Article 1. General
1.1. These general terms and conditions apply to each offer, quotation and to all agreements entered into, however named, between V.O.F. Mocadazu (hereinafter “Mocadazu”) and an Other Party, to which Mocadazu has declared these conditions applicable.
1.2. In the following is defined under:
Mocadazu: the company led by V.O.F. Mocadazu which focuses on selling (safari) tents and related matters in the broadest sense.
Other Party: any Other Party, legal person or natural person, or several persons acting together, whether they are legal or natural persons, who enters into an agreement with Mocadazu or orders Mocadazu to perform activities.
Agreement: any agreement that is established between Mocadazu and the Other Party, any change thereof or addition thereto, as well as all (legal) proceedings in preparation and in implementation of the agreement.
1.3. These general terms and conditions may exclusively be departed from if this has been expressly agreed upon in writing (by e-mail or mail) between Mocadazu and the Other Party.
1.4. Where in these general terms and conditions is referred to the “delivery (of goods)”, this also includes the rendering of services and activities of whatever nature.
1.5. These general terms and conditions also apply to agreements with Mocadazu, for the execution of which Mocadazu must engage third parties.
1.6. These general terms and conditions also apply to agreements with the employees of Mocadazu and its board.
1.7. The applicability of any purchase or supply conditions, general terms and conditions and/or other conditions of the Other Party is explicitly rejected.
1.8. If at any time, one or more clauses in these general terms and conditions are void either wholly or in part, or are declared void, all other clauses in these general terms and conditions remain fully applicable. In that case Mocadazu and the Other Party shall enter into consultation in order to agree upon new clauses in replacement of the void or voided clauses whereby the objective and tendency of the original clauses are taken into account as far as possible.
1.9. If confusion exists regarding the interpretation of one or more clauses of these general terms and conditions, then the explanation of these clauses must take place in line with the other clauses of these terms and conditions.
1.10. If a situation or circumstance occurs between Mocadazu and the Other Party, which is not covered in these general terms and conditions, then this situation must be assessed in line with the other clauses of these terms and conditions.
1.11. In case Mocadazu does not demand strict compliance with these conditions, this does not mean that the clauses do not apply. Mocadazu reserves at all times the right to otherwise demand strict compliance with the clauses of these conditions.
Article 2. Offers and quotations
2.1. All offers and quotations, including but not limited to, information in attachments, prices and other conditions are not binding unless the offer contains a term for acceptance. The validity of the offers and quotations is 30 days, unless otherwise stated by Mocadazu in writing (by e-mail or mail).
2.2. The content of leaflets, brochures, prints, website and other promotional materials cannot be relied upon by the Other Party. This content does not bind Mocadazu in any way, unless it is explicitly referred to in the agreement.
2.3. An offer or quotation lapses if the product on which the offer or quotation or relates is in the meantime no longer available, this without Mocadazu being liable to any compensation.
2.4. A composed offer or quotation does not oblige Mocadazu to carry out a part of the order at a corresponding part of the stated price.
2.5. Quotations or offers do not automatically apply to future orders.
2.6. An order given by the Other Party to Mocadazu is considered to be an offer. This order is confirmed only when Mocadazu has accepted the order by written confirmation of the order (by e-mail or mail).
2.7. Mocadazu cannot be held to its offers or quotations if the Other Party can reasonably understand that the offers or quotations, or any part thereof, contain an obvious mistake or error.
2.8. If the acceptance differs from the offer, whether or not on minor points, as stated in an offer or quotation, then Mocadazu is not bound to such. The agreement is then not formed in accordance with this deviating acceptance, unless Mocadazu indicates otherwise.
2.9. If the agreement is not granted to Mocadazu, Mocadazu is entitled to charge the Other Party any costs incurred by Mocadazu to prepare the offer or quotation.
Article 3. Agreement
3.1. An agreement is only established when an order given to Mocadazu is agreed upon by Mocadazu in writing (by e-mail or mail). This agreement of the order is also the order confirmation.
3.2. The order confirmation that is sent by Mocadazu to the Other Party is considered to fully and accurately reflect the content of the agreement. The Other Party is deemed to agree with the contents of the order confirmation, unless the Other Party notifies Mocadazu in writing (by e-mail or mail) within 14 days after the date of this order confirmation that he cannot agree with the content of the agreement.
3.3. Upon confirmation of the order the Other Party shall make a down payment of 50% of the invoice amount within 14 days after the order confirmation, unless otherwise agreed. In the absence of this down payment Mocadazu is not obliged to execute the agreement.
3.4. Any additional agreements and/or commitments made by the employees of Mocadazu, or made on behalf of Mocadazu and/or by other persons acting as a representative, only bind Mocadazu if these agreements and/or commitments have been confirmed in writing (by e-mail or post) by a director authorized to represent Mocadazu.
3.5. Mocadazu reserves the right not to accept orders without giving any reason, or to only accept orders under the condition that the work will commence after advance payment.
Article 4. Delivery and delivery terms
4.1. The delivery terms stated by Mocadazu commence on the day the down payment, as referred to in clause 3.3 is received on the bank account of Mocadazu, provided that all the information required by Mocadazu for the execution of the order is in the possession of Mocadazu at that moment.
4.2. If for the completion of certain activities or for the delivery of certain goods a specific term has been agreed or stated, this stated term is indicative and informative and this is never a strict deadline. On exceeding a term, the Other Party must therefore issue Mocadazu with notice of default in writing (by e-mail or mail), in which Mocadazu should be given a reasonable term to as yet execute the agreement. Mocadazu is not liable for indirect loss as referred to in clause 14.9 of these terms and conditions when exceeding the agreed delivery term.
4.3. Delivery and prices are ex works of Mocadazu unless otherwise agreed in writing (by e-mail or mail). The Other Party is obliged to purchase the goods the moment they are made available to the Other Party. If the Other Party refuses to purchase the goods or fails to provide information and/or instructions required for delivery, then Mocadazu is entitled to store the goods for the account and risk of the Other Party.
4.4. If the Other Party requests that delivery of goods takes place in a different manner than set out in clause 4.3 of these general terms and conditions, Mocadazu may invoice the associated costs to the Other Party.
4.5. Mocadazu has the right to have certain work carried out by third parties.
4.6. Mocadazu is entitled to execute the agreement in several phases and as such invoice the executed phase separately. In that case Mocadazu may suspend the execution of the next phase until the Other Party has paid any outstanding invoices or until the results of the preceding phase have been approved in writing (by e-mail or mail).
4.7. Mocadazu has the right to deliver the goods in parts.
Article 5. Amendment of the agreement
5.1. If during the execution of the agreement it appears that for a proper execution it is necessary to amend or supplement the agreement, then Mocadazu and the Other Party will in due time and in mutual consultation adapt the agreement. The Other Party accepts the possibility of an amendment of the agreement, including, but not limited to, changes in price and time of execution.
5.2. If the nature, scope or content of the agreement is amended, whether or not at the request or indication of the Other Party, authorities and/or third parties, this can also have consequences for what was originally agreed upon.
5.3. If the amendment or supplement to the agreement will have financial or other consequences Mocadazu shall inform the Other Party about it as far as possible.
5.4. If the agreement is amended or supplemented, whether or not at the request or indication of the Other Party, authorities and/or third parties, this can result in a change of the originally stated term for execution.
5.5. If the agreement is amended or supplemented, Mocadazu is entitled to execute such only after written approval (by e-mail or mail) has been given by Mocadazu, and the Other Party has accepted the specified price, term for execution and other conditions for this amendment or supplement.
5.6. If Mocadazu may not or not immediately execute the amended or supplemented agreement, this does not mean breach of contract of Mocadazu and it does not provide ground for the Other Party to terminate the agreement.
5.7. Without being in default, Mocadazu may refuse a request to amend or supplement the agreement if this could have qualitative and/or quantitative consequences for the activities or goods to be delivered in that context.
Article 6. Suspension, dissolution and termination of the contract
6.1. The Other Party should ensure that all information, of which Mocadazu indicates is necessary or of which the Other Party should reasonably understand to be necessary in order to execute the agreement, is provided to Mocadazu on time and in good order. If the information necessary for the execution of the agreement is not provided on time or in good order, then Mocadazu is entitled to suspend the execution of the agreement and/or charge the Other Party the usual rates for the additional costs resulting from the delay.
6.2. Should the Other Party not, not fully or not on time comply with the obligations under the agreement, then the Other Party is liable for all loss (including, but not limited to, costs) directly or indirectly arisen as a result on the side of Mocadazu.
6.3. Mocadazu is entitled to suspend the obligations of the agreement or terminate the agreement, if:
the Other Party does not, not fully or not on time comply with the obligations under the agreement;
after the agreement is entered into, Mocadazu becomes aware of circumstances that give reasonable grounds to fear that the Other Party shall fail to comply with the obligations;
in entering into the agreement the Other Party has been requested to provide security for the fulfillment of his obligations under the agreement and this security fails or is insufficient.
due to delays on the part of the Other Party it can no longer be demanded from Mocadazu that the agreement with originally agreed conditions shall be executed.
6.4. Mocadazu is entitled to terminate the agreement if circumstances arise which are of such nature that fulfillment of the agreement is impossible or if otherwise circumstances arise of such nature that Mocadazu can not be expected to maintain the agreement unchanged.
6.5. If the agreement is terminated, the claims of Mocadazu on the Other Party become immediately due and payable. If Mocadazu suspends the fulfillment of the obligations, the rights of Mocadazu under the law and agreement retain.
6.6. If Mocadazu proceeds to suspension or termination of the agreement, then Mocadazu is not in any way whatsoever liable for damages and/or costs arisen as a result.
6.7. If the termination is imputable to the Other Party, Mocadazu is entitled to compensation for damages, including but not limited to, the costs directly or indirectly arisen as a result.
6.8. If the agreement is terminated prematurely by Mocadazu, Mocadazu shall, in consultation with the Other Party, arrange for transfer of the remaining activities to a third party, unless the termination is imputable to the Other Party. If the transfer of the activities incurs extra costs for Mocadazu, these costs shall be charged to the Other Party. The Other Party is obliged to pay these costs within the set term, unless Mocadazu indicates otherwise.
6.9. In the event of: liquidation; (application for) a moratorium or bankruptcy; attachment – if and insofar as the attachment is not been lifted within three months – chargeable at the Other Party; debt rescheduling; or another circumstance as a result of which the Other Party loses its unfettered control over its assets, Mocadazu is entitled to terminate the agreement with immediate effect or to cancel the order or agreement without any obligation on its part to pay any compensation or indemnification. In that event, the claims of Mocadazu on the Other Party are immediately due and payable.
6.10. If the Other Party wholly or partially cancels a placed order, then already incurred costs for the order, including, but not limited to, costs for prepared or ordered goods, costs for forwarding, disposal and/or delivery and the costs of the reserved time for the execution of the agreement will be invoiced in full to the Other Party, unless cancellation occurs within the period specified in clause 3.2 of these general terms and conditions.
Article 7. Prices
7.1. The prices mentioned in an offer or quotation are ex works of Mocadazu and exclusive of VAT and other government charges, as well as exclusive of any costs to be made as part of the contract, including, but not limited to, travel and accommodation expenses, shipping costs, transportation costs, installation costs and administrative costs, unless otherwise agreed upon by Mocadazu and the Other Party in writing (by e-mail or mail).
7.2. The prices mentioned by Mocadazu in offers or quotations are based on the prevailing circumstances at the date of the offer or quotation, including, but not limited to, production costs and/or purchase costs, exchange rates, freight, wages, salaries, government charges, obligations under the law or regulation, social security, and material costs.
7.3. Mocadazu shall install the tents or make them operational on request of the Other Party at the agreed rates.
7.4. If Mocadazu has agreed upon a fixed price with the Other Party, Mocadazu is nevertheless at all times entitled to increase this price without the Other Party in that case being entitled to terminate the agreement for that reason, if the price increase arises from one ore more conditions listed in clause 7.2 or on other grounds which were not reasonably foreseeable on entering into the.
7.5. If the price increase, other than as a result of an amendment to the agreement, exceeds 10% and takes place within three months after entering into the agreement, only the Other Party who is entitled to rely on title 5 section 3 of Book 6 of the Dutch Civil Code (the articles 231 and 247) is entitled to terminate the agreement by means of a written statement (by e-mail or mail), unless Mocadazu is as yet prepared to execute the agreement based on what was originally agreed, or if the price increase is the result of an authorization or obligation of Mocadazu under the law or if it has been stipulated that the delivery shall take place later than three months after the purchase.
Article 8. Payment and collection costs
8.1. The delivery of services must be paid within 14 days from the invoice date, in a manner to be indicated by Mocadazu in the currency as stated on the invoice, unless indicated otherwise in writing by Mocadazu. Mocadazu is entitled to invoice periodically.
8.2. Mocadazu reserves the right to require different payment terms, such as (advance) payment of the agreed amount or the provision of security other than those referred to in clause 3.3.
8.3. If the Other Party fails to pay the invoice within the stated term of 14 days, then the Other Party is legally in default. The Other Party then owes interest of 1% per month, unless the statutory interest is higher, in which case the statutory interest is owed. The interest on the due and payable sum shall be calculated from the moment the Other Party is in default until the moment the amount due is paid in full.
8.4. Mocadazu is entitled to apply the payments made by the Other Party in the first instance to settle costs, subsequently to settle the arrear interest and finally to settle the principal sum and accrued interest.
8.5. Mocadazu is entitled, without being in default as a result, to refuse an offer for payment if the Other Party indicates a different order for the allocation of the payment. Mocadazu may refuse full payment of the principal sum if the arrear interest, accrued interest and collection costs are not paid at the same time.
8.6. The Other Party is never entitled to deduct the amount it owes Mocadazu.
8.7. Objections to the amount of the invoice do not suspend the payment obligation. The Other Party that is not entitled to rely on title 5 section 3 of Book 6 of the Dutch Civil Code (the articles 231 and 247) is also not entitled to suspend the payment of an invoice for any other reason.
8.8. If the Other Party is in default or in breach of the (prompt) fulfillment of its obligations, all reasonable costs incurred to obtain payment extra-judicially are for account of the Other Party. The extrajudicial costs are calculated on the basis of what is common in the Dutch debt collection practice, currently the calculation method in accordance with the Voorwerk II Report. However, if Mocadazu has incurred higher costs to obtain the payment that were reasonably necessary, the actually incurred costs are eligible for reimbursement. Any incurred legal and execution costs shall also be recouped from the Other Party. The Other Party shall also pay interest on the payable collection costs.
8.9. The Other Party is obliged to provide security for the fulfillment of all its obligations under the agreement on first request by Mocadazu and to the satisfaction of Mocadazu.
8.10. With regard to the Other Party, other than natural persons, who is not acting in the exercise of a profession or business, namely a consumer, it applies that, notwithstanding section 6:96 paragraph 4 of the Civil Code, all collection costs are charged to the Other Party, where he owes an amount to extrajudicial collection costs of 15% of the outstanding amount, with a minimum of € 350, -. If the actual costs are higher, then the actual costs are considered extrajudicial costs. The mere involvement of a third party creates chargeability.
Article 9. Placement and permission
9.1. If permission from a third party (municipal or otherwise) is needed for placement of a tent or related matters, the Other Party shall ensure that such consent is obtained in due time. The Other Party notifies Mocadazu of this permission in writing (by e-mail or mail).
9.2. In the event that the Other Party does not, not in due time or not fully obtains the necessary permission(s), then the possible consequences hereof are at sole risk of the Other Party.
9.3. Payments of any kind, for placing and keeping placed the delivered goods that need to be paid to a third party are entirely at the expense of the Other Party, even if Mocadazu has already paid these fees.
Article 10. Location
10.1. The Other Party determines the location where the tent(s) and/or related goods should be established. The Other Party shall investigate, and/or insure that the tent(s) and or related matters can be placed at the location safely, without damage to other people’s affairs and/or without infringement on other people’s rights. Any provisions that are required for the placement must be taken by the Other Party and come fully on his account.
10.2. The Other Party must ensure that the surface on which the tent will be placed is horizontal and leveled, whether or not by placing a platform. Also there should be options for fixing the frame to the terrain or platform by means of lag screws M8 at those places designated by Mocadazu, unless otherwise agreed.
10.3. In the event that the Other Party chooses to have Mocadazu or a third party engaged by Mocadazu, then the Other Party must ensure that the terrain, on which the tent will be placed, is horizontal and leveled. Mocadazu may request from the Other Party that he designates a different location, in case the location designated location by the Other Party appears to Mocadazu inappropriate and/or unsafe and/or not without risk of damage. The Other Party cannot invoke against Mocadazu not to make use of this power.
10.4. In the event that Mocadazu or a third party engaged by Mocadazu takes care for placing the platform, then Mocadazu assumes that the underlying soil is sufficiently adequate for the standard construction method for the platform as used by Mocadazu or a third party engaged by Mocadazu. The Other Party must conduct his own research in advance into the (adequacy or hardness) of the soil. If the soil is not suitable for the aforementioned standard construction method, there needs to be built by another method, which can be done at extra charge by Mocadazu. An unexpected subsidence of the tent is entirely at the risk of the Other Party and Mocadazu is not liable for this is any way.
10.5. The Other Party ensures that on the day of delivery and/or assembly of the tent, as agreed with Mocadazu, the site is completely free and clear and well accessible for (among other things) heavy truck traffic.
Article 11. Retention of title
11.1. Designs, drawings, models, samples, descriptions, images and the like, as well as any attachments and documents that are part of an offer, agreement and/or correspondence by e-mail, fax, mail or otherwise, or relating thereto, as well as tools made by Mocadazu in this regard remain the property of Mocadazu and must be returned to Mocadazu upon first request and may not be published, copied, imitated, used and/or supplied to third parties without the express written consent (by e-mail or mail).
11.2. All goods delivered by Mocadazu under the agreement remain the property of Mocadazu until the Other Party has fulfilled all its obligations under the agreement, including interest and costs.
11.3. The goods delivered by Mocadazu that, pursuant to clause 11.1 are subject to retention of title, may not be sold nor used as payment. The Other Party is not entitled to pledge the goods subject to retention of title or encumber them in any other way.
11.4. The Other Party must always do all that reasonably may be expected from the Other Party to secure the property rights of Mocadazu.
11.5. The Other Party is obliged to declare towards third parties who want to encumber delivered goods, that he is not entitled to encumber the goods.
11.6. If third parties levy an attachment on goods delivered subject to retention of title or wish to establish or execute rights in respect of such, the Other Party is obliged to notify Mocadazu of this immediately.
11.7. The Other Party is obliged to insure the delivered goods subject to retention of title and keep them insured against fire, explosion damage, water damage and theft and to make the insurance policy available to Mocadazu for inspection on first request. In the event of any payments pursuant to insurance, Mocadazu is entitled to this insurance payout. Insofar as required, the Other Party commits itself towards Mocadazu to render its cooperation in advance to all that should or might be required or desirable in that context.
11.8. The Other Party grants in advance its unconditional and irrevocable consent to Mocadazu and/or any third parties designated by Mocadazu to, in all cases where Mocadazu wishes to exercise his (property) rights, enter all those locations where the property(ies) of Mocadazu are situated and to repossess the goods.
11.9. In case of attachment, (provisional) suspension of payment or bankruptcy, the Other Party shall immediately inform the bailiff, receiver or trustee of the (property) rights of Mocadazu.
Article 12. Examination and complaints
12.1. The goods delivered by Mocadazu may deviate from the description in the order confirmation if and insofar as it concerns minor differences in size, color and/or subordinate changes. This does not mean a defect or shortcoming, nor does this entitle the Other Party to terminate the contract or gives the Other Party the right to compensation.
12.2. The Other Party must carry out a careful inspection of the delivered goods immediately after delivery or installation by Mocadazu for any defects and/or shortcomings that are externally visible. Any complaints of the Other Party, which relate to defects and/or shortcomings of the delivered goods, must be notified in writing (by e-mail or mail) to Mocadazu upon delivery, but no later than 8 days after delivery.
12.3. Defects which were not externally visible at the time of delivery, nor could have been detected after accurate and prompt inspection, must be notified by the Other Party to Mocadazu in writing (by e-mail or mail) within 8 days after these defects were revealed but at the latest within 12 months after delivery.
12.4. Complaints against invoices must be notified by the Other Party to Mocadazu in writing (by e-mail or mail) within 8 days after the invoice date.
12.5. The Other Party must provide Mocadazu the opportunity to investigate a complaint or to have this investigated by a third party.
12.6. Any complaints by the Other Party in due time in accordance with clause 12.2 and 12.3, do not suspend its payment obligation. In that event, the Other Party shall continue to be obliged to purchase and pay for the ordered goods.
12.7. If the Other Party notifies a defect later than as stated in s 12.2 and 12.3, then the Other Party is no longer entitled to repair, replacement or compensation.
12.8. Since bamboo is to be regarded as a natural product, the following natural properties of bamboo can never be regarded as a defect or shortcoming:
vertical cracks. Bamboo is subject to expansion or contraction if changes in temperature or humidity occur, which can cause vertical cracks in the bamboo.
discoloration. Discoloration of the bamboo occurs as a result of sun exposure, moisture, and/or formation of mould, which is part of the natural properties of bamboo.
deviation in sizes. Sizes of the bamboo may deviate from the product specifications, due to the natural properties of bamboo.
12.9. If it is established that a good is defective and that a complaint has been filed on time, Mocadazu shall replace, repair, restore or supplement the defective good, as decided by Mocadazu, within a reasonable term after the good has been returned or, in case returning the good is reasonably not possible, after written notification (by e-mail or mail) of the defect by the Other Party. In the event of replacement, the Other Party is obliged to return the replaced good to Mocadazu and grant Mocadazu the ownership of such, unless Mocadazu states otherwise.
12.10. If it is established that a complaint is unfounded, then the costs arisen as a result, including, but not limited to the investigation costs, that are incurred on the side of Mocadazu will be fully for the account of the Other Party.
Article 13. Warranty
13.1. The warranty applies to delivered goods for use within the Netherlands. For use outside the Netherlands, the Other Party should verify itself whether the goods are suitable for use on that location and whether the goods meet the conditions that are imposed there. Mocadazu may, in case of use outside the Netherlands, impose other warranties and conditions concerning the deliver goods or activities to be executed.
13.2. The warranty referred to in clause 13.1 of these general terms and conditions applies for a period of 12 months after delivery, unless the nature of the delivered goods dictates otherwise or the parties have agreed otherwise. If a warranty provided by Mocadazu concerns a good produced by a third party, then the warranty is limited to that provided by the manufacturer of the good, unless stated otherwise.
13.3. Any form of warranty lapses if a defect is caused by and/or results from injudicious and/or improper use of the good, incorrect storage and/or improper maintenance thereof by the Other Party and/or third parties. Also any form of warranty lapses when, without written consent (by e-mail or mail) of Mocadazu, the Other Party and/or third parties have made changes to the good or have tried to make changes to the good, other goods have been attached to it which must not be attached to it or if the good was modified or treated in any other than the prescribed manner.
13.4. The Other Party can not rely on warranty if the defect is caused by or arising from circumstances beyond Mocadazu’s control, including, but not limited to weather conditions (such as, but not limited to, extreme rainfall, storm and/or extreme temperatures) and the like or is a result of weathering and/or normal wear and tear.
13.5. Since bamboo is to be regarded as a natural product, the natural properties of bamboo as stated in clause 12.8 are never covered by warranty.
13.6. After expiry of the warranty term, all costs of repair or replacement, including administration, shipment and call-out charges, shall be invoiced to the Other Party.
Article 14. Liability
14.1. Should Mocadazu be liable then this liability is restricted to what is stated in these general terms and conditions.
14.2. In case of loss, the Other Party must notify Mocadazu in writing (by e-mail or mail) within 14 calendar days after discovery of the loss. In the event of loss, the Other Party shall grant full cooperation on request of Mocadazu in his research into the nature, cause and extent of the loss. If the loss is reported later than mentioned herein, then the Other Party loses his rights regarding liability.
14.3. Mocadazu is not liable for direct or indirect, material or immaterial damages suffered by the Other Party or third party(ies) that are related to a failure by Mocadazu or by persons engaged by Mocadazu in the execution of the agreement, including transportation, unless the loss is a result of malice or gross negligence.
14.4. The Other Party indemnifies Mocadazu for all losses and claims from third parties.
14.5. Mocadazu is not liable for loss, of whatever nature, caused by Mocadazu proceeding on the basis of incorrect and/or incomplete information provided by or on behalf of the Other Party.
14.6. Mocadazu is not liable for loss that arises as a result of disasters in the broadest sense of the word, such as extreme or unpredictable weather conditions, as well as collapse of the delivered goods or damage thereto due to circumstances beyond the influence of Mocadazu.
14.7. If Mocadazu can unexpectedly be held liable, this liability is restricted to the direct damages and up to the amount of the payment made by the insurer of Mocadazu in the relevant case.
14.8. Direct loss exclusively includes the reasonable costs to determine the cause and extent of the loss insofar as the determination relates to loss under these conditions, any reasonable costs incurred to have the defective performance of Mocadazu correspond to the agreement insofar such can be attributed to Mocadazu, and reasonable costs incurred in the prevention or limitation of loss insofar as the Other Party demonstrates that these costs have led to a limitation of direct loss as referred to in these general terms and conditions.
14.9. Mocadazu is never liable for indirect loss, including but not limited to consequential loss, loss of profit, lost savings and loss due to business interruption.
14.10. If and insofar as Mocadazu should be liable for any loss, and this loss is not covered by the insurer or the insurer does not pay out on, then the liability of Mocadazu is limited to a maximum of 50% (fifty percent) of the value of the order, that is that part of the order to which the liability relates to, with a maximum of € 10,000 (ten thousand Euros).
14.11. Mocadazu is not responsible for conducting research on the location and presence of obstacles, cables, pipes and other existing barriers and risks and is never liable for any loss that may occur to this. The Other Party shall, if this applies, notify the Land Registry of the earthworks. The Other Party indemnifies Mocadazu for any loss that may result from damage of underground obstacles in the broadest sense of the word.
14.12. Legal claims concerning loss expire if the legal claim is not initiated within 6 months from the date the loss occurred or after the discovery of the damage.
Clause 15. Force majeure
15.1. Mocadazu is not obliged to fulfill any obligation towards the Other Party if Mocadazu is being hampered from doing so due to force majeure and/or a circumstance that is not due to fault, nor for which it is accountable under the law, a legal act or generally accepted practice.
15.2. Force majeure is defined in these general terms and conditions as, in addition to what is included in law and jurisprudence, all external causes, whether foreseen or unforeseen, which are outside the control of Mocadazu, but as a result of which Mocadazu is unable to fulfill its obligations.
15.3. Force majeure includes, but is not limited to strikes in the company of Mocadazu and/or third parties, war, riots and hostilities of any nature whatsoever, blockades, boycotts, natural disasters, epidemics, lack of materials, obstructions and interruptions of transportation facilities, import and export restrictions and/or prohibitions, obstructions caused by measures, legislation or decisions of international, national and regional (government) bodies.
15.4. Mocadazu is also entitled to rely on force majeure if the circumstance hampering (further) performance of the agreement, commences after Mocadazu should have fulfilled its obligation.
15.5. For the duration the force majeure continues, Mocadazu can suspend the obligations from the agreement. If this period lasts longer than two months, then each of the parties is entitled to terminate the agreement without any obligation to pay compensation for loss to the other party.
15.6. Insofar at the time of the commencement of force majeure Mocadazu has in the meantime fulfilled, partially fulfilled or is able to fulfill its obligations under the agreement, Mocadazu is entitled to invoice the already fulfilled or to be fulfilled part(s). The Other Party is obliged to pay this invoice as if it were a separate agreement.
Article 16. Limitation period
16.1. Notwithstanding the statutory limitation periods, the limitation period for all claims and all defenses against Mocadazu and third parties engaged by Mocadazu in the fulfillment of the agreement is one year.
Article 17. Transfer of risk
17.1. The risk of loss, damage or value reduction transfers to the Other Party the moment the goods to the Other Party are brought in the control of the Other Party, regardless of the actual place of delivery.
Article 18. Indemnification
18.1. The Other Party indemnifies Mocadazu for any claims by third parties who suffer loss that is related to the execution of the agreement.
18.2. In the event that Mocadazu is held liable in this respect by third parties, then the Other Party is obliged to assist Mocadazu both in and out of court and immediately do all that which may be expected from the Other Party in that case. Should the Other Party fail to take adequate measures, Mocadazu is entitled, without a notice of default being required, to take those measures itself. All costs and loss on the part of Mocadazu and third parties resulting from this are fully for the account and at the risk of the Other Party.
Article 19. Intellectual property
19.1. Mocadazu reserves the rights and authorities to which he is entitled under the Copyright Act, industrial property and other intellectual laws and regulations. Mocadazu is entitled to use the increased knowledge it has acquired through the performance of an agreement also for other purposes insofar as this does not disclose strictly confidential information of the Other Party to third parties.
19.2. The Other Party is not allowed to modify or change any signature or indication regarding property rights or brands, which are applied to the goods or rented goods, nor is the Other Party allowed to reproduce goods or any part thereof.
Article 20. Transfer of rights and obligations
20.1. Mocadazu is permitted to transfer its rights and obligations under any agreement with the Other Party to third parties.
20.2. The Other Party is not entitled to transfer its rights and/or obligations under any agreement to any third party without the prior written consent (by e-mail or mail) from Mocadazu.
Article 21. Location of the general terms and conditions
21.1. These conditions have been filed with the Chamber of Commerce of ‘s-Gravenhage.
21.2. The latest filed version or version as in force at the time the legal relationship with Mocadazu was formed, applies
21.3. The Dutch text of these general terms and conditions is always decisive for their interpretation.
Article 22. Severalty
22.1. In the event of more then 1 Other Party, the Other Parties are jointly and severally bound concerning all that is due under the agreement. Any legal successors are also jointly and severally bound.
Article 23. Applicable law and disputes
23.1. All legal relationships in which Mocadazu is a party are exclusively governed by Dutch law and Dutch courts, even if an obligation is wholly or partly fulfilled abroad or if the party involved in the legal relationship has domicile abroad.
23.2. The applicability of the Vienna Sales Convention is excluded.
23.3. Any disputes will be adjudicated exclusively by the competent court having jurisdiction at the place of Mocadazu, namely The Court in ‘s-Gravenhage, unless mandatory law prescribes otherwise. Nevertheless, Mocadazu is entitled to submit the dispute to the Court with jurisdiction according to the law.
23.4. The Parties shall only revert to the Court after they have made every effort to resolve the dispute in mutual consultation.