GENERAL TERMS AND CONDITIONS VULCAN EUROPE BV

Article 1. General

  1. These General Terms and Conditions (the “GTC”) are applicable to each offer, designated offer and agreement between Vulcan Europe BV, hereinafter: “User”, and a Counterparty to which User has declared these GTC applicable, insofar from these GTC has not been deviated by parties explicitly and in writing.
  2. The present GTC are also applicable to agreements with User, for the execution of which by User third parties must be involved.
  3. These GTC have also been written for the employees of User and its board of directors.
  4. The applicability of possible purchase or other terms and conditions of the Counterparty is explicitly rejected.
  5. If one or more stipulations in these GTC on any moment are in whole or in part invalid or should be invalidated, then the other stipulations in these GTC remain fully applicable. User and the Counterparty shall then enter into consultation in order to agree upon new stipulations for the replacement of the invalid or invalidated stipulations, whereby as much as possible the purpose and the tenor of the original stipulations will be observed.
  6. If ambiguity exists concerning the interpretation of one or more stipulations of these GTC, then the interpretation must take place according ‘to the spirit’ of these stipulations.
  7. If between parties a situation occurs that has not been regulated in these GTC, then this situation must be assessed according to the spirit of these GTC.
  8. If User does not require each time strict compliance with these GTC, then this does not mean that the stipulations thereof are not applicable, or that User to any degree would lose the right to require in other instances the strict compliance with the stipulations of these GTC.

Article 2. Designated offers and offers

  1. All designated offers and offers of User are non-binding, unless in the designated offer a term for acceptation has been set. A designated offer or offer is forfeit if the product to which the designated offer or the offer relates, is in the meantime not available anymore.
  2. User cannot be held to his designated offers or offers, if the Counterparty reasonably can understand that the designated offers or offers, or a part thereof, contain an obvious mistake or typo.
  3. The prices stated in a designated offer or offer are exclusive of VAT and other levies by the government, possible costs to be made in the framework of the agreement, including travel and board, shipping and administration costs, unless stated otherwise.
  4. If the acceptation (whether or not on subordinate points) deviates from the offer included in the designated offer or the offer, then User is not bound thereto. The agreement will then not be concluded in accordance with this deviating acceptation, unless User states differently.
  5. A composed price statement does not oblige User to the execution of a part of the commission against a related part of the stated price. Offers or designated offers do not automatically apply to future orders.

Article 3. Contract duration; delivery terms, execution and changing of the agreement

  1. The agreement between User and the Counterparty is concluded for an undefined time, unless it derives from the nature of the agreement differently or if parties explicitly and in writing agree differently.
  2. If for the completion of certain activities or for the delivery of certain goods a term has been agreed or stated, then this is never a fatal term. Upon exceeding of a term, the Counterparty must therefore declare User in writing in default. User must thereby be offered a reasonable, term to give after all execution to the agreement.
  3. If User requires data from the Counterparty for the execution of the agreement, then the term of execution shall not start sooner than after the Counterparty has made these correctly and completely available to User.
  4. Delivery takes place ex enterprise of User. The Counterparty is obliged to take-off the goods on the moment that these are made available to him. If the Counterparty refuses take-off or is negligent with the provision of information or instructions that are necessary for the delivery, then User is authorised to store the goods for the account and risk of the Counterparty.
  5. User has the right to let certain activities be executed by third parties.
  6. User is authorised to execute the agreement in various phases and to invoice the thus executed part separately.
  7. If the agreement will be executed in phases, then User can suspend the execution of those parts that belong to a following phase, until the Counterparty has approved the results of the preceding phase in writing.
  8. If during the execution of the agreement it shows that for a proper execution thereof it is necessary to change this or add to it, then parties shall proceed timely and in metal consultation to modification of the agreement. If the nature, scope or content of the agreement, whether or not upon request or direction of the Counterparty, of the competent authorities et cetera, is changed and the agreement because of it, is changed from a qualitative and/or quantitative perspective, then this can also have consequences for what was agreed originally. Because of it, the originally agreed amount can be increased or decreased. User shall give thereof as much as possible a price statement in advance. Upon a changing of the agreement, furthermore the originally stated term of execution can be changed. The Counterparty accepts the possibility of changing the agreement, including the changing in price and term of execution.
  9. If the agreement is changed, including an addition, then the User is authorised to give firstly execution thereto after approval is given thereto by the competent person and the when the Counterparty has agreed with the price stated for the execution and other terms and conditions, including the moment in time then to be determined in which thereto execution shall be given. The non or not immediate execution of the changed agreement renders no default of User and is neither a ground for the Counterparty to cancel the agreement. Without entering therewith in default, User can refuse a request to changing of the agreement if this from a qualitative and/or quantitative perspective can have consequences for instance for the activities to be executed or goods to be delivered in that framework.
  10. If the Counterparty should enter into default with the proper compliance with what he is obliged to User, then the Counterparty is liable for all damage (including costs) emerged directly or indirectly at the side of User because of it.
  11. If User agrees a fixed price with the Counterparty, then User is, evertheless, at all times authorised to increasing this price without that the Counterparty in that case is authorised to dissolve the agreement for that reason, if the increase of the price derives from an authority or obligation as a consequence of the law or regulation or finds its cause in an increase of the price of raw materials, currency exchange rate changes, wages et cetera or on other grounds that were reasonably not foreseeable at the conclusion of the agreement.
  12. If the price increase, other than as a consequence of a changing of the agreement amounts to more than 10% and takes place within three months after the conclusion of the agreement, then it is solely the Counterparty that has a claim to title 5 section 3 of Book 6 Dutch Civil Code and authorised to dissolve the agreement by a written declaration, unless User then after all is willing to execute the agreement on the basis of the originally agreed, or if the price increase derives from an authority or an obligation resting on User as a onsequence of the law or if it has been stipulated that the delivery shall take place longer than three months after the purchase.

Article 4. Suspension, dissolution and in-between cancellation of the agreement

  1. User is authorised to suspend the compliance with the obligations or to dissolve the agreement, if the Counterparty does not, not fully or not timely comply with the obligations from the agreement;
    circumstances come to the knowledge of User after the conclusion of the agreement give good ground to fear that the Counterparty shall not comply with the obligations;
    the Counterparty has been requested at the conclusion of the agreement to provide surety for the compliance with his obligations from the agreement and this surety remains absent or is insufficient;
    if by the delay from the side of the Counterparty it can no longer be required of User that he shall comply with the agreement against the originally agreed conditions, then User is authorised to dissolve the agreement.
  2. Furthermore, User is authorised to dissolve the agreement if circumstances occur which are of such a nature that compliance with the agreement is impossible or if otherwise circumstances occur that are of such a nature that unchanged maintaining of the agreement in reasonableness cannot be required of User.
  3. If the agreement will be dissolved, then the claims of User on the Counterparty are immediately payable upon demand. If User suspends the compliance with the obligations, then he retains his claims from the law and agreement.
  4. If User proceeds to suspension or dissolution, then he is in no manner whatsoever required to compensation of damage and costs emerged in any manner.
  5. If the dissolution is imputable to the Counterparty, then User is entitled to compensation of the damage, including the costs, emerged by it directly and indirectly.
  6. If the Counterparty does not comply with obligations deriving from the agreement and this noncompliance justifies dissolution, then User is authorised to dissolve the agreement immediately and with direct effect without any obligation from his side to payment of any compensation of damages or indemnification, while the Counterparty, on the basis of default, however is obliged to compensation of damages or indemnification.
  7. If the agreement is cancelled in-between by User, then User shall in consultation with the Counterparty arrange for transfer of activities yet to be executed to third parties. This unless the cancellation is imputable to the Counterparty. If the transfer of the activities brings along extra costs for User, then these will be brought into account to the Counterparty. The Counterparty is required to pay these costs within the term mentioned, unless User states differently.
  8. In case of liquidation, of (filing for) suspension of payment or bankruptcy, of attachment – if and insofar the attachment has not been relieved within three months – against the Counterparty, of debt sanitation or another circumstance because of which the Counterparty can no longer dispose freely over his capital, then the User is at liberty to cancel the agreement immediately and with direct effect or to cancel the order or agreement, without any obligation from his side to payment of any compensation of damages or indemnification. The claims of User on the Counterparty are in that case immediately payable upon demand.
  9. If the Counterparty cancels a placed order in whole or in part, then the goods ordered or made ready for that, increased with the possible cost of supply and delivery thereof and the labour time reserved for the execution of the agreement, shall be brought integrally into account to the Counterparty.

Article 5. Force Majeure

  1. User is not required to the compliance with any obligation towards the Counterparty if he is hindered thereto as a consequence of a circumstance that is not imputable to fault, and neither on the basis of the law, a legal act or opinions in society, come for his account.
  2. Under Force Majeure shall in these GTC be understood, in addition to what in that regard in the law and jurisprudence is understood, all external causes, foreseen or notforeseen, to which User can exercise no influence, but because of which, User is not able to comply with his obligations. Work strikes in the enterprise of User or of third parties included. User has also the right to claim Force Majeure if the circumstance thathinders (further) compliance with the agreement, emerges after User should have complied with his legal obligation.
  3. User can during the period that the Force Majeure lasts, suspend the obligations from the agreement. If this period lasts longer than two months, then each of the parties is authorised to dissolve the agreement, without obligation to compensation of damage to the other party.
  4. Insofar User at the time of the emergence of Force Majeure, has partially complied in the meantime with his obligations from the agreement or shall be able to comply with these, and to the part complied with respectively to be complied with, an independent value belongs then User is authorised to invoice the part already complied withrespectively to be complied with, separately. The Counterparty is required to pay this invoice as if there were an instance of a separate agreement.

Article 6. Payment and collection costs

  1. Payment must take place within 30 days after the date of the invoice, in a manner to be designated by User in the currency in which was invoiced, unless stated differently in writing by User. User is authorised to invoice periodically.
  2. If the Counterparty remains in default with the timely payment of an invoice, then the Counterparty is in default by law. The Counterparty is then liable to pay an interest of 1% per month, unless the lawful interest is higher, in which case the lawful interest is due.
    The interest over the due amount shall be calculated from the moment that the Counterparty is in default until the moment of satisfaction of the fully due amount.
  3. User has the right to let the payments made by Counterparty serve in the first place for the reduction of the costs, subsequently for the reduction of the appeared interest and finally for the reduction of the principal amount and the current interest.
  4. User can, without entering into default therewith, refuse an offer to payment, if the Counterparty designates another order for the allocation of the payment. User can refuse complete redemption of the principal amount, if thereby not also the appeared and current interest and collection costs will be paid.
  5. The Counterparty is never authorised to set-off of the amounts due by him to User.
  6. Objections against the height of an invoice do not suspend the payment obligation. The Counterparty that has no claim to section 6.5.3 (the articles 231 to 247 book 6 Dutch Civil Code) is neither authorised to suspend the payment of an invoice for another reason.
  7. If the Counterparty comes short or is in default with the (timely) compliance with his obligations, then all reasonable costs for acquiring satisfaction out-of-court, come for the account of the Counterparty. The out-of-court costs will be calculated on the basis of what is customary in the Netherlands’ collection practice, currently the calculation method according to the so-called Rapport Voorwerk ll. If User however has made higher costs for the collection that were reasonably necessary, the actually made costs will be eligible for compensation. The possibly made in-court and execution costs shall also be recovered from the Counterparty. The Counterparty is also liable to pay interest over the due collection costs.
  8. In case of payment after the set payment term of a maximum of 30 days each right to a discount shall be forfeit and the agreed discounts shall after all be charged to you.

Article 7. Ownership of website and web shop

  1. The website, web shop, are and remain the property of User, regardless of whether or not the Other Party pays User compensation for the use of the website, web shop. Information and data from customers, including email addresses and telephone numbers, are managed by the User and are part of the goodwill of the User and the User does not have to disclose this data to third parties or the other party, even after a possible termination of the cooperation with the User . Information
    and data of customers, including telephone numbers and addresses and email addresses of customers are part of the goodwill of User and these data files therefore remain the property of User.

Article 8. Retention of title

  1. All goods delivered by User in the framework of the agreement remain property of User until the Counterparty has properly complied with all obligations from the agreement(s) concluded with User.
  2. Goods delivered by User, that as a consequence of section 1 fall under the retention of title, may not be sold onward and may never be used as a payment instrument. The Counterparty is not authorised to put a lien on the goods falling under the retention of title or to encumber these in any other manner.
  3. The Counterparty must do each time all that reasonably may be expected of him, to secure the property rights of User.
  4. If third parties put an attachment on the goods delivered under retention of title or wish to vest or claim rights thereon, then the Counterparty is obliged to notify User thereof immediately.
  5. The Counterparty obliges himself to insure, and keep insured, the goods delivered under retention of title, against fire, explosion and water damage as well as against theft and to give the policy of this insurance upon first request to User for viewing. In case of a possible pay-out of the insurance, User is entitled to these monies. To the extent necessary, the Counterparty commits towards User in advance to grant his cooperation to all that in that framework should (prove to) be necessary or desirable.
  6. In case User wishes to exercise his property rights indicated in this article, the Counterparty gives in advance an unconditional and irrevocable permission to User and third parties to be designated by User to access all those places where the properties of User are located and to take back those goods.

Article 9. Information and data of customers

  1. All information and data of customers does not have to be shared by the User with other parties, relations or third parties.

Article 10. Warranties, inspection and reclamation, statute of limitations

  1. The goods to be delivered by User comply with the usual requirements and norms that can reasonably be put to it on the moment of delivery and for which they are destined by normal use in the Netherlands. The warranty mentioned in this article is applicable to goods that are destined for the use within the Netherlands. In case of use outside the Netherlands, the Counterparty must verify whether the use thereof is suitable for the use there and comply with the conditions that are set thereto. User can in that case set other warranty and other conditions regarding the goods to be delivered or activities to be executed.
  2. The warranty mentioned in section 1 of this article applies for a period of 14 days after delivery, unless from the nature of the delivered it derives differently, or parties have agreed otherwise. If the warranty provided by User concerns a good that was produced by a third party, then the warranty is limited to that, what is provided by the producer of the good, unless stated differently.
  3. Each form of warranty becomes forfeit if a defect has emerged as a consequence of or derives from inexpert or improper use thereof or use after the best-before-date, incorrect storage or maintenance thereto by the Counterparty and/or by third parties when, without written permission of User, the Counterparty or third parties have introduced changes to the good or have tried to introduce such, other goods were attached thereto that should not be attached thereto or if these were processed or treated in another than the prescribed manner. The Counterparty has neither a claim to warranty if the defect has emerged by or is the consequence of circumstances where User can exercise no influence on, including weather conditions (such as for instance but not solely, extreme rainfall or temperatures) et cetera.
  4. The Counterparty is required to (let) inspect the delivered, immediately on the moment that the goods are made available to him, respectively the concerned activities have been executed. Thereby the Counterparty should examine whether quality and/or quantity of the delivered complies with what is agreed and complies with the requirements that parties have agreed in that regard. Possible visible defects must be reported within seven days after delivery in writing to User. Possible invisible defects must immediately, but in each case not later than within seven days, after discovery thereof, be reported in writing to User. The notification should contain a description of the defect as detailed as possible, so that User is able to respond adequately. The Counterparty must enable User to (let) examine a complaint.
  5. If the Counterparty makes a timely reclamation, then this does not suspend his payment obligation. The Counterparty remains in that case also required to take-off and payment of the goods ordered otherwise.
  6. If of a defect a later report is made, then the Counterparty has no right anymore to repair, replacement or indemnification.
  7. If it has been established that a good is defective and in that regard a timely reclamation has been made, then User shall, at the discretion of User, replace the defective good within a reasonable term after return receipt thereof or, if returning is reasonably not possible, after written notification concerning the defect by the Counterparty, or arrange for repair thereof or pay replacement compensation for that to the Counterparty. In case of replacement, the Counterparty is required to return the replaced good to User and to grant the property over it to User, unless User states differently.
  8. If it has been established that a complaint is unfounded, then the costs emerged because of it, including the examination costs, fallen at the side of User, shall come integrally for the account of the Counterparty.
  9. After expiry of the warranty period, all costs for repair or replacement, inclusive of administration, shipping and show-up costs, shall be brought into account to the Counterparty.
  10. In deviation of the lawful statutes of limitation, the statute of limitations of all claims and defences towards User and the third parties involved by User in the execution of an agreement, is one year only.

 

Article 11. Liability

  1. Should User be liable, then this liability is limited to what has been set forth in these stipulations.
  2. User is not liable for damage, of whichever nature, emerged because User has relied on incorrect and/or incomplete data by or on behalf of the Counterparty.
  3. If User should be liable for any damage, then the liability of User is limited to a maximum of twice the value of the invoice of the order, at least to that part of the order, to which the liability refers.
  4. The liability of User is in each case each time limited to the amount of the pay-out of his insurer in a prevalent case.
  5. User is solely liable for direct damage.
  6. Under direct damage shall solely be understood the reasonable costs for the establishment of the cause and the scope of the damage, insofar the establishment concerns damage in the sense of these GTC, the possible reasonable costs made to let the defective performance of User comply with the agreement, insofar this can be imputed to User and reasonable costs, made for the prevention or limitation of damage, insofar the Counterparty demonstrates that these costs have led to limitation of direct damage as referred to in these GTC.
  7. User is never liable for indirect damage, including consequential damage, missed profit, missed savings and damage by enterprise stagnation.
  8. The limitations of the liability included in this article, do not apply, if the damage is due to wilful intent or gross fault of User or his managing subordinates.

Article 12. Risk-transfer

  1. The risk of loss, damage or reduction of value is transferred to the Counterparty on the moment on which goods are brought in the control of the Counterparty.

Article 13. Safeguard

  1. The Counterparty shall safeguard User from possible claims of third parties, that suffer damage in connection with the execution of the agreement and of which the cause is imputable to others than to User.
  2. If User on that base should be held liable by third parties, then the Counterparty is required to assist User both out-of-court and in-court and to do without delay all that may be expected of him in that case. Should the Counterparty remain in default in the taking of adequate measures, then User is, without notification of default, authorised to proceed thereto by himself. All costs and damage at the side of User and third parties emerged because of it, shall come integrally for the account and risk of the Counterparty.

Article 14. Intellectual property

  1. User reserves the rights and authorities that belong to him on the basis of the Dutch copyright law Auteurswet and other intellectual laws and regulations. User has the right to use the knowledge increased by the execution of an agreement on his side also for other purposes, insofar hereby no strictly confidential information of the Counterparty is brought to the knowledge of third parties.

Article 15. Applicable law and disputes

  1. Solely the Laws of the Netherlands are applicable to all legal relations whereby User is a party, also if to a legal obligation execution will be given in whole or in part abroad or if the party involved in the legal relation has residence there. The applicability of the Vienna Purchase Treaty is excluded.
  2. The court in the place of the legal seat of User is exclusively authorised to take knowledge of disputes, unless the law mandatorily prescribes otherwise. Nevertheless, User has the right to present the dispute to the court competent according to the law.
  3. Parties shall firstly turn to the courts after they have made an ultimate effort to resolve a dispute in mutual consultation.

Article 16. Location and changing of these GTC

  1. These GTC have been filed at the Chamber of Commerce in Breda.
  2. Applicable is each time the latest filed version or the version such as that was in force at the time of the conclusion of the legal relation with User.
  3. The Netherlands’ text of the GTC is each time decisive for the interpretation thereof.