General terms and conditions
The Audio Specialists B.V. General Terms and Conditions
Article 1 - Definitions
The following definitions shall apply in these terms and conditions:
General Terms and Conditions: these General Terms and Conditions of the Seller
Cooling-off period: the 14 day period during which the Buyer can invoke the Right of Withdrawal;
Bid price: offer from Buyer to Seller to have Products delivered at the price noted in the bid.
Right of withdrawal: the possibility for Buyer to back out of the Contract during the Cooling-off Period;
Products: the products that are sold by Seller to Buyer;
Buyer: an other party, acting in the exercise of a profession or the running of a business or a natural person not acting in the exercise of a profession or the running of a business, under a Contract with Seller with regard to the purchase and sale of Products;
Contract: the contract between Buyer and Seller for the sale and delivery of Products;
Seller: The Audio Specialists B.V. with registered office in Brummen and place of business in (7317 AZ) Apeldoorn, at Stadhoudersmolenweg 196, registered in the trade register of the Chamber of Commerce under file number: 53817788.
Product condition: condition of the product
Article 2 - Applicability
- 1. These General Terms and Conditions apply to all offers, legal relationships and Contracts in which Seller sells and delivers Products to Buyer directly or through the intermediary services of third parties.
- Deviations from these General Terms and Conditions are only valid if they have been expressly agreed in advance in writing.
- The applicability of any purchase or other terms and conditions of Buyer is hereby expressly rejected.
Article 3 – Formation of the Contract
- All offers and other communications from Seller are without obligation, unless expressly stated otherwise in writing.
- A contract between Seller and Buyer comes into being the moment the Seller accepts the Buyer’s bid.
Article 4 – Price
- The price at which the Seller sells the Products to Buyer is equal to the Bid from Buyer, unless Seller and Buyer have agreed otherwise in writing.
- The prices quoted by Seller apply to delivery ex works (collection by Buyer).The prices are exclusive of turnover tax (VAT) and inclusive of excise duties, import duties, packaging costs and other government-imposed levies.
- The Products are transported at Buyer's expense and risk.
- Seller has the right to increase the agreed delivery prices due to currency changes, increased purchase prices and/or freight rates of the Products and/or surcharges on government-imposed levies.
- If Buyer does not wish to agree to an increase in prices and/or rates announced by Seller on the basis of Article 4.4 and this increase amounts to more than 15%, Buyer shall have the right to terminate the Contract in writing within eight days of the date stated in said price change notification from Seller.
Article 5 – Delivery and delivery periods
- The Products shall be delivered at the unloading platform or directly over the threshold of the agreed delivery address, unless otherwise agreed. If Buyer refuses to take delivery of the Products there, the resulting costs shall be borne by Buyer and the risk shall nonetheless pass to Buyer at that time.
- Seller is always entitled to deliver the Products in partial deliveries, unless otherwise agreed.
- All delivery periods for Products stated and/or agreed by Seller are set to Seller's best knowledge, but are never binding or strict periods. The mere exceeding of a stated or agreed delivery period shall not cause Seller to be in default nor shall it constitute an attributable breach. If any period is exceeded, the Seller shall deliver the Products to the Buyer as soon as possible.
- Seller has one day to prepare a shipment that is no larger than one package. The order can be collected by the Buyer, or the order can go with the haulage company chosen by the Seller.
- Seller has two days to prepare a shipment that is not larger than one pallet. The order can be collected by the Buyer, or the order can go with the haulage company chosen by the Seller.
- Seller has three days to prepare a shipment consisting of several pallets. The order can be collected by the Buyer, or the order can go with the haulage company chosen by the Seller.
Article 6 – Right of complaint
- Buyer is obliged to check within one working day after delivery of the Products that the Products delivered do not show any external defects and correspond to the description on the packing slip. If Buyer does not report any discrepancy between the delivered Products and the description on the packing slip and/or external defects within two working days after aforementioned period at the latest, the description on the packing slip and the delivered Products are deemed to correspond in nature and number and the delivered Products shall be deemed unconditionally accepted by Buyer.
- If Buyer is of the opinion that the Products do not have the properties that could be expected on the basis of the Contract, Buyer must notify Seller of this in writing immediately after determining, or could have reasonably determined, any discrepancy.
- If Buyer reports (in a timely manner) any discrepancy between the Products delivered and what Buyer could reasonably expect on the basis of the Contract, Seller shall confirm this report to Buyer in writing. Seller shall consult with Buyer on this matter as soon as possible and conduct the necessary investigation, whereby Buyer must give Seller the opportunity to establish any discrepancy or have it established within twenty days after the report is known to Seller.
- Complaints do not give Buyer the right to suspend his/her payment obligation(s).
- If Seller deems a complaint to be well-founded, at its discretion Seller will (1) pay compensation up to a maximum of the invoice value of the Products concerned or (2) replace the Products concerned free of charge.
Article 7 – Buyer’s right of withdrawal (natural person not acting in the exercise of a profession or the running of a business)
- 1. When purchasing Products, Buyer has the possibility to terminate the Contract without stating reasons during the Cooling-off Period. This Cooling-off Period commences on the day following receipt of the Product by Buyer.
- During the Cooling-off Period, Buyer shall handle the Product and its packaging with due care. Buyer shall only unpack or use the Product to the extent necessary for assessing whether Buyer wishes to keep the Product. If Buyer exercises the right of withdrawal, the Product with all delivered accessories and - if reasonably possible - in its original condition and packaging shall be returned to the Seller in accordance with the reasonable and clear instructions provided by the Seller.
- If the Buyer wishes to make use of the Right of Withdrawal, he/she is obliged to make this known to the Seller within 14 days after receiving the Product. The Buyer must make this known using the standard form. After the Buyer has indicated that he/she wishes to make use of the Right of Withdrawal, the Product must be returned within 14 days. It is up to the Buyer to prove that the Products have been returned on time, for example by means of a proof of dispatch.
- If, after expiry of the periods referred to in paragraphs 2 and 3, Buyer has not made it known that he/she wishes to exercise his/her Right of Withdrawal or has not returned the Product to Seller, the purchase is a fact.
- If the Buyer makes use of the Right of Withdrawal, at most, the costs of returning the product(s) shall be borne by the Buyer.
- If Buyer has paid an amount, the Seller will refund this amount to the Buyer as soon as possible, but no later than within 14 days after use of the Right of Withdrawal, on the condition that Seller has received the Product back from Consumer or that Buyer can demonstrate in accordance with Article 7.3 of these General Terms and Conditions that the Products have been returned to Seller on time.
Article 8 - Payment
- 1. Buyer must settle all invoices within 5 working days after pro forma invoice date, unless otherwise agreed. Seller may send Buyer an invoice for each partial delivery.
- If payment is not made within 5 working days, the order will be cancelled.
- All costs related to (the execution of) the payment, including any provision of assurance, shall be borne by Buyer.
- If Buyer remains in default with payment, Seller can pass on the claim for collection, in which case Buyer is also liable for payment of the extrajudicial and judicial costs, including all fees charged by external experts in addition to the determined costs connected with the collection of this claim or any other exercising of its rights. The extrajudicial collection costs that Seller has to incur in the event of late payment by Buyer are:
- 15% of the amount owed on the first €2,500.00 of the claim;
- 10% on the next €2,500.00 of the claim;
- 5% on the next €5,000.00 of the claim;
- 1% on the next €190,000.00 of the claim, and
- 0,5% on the excess of the claim with a maximum of € 6,775.00.
The extra-judicial collection costs never amount to less than €40.00.
- Buyer is never entitled to set off (alleged) claim(s) against Seller with debts to Seller.
- In the event Buyer is a legal entity and is affiliated with other legal entities in a group within the meaning of Article 2:24b of the Dutch Civil Code (BW), then it is jointly and severally liable towards Seller for the payment of all current and future claims of Seller on the other legal entities with which it is affiliated in a group.
Article 9 – Retention of title
- All Products delivered to the Buyer remain the property of the Seller until all amounts owed by the Buyer for the delivered Products, as well as the amounts referred to in Article 8.3, have been paid in full to the Seller. The ownership of the Products delivered and to be delivered to the Buyer is also retained by the Seller for any future claims on the Buyer arising from the sale and delivery of Products.
- If the Buyer acts as a reseller, the Buyer may resell and deliver the Products that are subject to the Seller's retention of title, but only insofar as this is customary in the normal course of his/her/its business.
- Immediately on Seller’s request, Buyer shall provide sufficient security for the full performance of all his/her/its (payment) obligations towards the Seller.
- Buyer must inform Seller immediately if:
(i) Third parties make claims or attempts to gain control of or seize Products subject to Seller's retention of title or otherwise assert rights to these Products;
(ii) Buyer applies for or is granted a (provisional) suspension of payment or a debt settlement or any (payment) arrangement is made with the Buyer's creditors, or
(iii) Buyer files for bankruptcy or Buyer is declared bankrupt.
- Buyer authorises Seller at all times (including outside Buyer’s normal working hours) to enter the premises where the Products are located in order to take possession of and to remove said Products by invoking its retention of title.
- At his/her/its own expense, Buyer must properly insure the Products subject to the Seller's retention of title against normal business risks.
- As long as Seller still has retention of title on the Products, Buyer does not have the right to pledge the Products to third parties as security or to encumber them in any other way.
Article 10 – Transfer of risk
- 1. The risk of loss or damage to Products that are the subject of the Contract is transferred to the Buyer from the moment they are delivered to the Buyer at the agreed location.
Article 11 - Warranty
- 1. Seller guarantees that the Products comply with the Contract, with the specifications stated in the offer, the reasonable requirements of reliability and/or usability and the legal provisions and/or government regulations existing on the date the Contract was concluded. If agreed, the company also guarantees that the product is suitable for other than normal use.
- The Seller’s warranty period corresponds to the factory warranty. However Seller is not legally responsible for the ultimate suitability of the Products for each individual application, nor for any advice regarding the use or application of the Products.
- The warranty does not apply if:
- the Products delivered have been repaired and/or modified by Buyer or have been repaired and/or modified by third parties;
- the delivered Products are exposed to abnormal conditions or otherwise handled carelessly or contrary to Seller’s instructions and/or handled contrary to the instructions on the packaging;
- the faultiness is fully or partially the result of regulations which the government has laid down or will lay down with regard to the nature or quality of the materials used.
Article 12 - Liability
- 1. Seller's total liability for attributable failure to perform the Contract is limited to compensation for direct damage/loss up to a maximum of the amount of the price (excl. VAT) of the Product concerned.
- Excluded is Seller's liability for indirect damage/loss, consequential damage/loss, loss of profit, damage/loss resulting from claims by third parties against Buyer, damage/loss due to exceeding a term or property damage consisting of destruction, damage or loss of items used by Buyer in the normal exercise of a profession or business.
- Seller’s liability for an attributable breach of a Contract shall only exist arise if the Buyer gives the Seller due written notice of default within 7 days of becoming aware of the breach, stating a reasonable period for remedying the breach, and the Seller continues to fail imputably in the performance of its obligations even after that period. The notice of default must contain a description of the breach that is as detailed as possible.
- An invariable condition for the existence of any right to compensation is that the Buyer must notify the Seller in writing of the damage/loss within 7 days after the damage/loss has occurred.
- The Buyer indemnifies the Seller against all claims from third parties (including end users of the Products supplied by the Seller) with regard to damage/loss that would be for the account of the Buyer under the provisions of this article if the third party concerned were to sue the Buyer.
- The provisions of this article also apply for all (legal) persons whom the Seller uses in the performance of the Contract.
- Seller shall never be obliged to deliver Products identical to Products delivered to Buyer under previously concluded Contracts, but will advise Buyer on request about similar Products if the requested Products cannot be supplied.
Article 13 – Force majeure
- 1. If Seller is unable to fulfil its obligations towards Buyer due to a non-attributable shortcoming (force majeure), those obligations will be suspended for the duration of the force majeure event.
- Force majeure of the Seller is understood to mean any situation beyond the Seller’s control as a result of which fulfilment of (the relevant part of) its obligations towards the Buyer is prevented, delayed or made economically impossible and as a result of which, the fulfilment of these obligations cannot reasonably be demanded of the Seller. Force majeure is also understood to mean a shortcoming on the part of the Seller's suppliers. If a force majeure event lasts longer than thirty days, the parties shall have the right to terminate the Contract in writing. What has already been performed under the Contract will then be settled pro rata, without the parties owing each other anything.
Article 14 - Termination
- 1. Each of the parties is authorised to terminate the Contract only if the other party imputably fails to fulfil essential obligations under the Contract following a proper and detailed written notice of default setting a reasonable period for remedying the breach.
- Seller may wholly or partially terminate the Contract without notice of default and without judicial intervention by means of a written notification if Buyer is granted a suspension of payments, whether or not provisional, if a petition for bankruptcy is filed by or on behalf of Buyer or if its business is wound up or terminated. The Seller shall never be obliged to pay any compensation on account of this termination. The amounts owed shall thereby become immediately due and payable.
- If, at the time of dissolution or termination of the Contract as referred to in Article 14.1 or 14.2, the Buyer has already received services in the performance of the Contract, these services and the related payment obligation shall not be cancelled, unless Seller is substantially in default with regard to such performance. Amounts invoiced by Seller prior to the dissolution or termination in connection with what it has already performed or delivered in the execution of the Contract shall remain payable in full and shall become immediately due and payable upon termination.
- In the event of nullity of one or more provisions under a legal relationship between Seller and Buyer or in these General Terms and Conditions, the parties will consult in order to agree on new provisions to replace the null and/or nullified provisions, whereby the purpose and purport of the null and/or nullified provision shall be heeded as much as possible.
- The Audio Specialists B.V. may cancel and/or remove an ongoing auction at any time, without giving reasons, if no order has been created for it yet.
Article 15 – Applicable law and disputes
- 1. The Contracts between Seller and Buyer are governed exclusively by Dutch law. Any application of the 1980 Vienna Sales Convention is hereby excluded, in accordance with Article 6 of said Convention.
- All disputes that may arise between Seller and Buyer stemming from or in connection with the performance of a Contract concluded between Seller and Buyer, as well as in connection with these General Terms and Conditions, shall be submitted to the competent court in Arnhem.
Article 16 – Product condition
- Buyer is fully aware that the auctioned products are not in new condition.
With every auction, there will be a description of the product’s condition.