GENERAL TERMS AND CONDITIONS OF SALE 

1. Definition of Buyer

Buyer in these general terms and conditions is the contracting party with whom Mardan B.V. enters into a contract of purchase and sale, or with whom another entity belonging to the group of Mardan B.V. enters into a contract, regardless of the qualification of the agreement. 

2. Applicability

These terms and conditions apply to every offer made by Mardan B.V., hereinafter referred to as “Mardan,” and every agreement between a buyer and Mardan, insofar as these conditions have not been expressly and in writing deviated from by the parties. 

3. Quotations

The quotations made by Mardan are valid for 8 days unless otherwise indicated. Mardan is only bound by an offer if it is made in writing and its acceptance by the buyer is confirmed in writing within the validity period. Oral offers can only lead to obligations for Mardan if Mardan has confirmed them in writing after acceptance by the buyer. 

4. Delivery

4.1. Unless otherwise agreed, delivery takes place Ex Works, according to the current Incoterms®. Mardan informs the buyer in a timely manner about the period within which delivery must take place. 

4.2. Contrary to Article 7:10 of the Dutch Civil Code, the risk of specific goods passes to the buyer when the buyer has failed, within the period communicated to him, to cooperate in the delivery. 

4.3. If the buyer fails to take delivery of the goods within the period referred to in Article 4, paragraph 1, the goods shall remain at the buyer’s disposal and shall be stored at his expense and risk. In that case, delivery is deemed to have taken place, and Mardan has the right to demand payment of the agreed purchase price. Furthermore, the buyer shall be liable for the costs resulting from this, including storage costs. 

4.4. The parties exclude the applicability of the following articles and do not apply them: Articles 7:17, 18, 19a, 20, 21, 22, and 24 of the Dutch Civil Code, as well as the applicability of Articles 35, 36, and 49 through 51 of the Vienna Convention on Contracts for the International Sale of Goods (CISG). 

5. Delivery Time

An agreed delivery time is not a firm deadline unless expressly and in writing agreed otherwise. In case of non-timely delivery, the buyer must notify Mardan in writing of the default and grant a reasonable additional period for delivery. 

6. Weight and Quantity

The values stated by Mardan on the measurement or weigh slip are determinative for the delivered quantity. In the absence of such a measurement or weigh slip, the values stated on the invoice by Mardan are determinative. 

7. Retention of Title

7.1. The goods delivered by Mardan remain the property of Mardan until the buyer has fulfilled all subsequent obligations arising from all agreements concluded with Mardan: 

– the consideration(s) with regard to the delivered or to be delivered goods, 

– any claims due to the buyer’s non-performance of agreement(s). 

7.2. Goods delivered by Mardan, which fall under the retention of title pursuant to paragraph 1 of this article, may only be sold to third parties in the course of normal business operations. The buyer is not authorized to pledge the goods or establish any other right on them. 

7.3. If the buyer fails to fulfill his obligations or if there is reasonable cause to fear that he will not do so, Mardan is entitled to remove or have removed the goods delivered under reservation of title at the buyer’s or third parties who hold the goods for the buyer. The buyer is obliged to cooperate in this, subject to a daily penalty of 10% of the amount due by the buyer, such as the original purchase price or the originally applicable fee.  

7.4. If third parties wish to establish or assert any rights to the goods delivered under retention of title, the buyer must immediately notify Mardan in writing. 

7.5. The buyer undertakes to: 

– insure the goods delivered under retention of title and keep them insured against fire, explosion, and water damage, as well as theft, and to provide Mardan with a copy of this insurance policy for inspection; 

– pledge to Mardan, upon first request, any claims he obtains against his customers in case of resale of goods delivered under retention of title, in the manner prescribed in Article 3:239 of the Dutch Civil Code; 

– pledge to Mardan, upon first request, any claims the buyer obtains against his customers in case of resale of goods delivered under retention of title, in the manner prescribed in Article 3:239 of the Dutch Civil Code; 

– mark the goods delivered under retention of title as the property of Mardan; 

– cooperate in any other reasonable measures that Mardan wishes to take to protect its property rights with regard to the goods, which do not unreasonably interfere with the buyer’s normal business operations. 

8. Prices

8.1. All prices mentioned are ex-warehouse and exclude VAT and packaging unless otherwise stated. 

8.2. Mardan is at all times entitled to increase the agreed prices if Mardan is confronted with the introduction or increase of taxes and levies or is confronted with an increase in costs, such as rising raw material prices, energy prices, personnel costs, etc. Increases or introductions (with respect to Mardan or a supplier of Mardan) of taxes can be passed on to the buyer. For other price changes, the consequences of cost-increasing circumstances may be passed on to the buyer if Mardan has not taken this into account in reasonableness or if they deviate from normal market dynamics, such as price increases due to war, unrest, raw material shortages, personnel or supply shortages, blockade, higher inflation, terrorism, etc. 

9. Payment

9.1. Payment must be made within 30 days from the invoice date by bank or giro transfer to an account designated by Mardan. After the expiry of this period, the buyer is in default; the buyer is liable for interest of 1.5% per month on the outstanding amount from the moment of default. The buyer pays all transaction costs and currency conversion costs. The risk of currency exchange rate changes lies with the buyer. 

9.2. Mardan is entitled to request the buyer to provide security for the performance of his obligations when entering into the agreement. 

9.3. Mardan’s claims against the buyer become immediately due and payable in the following cases: 

– in case of liquidation, bankruptcy, or suspension of payment of the buyer; 

– if circumstances come to Mardan’s knowledge after the conclusion of the agreement that give Mardan reasonable grounds to fear that the buyer will not fulfill his obligations; 

– if Mardan has asked the buyer to provide security for performance at the conclusion of the agreement, and this security is not provided or is insufficient. In the aforementioned cases, and in all other statutory cases, Mardan is entitled to suspend further performance of the agreement or to dissolve the agreement, without prejudice to Mardan’s right to claim damages. 

9.4. Payment must be made without deduction or set-off. The buyer waives the right to suspend payment and the right of set-off. 

9.5. Payments made by the buyer are for the settlement in the first place of all due interest and costs, and in the second place of the due invoices that have been outstanding the longest, even if the buyer states a different description. 

10. Collection Costs

10.1. If the buyer is in default or fails to fulfill one or more of his obligations, all reasonable costs incurred by Mardan to obtain satisfaction out of court are at the expense of the buyer, with a minimum of 15% of the purchase price or any other agreed fee. 

10.2. The buyer is liable to Mardan for the judicial costs incurred by Mardan in all instances, except insofar as the buyer demonstrates that these are unreasonably high. This only applies if Mardan and the buyer are involved in a legal proceeding relating to an agreement to which these general terms and conditions apply and a court judgment becomes final, in which the buyer is found fully or predominantly at fault. 

11. Force Majeure

11.1. Force majeure of Mardan shall be understood to mean circumstances that prevent the performance of the obligation and that are not attributable to it and do not come under its responsibility under the law, legal act, or generally accepted views in traffic. This shall also include: war, unrest, shortages of raw materials, personnel, or deliveries, blockade, accidents, terrorist activities, pandemics, and epidemics, government measures, closure(s) or strike(s) in Mardan’s business, as well as in other companies other than those of Mardan, a shortage of necessary raw materials, and other things or services required for the performance of the agreed-upon performance, stagnation with suppliers or other third parties on which Mardan depends, weather conditions, fire, power failure, loss, theft, or loss of tools or materials, and (general) transport problems. 

11.2. Mardan also has the right to invoke force majeure if the circumstance that prevents (further) performance occurs after Mardan should have fulfilled its obligation. 

11.3. During force majeure, the delivery and other obligations of Mardan are suspended. If the period during which performance of the obligations by Mardan is not possible due to force majeure lasts longer than 14 days, both parties are entitled to dissolve the agreement, without any obligation to pay damages in that case. 

11.4. If, at the time of the onset of force majeure, Mardan has partially fulfilled its obligations or can only partially fulfill its obligations, it is entitled to invoice the part already delivered or deliverable separately, and the other party is obliged to pay this invoice as if it were a separate contract. This does not apply if the part already delivered or deliverable has no independent value. 

12. Defects; Complaint Periods

12.1. The buyer must (have) inspect(ed) the purchased goods upon delivery. The buyer must check: 

– whether the delivered goods correspond in terms of quantity with what was agreed upon; 

– whether the delivered goods meet the agreed technical specifications or provided samples; 

– whether the delivered goods can be used for the purpose for which the buyer intends to use them, including checking whether the goods are suitable for the processes to be carried out by the buyer or third parties, such as production, processing, processing, etc., with the understanding that Mardan does not assume any guarantee or obligation in this regard. 

12.2. If, pursuant to Article 12, paragraph 1, the buyer identifies defects or deficiencies, he must notify Mardan in writing within 8 days of delivery, under penalty of forfeiture of all rights of the buyer. 

12.3. In the case of a quantitative deviation, Mardan is obliged to perform in accordance with the agreement, with the proviso that a weight deviation of 10% is permitted, both upwards and downwards. The buyer cannot assert any other rights against Mardan. 

12.4. Even if the buyer makes a timely complaint, his obligation to pay and accept orders placed remains in force. Goods may only be returned to Mardan with prior written permission. 

12.5. Mardan does not guarantee the suitability or usability of the delivered material for any purpose intended by the buyer, even if this has been communicated to Mardan. 

12.6. Mardan is not liable for any damage of any kind whatsoever and for whatever reason arising from the delivered goods, or caused by the delivered goods to persons, whether or not in the buyer’s employ, or to goods, whether or not owned by the buyer, used in his business or located there, except in the case of intent or gross negligence, whereby the amount of liability is limited to the purchase price paid for the damaged or damaging goods. 

12.7. Without prejudice to the limitations mentioned in Article 12, paragraph 6, Mardan is at most liable for direct, demonstrable, and actual damages. Mardan is not liable for indirect and consequential damages, including lost profits and damages suffered by third parties. 

12.8. In deviation from the statutory limitation periods, all claims of the buyer against Mardan expire one year after they have become due and payable, calculated from the day after that date. 

12.9. The Buyer indemnifies Mardan against claims from third parties in connection with the performance of the agreement. Claims for payment of fines, import duties, etc., are included in this. 

12.10. Agents of Mardan can invoke any limitation of Mardan’s liability towards the buyer under this agreement. 

12.11. Liability of Mardan pursuant to Article 6:185 of the Dutch Civil Code, as well as liability arising from any pollution of delivered goods, is excluded. 

13. Call Off Contract

13.1. If the agreement consists of agreements on a minimum call-off quantity, it is a purchase agreement for the minimum goods to be purchased at the agreed price within the agreed period. If no period has been agreed upon, Mardan may determine this period reasonably. The additional provisions of this article apply in that case. 

13.2. In the case of Article 13, paragraph 1, the buyer acknowledges that Mardan maintains stock to meet the call-off. If no or fewer goods have been taken on the end date of the period, the buyer is obliged to pay the agreed price on that date (also) for the goods that have not been taken (remaining minimum purchase at the agreed price). 

13.3. After the expiration of the date for the minimum purchase, Mardan is relieved of its obligation to deliver and is free to sell the goods not taken to another party. Mardan also has the option to store the goods – still in stock – at the expense of the buyer if the buyer has taken less than the minimum purchase. The agreed price for the minimum purchase and any storage costs must always be paid to Mardan. 

13.4. If, due to Mardan’s choice for storage (see Article 13, paragraph 3), or at the request of the buyer, the period for delivery of the minimum purchase is extended, the buyer will owe compensation for the costs arising from this for Mardan, including costs arising from changes in the purchase price and/or other price-determining factors (such as personnel costs, housing costs, etc.), to be calculated by Mardan. 

13.5. If Mardan can no longer deliver the goods from an agreement as referred to in Article 13, paragraph 1, at the agreed price, Mardan has the right to terminate the agreement prematurely. Mardan will make every effort to prevent this situation by maintaining stock, but Mardan is not liable if it cannot meet this requirement (e.g., due to the destruction of stock). 

 

14. Termination of the Agreement

If circumstances arise that are of such a nature that the performance of the agreement by Mardan is impossible or so onerous and/or disproportionately costly that performance of the agreement can no longer be reasonably expected, Mardan is entitled to terminate the agreement. Circumstances referred to above include the case where Mardan is unable to obtain or purchase the material to be delivered on reasonable terms from its suppliers and/or cannot purchase or take delivery, or personnel shortages at Mardan or its suppliers. Mardan is not liable for any damages that arise from termination under this article. 

15. Competent Judge; Applicable Law

15.1. All disputes between Mardan and the buyer will be settled by the ordinary court in Rotterdam, with the understanding that Mardan is always entitled to bring a dispute before the competent court according to the ordinary rules. 

15.2. Dutch law applies to every agreement between Mardan and the buyer.