GENERAL TERMS AND CONDITIONS

GENERAL TERMS AND CONDITIONS OF SALE AND DELIVERY KONINKLIJKE TALENS B.V. IN APELDOORN

Article 1 – Definitions 
In these General Terms and Conditions, the following terms shall have the following meaning:

Seller: Koninklijke Talens BV in Apeldoorn, also trading under the name ‘Royal Talens’, registered in the Chamber of Commerce under number KvK 08006261 and all Royal Talens’ affiliated enterprises;

Buyer: a counterparty of the Seller;

Agreement: the agreement between the Seller and the Buyer, among others concerning the delivery of products by the Seller;

Quotation: any offer or quotation by the Seller to the Buyer for, among other, the delivery of products;

Product / Products: each product or all products, each part of or parts of products, offered, sold and/or delivered by the Seller to the Buyer, or that the Seller has offered, sold and/or delivered to the Buyer.

Article 2 – Applicability and other stipulations
2.1. These General Terms and Conditions shall apply exclusively to all offers/Quotations and Agreements of the Seller, including negotiations and requests for a Quotation by the Buyer, as well as to any follow-up or extensions arising from a Quotation and/or an Agreement. The applicability of any deviating terms and conditions, specifically the general terms and conditions of the Buyer, are expressly excluded.
2.2. If one or more of the stipulations in the General Terms and Conditions are void, the other stipulations shall remain in effect.
2.3. If a stipulation from an Agreement or from these General Terms and Conditions is void or annulled, this stipulation shall be complied with to the fullest extent possible. In this case the other stipulations in the Agreement or in the General Terms and Conditions shall remain in effect and the Seller and the Buyer shall replace the void or unenforceable stipulation with one or more new stipulations that shall resemble as closely as possible to the contents of the original stipulation.
Article 3 – The (conclusion of the) Agreement, Quotations and orders
3.1. All Quotations by the Seller, orally as well as in writing, are without obligation. ‘Quotations’ shall also mean any appendices, such as price lists, brochures and other data.
3.2. The Agreement shall be concluded if the Buyer places an order with the Seller, and this has been accepted by the Seller. An order is considered to be accepted if this has been confirmed in writing or with the Electronic Portal by the Seller to the Buyer or if the Seller has proceeded – in a manner known to the Buyer – with compliance with the Agreement or if the Seller has delivered the Products to the Buyer.
3.3. (a) Orders delivered to an address of the Buyer inside The Netherlands shall represent a least a net invoice value (excluding VAT) of €100.-. For orders of Products with a net invoice value between €100.- and €225.- the Seller shall charge a processing fee of €15.-.
(b) Orders delivered to an address of the Buyer outside The Netherlands shall represent a least a net invoice value (excluding VAT) of €2,750.-, unless agreed to otherwise in writing prior to the order. For deliveries in other currencies than euros, the minimum invoice value based on the amount of €2,750.- shall be converted according to the relevant exchange rate current at the time that the Agreement was concluded.
3.4.  The Buyer and the Seller are bound to Agreements concluded by the persons authorized to do so and by persons of whom the Seller and the Buyer could assume that they were thus authorized.
3.5. Any alterations and additions to a stipulation in the Agreement and/or these General Terms and Conditions shall only be valid after the Seller has confirmed this in writing.
3.6. If the Buyer does not accept the Seller’s Quotation, the Seller is entitled – unless agreed to otherwise – to charge the Buyer for all costs incurred to draw up the Quotation.
3.7. If there any contradictions or inconsistencies between the Agreement and these General Terms and Conditions, the stipulations in the Agreement shall prevail.
Article 4 – Orders, prices and risk (transfers)
4.1. (a) All deliveries from the Seller to an address of the Buyer inside The Netherlands are ex works of the Seller, according to the Incoterms 2010, unless explicitly agreed otherwise.
(b) All deliveries from the Seller to an address of the Buyer outside The Netherlands are, in case of non-maritime transport: FCA “loading place: location of the office/warehouse of the Seller from where deliveries are made”, and in case of maritime transport: FCA Rotterdam according to the Incoterms 2010.
In all cases the freight contract is concluded to the account and risk of the Buyer.
4.2. The prices of the Seller exclude packaging costs, VAT and any other tax or levies imposed by the government.
4.3. If, during the execution of the Agreement, the prices of the Products and/or Services and/other factors determining the price increase due to circumstances over which the Seller has no control, such as, among others, prices of raw materials and energy, currency fluctuations, taxes, levies, import duties, transport costs, packaging costs and insurance fees, for whatever reason, the Seller is entitled to increase the price of the Products and/or Services accordingly, unless agreed otherwise. If there is a price increase the Buyer is entitled to terminate the Agreement within 14 days after being informed of the price increase by the Seller in writing.
4.4. If an alteration or addition to the Agreement is agreed by request of the Buyer, the Seller is entitled to increase the agreed price. If the Seller does not receive the Buyer’s instructions in time, the Buyer shall compensate the Seller for any consequential costs.
Article 5 – Delivery periods
5.1. The Seller is obliged to comply with the delivery periods to the fullest extent possible; however, delivery periods are always approximations.
5.2. The Seller is not in default if the delivery is not on time. In case of delays, the delivery period is extended accordingly. The Seller shall inform the Buyer forthwith after becoming aware of the delay.
5.3. The Seller is not liable for any damage whatsoever suffered by the Buyer or a third party due to too late or incomplete delivery of the Products, unless agreed explicitly with the Buyer in writing. A too late or incomplete delivery of the Products shall not be a cause for the Buyer to terminate the Agreement.
5.4. In determining the delivery period of the Products the Seller assumes that he can execute the Agreement under the circumstances of which he is aware at the time the Quotation was drawn up and/or the Agreement was concluded. If the circumstances change, the Seller is entitled to adapt the delivery periods and delivery times of the Products.
5.5. The Buyer is obliged to take receipt of the items at the agreed location/locations when first offered, at the time that the Seller delivers or has delivered the items, respectively at the time when these are provided to him according to the Agreement. If the Buyer is in default in this respect, the resultant costs for storage and handling shall be to the account of the Buyer. If the Buyer fails to take receipt of the Products for a period longer than fourteen (14) days after delivery, the Seller is entitled to terminate the Agreement in the interim, without prejudice to the Seller’s right to damage compensation and any other legal and contractual rights.
Article 6 – Retention of title and other securities
6.1. All Products delivered at any time by the Seller shall remain the property of the Seller until the payment by the Buyer has cancelled all claims by the Seller on the Buyer, within the scope of the article 92 Book 3 of the Civil Code of The Netherlands, from whatever cause and irrespective of whether these claims are due and payable, including interest and costs.
6.2. Prior to full payment, the Buyer is not entitled to pledge the Products to third parties or transfer the ownership thereof, except for Products delivered by the Seller that the Buyer transfers in the normal course of business. If the Buyer breaches this stipulation, the Seller is entitled, without any authorization by the Buyer or by the court being required, to take back the Products delivered by the Seller himself, or to have these fetched back from the location where the Products are. In such a case, all claims by the Seller on the Buyer are then immediately due and claimable.
6.3. The Buyer is obliged to hold the delivered Products under retention of title with due care and as recognizable property of the Seller. The Buyer is obliged to insure the Products during the term of retention of title against fire, water and explosion damage and against theft, and to show the policies of this insurance to the Seller at his first request.
6.4. In case the Seller wishes to the exercise his rights as defined in article 6.2, the Buyer grants as yet unconditional and irrevocable permission to the Seller, or to a third party designated by the Seller, to gain access to all those locations where the property of the Seller is (or could be) and to fetch this property. Any resultant costs shall be to the account of the Buyer.
Article 7 – Force majeure
7.1. The Seller cannot be held liable if obligations from the Agreement cannot be fulfilled due to force majeure. In this context, ‘force majeure’ shall be any circumstance which the Seller, respectively the Buyer could reasonably not take into account and which meant that a normal execution of the Agreement could not in all reasonableness be expected by the counterparty. This includes, but is not limited to, floating ice, extreme weather conditions, terrorist attacks, flooding, legal restrictions, strikes, government measures, delay in supplies (including raw materials), export bans, rebellion, war, mobilisation, transport impediments, defects to machines, breakdowns in the supply of energy and materials, import restrictions, fire and all other forms of force majeure.
7.2. A force majeure situation does not relieve the Buyer from his payment obligations and also does not entitle the Buyer to suspend his payment obligations towards the Seller.
7.3. In case of force majeure the Seller can suspend his obligations from the Agreement without the Buyer having any right whatsoever to damage compensation, and the delivery times in the Agreement are extended with the length of the delay occurring at the Seller’s due to force majeure. In case of force majeure the Seller and the Buyer shall agree to an arrangement for the execution of the relevant Agreement.
7.4. If the force majeure situation lasts longer than a consecutive period of three (3) months, or if there is a force majeure situation that renders compliance permanently impossible, at that time or in future, both the Seller and the Buyer are entitled to terminate the Agreement with immediate effect, by sending a notice in writing to that effect to the counterparty, which means that the Agreement concerned (for the unexecuted part) ceases and neither party has any other obligations under the Agreement, with the exception of possible (payment or other) obligations for the Products already delivered.
Article 8 – Payment
8.1. Payment shall take place with thirty (30) days after the invoice date, without any appeal to discounts or setting-off, in a manner indicated by the Seller, unless agreed otherwise in writing.
8.2. Both prior to and during the execution of the Agreement, the Seller is entitled to claim payment in cash, advance payment or provision of security from the Buyer. If the Buyer fails to provide the security demanded within the stated term, the Buyer shall be immediately in default and the Seller is entitled, without prejudice to his other rights, to immediately suspend further execution of the Agreement and all payments owed by Buyer to the Seller, from whatever cause, shall be immediately due and claimable.
8.3. If the Buyer fails to comply with any of his obligations towards the Seller in whatever manner, if the Buyer ceases payment, applies for suspension of payment, is declared bankrupt, if his property is attached, if his assets are assigned or if the business of the Buyer is liquidated, all payments that the Buyer owes the Seller from any contract are immediately due and payable. In that case the Seller is entitled to reclaim Products not yet paid for and fetch these Products back, without prejudice to the Seller’s rights from the noncompliance by the Buyer.
8.4. If any invoice is not paid by the Buyer in time, the Buyer shall be legally in default and all claims by the Seller are immediately due and payable, and the Buyer shall owe default interest equal to the legal interest pursuant to article 6:119a of the Civil Code of The Netherlands plus 3%.
8.5. Payments effected by the Buyer shall always be used to pay all interest and costs owed and then the due and payable invoices that have been outstanding for the longest period.
8.6. All extrajudicial costs for the collection of unpaid or not fully paid invoices shall be to the account of the Buyer. These costs are calculated according to the collection fee of the Netherlands Bar Association, with a minimum of €500.- for each invoice.
8.7. The Buyer shall compensate the Seller for all legal costs, including amounts not awarded by the court, including the full costs of legal assistance, unless the Seller was sentenced as the only party for payment of the legal costs.
Article 9 – Intellectual property / Data provided by the Seller
9.1. To the extent that the Seller is entitled to any intellectual property rights for the Products, including drawings, designs, (technical) documents, building specifications, computer programs, as well as all carriers of such rights, the Seller shall remain entitled to such rights after delivery of the Products, unless explicitly agreed otherwise in writing. The delivery of the Products to the Buyer does not entail transfer of or granting of a licence to intellectual property rights and the Buyer is prohibited to copy (or have copied) the Products or any part thereof, directly or indirectly. If the Buyer breaches this stipulation, he shall owe the Seller an immediately due and payable penalty of €25,000.- for each event, without prejudice to the right of the Seller to claim damage compensation under the law.
9.2. Any offers, designs, images, drawings, (test) models, (computer) software, technical specifications and suchlike and/or other data shall only be an approximate description of the Products. The ownership of the data defined in this article, respectively any right to such data, shall not be transferred to the Buyer. At the Seller’s first request the Buyer shall return the aforementioned data to the Seller, to the account of the Buyer. The Seller is not liable for the use by the Buyer of the data defined in this article, unless agreed to otherwise explicitly and in writing.
9.3. The Buyer shall resell the Products delivered by the Seller only in the original, unaltered packaging from the Seller (including the labels), and shall demand from his buyers, if these are not consumers, to the benefit of the Seller, that they only resell the Products in that packaging. Any indication of an intellectual property right of the Seller on the Products shall never be removed or altered by the Buyer.
Article 10 – Complaints
10.1. Immediately on receipt of the Products, the Buyer shall inspect the Products thoroughly and the Buyer cannot invoke any defect in performance, if he does not inform the Seller in writing thereof within fourteen (14) days after the Buyer discovers or should have reasonably discovered the defect.
10.2. The Buyer shall inform the Seller in writing of any complaints about (the amount of) an invoice within the payment period of the invoice. Otherwise the Buyer forfeits all rights. If the payment period is more than thirty (30) days, the Buyer has to inform the Seller in writing of the complaint within thirty (30) days after the date of invoice.
10.3. Any complaints or disputes, of whatever nature, do not entitle the Buyer to suspend payment.
Article 11 – Guarantee
11.1. Unless agreed to otherwise in writing, the Seller guarantees the sound condition of the Products for a period of three (3) months after delivery, to the extent that this concerns defects not visible in the inspection referred to in article 10 of the General Terms and Conditions.
11.2. The Buyer shall inform the Seller in writing of a claim under article 11.1 within seven (7) days after discovery of the defect, but no later than before expiry of the term defined in article 11.1, stating the reasons for the claim.
11.3. If the Seller accepts a claim by the Buyer under article 11.1, the Seller shall have the choice to repair, replace or take back the defective Product and reimburse the Buyer for the purchase price of the Product. If this concerns a Service provided by the Seller, the Seller is only obliged to render the Service concerned again or a part thereof. If the Seller chooses to execute the performance soundly again as yet, the Seller himself shall determine the manner and time of the execution and/or delivery.
11.4. Return shipments without prior permission in writing from the Seller are not allowed. Return shipments shall be to the account and risk of the Buyer to the address stated by the Seller. If the return shipment was carried out by permission from the Seller, and the Buyer’s complaint has been accepted by the Seller, the Seller shall reimburse the Buyer for the costs of the return shipment. The Seller is entitled to hold or have held the Products returned by the Buyer to the account and risk of the Buyer, if the Products have been returned to the Seller without permission from the Seller or based on a complaint that was not accepted by the Seller.
11.5. The Seller does not provide a guarantee based on article 11.1 of the General Terms and Conditions if:
(a) The defect is fully or partially due to normal wear and tear, improper or negligent use of the Product(s);
(b) The Product has been altered, adapted, repaired, used or processed by the Buyer or by third parties;
(c) The defect is a minor deviation in quality, colour, finishing, size and/or composition, that is acceptable in the industry, or if the defect could not have been technically prevented.
11.6. The stipulations in article 11.1 up to and including 11.5 of these General Terms and Conditions shall apply accordingly to any claims by the Buyer based on breach of contract, non-conformity or for whatever other reason.
11.7. The Buyer can only invoke the stipulations in article 11.1 of the General Terms and Conditions, if the Buyer has complied with all his obligations under the Agreement and the General Terms and Conditions.
Article 12 – Liability of the Seller

12.1. In case of an overdue, faulty or defective delivery or any defects to the Products delivered by the Seller, the Seller is not liable in any way for the damage caused by this, except if this is due to intent or wilful recklessness of the Seller personally or by the Seller’s management employees. The Seller’s liability is in all cases limited to the guarantee obligations defined in article 11.1 of the General Terms and Conditions. The Seller is never liable for indirect damage to the Buyer, including, but not limited to, consequential or collateral damage, such as loss of profits or interest or immaterial damage.

12.2. Without prejudice to the stipulations in article 12.1, in case of an overdue, faulty or defective delivery or any defects to the Products delivered by the Seller, the Seller is not liable in any way for the damage caused by this, if this was caused by the Seller’s employees, auxiliary agents engaged by the Seller, or by companies belonging to the same group company as the Seller.

12.3. Any claim by the Buyer from this article 12 shall expire one year after the date on which the Buyer suffers the damage, or, as the case may be, the damaging events commenced.

12.4. Without prejudice to the stipulations in paragraphs 12.1 up to and including 12.3, the Seller’s liability is limited to the damage for which the Seller is covered by the insurance taken out by or on behalf of the Seller, but this shall never be more than the amount paid out by the insurance in the relevant case. If the Seller’s insurer – for whatever reason – does not pay out the insurance benefits or if the relevant insurance of the Seller does not provide coverage, the Seller’s liability shall be limited to a maximum amount for each event of 15% of the invoice amount (excluding VAT) charged by the Seller to the Buyer under the Agreement concerned. If the Agreement concerns parts or partial deliveries, the Seller’s obligation to pay damage compensation is limited to no more than 15% (excluding VAT) of the order amount for that part or partial delivery.

12.5. Without prejudice to the stipulations in this article 12, the Seller is not liable for any damage caused by:

(a) The unsuitability of the Products and/or Services for a specific purpose or an unusual, inexpert or improper use or storage of the Products;

(b) Products that have been resold, processed or packaged, altered and/or adapted in whatever manner;

(c) Contravention of any instructions for the use of the Products issued by the Seller or by any third parties.

12.6. The Buyer indemnifies the Seller, his employees and those parties involved in the execution of the Agreement against all claims by third parties, whatever the reason and/or the basis of such claims, that are in any way connected to the Agreement and the execution thereof. The Buyer shall make full restitution of any damage or costs suffered by the Seller or by third parties engaged by the Seller that are connected to liability, if and to the extent that this damage is not to the account of the Seller under this Agreement.

Article 13 – Disputes
13.1. The General Terms and Conditions, the Agreement and other agreements arising from or in connection to the Agreement shall be governed solely by Dutch law. The applicability of the UN Convention on Contracts for the International Sale of Goods (the Vienna Sales Convention – CISG) is explicitly excluded.
13.2. (a) If both the Seller and the Buyer are established in an EU member state, all disputes connected to these General Terms and Conditions, an Agreement respectively further agreements arising from this, shall be solely resolved by the Dutch court of Gelderland, Arnhem location;
(b) If the Seller or the Buyer are not established in an EU member state, all disputes connected to these General Terms and Conditions, an Agreement respectively further agreements arising from this, shall be resolved in accordance with the Arbitration Regulation of the Netherlands Arbitration Institute. The arbitration panel shall consist of three arbitrators and the arbitration location is Amsterdam, The Netherlands. The arbitration proceedings shall be conducted in Dutch.
Filed at the Chamber of Commerce and Industry in Apeldoorn under number 08006261