1.1 In these general terms and conditions (“Terms”), the following definitions shall apply:
Mokumono: The private company with limited liability under Dutch law Mokum Mono B.V., having its registered offices in Amsterdam, the Netherlands;
Client: all natural or legal persons with whom Mokumono enters into an Agreement or with whom Mokumono is negotiating about the conclusion of an Agreement;
Agreement: any and every agreement entered into between Mokumono and a Client, any amendment thereto and any actions or legal transactions connected with the execution of that Agreement and, seen in retrospect, any and all actions and legal transactions necessary for entering into that Agreement;
Products: any and all goods which are the subject of an Agreement;
Order: any order issued by a Client to Mokumono in any form whatsoever.
2.1 The present Terms shall comprise a part of all Agreements and shall be applicable to all Mokumono’s and Client’s actions and legal transactions. Unless the nature or specific contents of any stipulation in the present Terms should oppose this, the provisions of the Terms shall also be applicable to Agreements under the terms of which Mokumono does not act in its capacity of seller.
2.2 Applicability of any general terms and conditions applied by Client is explicitly dismissed by Mokumono.
2.3 In so far as the nature of provided services allows, these Terms apply to all services provided by Mokumono to the Client.
3. Quotations, Agreements, Product descriptions, services and definitions
3.1 A quotation or (price) offer shall not be binding on Mokumono and shall qualify only as an invitation to the Client to place an Order.
3.2 An Agreement shall only be concluded to the extent Mokumono accepts an Order from the Client in writing or if Mokumono executes an Order. If at the request of Client Mokumono carries out any work for Client before an Agreement is concluded, then Client shall remunerate Mokumono therefore in accordance with Mokumono’s customary rates.
3.3 After acceptance of an Order, Mokumono shall at all times be entitled to cancel such Order without stating its reasons after acceptance of such Order, in which case Mokumono shall not be obliged to refund any more than advance payments already made by Client, if any.
3.4 Mokumono shall observe due care in informing the Client of the figures, measurements, weights, features other information applicable to the Products, but cannot warrant that these shall be free of deviations. Any specifications or samples demonstrated or made available shall be no more than indications of the Products concerned. If the Client should be able to demonstrate that the Products supplied by Mokumono deviate from the information provided by Mokumono or from the samples or specifications in such a way that the Client can no longer be obliged to comply with the order concerned, the Client shall have the right to dissolve the Agreement, to the extent however that such a dissolution should be necessary in reason and without Mokumono being liable for damages.
5.1 Notwithstanding article 2, amendments of any provision in any Agreement or in the Terms may only be agreed by written consent of both parties.
5.2 If an amendment or adjustment as referred to in the previous article is agreed, such amendment or adjustment shall only apply to the Agreement concerned, unless expressly stated otherwise.
6.1 All Mokumono’s prices are in EUR/USD/GBP unless expressly stated otherwise. Insofar as prices are stated in other currency than EUR/USD/GBP, than such statement of price is deemed to be based on the EUR/USD/GBP equivalent of such price at the date that the price statement was made. Prices are exclusive of value added tax or any other sales tax. Costs of packing and despatch, import and export duties and taxes and any other surcharges, levies or taxes imposed or charged in respect of the Products and the transportation thereof shall be for the Client’s account.
6.2 Any change of factors having an impact on the prices of Mokumono, including but not limited to rates of third parties, currency exchange rates, insurance rates, import and export duties and any other charges payable upon importation or exportation, freight charges and other charges, levies or taxes, may be charged on to Client by Mokumono.
7.1 The Client shall pay all amounts due to Mokumono within 30 days of the invoice date.
7.2 All payments shall be made by the Client into a bank account to be designated by Mokumono without any discount, deduction, suspension or setoff.
7.3 If at any given moment Mokumono has doubts about the credit-worthiness of the Client, Mokumono is entitled, before (continuing the) performance of an Agreement, to demand from Client that advance payment of the payable amount is made or that the Client furnishes proper security. Without prejudice to the previous sentence, Mokumono is always entitled to suspend performance of an Agreement or Order in case of one or more outstanding invoices of, in total, more than € 3.500 or in case an invoice is more than 30 days overdue.
7.4 The mere expiration of a payment term puts Client into default. In that case, all claims by Mokumono against Client, regardless of their grounds or nature, shall be immediately payable.
7.5 Without any further default notice, the Client owes interest on all amounts which have not been paid by the last day of the payment term to be calculated as from that date at a rate equivalent to the statutory commercial interest rate in accordance with article 6:119a Dutch Civil Code. Reminders or overviews of outstanding invoices expressed in principals which have been sent to Client in the meantime, shall under no circumstances imply any forfeiture of rights regarding interest charge for late payment or expenses.
7.6 If even after the lapse of a payment term further stated by registered mail, fax or e-mail, the Client has not paid the payable amount and interest, Client is bound to compensate Mokumono for all expenses in and out of court. Expenses out of court may at all times be fixed by Mokumono at 15% of the invoice amount with a minimum of 250 euro exclusive of VAT, without prejudice to the right of Mokumono to claim the real expenses instead.
7.7 Invoices sent by Mokumono shall not be binding in the sense that, if by mistake invoices mention incorrect amounts, Mokumono shall be entitled to forward correction invoices.
7.8 Regardless of any statement expressing otherwise, payments by Client are deemed to have been settled on debts in the following order: interest, (extra-judicial) collection charges, principals payable (the older ones before newer ones).
8. Delivery period
8.1 The delivery period indicated by Mokumono shall be based on the circumstances applicable to Mokumono at the time the Agreement is entered into and, to the extent dependent on performance by third parties, on the information that those third parties provided to Mokumono.
8.2 The delivery period shall commence on the date of Mokumono’s written Order confirmation. If, in order to execute the Order, Mokumono requires information from the Client, the delivery period shall commence on the date on which Mokumono disposes of all the necessary information or resources, but not earlier than the date of the written Order confirmation.
8.3 The Client shall not be entitled to claim any compensation in the event of an overdue delivery period. Neither shall the Client be entitled to dissolve the Agreement in such an event, unless the Client proves that it cannot in reason be required to comply with the relevant part of the Agreement. In such case, the Client shall be entitled to dissolve the Agreement, provided it has informed Mokumono thereof in writing and without prejudice to Mokumono’s right to supply the Products concerned and to require payment thereof within three weeks of the receipt of such a notification.
8.4 Mokumono shall at all times be entitled to deliver in part-consignments.
9. Delivery and risk
9.1 If and to the extent that parties have not explicitly agreed in writing on the (costs of) delivery of the Products and the transfer of risk, the delivery shall be made at Mokumono’s premises, and the risk of the Products and the packing thereof shall in all cases be transferred to the Client at the moment the Products are ready for dispatch, while the dispatch shall be effected for the Client’s account and risk.
9.2 If the Client should fail to collect the Products it has ordered or should fail to do so promptly, it shall be in default without requiring a written notice of default. In such event Mokumono shall be entitled to store the Products for the Client’s account and risk and to sell these to a third party. The Client shall remain liable for the purchase price plus the interest and costs (by way of compensation) after the deduction of the net proceeds of such sale to a third party, if any.
10. Products and services of third parties
10.1 At all times Mokumono shall be entitled to engage third parties to fulfil (parts of) an Agreement. If Mokumono calls in third parties, the terms and conditions that apply to the agreement between such third parties and Mokumono apply to the Agreement notwithstanding the rights and obligations of Mokumono and the Client arising from the Agreement, to the extent that in the event that these rights and obligations deviate, the terms and conditions that bind Mokumono to any third party shall prevail. The terms and conditions that bind Mokumono towards third parties in cases as described above will be provided by Mokumono to the Client free of charge at the Client’s first request.
11. Retention of title
11.1 Irrespective of the actual delivery date, the title to the Products shall not be transferred to the Client until it has paid Mokumono the sum outstanding in respect of the Products in full, including the purchase price, any surcharges, interest, taxes and costs payable pursuant to the Terms or an Agreement and any services rendered or to be rendered in respect of the Products.
11.2 The Client shall not be authorized to rent, let or make the Products available in use to third parties, to pledge them or to otherwise encumber them in favour of third parties until Mokumono has transferred the title of those Products to the Client.
11.3 If and as long as the title to the Products has not yet been transferred to the Client, the Client shall inform Mokumono forthwith in writing in the event that the Products are seized, attached, garnished or if any other claim should be made with regard to the Products.
11.4 In the event of attachment, seizure, garnishment, bankruptcy, involuntary liquidation or a (provisional) moratorium of payments, the Client shall immediately inform the administrator or liquidator, the bailiff or the process-server serving the seizure, garnishment or attachment, of Mokumono’s rights of title.
12. Inspection and complaints
12.1 The Client shall be obliged to carefully inspect the Products immediately upon arrival at their destination or to have these examined upon receipt by the Client itself or any third party acting at its instructions, whichever is earlier. Mokumono must be informed in writing of any complaints in respect of defects to the Products or any discrepancies in quantity, weight or quality between the Products supplied and the specification thereof in the relevant order confirmation or invoice no later than within 5 days after the receipt of the Products. The Client must notify Mokumono of defects that could not in reason have been discovered within the abovementioned period in writing immediately after discovery, but in any case no later than within 30 days of the receipt of the Products. Should the Client fail to inform Mokumono within the abovementioned term, its rights to exercise any of its rights with regard to such irregularity or defect have lapsed, notwithstanding the applicability of a possible shorter period applied by a carrier or other third party further to article 9.1 above.
12.2 The Client shall be obliged to immediately cease the use of the Products concerned after discovering any irregularity or defect, under penalty of lapse of the right to exercise any of its rights with regard to such irregularity or defect. The Client shall provide any cooperation Mokumono may require in order to investigate the complaint.
12.3 The Client shall not be entitled to return Products to Mokumono before Mokumono has agreed in writing to such return. The costs of the return consignment shall be for the Client’s account, and the Products shall remain at risk of the Client after receipt by Mokumono of such Products.
13. Other obligations and responsibility of the Client
12.1 The Client shall at all times make any and all information necessary for the execution of Mokumono’s activities available timely and shall warrant the accuracy and comprehensiveness thereof.
12.2 The Client shall not be entitled to remove or make invisible any trademarks or identifying marks on the Products, any documents accompanying and/or regarding the Products.
13. Force majeure
13.1 If Mokumono is unable to fulfil any of its obligations towards Client due to force majeure, these obligations shall be suspended during the force majeure situation.
13.2 If a force majeure situation has lasted for 1 month, both parties have the right to dissolve the Agreement in writing entirely or in part. In the event of force majeure of Mokumono, Client is not entitled to any compensation or damages, not even if Mokumono would enjoy any benefit as a result of such force majeure.
13.3 Force majeure on the part of Mokumono is to be understood as a case of overmacht as mentioned in article 6:75 Dutch Civil Code, and furthermore any circumstance beyond the control of Mokumono hindering the fulfilment of its obligations towards Client entirely or in part or because of which Mokumono cannot be expected in all fairness to fulfil its obligations, regardless whether such circumstance could have been foreseen at the time when the Agreement was concluded. Such circumstances include but are not limited to fires, acts of terrorism, strikes and lockouts, stagnation or other production problems suffered by Mokumono or its suppliers, or problems in the transportation provided by Mokumono or any third parties, any government measures, as well as the inability to obtain any permit or licence from any governmental body.
13.4 Parties shall notify each other as soon as possible of any (possible) force majeure situation.
14. Mokumono’s Products
14.1 Mokumono warrants only those features, qualities of its Products that are explicitly agreed in writing.
14.2 If Mokumono should deliver Products to the Client which Mokumono has obtained from its own suppliers, Mokumono shall at no time be obliged to honour a warranty or liability in respect of the Client which is more far-reaching than that which Mokumono can claim from its own supplier.
14.3 If, in Mokumono’s opinion, the Client has been able to prove that any Products supplied by Mokumono to the Client do not function properly, Mokumono may choose, at its sole discretion, between:
re-supplying the Products upon the return of the Products;
modifying the Products properly;
to grant the Client a discount on the purchase price to be agreed by mutual consent.
Mokumono shall be fully discharged of its warranty obligations by complying with one of the options described above, and it shall not be held to pay any further compensation or damages.
14.4 The Products shall remain completely for the Client’s risk even if Mokumono should carry out any repairs to the Products.
15.1 Any liability of Mokumono shall at all times be limited to the sum insured that shall be paid in such case under the liability insurance policies taken out by Mokumono. These insurance policies have limited cover, inter alia with respect to the amount of the damages and the number of insured events per year. Upon request thereto, access may be obtained to the insurance cover note. Should no payment be made by virtue of aforementioned insurance policies, regardless of the grounds, the liability of Mokumono shall be limited to the fee that was invoiced by Mokumono and paid by Client in connection with the delivery at hand during a twelve month period directly preceding the date on which the event leading to liability occurred, up to a maximum liability of € 10,000 (ten thousand Euro).
15.2 In the event that Mokumono involves third parties, Mokumono shall not accept any liability whatsoever for failure to perform on the part of such third party except for failure to perform on the part of Mokumono itself – to which article 15.1 applies. If the Client brings legal action directly against a third party, the Client shall indemnify Mokumono against any claims by such third party in connection with such claim as well as against all expenses to be incurred by Mokumono.
15.3 All rights of legal action and other powers of the Client towards Mokumono in connection with the Products delivered by Mokumono shall lapse upon expiry of a one year term after the date on which the Client has become aware of - or could in all fairness have been aware of - the existence of such rights and powers.
16.1 If Client fails to fulfil any of its obligations arising from the Agreement properly or in time, Client shall be in default and Mokumono shall be entitled without any default notice:
to suspend the fulfilment of the Agreement until payment has been adequately guaranteed; and/or
to dissolve the Agreement with Client entirely or in part;
all this without prejudice to Mokumono other rights under any Agreement whatsoever and without Mokumono being held to any damages.
16.2 If Mokumono exercises its right of dissolution as mentioned in article 16.1, Mokumono is authorized to set off any amount which may possibly be refunded to Client with a remuneration for activities already carried out as well as with a compensation for loss of profit.
16.3 In the event of bankruptcy, (provisional) suspension of payment, liquidation or attachment of one or more assets of Client or if Client is aware that any of these situations may occur, Client must notify Mokumono thereof as soon as possible.
16.4 In case of a situation as referred to in article 16.3, all Agreements with Client shall be dissolved by operation of law, unless Mokumono notifies Client that it wishes (part of) the Agreement concerned to be fulfilled, in which case Mokumono is entitled without any default notice:
to suspend fulfilment of the Agreement(s) concerned until payment has been adequately guaranteed; and/or
to suspend all its payment obligations, if any, towards Client;
all this without prejudice to Mokumono’s other rights under any Agreement whatsoever and without Mokumono being held to any damages.
16.5 In the event of a situation as referred to in article 16.3, all Mokumono’s claims against Client shall be immediately payable in full.
17. Transfer of rights and obligations
Mokumono is allowed to transfer to third parties the rights and obligations described in any Agreement with Client. If obligations of Mokumono are transferred, Mokumono must inform Client aforehand and Client shall be entitled to terminate the Agreement by the date on which the transfer shall take place. In such case, Mokumono shall not be liable for any damages. Client cannot transfer to third parties any rights or obligations from any Agreement unless after consent thereto by Mokumono.
18. Comprehensive Agreement
An Agreement, including these Terms, is a comprehensive representation of the rights and obligations of parties and shall replace all prior written and verbal arrangements, statements, expressions or acts by parties.
If and insofar as any provision of these terms cannot be invoked due to any imperative rule of law, the unfair character of these Terms or grounds of reasonableness and fairness, the provision concerned, as far as contents and essence are concerned, shall in all events have a corresponding meaning to such an extent that the provision concerned may indeed be rightfully invoked.
21. Applicable law, competent court
21.1 The law of the Netherlands shall be applicable to the present Terms and to all other Agreements. The applicability of the Uniform Law on the International Sale of Movable Property, the Uniform Law on the Formation of International Contracts for the Sale of Goods as well as the Vienna Convention on the Sale of goods is excluded.
21.2 Any disputes arising from the Agreement or these Terms shall be brought excusively before the competent court in Amsterdam.
22. Amendment of terms
These terms may be amended on the part of Mokumono by mere notification to Client. In the absence of any protest within 30 days after notification the amended Terms shall apply to all new Agreements as of the day of notification as well as to all current Agreements if and insofar as these are carried out after the day of notification.