made to obtain the amounts owed by the counterparty, are for his account.
ARTICLE 15. | LIABILITY AND INDEMNIFICATION
Without prejudice to the provision in the remainder of these general conditions, Easy Noise Control is never liable for damage related to or caused by:
Incorrect or incomplete data provided by the counterparty;
A defect to a good of the counterparty on which work activities are performed, unless Easy Noise Control was aware of this defect:
Any other failure in the compliance with the obligations of the counterparty that arise from the law, the agreement of these general conditions.
Any other circumstance that cannot be attributed to Easy Noise Control.
Advices are prepared and provided to best insight and ability, though do not offer the counterparty any guarantee that these advices can be followed unconditionally. The counterparty is responsible for his actions and negligence or that of a third party as a result of advice provided by Easy Noise Control. Any liability of Easy Noise Control in this respect, except for intent and conscious recklessness on its side, is excluded.
The counterparty cannot derive any rights from free advice or advice obtained via online tools of Easy Noise Control.
Without prejudice to the provision in the remainder of these general conditions, Easy Noise Control is only liable for repairable shortcomings after the counter party has given Easy Noise Control the opportunity to repair this damage, in absence thereof Easy Noise Control is not liable for anything in this respect.
Furthermore, Easy Noise Control is not liable for damage for which the manufacturer of the products bears the damage under the legal regulation of the product liability.
Easy Noise Control is never liable for indirect damage, including suffered loss, loss of profit and damage due to company stagnation. If despite the provisions in these general conditions Easy Noise Control is liable, Easy Noise Control can only be held liable for direct damage. Direct damage only includes:
The reasonable costs to determine the cause and scope of the damage, insofar the determination is related to the damage that in the sense of these general conditions qualifies for compensation;
The possible reasonable costs made to ensure that the poor performance of Easy Noise Control complies with the agreement, insofar this can be attributed to Easy Noise Control;
Reasonable costs, made to prevent or limit the damage, insofar the counterparty demonstrates that these costs have led to limitation of the damage that in the sense of these general conditions qualifies for compensation.
Without prejudice to the provisions in the remainder of these general conditions, the liability of Easy Noise Control is always limited to the invoice value of the agreement, at least that part of the agreement to which the liability of Easy Noise Control is related, with the understanding that the liability of Easy Noise Control will never be more than the amount that in the relevant case, based on a liability insurance taken out by Easy Noise Control, is actually paid, increased with the possible excess risk of Easy Noise Control that is applicable according to this insurance.
The expiry period of all claims and defences towards Easy Noise Control is one year.
Except in case of intent or conscious recklessness of Easy Noise Control, the counterparty will indemnify Easy Noise Control of all claims of third parties, for whatever reason, regarding damage compensation, interest costs, related to the performance of the agreement by or on behalf of Easy Noise Control, as well as the use of products delivered by Easy Noise Control.
ARTICLE 16. | RETENTION OF PROPERTY
All products sold or delivered by Easy Noise Control remain their property till the counterparty has correctly complied with all his obligations from the agreement.
The counterparty is not allowed to sell, pledge or otherwise encumber the products that are delivered under retention of property.
If third parties seize the products delivered under retention of property or want to establish or claim rights thereon, the counterparty is obliged to inform Easy Noise Control about this as soon as possible.
The counterparty is obliged to insure the products delivered under retention of property and to keep these insured against fire and water damage, as well as against theft.
The counterparty grants unconditional permission to Easy Noise Control or third parties appoint by Easy Noise Control to access all these places where the products are located that have been delivered under retention of property. In case the counterparty is in default Easy Noise Control has the right the take these products back. All reasonable costs related to this are for the account of the counterparty.
When the counterparty, after the sold products have been delivered to him by Easy Noise Control, has met his obligations, the property retention regarding these products revives if the counterparty does not comply with his obligations from a later concluded agreement.
ARTICLE 17. | INTELLECTUAL PROPERTY
Easy Noise Control, or its licensors, reserve all rights of intellectual property for the documents and other information produced by them and provided to the counterparty, including advice, reports and working methods.
The counterparty is not allowed to reproduce, multiply, publish or otherwise provide to third parties the goods meant in paragraph 1 without the prior written approval of Easy Noise Control, insofar nothing else compelling arises from the nature or scope of the agreement.
ARTICLE 18. | FINAL PROVISIONS
Any agreement and all legal relationships arising thereof between parties are exclusively subject to Dutch law.
Before appealing to the court parties are obliged to do their upmost to settle the dispute in mutual consultation.
Only the authorised court within the jurisdiction of the place of establishment of Easy Noise Control is appointed to take note of legal disputes.
The Dutch version of these provisions are always decisive for the explanation thereof.