Terms of delivery
General Terms and Conditions Mandoka (version 4-17)
Article 1: Definitions
1.1 For the purposes of these general terms and conditions “Mandoka” refers to the company VOF Mandoka, having its registered office and place of business at Betonstraat 15, 8263 BL Kampen, the Netherlands, registered with the chamber of commerce number 05051187. VAT-no. NL803281341B01 and phoneno. +31 (0)6-53562952
1.2 “Buyer” in these terms and conditions implies: any person or legal entity that concludes a contract with Mandoka, with Mandoka being the supplier, the seller, the service provider or otherwise.
1.3 “Product” in these terms and conditions implies that which is sold by Mandoka, also including services such as maintenance, installation, advice and inspection.
1.4 “Consumer” in these terms and conditions implies: the natural person not engaged in a professional or commercial capacity.
Article 2: Applicability
2.1 These general terms and conditions shall apply in relation to all Mandoka offers and any agreement concluded between Mandoka and buyer or any assignment accepted or services provided by Mandoka.
2.2 Mandoka explicitly precludes the application of any buyer’s general terms and conditions as well as general terms and conditions from other parties with which Mandoka enters into an agreement. Any derogating terms and conditions shall only constitute part of an agreement in so far as Mandoka explicitly consents to them or any other provisions in writing and only relate to that agreement.
Article 3: Offers and quotations
3.1 Any offer which Mandoka makes shall be free of obligation unless explicitly stipulated otherwise.
3.2 Verbal or telephonic offers do not obligate Mandoka. Offers via the website or otherwise are free of obligation.
3.3 The offer contains a comprehensive and accurate description of the products and/or services offered. This description will be detailed enough to allow the buyer to effectively evaluate the offer. If Mandoka uses images, these will not obligate Mandoka in terms of the structure and execution of the products and/or services to be supplied. Obvious miscalculations or errors in the offer will not obligate Mandoka.
3.4 All offers are valid for no longer than 30 days. All offers will expire after 30 days unless Mandoka has explicitly specified that it wishes an offer to remain valid after this period. All offers can be withdrawn by Mandoka at any time.
3.5 An agreement, which is deemed to include any amendment of or addendum to it, shall only be concluded by virtue of it being recorded in writing in a contract signed by the parties or in a notice of confirmation signed by Mandoka.
3.6 A written notice of confirmation signed by Mandoka shall be deemed to constitute a full, accurate record of the substance of the relevant agreement which has been concluded, unless the buyer concerned notifies Mandoka of their objections in writing within four (4) calendar days after the date on which that notice has been dispatched.
3.7 Where a buyer provides data, drawings and so forth to Mandoka, the latter shall be entitled to assume that they are accurate and shall base its offer on them.
Article 4: Intellectual property rights
4.1. Unless otherwise agreed in writing, Mandoka retains the copyright and all industrial property rights in the offers made by it and in the designs, pictures, drawings, models (including trial models), software and the like provided by it.
4.2. The rights in the data referred to in paragraph 1 of this article will remain the property of Mandoka irrespective of whether the costs of their production have been charged to the buyer. These data may not be copied, used or shown to third parties without Mandoka’s prior express written consent. Buyer will owe Mandoka an immediately payable penalty of € 25,000 for each breach of this provision. This penalty may be claimed in addition to damages pursuant to the law.
4.3. On Mandoka’s first demand, buyer must return the data provided to it as referred to in paragraph 1 of this Article within the time limit set by Mandoka. Upon breach of this provision, buyer will owe Mandoka an immediately payable penalty of € 1,000 per day. This penalty may be claimed in addition to damages pursuant to the law.
Article 5: Advice and information provided
5.1. The buyer cannot derive any rights from advice or information it obtains from Mandoka if this does not relate to the assignment.
5.2. The buyer indemnifies Mandoka from and against all liability to third parties relating to use of the advice, drawings, calculations, designs, materials, samples, models and the like provided by or on behalf of buyer.
Article 6: Price and price change
6.1 Unless otherwise agreed in writing, the specified prices are in Euro, inclusive of VAT and based on Ex Works supply (as stipulated in the Incoterms 2010)
6.2 The costs involved in loading, transporting and unloading any goods as well as those of any packaging shall not be deemed to be included in the price and, as such, in the event that Mandoka has a duty to load, transport, unload and also arrange packaging for the relevant goods, the buyer concerned shall be charged separately for same.
6.3 Quotations will always be made based on the prices and circumstances that apply at the time of purchase and/or order. If, after conclusion of the contract, one or more cost price factors (including wages, taxes, premiums, purchase rates, cost of raw materials, foreign currency exchange rates, etc.) are subject to an increase, Mandoka will be entitled to charge such an increase to the buyer.
6.4 The buyer must, upon request, provide Mandoka with a valid VAT registration number and immediately inform Mandoka in case of any changes to this number. If the buyer does not observe this obligation, the sales price will automatically be increased to include VAT and other amounts, insofar as these are possibly charged to Mandoka due to such non-observance.
6.5 A composite quotation will not obligate Mandoka to supply part of the offer or part of the products included in the offer at a corresponding fraction of the specified price.
Article 7: Engagement of third parties
7.1 If and insofar as effective execution of the contract requires it, Mandoka has the right to outsource tasks and/or supply activities to third parties. All at the discretion of Mandoka.
Article 8: Supply / Assembly / Installation
8.1 Specified supply, assembly, installation and/or repair times will always be considered an estimate and will never be deemed a deadline, unless explicitly agreed otherwise in writing. In case of delivery, assembly, installation and/or repair delays, Mandoka must be served notice in writing and must be given a reasonable period of at least three weeks to nonetheless fulfil its obligations.
8.2 Unless otherwise agreed, all supplies will take place on an Ex Works basis (as stipulated in the Incoterms 2010). Even if the parties have agreed in writing on a different method of supply, the purchased Products will be for the account and risk of the buyer on an Ex Works basis.
8.3 The buyer will be responsible towards Mandoka for the accurate and timely arrangement of all fittings, provisions and/or conditions necessary for the setup of the product to be assembled, and/or the correct performance of the product in its assembled state. Damage and costs that may arise due to non-compliance by the buyer will be for the account of the buyer in full.
Article 9: Force majeure
9.1. Mandoka is entitled, without judicial intervention, to suspend performance of its obligations if it is temporarily prevented from performing its contractual obligations to the buyer due to force majeure.
9.2. Force majeure is understood to mean, inter alia, the cir-cumstance of failure by suppliers, Mandoka’s subcontractors or transport companies engaged by Mandoka to perform their obligations or perform them in good time, weather conditions, earthquakes, fire, power failure, illness from one partner, loss, theft or destruction of tools or materials, road blocks, strikes or work stoppages and import or trade restrictions.
9.3. If Mandoka’s temporary inability to perform lasts for more than six months, it will no longer be entitled to suspend performance. On expiry of this deadline, the buyer and Mandoka may terminate the agreement with immediate effect, but only as regards such part of the obligations that has not yet been performed.
9.4. In the event of force majeure where performance is or becomes permanently impossible, both parties are entitled to terminate the agreement with immediate effect as regards such part of the obligations that has not yet been performed.
9.5. The buyer will not be entitled to compensation for damage suffered or to be suffered as a result of suspension or termination as referred to in this article.
Article 10: Permits and associated
10.1. The buyer must ensure that all permits, exemptions and other orders have been arranged.
10.2. Any possible costs related to installation, connection and associated tasks, regardless of denotation, will be for the account of the buyer.
Article 11: Liability
11.1. Any liability on the part of Mandoka or any obligation for payment of compensation by Mandoka, on whatever legal or contractual basis, will in all cases be limited to the amount of insurance cover taken out by or on behalf of Mandoka. An obligation for payment of compensation can therefore never amount to more than the amount paid out by the relevant insurer during the situation in question.
11.2. If Article11.1 does not apply for whatever reason, liability on the part of Mandoka will be limited to an amount of € 2,500. If the invoice value or the value of the purchase agreement concluded between Mandoka and the buyer exceeds € 2,500, this higher amount will apply, limited to the invoice amount and capped at an absolute maximum of € 15,000. Here, the parties will have considered and accepted as undisputable the fact that there may be signs of a distorted ratio between e.g. the purchase price on the one hand and the possible consequences of potential culpability on the part of Mandoka on the other. Also within this context, Mandoka points out the fact that the buyer has the option of independently obtaining insurance to cover losses. To that end, all buyers have an obligation towards Mandoka.
11.3. The following does not qualify for compensation:
a. consequential loss, including business interruption loss, production loss, loss of profit, transport costs, travel and accommodation expenses and costs caused by diseases and/or epidemics or items with defects. The buyer may insure itself against this damage if possible;
b. damage to goods in or under its care, custody or control. Such damage includes damage caused as a result of or during the performance of the work to goods on which work is being performed or to goods situated in the vicinity of the work site. The buyer may insure itself against such damage if it so desires;
11.4. Mandoka will not be held liable for damage to materials placed in products or machinery supplied by Mandoka. Mandoka will not be held liable for losses resulting from the processing of materials. The input of materials into machinery / products supplied by Mandoka is at the risk of the buyer. The buyer is responsible for ensuring that materials are suitable for processing by the product in question.
11.5. The buyer indemnifies Mandoka from and against all claims by third parties on account of product liability.
11.6. Mandoka will not be held liable for losses resulting from the incorrect use of purchased products. Mandoka will not be held liable for damage to materials processed using products supplied by Mandoka. This, for instance, applies when it comes to raw materials such as sawdust and woodchip, or other materials due to be processed. Mandoka will not cover damage resulting from the excessive input of materials such as woodchip, or from the input of materials that are too hard or coarse.
11.7. Mandoka will not be held liable for the improper use of products supplied by Mandoka. A user manual is supplied with the product. Non-observance of this user manual will result in the exclusion of any liability on the part of Mandoka.
11.8. Mandoka provides ample warning concerning the products supplied by Mandoka. The supplied products must be used with the greatest of care. This means that the pellet machines and other machinery supplied by Mandoka must not be used by or in the presence of children and/or vulnerable persons. If the buyer nonetheless allows children or vulnerable persons to operate machinery, this must take place under supervision. In such a case, the supervisor will be held liable for possible damage or injury. The buyer will indemnify Mandoka in this regard.
Article 12: Warrenty and other claims
12.1. Unless otherwise agreed in writing, Mandoka warrants the proper execution of the agreed performance for a period of twelve months after delivery/completion. In the event that a different warranty period is agreed, the other paragraphs of this article are also applicable.
12.2 If products are used outside the Netherlands, the buyer must independently verify compliance with all conditions that may be imposed by the authorities. The buyer must independently ensure that the product is suitable for local use.
12.3. If the agreed performance was not properly executed, Mandoka will decide whether to properly execute it as yet or to credit the buyer for a proportionate part of the invoice amount. If Mandoka chooses to properly execute the performance as yet, it will determine the manner and time of execution itself.
12.4. In case of defects, breakages or other problems, Mandoka may decide to repair or replace the product, although the buyer will be required to send the device or part in question to Mandoka.
12.5. The buyer bears the expense of:
a. all costs of transport or dispatch;
b. costs of disassembly and assembly;
c. travel and accommodation expenses
12.6. The buyer must in all cases offer Mandoka the opportunity to remedy any defect or to perform the processing again.
12.7. The buyer may only invoke the warranty once it has satisfied all its obligations to Mandoka.
12.8. a. No warranty is given if the defects result from:
- normal wear and tear;
- improper use;
- lack of maintenance or improper maintenance;
- installation, fitting, modification or repair by the buyer or third parties;
- non-observance of the operating instructions supplied by Mandoka;
- defects in or unsuitability of goods originating from, or prescribed by, the buyer;
- defects in or unsuitability of materials or auxiliary materials used by the buyer.
- The buyer is responsible for ensuring that materials are suitable for processing by the product in question.
b. No warranty is given in respect of:
- goods supplied that were not new at the time of delivery;
- the inspection and repair of goods of the buyer;
- parts for which a manufacturer’s warranty has been provided.
- the roller axle. The roller axle can break or bend and is intended to break or bend if incorrect materials are fed into the product or if the axle is subjected to excessive pressure. Breakage or bending of the roller axle will be deemed a result of the input of incorrect materials, too large an amount of material or material that is too hard and/or too large;
- The provisions of paragraphs 2 to 8 of this article apply mutatis mutandis to any claims by the buyer based on breach of contract, non-conformity or on any other basis whatsoever.
12.9 The buyer cannot assign any rights under this article.
Article 13: Obligation to complain
13.1 The buyer is obligated to inspect the product upon delivery to determine whether it is visibly defect-free and corresponds to the order placed. If the parties have agreed upon a different supply method (other than Ex Works as stipulated in the Incoterms 2010), the buyer must inspect the product at Mandoka prior to shipment. For this purpose, Mandoka will within reason cooperate with the buyer or, following consultation with Mandoka, with an independent third party engaged by the buyer. If the buyer does not fulfil this obligation, the product will be deemed defect-free at the time of supply.
13.2 The buyer will accept the product with all visible and concealed defects, subject to these being stipulated in A13.
13.3 If the products supplied by Mandoka have visible defects or do not correspond to the order placed, the buyer must – subject to dissolution of right – inform Mandoka immediately upon delivery and specify any defects on the shipment document, the delivery note and/or the job sheet. The shipment document, the delivery note and/or the job sheet will be deemed to contain an accurate description and specification of the supplied product.
13.4. The buyer can no longer invoke a defect in performance if it does not make a written complaint to Mandoka in respect thereof within fourteen days of the date it discvered, or should reasonably have discovered, the defect.
Article 14: Payment
14.1. Payment will be made at Mandoka’s place of establishment or to an account to be designated by Mandoka.
14.2. Unless agreed otherwise, payment will be made as follows:
a. in cash or by switch card where sale is at the service desk;
b. in all other cases, advance payment.
14.3. If the buyer fails to comply with its payment obligation, instead of paying the sum of money agreed it will be obliged to comply with a request by Mandoka for payment in kind.
14.4. The right of the buyer to set off or suspend amounts it is owed by Mandoka, save in the event of Mandoka’s bankruptcy.
14.5. Irrespective of whether Mandoka has fully executed the agreed performance, everything that is or will be owed to it by the buyer under the agreement is immediately due and payable if:
a. deadline for payment has been exceeded;
b. an application has been made for the buyer’s bankruptcy or suspension of payments;
c. attachment is levied on the buyer’s goods or claims;
d. the buyer (a company) is dissolved or wound up.
e. the buyer (a natural person) requests to be admitted to statutory debt rescheduling, is placed under guardianship or dies.
14.6. If payment is not made within the agreed payment deadline, the buyer will immediately owe interest to Mandoka. The interest rate is 12% per annum, but is equal to the statutory interest rate if the latter rate is higher. When calculating interest, part of a month is regarded as a whole month.
14.7. Mandoka at all times has the right of setoff. This right of setoff extends to companies affiliated with the buyer. Affiliated companies include companies that belong to the same group of the buyer, all within the context of art. 2:24b of the BW (Civil Code), as well as stakeholders within the context of art. 2:24c of the BW (Civil Code).
14.8. If payment is not made within the agreed payment deadline, the buyer will owe Mandoka all extrajudicial costs, with a minimum of € 75.
These costs will be calculated on the basis of the following table (principal sum plus interest):
on the first € 3,000 15%
on any additional amount up to € 6,000 10%
on any additional amount up to € 15,000 8%
on any additional amount up to € 60,000 5%
on any additional amount from € 60,000 3%
The extrajudicial costs actually incurred will be owed if these are higher than they would be according to the above calculation.
14.9. If judgment is rendered in favour of Mandoka in legal proceedings, all costs that it has incurred in relation to these proceedings will be borne by the buyer.
Article 15: Security
15.1. Irrespective of the agreed payment conditions, upon the first demand of Mandoka the buyer is obliged to provide such security for payment as Mandoka deems suffi-cient. If the buyer does not comply with such demand within the period set, it will immediately be in default. In that event, Mandoka is entitled to terminate the agreement and to recover its damage from the buyer.
15.2. Mandoka will retain ownership of any goods delivered as long as the buyer:
a. fails or will fail in the performance of its obligations under this agreement or other agreements;
b. has not paid debts that have arisen due to non-performance of the aforementioned agreements, such as damage, penalties, interest and costs.
15.3. As long the goods delivered are subject to retention of title, the buyer may not encumber or alienate the same other than in the ordinary course of its business.
15.4. Once Mandoka has invoked its retention of title, it may take possession of the goods delivered. The buyer will lend its full cooperation to this end. Within this context, the buyer irrevocably authorises Mandoka to recover goods that are the property of Mandoka.
Article 16: Remote consumer purchases
16.1 The following applies to consumer purchases. Consumers who purchase or acquire products remotely/by electronic means are in principle given a fourteen-day cooling-off period. If a consumer wishes to invoke the right to annulment, the buyer must return the purchased product to Mandoka in its original packaging and in an unused state. The statutory cooling-off period is explicitly not intended for the trialling or use of machinery. If products are trialled or used, the right to annulment will lapse. Insofar as it can, in such a case, legally be established that the right to annulment has not lapsed, the consumer will – in case of annulment – owe compensation to Mandoka amounting to 50% of the invoice value. Any possible return shipment charges will be for the account of the consumer.
16.2 Mandoka reserves the right to either accept or reject purchase orders placed remotely or by electronic means.
Article 17: Applicable law and competent court
17.1. Dutch law applies.
17.2. The Vienna Sales Convention (C.I.S.G.) does not apply, nor do any other international regulations the exclusion of which is permitted.
17.3. The Zwolle branch of the Overijssel court is jointly authorised to preside over all disputes that arise between Mandoka and the buyer, unless such disputes are in conflict with imperative law.
17.4 In the event that these general terms and conditions have been translated into another language, the Dutch version shall prevail in the event of a dispute.