GENERAL TERMS AND CONDITIONS
VAN: Moko Dutch Design
3039 HC Rotterdam
Article 1 Definitions
1. In these general terms and conditions, the following terms are used in the following meanings, unless expressly indicated otherwise:
User: the user of the general terms and conditions;
Buyer: the other party to the user, acting in the course of a profession or business;
Agreement: the agreement between user and buyer.
Article 2 General
1. The provisions of these general terms and conditions apply to every offer and every agreement between user and a buyer to which user has declared these terms and conditions applicable, insofar as these terms and conditions have not been expressly deviated from by the parties in writing.
2. The present terms and conditions also apply to all agreements with user, the execution of which requires the involvement of third parties.
3. Any deviations from these general terms and conditions shall only be valid if expressly agreed upon in writing.
4. If one or more provisions of these general terms and conditions should be null and void or declared null and void, the other provisions of these general terms and conditions shall remain fully applicable. The user and buyer will then consult to agree on new provisions to replace the void or voided provisions, whereby if and as far as possible the purpose and meaning of the original provision will be observed.
Article 3 Offers and quotations
1. All offers are without obligation, unless the offer states a period for acceptance.
2. The offers made by user are free of obligation; they are valid for thirty days, unless indicated otherwise. User shall only be bound by the offers if the acceptance thereof is confirmed in writing by the buyer within thirty days.
3. All offers, where the contrary is not explicitly stated, shall be deemed to be offers free of obligation that can be revoked even after acceptance. If this revocation does not take place within 4 working days after acceptance, the agreement is concluded.
4. Delivery times in offers of the user are indicative and if exceeded shall not entitle the buyer to dissolution or damages, unless expressly agreed otherwise.
5. The prices in the said offers and tenders are exclusive of VAT and other government levies as well as shipping and any transport and packaging costs, unless explicitly stated otherwise.
6. A compound quotation shall not oblige user to deliver part of the goods included in the offer or quotation at a corresponding part of the stated price.
7. Offers or quotations do not automatically apply to repeat orders.
Article 4 Execution of the agreement
1. User shall execute the agreement to the best of his knowledge and ability and in accordance with the requirements of good workmanship. All this based on the then known state of science.
2. If and in so far as required for the proper execution of the agreement, user shall be entitled to have certain work done by third parties.
3. The buyer shall see to it that all data, which the user indicates to be necessary or which the buyer must in all reasonableness understand to be necessary for the execution of the agreement, shall be given to the user in time. If the data necessary for the execution of the agreement have not been provided in due time to user, user shall have the right to suspend the execution of the agreement and/or to charge the buyer for the additional costs resulting from the delay in accordance with the usual rates.
4. User shall not be liable for damage of whatever nature caused by the fact that user has relied on incorrect and/or incomplete data provided by the buyer, unless user should have been aware of said incorrectness or incompleteness.
5. If it has been agreed that the agreement will be executed in stages, user can suspend the execution of those parts belonging to a following stage until the buyer has approved in writing the results of the stage prior to it.
Article 5 Delivery
1. Delivery will be made in consultation with the buyer.
2. If delivery is made on the basis of “Incoterms”, the “Incoterms” in force at the time the agreement is concluded will apply.
3. Buyer shall be obliged to accept the goods at the moment that user delivers them or has them delivered to him, or at the moment at which they are made available to him in accordance with the agreement.
4. If buyer refuses to take delivery or fails to provide information or instructions necessary for delivery, user shall be entitled to store the goods at buyer’s expense and risk.
5. If the goods are delivered, user shall be entitled to charge possible delivery costs. These will then be invoiced separately.
6. If the user requires information from the buyer in connection with the execution of the agreement, the delivery time shall commence after the buyer has made this information available to the user.
7. If user has given a term of delivery, this shall be indicative. A given delivery time is therefore never a firm deadline. If a term is exceeded, the buyer must give the user notice of default in writing.
8. User shall be entitled to deliver the goods in parts, unless this is deviated from by agreement or the partial delivery has no independent value. User shall be entitled to invoice the thus delivered goods separately.
9. If it has been agreed that the agreement will be executed in stages, user can suspend the execution of those parts belonging to a following stage until the buyer has approved in writing the results of the stage prior to it.
Article 6 Samples and models
1. If a sample or model has been shown or provided to the buyer, it shall be presumed to have been provided only as an indication without the good having to correspond with it, unless it has been expressly agreed that the good shall correspond with it.
Article 7 Warranty, liability and complaints
1. Subject to the provisions of paragraph 2, the Seller guarantees to the Buyer the soundness of the goods delivered. This shall include compliance with the specification and/or washing/treatment instructions if these have been enclosed.
If there is no question of soundness, as guaranteed in the previous sentence, the seller shall at its discretion – after returning the goods in their original state at the buyer’s expense – either replace the delivered goods with equivalent new goods, or repair the delivered goods, or pay a fair amount of damages up to at most the invoice value of the delivered goods.
2. The guarantee of soundness mentioned in the previous paragraph does not apply if:
a. buyer is in default towards seller;
b. there is a minor deviation in quality, quantity, size, color, design, weight, dimension, finish, material structure and/or finish that is customary in the trade and/or technically unavoidable;
c. the goods have been cut, trimmed, or in any other way restricted, processed, post-processed, used or damaged;
d. the delivered goods have been exposed to abnormal conditions, such as contamination, external violence, overloading or other causes beyond the control of the Seller;
e. the defect is the result of poor maintenance or natural wear and tear;
f. the Buyer itself or third parties have carried out repairs to the goods supplied by the Buyer;
g. the term for complaints, as mentioned in paragraph 3, has been exceeded;
h. in case of hidden defects, six months have passed after the date of delivery.
3. Complaints concerning visible defects must be submitted to the Seller in writing within fourteen days of delivery, unless the Buyer can demonstrate that it was unable to inspect the goods within that period.
Complaints concerning hidden defects must be brought to the seller’s attention in writing fourteen days after they have been reported to the buyer or could reasonably have been reported to the buyer.
4. The Buyer shall never be entitled to return the goods, unless the Seller has expressly agreed to this in advance. If the Buyer nevertheless returns the goods in contravention of the foregoing, the goods will be held at the Buyer’s disposal at the Buyer’s expense and risk, insofar as they have not been refused by the Seller, without any right to claim under the guarantee being derived from this.
5. Without prejudice to the provisions of this clause, return shipments must at all times be accompanied by a written advice of complaint.
6. Seller can only be liable for direct damage.
If Seller is liable for direct damage, such liability shall be limited to no more than the amount of the invoice value of the delivered goods to which such liability relates.
Direct damage is exclusively understood to mean:
– the reasonable costs incurred to determine the cause and extent of the damage, insofar as the determination relates to damage in the sense of these terms and conditions;
– any reasonable costs incurred to have the Seller’s defective performance conform to the Agreement, unless such defect cannot be attributed to the Seller;
– reasonable costs incurred to prevent or limit damage, insofar as the Buyer demonstrates that they have led to the limitation of direct damage as referred to in these General Terms and Conditions.
The Seller shall never be liable for indirect damage, including loss of profit, lost savings and damage due to business interruption.
The limitations of liability for direct damage included in these terms and conditions shall not apply if the damage is due to intent or gross negligence on the part of the Seller or its subordinates.
Article 8 Fees, price and costs
1. If the user has agreed a fixed sales price with the buyer, the user shall nevertheless be entitled to increase the price in the cases mentioned below.
2. User may pass on price increases if user can demonstrate that significant price changes have occurred between the time of offer and execution of the agreement with respect to, for example, exchange rates, wages, raw materials, semi-finished products or packaging materials.
3. If the price increase exceeds 10%, buyer shall be entitled to dissolve the agreement, unless such price increase is the result of a change in the agreement or arises from a power to do so by law.
4. The prices charged by the user are exclusive of VAT and any other levies, as well as any costs to be incurred within the scope of the agreement, including shipping and administrative costs, unless indicated otherwise.
Article 9 Payment and collection costs
1. Payment must be made within 30 days of the invoice date, in a manner to be indicated by user in the currency in which the invoice was raised. Objections to the amount of the invoices shall not suspend the payment obligation.
2. In case of commissioned production, work shall not be commenced until 70% of the total order has been received, unless the parties agree otherwise in writing. After delivery of goods by the seller to the buyer, the remaining amount will be invoiced as indicated in paragraph 1.
3. If Buyer fails to make payment within the 30-day period, Buyer shall be in default by operation of law. The buyer shall then owe interest of 1% per month, unless the statutory interest rate is higher, in which case the statutory interest rate shall apply. The interest on the amount due and payable will be calculated from the moment the buyer is in default until the moment of payment of the full amount.
4. In case of liquidation, bankruptcy, seizure or suspension of payment of the buyer, the user’s claims against the buyer shall be immediately due and payable.
5. The extrajudicial costs associated with the collection of an unpaid or not fully paid invoice shall be borne by the buyer.
These shall be calculated in accordance with the collection rate of the Netherlands Bar Association with a minimum of € 150 per invoice.
Article 10 Retention of title
1. All goods delivered by user, including any designs, sketches, drawings, films, software, (electronic) files, etc., shall remain the property of user until buyer has complied with all the following obligations under all agreements concluded with user.
2. The buyer is not authorized to pledge or encumber in any other way the goods falling under the retention of title.
3. If third parties seize goods delivered subject to retention of title or wish to establish or assert a right to them, purchaser shall be obliged to inform user thereof as soon as may reasonably be expected.
4. The buyer undertakes to insure the goods delivered under retention of title and to keep them insured against fire, explosion and water damage and against theft and to allow inspection of the insurance policy on first demand.
5. Goods delivered by user, which by virtue of the provisions under 1. of the present article fall under the retention of title, may only be sold on within the framework of normal business operations and may never be used as a means of payment.
6. Should user wish to exercise his ownership rights mentioned in the present article, buyer shall give user or third parties to be appointed by user, now for then, unconditional and irrevocable permission to enter all those places where user’s property is located and to take back said goods.
Article 11 Suspension and dissolution
1. User is authorized to suspend the fulfillment of the obligations or to dissolve the agreement, if:
– Buyer does not or not fully comply with the obligations under the agreement.
– After the conclusion of the agreement, circumstances come to the knowledge of user that give good reason to fear that buyer will not fulfil his obligations. In case there is good reason to fear that the buyer will only partially or improperly fulfill his obligations, suspension is only allowed in so far the shortcoming justifies it.
– Buyer was requested to provide security for the fulfillment of its obligations under the agreement when the agreement was concluded and this security is not provided or is insufficient. As soon as security has been provided, the authority to suspend expires, unless this satisfaction has been unreasonably delayed as a result.
2. User shall furthermore be authorised to dissolve the agreement (have the agreement dissolved) if circumstances arise of such a nature that fulfilment of the obligations becomes impossible or can no longer be demanded in accordance with the requirements of reasonableness and fairness, or if other circumstances arise of such a nature that the unaltered maintenance of the agreement can no longer be reasonably expected.
3. If the agreement is dissolved, the user’s claims against the buyer shall be immediately due and payable. If user suspends fulfillment of the obligations, he shall retain his claims under the law and the agreement.
4. User always retains the right to claim damages.
Article 12 Return of goods made available
1. If user has put goods at buyer’s disposal during the execution of the agreement, buyer shall be held to return the thus delivered goods within 14 days in their original state, free of defects and in their entirety. If the buyer fails to comply with this obligation, all resulting costs shall be at his expense.
2. If, for any reason whatsoever, buyer still remains in default to fulfill the obligation mentioned under 1. after being warned to do so, user shall be entitled to recover the resulting damage and costs, including replacement costs, from buyer.
Article 13 Transfer of risk
1. The risk of loss of or damage to the products that are the subject of the agreement shall pass to purchaser at the moment at which they are legally and/or actually delivered to purchaser and thereby come under the control of purchaser or a third party to be designated by purchaser.
Article 14 Force majeure
1. If the supplier from whom the Seller procures goods and raw materials fails to deliver, or fails to deliver on time or properly, for whatever reason, despite reminders from the Seller, this shall be deemed to constitute force majeure with respect to the Buyer to the Seller from the date on which the delivery period expired.
2. From that date the following shall also be regarded as force majeure: ice, strike, government measures, delay in supply, export ban, riot, war, mobilization, transport restrictions, import restrictions and all forms of force majeure.
3. The buyer’s obligations shall also be suspended when the seller is entitled to invoke the provisions of this article. Only after the delivery period has expired will the buyer have the right to dissolve the agreement in whole or in part.
Article 15 Indemnifications
1. The buyer shall safeguard user against claims of third parties concerning intellectual property rights on materials or data provided by the buyer, which are used in the execution of the agreement.
Article 16 Intellectual property and copyrights
1. Without prejudice to the other provisions of these general terms and conditions, user shall reserve the rights and powers to which user is entitled under the Copyright Act.
2. The buyer is not allowed to make changes to the goods, unless it follows from the nature of the delivered goods or has been agreed otherwise in writing.
3. Any designs, sketches, drawings, films, software and other materials or (electronic) files produced by the user within the framework of the agreement shall remain the property of the user, irrespective of whether they have been made available to the buyer or to third parties, unless agreed otherwise.
4. All documents possibly provided by user, such as designs, sketches, drawings, films, software, (electronic) files, etc., are exclusively intended to be used by the buyer and must not be reproduced, made public or brought to the notice of third parties by him without prior consent of user, unless the nature of the documents provided dictates otherwise.
5. User shall retain the right to use any knowledge gained from the execution of the work for other purposes, in so far no confidential information shall be brought to the notice of third parties.
6. The name labels applied by the seller in the delivered goods may never be removed or replaced by another brand name.
Without explicit written consent, the buyer is not permitted to use the name ‘Moko dutch Design’ other than to indicate the goods delivered by the seller. Buyer is liable for damage caused by violation of the provisions of this article.
Article 17 Disputes
1. The court in user’s place of business has exclusive jurisdiction to take cognizance of disputes. User shall nevertheless be entitled to submit the dispute to the court deemed competent by the law.
2. Parties shall only appeal to the court after they have done their utmost to settle a dispute by mutual agreement.
Article 18 Applicable law
1. Any agreement between the user and the buyer shall be governed by Dutch law. The Vienna Sales Convention is expressly excluded.
Article 19 Amendment and location of the terms and conditions
1. These terms and conditions have been filed at the office of the Chamber of Commerce in Rotterdam.
The most recently filed version or the version valid at the time the agreement was concluded shall always apply.