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1.1 These general terms and conditions apply to all agreements, quotations, offers, and to all performances and expressions of any kind of the private limited liability company Marks Koi, statutorily established in Broek in Waterland (Waterland) and having its office at Wagengouw 76, (1151 EJ) Broek in Waterland, registered in the trade register under Chamber of Commerce number 77232364.
1.2 These general terms and conditions can be viewed by appointment by the counterparty at the registered address of Marks Koi mentioned in the previous paragraph, will be published on the website (www.markskoi.nl) of Marks Koi and can be downloaded there, and will be sent free of charge to the counterparty upon request.
1.3 The applicability of other general terms and conditions than these general terms and conditions is explicitly rejected. If (still) other general terms and conditions apply, this does not affect the applicability of these general terms and conditions as much as possible.
1.4 Deviations from these general terms and conditions can only be agreed upon in writing.
1.5 Marks Koi is authorized to change the general terms and conditions it applies. The general terms and conditions applied by Marks Koi as they existed before the change shall remain applicable to any agreement, unless Marks Koi proposes during the term of an agreement to apply the amended general terms and conditions. If the counterparty accepts the proposal as referred to in the preceding sentence within eight days after receipt, or fails to give written notice of non-acceptance of the proposal within eight days after receipt, the amended general terms and conditions shall apply instead of the previously applicable general terms and conditions. However, if the counterparty gives written notice of non-acceptance of the proposal within eight days after receipt, the general terms and conditions shall remain in force as they existed before the change, unless fairness and reasonableness oppose this.
1.6 If any provision in these general terms and conditions cannot be upheld in court in a particular case, it shall be automatically converted for that case into such a provision that, with the elimination of the objections that led to invalidity, achieves the objective intended with the invalid provision as much as possible. If any provision in these general terms and conditions is wholly or partially void, all other provisions in these general terms and conditions shall remain in full force.
2.1 All offers and quotations from Marks Koi are non-binding and do not bind Marks Koi unless expressly stated otherwise in writing.
2.2 All offers and quotations from Marks Koi are valid for a period of two weeks unless otherwise stated.
2.3 Marks Koi reserves the right to revise or revoke any offer or quotation issued.
2.4 An agreement is concluded at the moment Marks Koi confirms in writing to the counterparty the acceptance of an offer or quotation from Marks Koi. An agreement may also be concluded by the signing of a written contract by Marks Koi and the counterparty.
2.5 Marks Koi is never bound by a late, incomplete, or conditional acceptance by the counterparty of an offer or quotation unless Marks Koi expressly confirms its commitment in writing.
2.6 Documentation material sent with an offer or quotation to the counterparty or otherwise provided to the counterparty is, unless expressly stated otherwise in writing, solely for informational purposes and does not bind Marks Koi. No rights can be derived from it, even after an agreement has been concluded.
2.7 If Marks Koi issues an offer or quotation, sends an order confirmation, or provides information or communications to the counterparty in any other context, the counterparty is obliged to immediately carefully check them for accuracy and completeness. If the counterparty believes there is an inaccuracy or incompleteness, the counterparty is obliged to promptly inform Marks Koi thereof. The counterparty can never derive rights from typographical errors, computational errors, and other obvious mistakes by Marks Koi, including but not limited to the information on its website.
2.8 The counterparty cannot transfer rights or obligations to third parties to Marks Koi without prior written, express approval from Marks Koi.
3.1 All mentioned or agreed prices and amounts are exclusive of turnover tax and any other taxes and/or levies, unless otherwise specified by Marks Koi.
3.2 The price for goods to be delivered or otherwise made available to the counterparty does not include the costs of packaging, transport, and delivery. Marks Koi may charge these costs to the counterparty.
3.3 Costs charged to Marks Koi by third parties may be passed on to the counterparty.
3.4 If measures by government authorities result in an increase in the price or costs, taxes, or levies for which the counterparty is responsible, Marks Koi has the right to pass on that increase to the counterparty.
3.5 Payment by the counterparty must be made within and on the agreed-upon, or failing that, within and on the term and manner stated on the invoice. Payment must always be made without suspension, discount, or setoff.
3.6 The counterparty is deemed to be domiciled/established at the invoice address provided by the counterparty, unless otherwise indicated by the counterparty simultaneously with the provision of the invoice address. The counterparty is obliged to provide Marks Koi in writing with the invoice address – and also the establishment address/domicile address if it differs from the establishment address – and the relevant contact details as accurately and completely as possible before an agreement is concluded. If and to the extent applicable, this includes: street name, house number, house number addition, PO box, city, province, postal code, email address, fax number, and telephone number.
3.7 As long as the counterparty has not notified Marks Koi in writing of any changes to the invoice address or the establishment address/domicile address, the last provided invoice address or establishment address/domicile address shall be deemed to still be (partially) correct, and the counterparty shall be deemed to still be (partially) domiciled/established at the last provided establishment address/domicile address.
3.8 Marks Koi is at all times free to investigate the creditworthiness of the counterparty. The question of whether the counterparty’s creditworthiness is sufficient is solely at the discretion of Marks Koi. The counterparty allows Marks Koi – if necessary in advance – and authorizes Marks Koi – if necessary in advance – to request information from the government and other third parties for this purpose.
3.9 Marks Koi may always require (further) advance payment or security from the counterparty, within a term set by Marks Koi and to the satisfaction of Marks Koi.
4.1 Marks Koi is free to determine which person or entity will actually perform any agreement or obligation or provide any other performance.
4.2 Specified or agreed upon times, dates, and/or deadlines for the performance of any obligation by Marks Koi are approximate and are not binding on Marks Koi. The counterparty cannot claim any rights in case of exceeding them.
4.3 The counterparty is obliged to enable Marks Koi to fulfill its obligations. The counterparty is required to provide Marks Koi with all necessary data on its own initiative. If Marks Koi performs any service at a location belonging to the counterparty, the counterparty is obliged to provide Marks Koi with all resources located at that location that are necessary for the performance of that service, free of charge.
4.4 The delivery or otherwise provision of goods, performance of work by Marks Koi to the counterparty takes place at the location agreed upon between Marks Koi and the counterparty. Before an agreement is concluded, the counterparty is obliged to provide Marks Koi with the address details and contact details of the desired location as accurately and completely as possible in writing. If and to the extent applicable, this includes: street name, house number, house number addition, post office box, place name, province, postcode, email address, fax number, and telephone number. In the absence of a postcode, a nearby postcode must be provided. An agreed-upon location can only be changed with the prior written express consent of Marks Koi.
4.5 Marks Koi is authorized to make deliveries in installments.
4.6 In the event of goods to be delivered or otherwise provided by Marks Koi to the counterparty, the risk for the goods passes to the counterparty in full at the time of actual delivery. The counterparty is aware that if Marks Koi delivers or otherwise provides or treats live fish or other aquatic animals, there is a risk of – whether or not general – mortality or disease of the delivered/treated fish or other aquatic animals and/or other fish or other aquatic animals present at the counterparty’s premises. These risks are expressly accepted by the counterparty.
4.7 When Marks Koi has provided or caused to be provided loading boards, packing crates, containers, etc. for packaging and transport, the counterparty is obliged, unless it concerns one-time packaging, to return the loading boards, packing crates, containers, etc. at its own expense and risk to the address specified by Marks Koi without delay.
4.8 If, in the event of goods to be delivered or otherwise provided by Marks Koi to the counterparty, the counterparty is unable or unwilling to accept delivery of the goods, Marks Koi is entitled to store the goods at the expense and risk of the counterparty and/or to sell and deliver them to third parties. All costs and damages related thereto, including but not limited to storage costs, administrative costs, transport costs, and any lesser proceeds, shall be borne by the counterparty.
4.9 Marks Koi does not warrant that the goods to be delivered or otherwise provided to the counterparty are suitable for the purpose for which the counterparty intends to use them, even if this purpose has been communicated to Marks Koi.
5.1 If the counterparty fails to fulfill any obligation towards Marks Koi in any way attributable to them, the counterparty is thereby in default without any notice or demand being required. Any shortcoming is presumed to be attributable to the counterparty. In the case of a payment obligation, the counterparty defaults by mere non-timely and/or incomplete payment, regardless of the reason or cause and without any notice or demand being required.
5.2 Marks Koi, without prejudice to the provisions of the Civil Code but without any notice, demand, or other prior announcement being required, has the right to suspend the performance of its obligations and/or to extrajudicially terminate or have terminated judicially the agreement concluded with the counterparty in whole or in part, without Marks Koi being liable for damages, in each of the following cases: Marks Koi, the creditworthiness of the counterparty has not been demonstrated; the deposit of a proposal for a pure split or spin-off of the counterparty; death of the counterparty; filing or pronouncement of the counterparty’s bankruptcy or the application of the debt rescheduling arrangement for natural persons with regard to the counterparty; filing or granting of a moratorium on payment with regard to the counterparty; the counterparty is placed under guardianship or a request or claim is filed for this purpose; conservatory or executive seizure is made on any asset of the counterparty; the counterparty wholly or partially loses the power of disposition over its assets or one or more parts thereof; an informal agreement is offered by the counterparty; the counterparty’s business enters into liquidation; the counterparty fails to fulfill any obligation towards Marks Koi; Marks Koi has good reason to fear that one or more situations as referred to in sub a to k will occur.
5.3 If one or more of the situations referred to in the preceding paragraph sub a to k occur or if there is good reason to fear that one or more of those situations will occur, the counterparty is obliged to immediately inform Marks Koi thereof adequately.
5.4 Upon termination, all amounts owed by the counterparty to Marks Koi become immediately due and payable, and the counterparty is additionally liable for Marks Koi’s damages.
6.1 If Marks Koi delivers movable property, this is subject to the suspensive condition that the counterparty fully complies with its obligations towards Marks Koi at any time. The retention of title contained herein applies only with regard to claims relating to the consideration for goods delivered or to be delivered by Marks Koi to the counterparty under the agreement or also for work performed or to be performed for the counterparty under such an agreement, as well as for claims due to the breach of such agreements. The retention of title also extends as far as possible to new items made with the aforementioned movable property.
6.2 As long as ownership of delivered goods has not passed to the counterparty, the counterparty is prohibited from, in any way, causing or allowing mixing, accession, and/or transformation of the goods to occur, and is obliged to take all necessary measures to prevent these property law eventualities.
6.3 If one or more of the property law eventualities referred to in section 6.3 occur while ownership of delivered goods has not passed to the counterparty, the counterparty is obliged to promptly inform Marks Koi thereof and confirm this to Marks Koi in writing.
6.4 If one or more of the property law eventualities referred to in section 6.3 occur while ownership of delivered goods has not passed to the counterparty, the counterparty is liable for all resulting damages.
6.5 If one or more of the property law eventualities referred to in section 6.3 occur while ownership of delivered goods has not passed to the counterparty, Marks Koi is authorized to, at the expense and risk of the counterparty and at the discretion of Marks Koi: a. undo or have undone the property law event(s) in question, whether or not by obligating the counterparty to take care of this; and/or b. establish one or more limited rights with regard to the delivered goods and/or newly created, modified, or mixed goods with the delivered goods, if and insofar as the retention of title does not extend to those goods; whereby the counterparty indemnifies Marks Koi against all claims that any third parties may assert in this regard.
6.6 If, while ownership of delivered goods has not passed to the counterparty, one or more of the situations referred to in section 5.2 sub a through l occur and/or the agreement existing between Marks Koi and the counterparty is dissolved, Marks Koi has the right to demand the immediate return and take possession of the goods without any notice of default being required, and Marks Koi also has the right to take possession of the goods on its own initiative in this context.
6.7 Marks Koi is authorized – and if necessary, the counterparty hereby authorizes Marks Koi in advance for this purpose – to enter the places where the goods referred to in those sections are located in order to exercise its rights as referred to in sections 6.6 and 6.7.
6.8 As long as ownership of delivered goods has not passed to the counterparty, it is prohibited for him to remove the goods from his actual control, transfer them in whole or in part to any third party, encumber them, establish limited rights on them, or lease or otherwise provide them for use to any third party. These prohibitions, in addition to their contractual effect, also have property law effect to the extent possible (absolute third-party effect) (which therefore, as much as possible, leads to non-transferability, etc.).
6.9 As long as ownership of delivered goods has not passed to the counterparty, the counterparty is obliged to inform third parties wishing to assert rights regarding those goods of Marks Koi’s retention of title and then promptly confirm this to Marks Koi in writing.
7.1 All events beyond the control of Marks Koi, irrespective of foreseeability, that permanently or temporarily prevent the fulfillment of a contract, the acceptance of an offer, or the performance of any obligation by Marks Koi, constitute force majeure, relieving Marks Koi from its obligations during the period of force majeure, without incurring liability for damages. During such period, Marks Koi also has the right, without incurring liability, to suspend, modify, or withdraw any offer, and to extrajudicially rescind, modify, or judicially rescind or modify an agreement with the counterparty, in whole or in part.
7.2 Force majeure includes, but is not limited to, events occurring at Marks Koi or involving third parties engaged by Marks Koi or from whom Marks Koi obtains goods or services: war, threat of war, civil war, terrorism, riot, civil commotion, fire, water damage, flooding, strike, occupation of premises, lockout (by workers), import/export restrictions, obstructive government measures, machinery and/or technology malfunctions or breakdowns, disruptions in energy and/or water and/or internet supply, natural disasters, nuclear reactions, obstruction by third parties, transportation issues, supplier failures, illness, employee or third-party shortcomings, and severe weather conditions.
8.1 Marks Koi is not liable for the costs, damages, and interests that may arise directly or indirectly from: force majeure on the part of Marks Koi; a (compulsory) government action; acts or omissions of the counterparty, its subordinates, or other persons or entities falling within the counterparty’s risk sphere; failure or improper fulfillment by the counterparty of its obligations towards Marks Koi; deviations, defects, inadequacies, errors, and/or functional unsuitability in/of materials, goods, or data originating from or present with the counterparty, its subordinates, or other persons or entities falling within the counterparty’s risk sphere; circumstances that, under these general terms and conditions, under an agreement, under the law, or otherwise fall within the counterparty’s risk sphere.
8.2 The counterparty is liable for all price increases, delivery delays, and all other costs and damages resulting from one or more of the cases mentioned in the previous paragraph under sub c to f. The counterparty indemnifies Marks Koi against claims from third parties arising from one or more of those cases.
8.3 Marks Koi is never liable for consequential damage, indirect damage, or business damage suffered by the counterparty and/or third parties, except in cases of intent or conscious recklessness attributable to Marks Koi.
8.4 If third parties are engaged by Marks Koi, whereby Marks Koi will exercise due care, Marks Koi is not liable for any failure by these third parties, except in cases of intent or conscious recklessness of auxiliary persons entrusted by Marks Koi with the management of the execution of the relevant commitment.
8.5 Any liability of Marks Koi expires in any case if the counterparty performs or allows behaviors that render it impossible to properly investigate the validity of the counterparty’s claims against Marks Koi.
8.6 All claims of the counterparty against Marks Koi expire if the counterparty does not initiate legal action or written reminder within one year of becoming aware or should have become aware of Marks Koi’s default, without prejudice to the possibility of earlier expiration or prescription under the law.
8.7 Any (joint) liability of Marks Koi and/or those for whom it may be liable under the law for damage, regardless of its form and regardless of its cause, is, except in cases of intent or conscious recklessness attributable to Marks Koi, limited to the amount for which, in the relevant case, the applicable insurance, if taken out, provides coverage, plus any deductible. In case the (liability) insurer, for whatever reason, does not make payment, the (joint) liability is limited to an amount of €25,000.00. In addition to the previous sentence, it is stipulated that if the damage is related to goods delivered or otherwise provided by Marks Koi and/or services rendered, the (joint) liability is also limited to the amount charged by Marks Koi for those goods and/or services.
9.1 If Marks Koi performs a service, the counterparty is obliged to carefully check its adequacy immediately. The counterparty cannot invoke any shortcomings of Marks Koi if the counterparty has not, within a reasonable time after discovering or reasonably should have discovered the defects, protested to Marks Koi in writing and with precise reasons, regardless of whether Marks Koi’s interests have been harmed by any exceeding of this complaint period.
9.2 Claims regarding Marks Koi’s invoices must, at the risk of forfeiture of rights, be made in writing and with precise reasons within fourteen days of the invoice date.
9.3 At the risk of forfeiture of rights, the counterparty must enable Marks Koi to (have) investigate(d) the submitted protests. The costs incurred in investigating any shortcomings shall be borne entirely by Marks Koi if the alleged shortcoming does not exist or is not attributable to Marks Koi.
9.4 In case of any disputes regarding the weight per piece or the total weight of goods delivered by Marks Koi, the measurements made with the calibrated scale used by Marks Koi shall be decisive.
9.5 Minor deviations and differences falling within a reasonable tolerance according to commercial practices (such as dimensions or weight) or inherent to natural goods can never be grounds for complaints.
9.6 In the event of a valid complaint, the counterparty must always give Marks Koi the opportunity, within a reasonable period, at Marks Koi’s choice: to repair or redo the service; to pay a replacement compensation, which is capped in accordance with the provisions of clause 8.7.
9.7 Complaints can never constitute grounds for the suspension of the counterparty’s payment obligations and/or other obligations.
10.1 Marks Koi acknowledges and respects all intellectual and/or industrial property rights of Marks Koi, relating to or concerning products, data, documentation material, and services of Marks Koi, and will not infringe upon these rights in any way.
10.2 The counterparty shall not disclose to any third party, without prior written express consent from Marks Koi, any information regarding Marks Koi and/or the business activities of Marks Koi, which the counterparty becomes aware of and which they know or reasonably should know to be of a confidential and/or competitive nature, except to the extent such disclosure is strictly necessary for the performance of, or the enforcement of rights under, an agreement concluded with Marks Koi, in which case the counterparty shall nonetheless exercise great restraint.
10.3 Marks Koi is entitled to include the personal data/business data of the counterparty in a customer database. Marks Koi will endeavor to take into account the legitimate privacy interests of the counterparty to the fullest extent possible.
11.1 Whenever the counterparty is in default with regard to a payment obligation, the counterparty shall owe Marks Koi an interest of 1% per month on the outstanding amount, without any notice, reminder, or formal notice being required. A newly entered month is always calculated as a whole month in this regard. Notwithstanding the foregoing, if this results in a higher total amount of interest, the counterparty shall owe Marks Koi the statutory commercial interest, calculated in the usual manner, on the outstanding amount.
11.2 Whenever the counterparty is in default with regard to a payment obligation, the counterparty, in addition to the interest referred to in the preceding paragraph, shall owe Marks Koi extrajudicial costs amounting to 15% of the outstanding principal, with a minimum of €300.00.
11.3 If Marks Koi initiates legal proceedings against the counterparty, and the counterparty is found to be at fault, the counterparty is obliged to reimburse Marks Koi for all legal costs, including but not limited to the full costs incurred by Marks Koi for legal assistance.
11.4 The interest referred to in paragraph 11.1, the extrajudicial costs referred to in paragraph 11.2, and the legal costs referred to in paragraph 11.3 may at all times be claimed concurrently by Marks Koi in legal proceedings.
11.5 Only the Dutch court shall have jurisdiction over any dispute between Marks Koi and the counterparty, and in the first instance, only the competent court in the district where Marks Koi is established.
11.6 If the counterparty fails, in whole or in part, to comply with one or more of the obligations, requirements, and/or prohibitions in sections 6.2, 6.3, 6.8, 6.9, 10.1, and 10.2, the counterparty shall thereby forfeit to Marks Koi a penalty of €22,500.00 per violation immediately and without any notice or announcement being necessary, and €450.00 per day that the relevant violation continues, without prejudice to all other rights of Marks Koi, including – but not limited to – the right to claim damages and the right to enforce compliance with the obligations, requirements, and/or prohibitions.
12.1 These general terms and conditions, on all agreements, quotations, offers and to all performance and expressions of any kind of Marks Koi Feed, Dutch law applies exclusively.
12.2 The Vienna Sales Convention does not apply.
12.3 Where a requirement of written is set in these general terms and conditions, this also includes: by e-mail or by fax.
12.4 Where in these general terms and conditions there is talk of “goods” and “cases”, it also includes insofar as the law allows it: “Animals”.
12.5 The other party allows the Marks Koi Feed – if necessary in advance – and authorizes – if necessary in advance – Marks Koi Feed, to request information from the government and other third parties regarding the billing address/home address of the other party and about the agreed or corresponding place where Marks Koi Feed will perform any performance