General Conditions of Sale

of the private company with limited liability ‘GENTROCHEMA B.V.’, having its registered office in Sleeuwijk, the Netherlands and registered in the trade register of the Chamber of Commerce under number 20086731.

 

Article 1:  Definitions and applicability

1.   The following terms shall have the following meanings in these General Conditions of Sale:

Agreement:             any agreement which is formed between the Company and the Buyer, any change or addition to this, as well as all juristic acts in preparation for and in execution of such agreement;

Buyer:                     every person or company that negotiates with the Company regarding the formation of an Agreement and/or enters into an Agreement with the Company with respect to the Goods;

Company:                Gentrochema B.V.;

Conditions:              these general conditions of sale of the Company;

Force Majeure:         any circumstance beyond the reasonable control of the Company, even if it could be foreseen at the moment the Agreement was concluded, including but not limited to (i) force majeure circumstances as currently is being understood by Section 6:75 of the Dutch Civil Code, (ii) government action or a request of any governmental, regulatory or administrative authority, (iii) inability to obtain, or shortage or lack of, fuel, water, power, gas, equipment, import or export licences, transportation or materials, or accident to, or breakage of, machinery or apparatus (under inability in this respect is also understood the situation in which the Company has to make extensive costs to supply the Goods), (iv) default of a supplier of the Company, and (v) strikes and labour disputes;

Goods:        objects and services;

Order:                     any instruction from the Buyer to the Company with respect to the sale and purchase of Goods.

2.   These Conditions are applicable to all Orders, all order confirmations of the Company, all Agreements to be concluded by the Company and all Agreements concluded by the Company.

3.   The Company explicitly dismisses the applicability of Buyer’s general terms and conditions.

4.   Parties agree that if any provision of the Conditions is held to be invalid or unenforceable, then such provision shall (so far as invalid or unenforceable) be given no effect and shall be deemed not to be included in the Conditions but without invalidating any of the remaining provisions of the Conditions and shall be replaced by the parties by a valid and enforceable provision, which provision shall come closest to the intention(s) of the original provision.

5.   In the event of conflict between the Agreement and the Conditions, the Agreement shall prevail.

 

 

Article 2:  Conclusion of an Agreement

1.   All offers, quotations, estimates and other statements by the Company shall not bind the Company and shall only apply as an invitation to place an Order.

2.   An Agreement shall only be formed if and insofar as the Company confirms an Order in writing. In the absence of an Agreement or a written confirmation of an Order, the Agreement is deemed to be formed upon the delivery of the Goods by the Company. In that event, the invoice and/or delivery note shall be considered to represent the Agreement in a correct and complete manner.

3.   Supplements or amendments to the Agreement, including the Conditions applicable thereto may only be agreed on in writing.

 

 

Article 3:  Delivery

1.   Delivery shall take place ex works in accordance with the latest edition of the Incoterms. Even if free delivery is agreed upon, delivery is assumed to have taken place ex works, and the Buyer shall assume risk for damage caused to the Goods during transportation and shall properly insure itself against such risks at its own expense. Documents shall be taken up by Buyer, ship and/or cargo lost or not lost.

2.   A delivery period indicated by the Company shall be based on the circumstances applicable to the Company at the time the Agreement is concluded. The delivery period shall be observed by the Company as much as possible, but shall not be a strict deadline. If the delivery period is exceeded, the Buyer shall not be entitled to any compensation in this regard nor shall the Buyer be entitled to dissolve and terminate the Agreement in that case.

3.   The Company is at its option entitled to make partial deliveries and separately invoice such partial deliveries.

4.   If the Buyer does not or does not timely take possession of the Goods, it shall be in default without a notice of default being required. In that event, the Company shall be entitled to store the Goods at the Buyer’s expense and risk. The Buyer shall continue to owe the amounts owed under the Agreement, plus the Dutch statutory commercial interest referred to in Section 6:119a of the Dutch Civil Code and costs (as compensation).

 

 

Article 4:  Complaints

1.   On delivery of the Goods the Buyer shall immediately inspect the Goods and satisfy itself as to their condition, quantity and quality. Complaints related to any direct observable defects shall be made immediately and in writing but at the latest within one (1) week after the date of delivery. Complaints related to invoices have to be submitted within one (1) week after the date of invoice.

2.   In case of a hidden defect, the Buyer shall notify the Company immediately and in writing but at the latest within one (1) week after the discovery of the defect. Any claim of the Buyer with respect to hidden defects is subject to a limitation period of one (1) month after the date of delivery.

3.   Upon the expiry of these terms mentioned in clause 4.1 and 4.2, the Buyer is deemed to have approved the delivered Goods respectively the invoice. After the expiry complaints will no longer be accepted.

4.   Provided that the complaint has been timely made in accordance with the provisions of this clause, the Company shall deliver the Goods found to be unsound again at no cost upon return of the unsound Goods. Upon providing the aforementioned service, the Company shall have discharged its obligations in this respect completely.

5.   The usual tolerances for quantities, weights and measurements customary in the branch shall apply. The quantity and weight of any delivery of Goods as recorded by the Company on despatch from the place of loading shall be conclusive evidence of the weight received by the Buyer.

6.   The information relating to the Goods (in respect of the quality, composition, treatment in the widest sense, application possibilities, properties etc.) is understood to be indicative only. No warranty, express or implied, is made to its accuracy or completeness and the Goods are not made to the suitability for any intended purpose. The Company shall not be liable for damages resulting from the use of the Goods.

 

 

Article 5:  Prices & terms of Payment

1.   Prices shall be stated in Euros and shall be set forth in the order confirmation, exclusive of turnover tax and other government and/or EC charges.

2.   Other than the yearly price indexation, the Company is entitled to pass on to the Buyer price rises which are the direct or indirect result of any factor beyond the control of the Company (such as, without limitation, any foreign exchange fluctuation, currency regulation, change in duties, significant increase in the cost of labour, the prices of the Company’s suppliers, freight, material or other cost of manufacture). The Company shall notify the Buyer of a price increase in writing as soon as possible.

3.   The Buyer shall pay each invoice within thirty (30) days from the date of invoice. The Buyer is not entitled to set off any of its payment obligations towards the Company with any counterclaim it may have as against the Company.

4.   The Buyer shall not be entitled to suspend any payment obligation vis‑à‑vis the Company.

5.   The Company shall always be entitled, including during execution of the Agreement, to require the Buyer to make an advance payment or otherwise provide security concerning the Agreement. If the Buyer does not provide such security at first request, it shall be in default without a notice of default being required.

6.   If the Buyer does not pay any amount owed by it within the stated period, the Buyer shall be in default without a notice of default being required. In addition, as from the due date, the Buyer shall owe the Dutch statutory commercial interest referred to in Section 6:119a of the Dutch Civil Code. Both the legal and other costs incurred by the Company to compel specific performance of the Buyer’s obligations shall be paid by the Buyer.

 

 

Article 6:  Retention of title

1.   Notwithstanding actual delivery, title to the Goods shall not be transferred to the Buyer until it has completely fulfilled everything which it owes the Company pursuant to any Agreement.

2.   If and as long as the Company owns the Goods, the Buyer shall not be entitled to sell or otherwise transfer ownership, let out, allow use of, pledge or otherwise encumber them and the Buyer shall store the Goods separately from other Goods preserving all identifying marks.

3.   The Company is entitled to unimpeded access to the Goods it owns. The Buyer shall fully cooperate with the Company to provide the Company the opportunity to invoke the retention of title included in clause 6.1 by repossessing the Goods.

 

 

Article 7:  Force Majeure

1.   Should the Company be prevented from performing its obligations under the Agreement due to Force Majeure, than the Company shall be relieved of all liability for any delay or failure of performance caused thereby. The Company shall inform the Buyer of a Force Majeure situation as soon as possible.

2.   If due to Force Majeure, the Company has not met its obligations for a consecutive period of two (2) months, the Buyer has the right to give the Company written notice of the termination of the Agreement. However, the Company has the right to invoice the Buyer for that part of the Agreement that has been executed.

 

 

Article 8:  REACh Regulation & CLP Regulation & GHS Regulation

1.   The Company is compliant or is in the process to comply with the latest REACh Regulation, CLP Regulation and GHS Regulation.

2.   The Company shall not be liable in the event that its supplier and/or the Goods are found to be non-compliant with the latest REACh Regulation, CLP Regulation and GHS Regulation, provided that the Company did not know of such non-compliance.

3.   Failure of the Buyer to comply with the latest REACh regulations, CLP Regulation and GHS Regulation (which compliance the Company is not obliged to check), shall exempt the Company from any and all liability. The Buyer shall indemnify the Company against all claims, actions, costs, losses, damages or expenses or other matters arising out of or in connection with such non-compliance.

 

 

Article 9:  Liability and indemnification

1.   Any liability of the Company is hereby explicitly excluded other than liability of the Company vis-à-vis the Buyer resulting from fraud or wilful misconduct.

2.   In any event the Company is only liable for direct loss. The Company shall not be liable for any indirect damage, such as consequential damage, damage due to delays and lost profits or turnover.

3.   The Company’s liability vis‑à‑vis the Buyer and third parties shall always be limited to the net principal amount for that specific delivery under an Agreement or the sum or sums paid by the liability insurer under the liability insurance taken out by the Company.

4.   In all cases in which the Company has a right to invoke these provisions each of its employees that may be held liable may likewise invoke these provisions.

5.   Except to the extent of the liability of the Company as expressly set out herein, the Buyer shall indemnify the Company against all claims, actions, costs, losses, damages or expenses or other matters arising out of or in connection with the Goods.

 

 

Article 10:  Suspension and dissolution/termination

1.   If the Buyer breaches any obligation vis‑à‑vis the Company, or if the Company reasonably may expect that the Buyer will breach any obligation vis‑à‑vis the Company, the Company shall be entitled to suspend (further) performance of its obligations under the Agreement through written notice, without the Company being obliged to pay any compensation and without prejudice to its other rights.

2.   Subject to the provisions in clause 10.1, the Company shall, in such cases, be entitled to dissolve and terminate the Agreement in whole or in part through written notice with immediate effect, without any notice of default or court intervention being required, without the Company being obliged to pay any compensation or fulfil any warranty, and without prejudice to the Company’s other rights.

3.   If the Buyer:

–  is declared insolvent/bankrupt, becomes subject to the Debt Rescheduling (Natural Persons) Act, itself requests that it be declared insolvent/bankrupt or be granted a suspension of payments or that it become subject to the Debt Rescheduling (Natural Persons) Act, or assigns its estate/assets, or an attachment is made against all or part of its assets;

–  is placed under guardianship or otherwise loses the power to dispose of all or part of its assets;

–  discontinues or transfers its business or a portion thereof, including transferring its business to a company to be incorporated or already existing, or changes the objects of its business;

–  dies;

–  does not, does not timely and/or does not properly fulfil any obligation it has under the law, the Agreement or Conditions;

the Company shall be entitled to dissolve and terminate the Agreement with the Buyer in whole or in part through written notice with immediate effect, without any notice of default or court intervention being required and without prejudice to the Company’s other rights.

 

 

Article 11:  Applicable law and disputes

1.   Dutch law shall solely apply to the Order, Conditions, Agreement and ensuing legal relationship between the Company and the Buyer. The United Nations Convention on Contracts for the International Sale of Goods shall not apply.

2.   Any disputes which may arise out of or in connection with an Agreement shall be finally and exclusively settled by the competent court of the district Breda, the Netherlands.

 

(Dated: November 2011)