General Terms and Conditions
AKR Performance B.V.
Article 1. Definitions
1.1 In these General Terms and Conditions the following words shall have the following meanings, unless expressly stated otherwise or the context otherwise requires:
a. AKR Performance Intel: the User of these General Terms and Conditions: AKR Performance B.V., registered at Harderwijk, Noorderbreedte 14, registered with the Chamber of Commerce under "KvK" number 57603308
b. Customer: the natural person or enterprise that places an order with AKR Performance ;
c. Product: the Product supplied by AKR Performance ;
d. Website: the website www.AKR Performance.com managed by AKR Performance ;
e. Consumer: the natural person not acting in the performance of his profession or operation of a business.
Article 2. General
2.1 These General Terms and Conditions apply to all agreements between AKR Performance and Customer.
2.2 Any provisions that deviate from these General Terms and Conditions are valid only if and to the extent as expressly agreed by parties in writing or by email.
2.3 The applicability of any purchase or other conditions of Customer is expressly rejected.
2.4 In case one or more provisions of these General Terms and Conditions are void or declared invalid at any point in time, the remaining provisions of these General Terms and Conditions shall remain in full force and effect. The void or invalid provisions shall be replaced by AKR Performance , taking into account the purport and intention of the original provision(s) to the extent as possible.
2.5 In case AKR Performance does not always demand strict observance of these General Terms and Conditions, that does not imply that these provisions would not apply or that AKR Performance would in any way forfeit the right to demand strict observance of the provisions of these Terms and Conditions in other cases.
2.6 For the interpretation of the content and purport of these General Terms and Conditions the Dutch text shall at all times prevail.
Article 3. Offers and price quotations
3.1 All offers and price quotations of AKR Performance are free of engagement.
3.2 Any printing, typographical or programming errors in its catalogues, email messages or website shall not be binding on AKR Performance .
3.3 The product range offered in the website is subject to change.
Article 4. Illustrations and other information
4.1 Any illustrations, colours, weights, technical specifications and such of offered Products shown on the website are approximate only and cannot constitute a reason for damages and/or rescission.
Article 5. Conclusion of Agreement and cancellation
5.1 The Agreement is concluded after Customer has followed the order procedure through the website, or after Customer has accepted the offer of AKR Performance in any other way.
5.2 After the Agreement has been concluded through the website, AKR Performance shall send Customer a confirmation by email stating that AKR Performance has received the order. This confirmation email contains the order number and other information of Customer's order.
5.3 An order cannot be placed through the website until after Customer has checked the confirmation box that he approves of these General Terms and Conditions.
Article 6. Prices
6.1 Prices stated on the website are included of VAT
6.2 Prices stated are exclusive of costs of transport, import duties, other taxes, levies and charges;
6.3 AKR Performance has the right to modify its prices and shipping costs from time to time.
6.4 The price or prices quoted in the offer are based on the factors determining cost price as they apply at the time of the offer. In case of changes in the above cost factors between the time of conclusion of the Agreement and the time of delivery, such as changes in purchase, transport and storage prices, costs of packing, wages import duties, exchange rate fluctuations and such, AKR Performance has the right to adjust its original price.
6.5 In case AKR Performance increases the price of the Product ordered after conclusion of the Agreement the Customer, being a consumer, has the right to rescind the Agreement, unless the price increase results from a legal obligation, such as an increase in the VAT rate.
Article 7. Obligations of Customer
7.1 Customer shall ensure that any information specified by AKR Performance as necessary for the performance of the Agreement, or which Customer should reasonably understand to be necessary for that purpose, is provided to AKR Performance in a timely manner.
7.2 In case the information provided by Customer is incomplete and/or incorrect, this shall be entirely at the risk and for account of Customer.
7.3 Customer is obliged to immediately inform AKR Performance of any facts and circumstances that may be relevant with respect to the performance of the Agreement.
7.4 Compliance with any legal and other applicable regulations with respect to the possession, storage, use, transport and sale in whatever way of the Product in the country in which Customer is located, shall be Customer's responsibility exclusively.
7.5 Any data and information provided by AKR Performance with respect to the suitability and application of the Product is free of engagement and do not relieve Customer from his obligation to carry out or cause to carry out its own inspections and tests.
7.6 Customer is at all times obliged to keep secret the log-in information he uses for logging in on the website. AKR Performance cannot be made liable in case any unauthorized third parties should use Customer's log-in information.
7.7 Customer is obliged to inform AKR Performance of any changes in his (contact) information either by email or through his account.
Article 8. Shipping costs and delivery
8.1 Customer shall be specifically informed of the shipping costs of the Products prior to the conclusion of the Agreement.
8.2 The risk of loss of or damage to the Product passes to Customer at the time at which the Product has been delivered to Customer.
8.3 The Product will be delivered at the address specified by Customer.
8.4 Customer is obliged to take delivery of the Products delivered.
8.5 Customer is obliged to ensure that the location at which the Products must be delivered, is properly accessible.
8.6 Customer himself is liable for any import duties, customs formalities and taxes in connection with the Product.
8.7 AKR Performance has the right to effect part deliveries.
Article 9. Time of delivery
9.1 Times of delivery indicated cannot be considered final deadlines.
9.2 The time of delivery commences at the time at which AKR Performance has received payment of the order, unless in case of delivery on account.
9.3 In case of non-observance of the time of delivery due to an event beyond the actual control of AKR Performance , which cannot be attributed to any acts and/or omissions on the part of AKR Performance , such as described in e.g. article 17 of these General Terms and Conditions, the time of delivery is automatically extended by the time of the non-observance caused by said event.
9.4 In case AKR Performance cannot deliver the Products ordered within 30 days after the order, AKR Performance shall contact Customer. In that case a new time of delivery will be agreed with Customer. If the Customer, being a consumer, does not wish to agree a new time of delivery, Customer may rescind the Agreement free of charge. In case Customer rescinds the Agreement, AKR Performance shall reimburse any amounts already paid within 30 days of rescission date.
Article 10. Right of withdrawal
10.1 Customer, being a consumer, who has placed an order through the website, has the right to rescind the Agreement without stating reasons and to return the Product provided that it has not been used, is undamaged and in its original packaging, during 14 days after receipt of the Product. Customer will be advised of this right of withdrawal by email prior to delivery or in writing, on delivery of the Products ordered.
10.2 In case Customer rescinds the Agreement in accordance with this article, any costs of return shipment in connection with the returning of the Product shall be borne by Customer.
10.3 In case of a rescission as referred to in this article, AKR Performance shall reimburse any amounts already paid within 30 days of receipt of the Product returned.
Article 11. Costs of cancellation
11.1 The right of withdrawal as referred to in article 10.1 does not apply to a Customer being an enterprise. In case Customer, being an enterprise, cancels an order or refuses a COD-shipment, Customer shall be charged cancellation costs. These cancellation costs are 15% of the invoice amount of the order.
Article 12. Payment
12.1 The methods in which payment for Products ordered may take place depend on the country in which Customer is located. The various payment options for each country are stated on the website.
12.2 In case of delivery on account Customer is obliged to pay the invoice within the term of payment specified in the invoice.
12.3 In case Customer does not pay the invoice received from AKR Performance in a timely manner, Customer is in default immediately, and shall be charged legal interest. Any judicial and extrajudicial costs of collection incurred by AKR Performance for collection of the claim against Customer shall be borne by Customer. The extrajudicial costs of collection are 15% of the principal amount, with a minimum of € 250,-. Customer, being a consumer, shall be charged extrajudicial costs of collection provided for by law.
12.4 Any payments made by Customer shall first be applied to any interest(s) due, then to costs of collection. Any payments made by Customer shall not be applied to outstanding principal amounts until after payment of the above amounts.
12.5 Payment must take place without suspension or set-off.
Article 13. Retention of title
13.1 Any Products supplied or to be supplied shall remain the property of AKR Performance exclusively until any and all present and future claims of AKR Performance against Customer, including in any case the claims referred to in section 3:92 subsection 2 of the Netherlands Civil Code ("BW"), have been paid in full.
13.2 As long as the title in the Products has not passed to Customer, Customer is prohibited from:
a. pledging the Products;
b. granting any rights with respect to Products to any third parties;
c. reselling the Products outside the scope of Customer's normal business operations.
13.3 Customer is not allowed to alienate the Products as part of its normal business operations at the time at which Customer has applied for suspension of payment or has been declared bankrupt.
13.4 Customer undertakes to cooperate – upon request of AKR Performance – to the creation of a right of pledge on the claims which Customer has obtained or may obtain towards its customers on account of resale.
13.5 Customer is obliged to store with due care the Products supplied subject to reservation of title, and to identify them as the property of AKR Performance . Customer shall at all times do anything that may be reasonably expected from Customer to secure the ownership rights of AKR Performance .
13.6 In case Customer does not or not fully observe its obligations toward AKR Performance , and in case of rescission of the Agreement for whatever reason, AKR Performance shall have the right to take back any Products subject to reservation of title without prior notice of default or intervention of the court being required, without prejudice to the right of AKR Performance to full damages.
13.7 In case AKR Performance wishes to exercise its right described in this article Customer is obliged to allow AKR Performance or any third party engaged by AKR Performance to access any locations where the Products of AKR Performance are located.
13.8 In case of attachment, suspension of payment or bankruptcy Customer shall immediately notify the bailiff that carries out the attachment, the administrator or trustee in bankruptcy of the (ownership) rights of AKR Performance .
13.9 The provisions in this article shall not affect any other rights of AKR Performance .
Article 14. Complaints
14.1 Customer is obliged to inspect the Products supplied and their packaging immediately upon delivery. In particular, Customer is obliged to check:
a. whether the correct Products have been supplied;
b. whether the correct quantity has been supplied;
c. whether the packaging of the Products is not damaged.
14.2 In case the delivery is not correct or the packaging has been damaged, Customer is obliged to report this to AKR Performance immediately, and in any case within 3 days of delivery. Complaints about delivery submitted after 3 days of delivery shall not be looked into.
14.3 Customer may direct any questions or complaints about delivery to:
14.4 Complaints are settled by AKR Performance within 30 days. In the unhoped-for event that settlement of a complaint within said time of 30 days is not possible, Customer shall be advised of the duration of the delay.
Article 15. Warranty
15.1 New Products supplied are covered by a manufacturer warranty of 1 year, excluding the Products of M&H Tires. The warranty is granted by the manufacturer of the Products. AKR Performance is the contact partner for warranty matters between manufacturer and Customer.
15.2 The warranty ensures that, in case the Product is defective during the warranty period, the Product is either repaired, a new part is supplied, a replacing Product is supplied or (part of) the purchase price is reimbursed to Customer, this at the discretion of the manufacturer. The warranty expressly excludes any compensation of any labour costs paid by Customer due to a (possible) defect in a Product. Not covered by warranty is damage to the vehicle.
15.3 The warranty shall be void and complaints about Products supplied shall not be looked into in case:
a. Customer has failed to report any defects to AKR Performance in writing or by email immediately after discovery of the defect;
b. the Product has not been assembled according to the instructions;
c. Customer and/or any third parties have performed work and/or modifications and/or repairs to the Product;
d. damage and/or the defect have been caused by a traffic accident;
e. defects are caused by inexpert use or a failure on the part of Customer or Customer's staff. Inexpert use shall in any case include: use contrary to the instructions provided and use of the Products contrary to safety regulations, traffic rules or other regulations provided by the government;
f. the Product was not used in accordance with its agreed purpose and, failing that, its customary purpose;
g. defects are the result of normal wear and tear;
h. defects are caused by any government regulations concerning the nature or quality of materials used;
i. damage is caused by third parties (destruction);
j. defects are caused by external circumstances such as: fire, natural catastrophes, explosion, water, weather and road conditions;
k. of minor deviations that are customary in the industry and/or are technically unavoidable;
l. defects are caused by use that is not in accordance with the technical specifications permitted.
15.4 Repairs or replacement of Products does not extend the warranty term.
15.5 Customer may only invoke the warranty in case Customer returns the Product to AKR Performance in its original packaging, with sufficient postage, and includes photos and/or illustrations that sufficiently show the defect and/or non-performance of the Product to AKR Performance . The completed RMA form must be enclosed with the Product returned. This form can be found on the website.
15.6 Before returning a Product, Customer is obliged to notify AKR Performance of this.
15.7 In case it appears that Customer has returned a Product without a justified warranty claim, the Product shall be returned to Customer without any modifications, and Customer shall be charged an inspection fee in the amount of € 25,00.
Article 16. Liability
16.1 AKR Performance cannot be made liable for any damage directly or indirectly caused by:
a. an event beyond the actual control of AKR Performance , which therefore cannot be attributed to its acts and/or omissions, such as described in article 17 of these General Terms and Conditions;
b. any acts or omissions on the part of Customer, its subordinates or other persons engaged to perform work by or on behalf of Customer.
16.2 AKR Performance is not liable for any damage caused by the permanent or temporary unavailability of the possibility to order, unavailability or removal of its website due to maintenance or otherwise.
16.3 The colours shown on Customer's screen may vary from the actual colours of the Product. AKR Performance is not liable for such colour variations.
16.4 AKR Performance is not liable for any damage, of whatever kind caused by the fact that AKR Performance has acted upon incorrect and/or incomplete information provided by Customer, such as an incorrect address for delivery.
16.5 In case Customer or any third party modifies the Product supplied by AKR Performance , AKR Performance rejects any liability for the operation and any (consequential) damage.
16.6 AKR Performance is not liable for any damage to or accidents involving the Product as a result of e.g. incorrect or inexpert use.
16.7 AKR Performance is not liable for any damage caused due to the fact that Customer has not complied with all safety regulations.
16.8 AKR Performance is not liable for damage that is caused to Customer because Customer has not correctly stored, kept, transported, assembled or used the Products, as a result of which damage is caused to the Products or other goods.
16.9 In case AKR Performance considers itself compelled to take measures or cooperate with any recall actions initiated by the manufacturer to prevent any (further) damage as a result of claims of consumers due to a defect in the Products supplied, Customer undertakes to cooperate in such measures.
16.10 AKR Performance is never liable for consequential damage. Consequential damage is in any case considered to include: loss of turnover, loss of profit, loss of savings, technical damage to the vehicle, injury, costs of alternative transport, towing costs, travel expenses, damage caused to delay and interruption of business operations.
16.11 In case AKR Performance should be liable for any damage, the liability of AKR Performance is limited to the amount of the payment made by the insurer of AKR Performance . In case the insurer does not pay in any given case or the damage is not covered by the insurance, the liability of AKR Performance is limited to the invoice amount, i.e. that part of the Agreement to which the liability applies.
16.12 Customer indemnifies and holds AKR Performance harmless from and against any claims of third parties brought against AKR Performance on account of incidents, acts or omissions for which AKR Performance is not liable due to the above provisions. Customer is obliged to compensate AKR Performance upon request for any costs, damage and interest caused to AKR Performance as a direct or indirect consequence of a claim brought against it by a third party as referred in this paragraph.
16.13 Any claims and other powers of Customer for whatever reason against AKR Performance shall in any case expire after the end of one year from that point in time at which a circumstance occurs on account of which Customer may exercise these rights and/or powers against AKR Performance , on the understanding however, that a term of limitation of 2 years applies to Customers being consumers.
16.14 In case Customer does not, not in a timely manner or not duly comply with its contractual obligations or its obligations resulting from the law, or commits any torts against AKR Performance , Customer shall compensate any and all damage caused to AKR Performance as a result of that.
Article 17. Force Majeure
17.1 AKR Performance is not obliged to observe any obligations in case it is prevented to do so due to Force Majeure. Circumstances that are actually beyond the control of AKR Performance , or which cannot be attributed to acts and/or omissions on the part of AKR Performance shall in any case include: obstructions caused by third parties including those of government entities, sickness, obstructions in transport, weather influences, general or other strikes, revolt, war or threat of war both in this country and countries of origin of Products, loss of or damage caused to Products during their transport, delayed delivery or non-delivery to AKR Performance by its suppliers, export and import restrictions, fire, malfunctions and accidents in the company of AKR Performance or its suppliers, fire in means of transport of AKR Performance or transporters engaged by AKR Performance , levies charged or other measures taken by any government entities resulting in a change in actual circumstances.
17.2 Force Majeure shall also be understood to include a failure on the part of suppliers of AKR Performance , due to which AKR Performance cannot, not fully or not in time meet its obligations.
17.3 In case of Force Majeure AKR Performance cannot be obliged to compensate any damage that is a direct or indirect consequence of that, and AKR Performance will also be temporarily relieved from its obligation to deliver. It will depend on the circumstances of the case whether that will be and remain the case for part of or the entire delivery, or that this will merely result in suspension of delivery. In case of an opportunity to deliver subsequently and/or in a different way, both AKR Performance and Customer are obliged to use that opportunity.
Article 18. Suspension and rescission
18.1 AKR Performance has the right to immediately suspend performance of the Agreement if – after conclusion of the Agreement - AKR Performance becomes aware that there are circumstances that justify the fear that Customer may not fulfil its obligations.
18.2 AKR Performance has the right to rescind the Agreement in case Customer has failed to fulfil any of its obligations or part thereof under the Agreement, and Customer has not complied with a notice of default sent to Customer.
18.3 AKR Performance further has the right to rescind the Agreement in case of circumstances that are such that performance of the Agreement is impossible or cannot reasonably be expected any longer, or in case of other circumstances which are such that it cannot reasonably be expected that the Agreement be maintained without modification.
18.4 AKR Performance has the right to rescind the Agreement in case Customer applies for or is granted suspension of payment, in case Customer is declared bankrupt or a petition for Customer's bankruptcy is filed, in case Customer is not able to pay its debts, terminates or liquidates its company, is placed under legal restraint or in case an administrator or receiver is appointed.
18.5 In case AKR Performance suspends or rescinds the Agreement it is in no way obliged to compensate any resulting damage and costs, however caused.
Article 19. Confidentiality
19.1 Both parties are obliged to keep secret any confidential information which they have obtained from each other or other sources as part of their Agreement. Information is considered confidential if declared confidential by the other party or if this results from the nature of the information. The party receiving confidential information shall use this information only for the purpose for which it has been provided.&