General Terms of Conditions

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Clause 1. Applicability of these Terms and Conditions

1. These General Terms and Conditions apply to, and form an integral part of, all offers and agreements pursuant to which Aartsen supplies any goods and/or performs any services on any basis whatsoever, and also apply to any statements made in that context.

2. Once a contract has been entered into subject to these General Terms and Conditions, these General Terms and Conditions will also apply to any agreements yet to be concluded and offers yet to be made.

3. These General Terms and Conditions also apply in favour of any third party engaged by Aartsen for the purpose of performing the agreement.

4. The applicability of the buyer’s terms and conditions, howsoever named and howsoever communicated to Aartsen, is hereby expressly excluded.

5. If, by way of courtesy or for other reasons of a commercial nature, Aartsen initially refrains from invoking any applicable provision of these General Terms and Conditions in its dealings with the buyer, this will not affect Aartsen's right to invoke the relevant provision and all other applicable provisions of these General Terms and Conditions at any later stage.

6. Aartsen reserves the right to amend the General Terms and Conditions unilaterally and without the buyer’s consent.

Clause 2: Conclusion and terms of the agreement

1. Aartsen’s offers, price lists and information are free of obligation. Aartsen will have the right to revoke any offer until the day when it receives acceptance of the offer. Aartsen’s invoices will also serve as order confirmation.

2. Oral commitments, arrangements or agreements are only binding if and in so far as they have been confirmed by Aartsen in writing.

3. If Aartsen shows or gives the buyer a sample, then this sample has been given by way of indication only, without the item to be supplied having to conform to it.

4. Unless agreed otherwise, the relevant item will be subject to quality standards that are generally accepted within the industry, on the understanding that generally accepted views regarding quality in the country of origin must be taken into account in each case, on the understanding that Aartsen will in no event be required to deliver more than average quality of the relevant item. Any loss of quality as a result of weather conditions that cannot reasonably be prevented in the course of business operations will be borne by the buyer.

Clause 3: Delivery

1. The buyer must immediately take receipt of the purchased item at the time when it is offered for delivery; the buyer will only be entitled to return the item to Aartsen in accordance with the provisions set out in these General Terms and Conditions.

2. If the buyer refuses to take receipt of all or any part of the goods, then Aartsen will be authorised: - To store the goods at the buyer’s risk and expense, without this affecting the buyer’s obligation to pay the agreed price;

- To dissolve the agreement, without any obligation to pay damages to the buyer, with the buyer being required to reimburse Aartsen for all costs and losses;

- To sell the goods if, in its opinion, it cannot be required to keep the goods any longer, with the buyer being required to reimburse Aartsen for all costs and losses;

3. If the buyer collects the purchased item or arranges for it to be collected from Aartsen’s premises, delivery will be deemed to be made “ex works” (Incoterms). In that case, the risks involved in shipping and transport will be borne by the buyer. If it has been agreed that Aartsen will deliver the sold item at the buyer's location, delivery will be deemed to be made “carriage paid”.

4. If Aartsen and the buyer agree that Aartsen will keep the sold item for a certain period of time, Aartsen will take normal care of the item in accordance with the level of care it usually exercises. The associated costs will be charged to the buyer. Aartsen will have the right to invoice the purchase price to the buyer without delay after the goods have been stored.

5. A delivery deadline will in no event be deemed a strict deadline. If it misses a delivery deadline, Aartsen will not be in default until after it has been granted a reasonable grace period, depending on the availability of the goods, in which to deliver the goods and this grace period has expired without delivery having taken place. If a delivery deadline is missed, this will not entitle the buyer to cancel the agreement.

6. Aartsen will have the right to deliver the goods in parts.

7. Unless agreed otherwise, delivering 10% more or 10% less than the quantity purchased by the buyer will be permitted. Aartsen will have the right to charge the buyer for the extra quantity delivered.

8. In the case of a call-off contract (contract with successive deliveries at the buyer’s discretion), the call-off or – where necessary and applicable – specification of partial deliveries must at all times take place in such a timely manner that delivery is possible within the framework of the agreement.

9. The provisions set out in these General Terms and Conditions – including Clauses 4 and 5 – apply to each such partial delivery. Aartsen will have the right to charge the buyer separately for each delivery. If one or more deliveries are not called or specified in a timely fashion or at all, and/or payment is not made in a timely fashion, then after an unsuccessful demand for payment Aartsen will have the right, without this affecting its right to provide a specification itself, to dissolve the agreement – and all other agreements which have not yet been performed in full – for the part that has not been performed by means of a written notification by operation of law and without court order, or to suspend performance of any further deliveries – including those under other agreements – until the buyer has performed its obligations. In such case, Aartsen may also charge the buyer for any loss or harm incurred.

Clause 4: Performance and liability

1. If the item delivered does not conform to the agreement and Aartsen acknowledges that it has breached all or some part of the agreement or has acted wrongfully, or this is otherwise established, then Aartsen will have the right to notify the buyer in writing that it will proceed to (re)deliver the item. Such (re)delivery will be deemed to constitute perfect performance of the original delivery obligation, meaning that the buyer will not be able to claim any damages. In the event of redelivery, the buyer must make the goods originally delivered available to Aartsen no later than at the time of redelivery. Until that time, the buyer must ensure careful storage.

2. Aartsen will not in any way be liable and hence not in any way be required to reimburse any direct or indirect loss or harm incurred as a result of any delivery deadline being missed, any loss or harm caused by a delay in performance, or any defect occurring after delivery, except in the event of an intentional act or omission or gross negligence.

3. If Aartsen’s liability is established, any damages will be limited to the purchase price agreed with the buyer for the shipment in question. Aartsen’s liability will in no event extend to lost profits and/or any other consequential loss or harm.

4. If Aartsen’s liability is established and the loss or harm incurred by the buyer is less than 10% of the purchase price, the buyer will only be entitled to claim a proportionate reduction in the purchase price and to dissolve the purchase agreement to that extent.

Clause 5: Inspection and complaints

1. The buyer (including any of its employees and/or its buyer) will be required to subject the item to a full inspection on or immediately after delivery. If the buyer arranges for the item to be collected by a person other than any of the persons referred to in the previous sentence, the quantity and appearance of the item must be inspected as a minimum upon delivery.

2. If the buyer arranges for the item to be collected by a person other than any of the persons referred to in the first sentence of paragraph 1 of this clause, the buyer must inspect the item promptly on arrival at the place of destination - but in any case in the Netherlands or Belgium and on the day when the sold item left the warehouse - in terms of any features that have not yet been inspected.

3. If the buyer is of the opinion that the item does not conform to the agreement, the buyer must contact Aartsen by telephone immediately after the inspection so as to discuss its complaint. If no agreement is reached regarding the course of action to be followed, the buyer must re-submit and specify its complaint in writing, preferably by email. Said complaint, said consultation, and where applicable said written confirmation must be reported on the day when the item leaves Aartsen’s warehouse, unless Aartsen is unavailable throughout the day, in which case the complaint and consultation must take place in the course of the morning of the following working day, with the written confirmation being sent that same working day, if necessary.

4. If no amicable solution is reached during the consultation, Aartsen will have the right to require that the buyer allows it to carry out an inspection itself (or arrange for an inspection to be carried out). The buyer must always contact Aartsen in such timely manner as to allow Aartsen to carry out the inspection or arrange for it to be carried out in the Netherlands or Belgium. Aartsen may also require that the buyer return the item without delay, in which case the buyer may keep a representative sample. The return costs will be borne by the unsuccessful party.

5. Failure to meet the obligations described above will result in any claim of the buyer against us lapsing.

6. If the buyer fails to adhere to the rules set out in this clause and Aartsen nevertheless proceeds to handle a complaint, it will do so by way of courtesy without accepting any obligation or liability. If a complaint proves to be invalid, and Aartsen has conducted any work or delivered any goods in the context of the complaint, Aartsen may charge the buyer for the costs of such work or goods at its normal rates.

7. A complaint will not entitle the buyer to refuse to perform its obligations to Aartsen or to suspend performing those obligations.

8. Complaints about an invoice sent by Aartsen must be submitted to Aartsen in writing within eight days of the invoice date, failing which the buyer will no longer be entitled to invoke such complaints and all of the buyer's claims based on those complaints will lapse.

Clause 6: Security

1. If, after the agreement has been concluded, Aartsen obtains any indication as to the buyer having reduced creditworthiness, Aartsen will be entitled to demand that the buyer provide (additional) security at its discretion and/or that the buyer pays for any further deliveries in cash.

2. If Aartsen has valid reasons to believe that the buyer will not meet its payment obligations or will not be able to do so in full, Aartsen will be entitled to demand an advance payment or to apply a shorter payment deadline than the one agreed before continuing to meet its own obligations and/or to make new deliveries to the buyer.

Clause 7: Prices and payment

1. Unless agreed otherwise, the prices agreed will not include VAT. Furthermore, in the event of any delivery abroad or transit trade, the buyer will be liable to pay the relevant import duties and EU levies.

2. The amounts owed by the buyer to Aartsen must be paid without any right to a suspension or set-off. Aartsen may carry out a set-off by providing the buyer with an itemisation of the balance owed by Aartsen or the buyer, as the case may be.

3. Unless agreed otherwise, payment of the purchase price owed to Aartsen will immediately become due and payable on delivery. If payment of an invoice is not made on or before the due date of the invoice in the manner designated by Aartsen, the buyer will be in default without any demand letter/notice of default being necessary, and the buyer will owe interest on the outstanding amount at the statutory commercial rate plus 2% on an annual basis as of the 15th day after the invoice date. Disputes regarding the delivery will not affect the buyer’s payment obligation. In all cases, the place of payment will be the premises of the Aartsen entity who the buyer has entered into the relevant agreement with. The buyer will reimburse Aartsen for all judicial and extrajudicial costs if it fails to pay a due and payable sum in a timely fashion. If it concerns the payment of an invoice from Aartsen, these costs will be set at fifteen per cent of the sum owed, including interest, with a minimum of EUR 100.00.

4. Payments will always be applied first to debts as security for which Aartsen is unable to enforce the retention of title set out in Clause 10. Subject to this rule, payments will always be applied first to all costs incurred, then to all interest owed, and then to the oldest invoice.

Clause 8: Non-performance/dissolution of agreement

1. If the buyer fails to perform its obligations under the agreement, or fails to do so properly or in a timely fashion, the buyer will be in default without any notice of default being required.

2. If a situation occurs as referred to in the previous paragraph, Aartsen will be entitled to:

a) suspend performance of the agreement until the buyer has met its obligations (such suspension not affecting the buyer’s obligations to Aartsen);

b) dissolve all or any part of any agreement with the buyer in writing.

3. In the cases referred to in this clause, all outstanding sums owed by the buyer to Aartsen, including any future instalments, will become immediately due and payable, and Aartsen will be entitled to make subsequent deliveries cash on delivery only.

4. Aartsen will also have these rights if the buyer is granted a (provisional) payment moratorium or suspension of payments, if it is declared bankrupt, or if it otherwise loses the freedom to dispose of its assets without restriction.

Clause 9: Force majeure

1. Force majeure on the part of Aartsen will in any event include any strike action by and/or illness of its employees, restrictions or impediments in terms of the supply, transport, production, import, export and/or availability of raw materials, auxiliary materials and/or finished products on the part of its suppliers, carriers or other third parties involved in the agreement, traffic congestion, road blocks, natural disasters, war and/or mobilisation, impeding measures by any government, fire and other accidents at the company, and generally all such circumstances attributable to Aartsen as would render any (further) performance of the agreement by Aartsen unreasonable, regardless of whether or not those circumstances were foreseeable by Aartsen.

2. In the event of force majeure, Aartsen may either suspend performance of the agreement until the event of force majeure has ceased to exist, or declare the agreement dissolved in writing without being obliged to pay any damages as a result.

3. If an event of force majeure prevents the buyer from performing the agreement, the buyer will be obliged to reimburse Aartsen for the actual costs incurred in connection with the performance thus prevented.

Clause 10: Retention of title

1. All deliveries are subject to retention of title. Aartsen will retain title to the goods delivered and to be delivered to the buyer under any agreement until the buyer:

a. has fully paid the purchase price of all such goods, if applicable including any interest and costs due; and

b. has paid all claims regarding any work performed or to be performed by Aartsen for the benefit of the buyer under the relevant agreements; and

c. has paid all claims Aartsen will have against the buyer if the buyer fails to perform the obligations referred to above.

2. However, the risk of loss of or damage to the goods delivered will pass to the buyer at the time of delivery.

3. The buyer is not permitted in any way to use the goods title to which has been retained as security for the payment of any claims other than those of Aartsen. If a third party keeps the item for the buyer, the buyer will be required, if it fails to meet its obligations to Aartsen, to provide Aartsen with the third party's name and address upon request, and Aartsen may inform that third party that it must from then on keep the item for Aartsen.

4. All costs incurred by Aartsen in invoking this retention-of-title clause will be borne by the buyer.

Clause 11: Governing law and competent court

1. All agreements (and the delivery of goods and/or services under those agreements) or any issues regarding non-contractual liability and/or liability arising from a wrongful act arising from or as set out in these General Terms and Conditions will be governed by the law of the country where the contracting Aartsen entity is established, with the exclusion, if otherwise applicable, of the United Nations Convention on Contracts for the International Sale of Goods.

2. All disputes arising between Aartsen and the buyer will be settled by the competent court in the judicial district where the contracting Aartsen entity is established, without this affecting Aartsen’s right to file legal proceedings against the buyer with any other competent court.

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