GENERAL TERMS OF DELIVERY AND PAYMENT

General Terms of Delivery and Payment EBT B.V. te Alblasserdam

1.       These general terms of delivery, hereinafter called the "terms of delivery" are the basis of the agreement concluded between "EBT" and the "buyer" in which EBT is considered to be: the private limited company EBT B.V., with its registered office at Kelvinring 16 in Alblasserdam, and as the "buyer" any contracting party with EBT.

2.       General terms and conditions of the buyer or third parties that deviate from these terms of delivery or from specific parts thereof are not binding on EBT, also if the buyer has referred thereto and EBT has not rejected these references in writing.

3.       Once a buyer has made a purchase from EBT under the applicability of these terms of delivery, it is deemed in all subsequent orders to tacitly agree to the applicability of these terms of delivery regardless of the nature of the order and regardless of whether EBT confirms such an order in writing or otherwise.

4.       If a purchase is made by two or more buyers jointly, they are each jointly and severally liable under application of these terms of delivery for all consequences of the agreement concluded. Deviations from these terms of delivery, or deviations from specific parts of the agreement only bind EBT if it has confirmed these deviations or changes in writing.

6.       The articles of these terms of delivery are all applicable, unless expressly deviated therefrom in writing, even if the individual articles do not mention such a reservation.

7.       The buyer cannot from any agreed deviations from these terms of delivery derive any rights for future transactions, unless the deviation has been expressly agreed in writing for several transactions.

8.       These terms of delivery remain binding even if individual parts, for whatever reason, are not applicable.

9.       The buyer, who orally or in writing instructs one of its employees or a third party to buy and collect goods at EBT at its expense, shall inform EBT in writing if the instruction has ended.If this does not take place, the buyer is liable for any damage that may arise for EBT, if goods have been given to someone who, on behalf of the buyer, was no longer entitled to buy and take delivery of the goods.

2.       OFFERS AND PRICES

10.     All offers are without obligation.If an offer explicitly states a period of validity, it is only binding if the acceptance has been received by EBT within the specified period.

11.     All prices and rates are exclusive of VAT and any other levies imposed by the government.

12.     Agreements are always concluded on the basis of the prices valid at the time of the conclusion. If for any reason price increases should occur after the time of the conclusion of the agreement and before the final delivery, EBT reserves the right to pass on the price difference to the buyer. If the price difference is greater than 5% of the invoice amount, the buyer has the right to change the order.

13.     EBT will announce any price increases in a timely manner.

14.     All prices, weights, dimensions, colours and other information ated in folders and documentation with regard to the goods to be sold by EBT and all images, drawings and descriptions of those goods are free of obligation and are approximate only, unless EBT has confirmed the contrary in writing. Deviations do not entitle the buyer to refuse receipt or payment of the goods or to demand any compensation for that deviation.

3.       DELIVERY

15.     Delivery is generally made to the location of the buyer.

16.     If goods are collected from EBT, they will be stored at the buyer's risk and expense after the agreed delivery date has passed.

17.     If it has been agreed that the goods will be taken into storage by EBT, storage will take place at the buyer's risk.In this case, the sending of the invoice shall be regarded as delivery and notification of storage.

18.     In the event of non-receipt of the goods, EBT has fulfilled its obligation to deliver if it has informed the buyer by registered letter that the goods are at its disposal. Following this, EBT has the right to claim payment before delivery.If the goods are not collected within 10 days after the registered letter, EBT has the right to consider the order cancelled in accordance with Article 28.

19.     The goods shall be transported in a manner to be determined by EBT.

20.     EBT shall as best as possible observe the delivery times, which are given in week number. Under no circumstances can a delay in delivery lead to any sanction, including termination of the agreement or compensation.

21.     If the order is subsequently changed by the buyer, EBT is no longer bound by the original agreed and confirmed delivery time.

22.     In case of force majeure, EBT has the choice to suspend execution of the agreement or to terminate the agreement after at least 6 weeks from the order date.

23.     If it has been agreed that the goods will be taken into storage by EBT, storage will take place at the buyer's risk. In this case, the sending of the invoice shall be regarded as delivery and notification of storage.

24.     If this has been agreed in writing, EBT will place the goods or have them placed in storage. In all cases, prior to delivery of the goods, the buyer shall make available a suitable place with all necessary facilities - except for the goods to be delivered by EBT.  

25.     EBT has the right to deliver the sold goods in parts, unless complete delivery has been agreed in writing.

26.     The goods are deemed to have been accepted by the buyer at the moment that the goods have been received by the buyer or at the date of placement in storage in case of application of Article 24.

27.     If the parties agree that any services to be provided will be extended or changed, the buyer accepts that the time of completion of the service extension may be affected by this. EBT shall inform the buyer about this as soon as possible.

4.       CHANGE TO THE AGREEMENT

28.     Events that change the basis of the agreement in whole or in part, be it on the part of the buyer, EBT or the supplier to EBT, entitle EBT to change the agreement in whole or in part in line with the new circumstances without any claim for damages arising therefrom.

29.     If the buyer cancels an order for goods, being goods not specifically designed by EBT for the buyer and delivered from stock by EBT, in whole or in part, the buyer shall only pay reasonable costs incurred for the execution. An order for goods not available from EBT from stock but which have been ordered in whole or in part from third parties and/or which have meanwhile been delivered to EBT, can only be cancelled in whole or in part if EBT's supplier agrees to cancellation/return. If (partial) cancellation is possible, the buyer shall pay reasonable costs incurred for the execution. An order of production goods, being goods designed specifically for the buyer by EBT, can only be cancelled by the buyer if EBT has not yet started production. In such a case, EBT is entitled to claim costs and damages from the buyer due to loss of profit, set by the parties at 20% of the amount to be paid by the buyer upon receipt, or over the difference between the final amount paid and the amount upon full receipt.

30.     If the buyer is in default, as described in paragraph 5, and furthermore if the buyer is declared bankrupt, applies for or obtains a suspension of payments, is placed under guardianship, dies, proceed with the liquidation or sale of its business, and if attachment is imposed on all or part of the buyer's assets, EBT is irrevocably authorised by the buyer, without any notice of default being required, to remove the goods from the place where they are located without any judicial measure being necessary to enter the places concerned and the only judicial intervention required is to terminate the agreement in full or for the part not yet executed by simple notification, subject to compensation of such termination attributable to the buyer.

31.     Subject to the provisions of these terms of delivery, the agreement can only be terminated if the other party, after proper written notice of default, imputably fails to fulfil essential obligations under the agreement. Termination shall be effected by registered letter to the other party; judicial intervention is not required.

32.     If at the time of the termination, buyer has already performed dissolves performances for the execution of the agreement only partially and only for that part that has not yet been executed by EBT.

5.       PAYMENTS

33.     Payments of invoices sent by EBT shall be made within thirty days of the date on which the invoice to be received by the buyer is drawn up.

34.     If the payment term is exceeded, the buyer shall be in default without further notice. EBT is in that case entitled to charge interest in accordance with the legally determined percentage from the due date pursuant to paragraph 32.

35.     Furthermore, in the event of late payment to EBT, the buyer shall reimburse any collection costs, which are set at 15%, with a minimum of €125.Collection costs are due from the moment at which EBT has had to call in the assistance of third parties for the collection.

36.     Amounts that EBT has invoiced prior to termination under paragraph 5 in connection with what it has already performed or delivered for the execution of the agreement, remain due in full and become immediately due and payable at the time of termination.

6.       RETENTION OF TITLE

37.     All delivered goods remain the property of EBT until full payment of all that EBT, for whatever reason, has to claim from the buyer, regardless of whether they have already been processed by the buyer.

38.     Goods that are replaced as a result of the repair order become or remain the property of EBT until all that EBT has to claim from the buyer has been paid in full.

39.     The buyer is entitled to dispose of and resell the goods within the framework of its normal business operations. In the event that the goods are resold without payment of the sales price, the buyer's claim arising from this will automatically be transferred to EBT without the need for attachment.

40.     The buyer is not permitted to encumber the goods for the benefit of third parties, for example banking institutions, by means of a right of pledge or security, etc., without EBT's written consent. The buyer shall notify EBT immediately if third parties attach goods delivered subject to retention of title.

41.     As long as the delivered goods have not become the property of the buyer, it shall insure the goods for its account on behalf of EBT.

7.       COMPLAINTS

42.     Only commercial goods, being goods not specifically designed for the buyer by EBT and delivered from stock by EBT, can be returned to EBT by the buyer, if unused and in the original packaging, within 7 days. The buyer shall only pay reasonable costs incurred for the execution.

43.     Complaints regarding missing or not ordered goods shall be submitted in writing. The buyer shall within 3 days of delivery of the goods return the packing list to EBT, stating any defects or surpluses.

44.     Complaints regarding externally visible defects shall within 7 days of delivery of the goods be reported to EBT in writing, supported by reasons. The buyer shall give EBT the opportunity to investigate the complaints. In the absence of punctual observance by the buyer of the above provisions, any claim of the buyer in this respect lapses.

8.       GUARANTEE

45.     EBT guarantees the proper functioning of the goods delivered by it only insofar as it has received a guarantee from its suppliers, in accordance with the provisions of said provided guarantee.

46.     EBT provides a one-year guarantee on the proper functioning of the delivered production goods. EBT shall perform the guarantee in-house. Only if in-house performance at EBT is not possible will the guarantee be performed at the buyer. Related hours worked by EBT shall not be charged to the buyer. Travel and accommodation costs are at the buyer's expense and will be charged separately by EBT.

47.     If the buyer, during a guarantee period, without written permission from EBT, makes or instruct repairs or changes to the goods delivered or if the buyer does not meet its payment obligations, the above guarantee obligation expires.

48.     The guarantee only applies to goods that have been used by the authorised user in accordance with the applicable regulations and standards for the purpose for which they were supplied.

49.     Repair work is only guaranteed by EBT if it has expressly provided a guarantee in writing.

50.     Whether or not parts or products qualify for replacement is determined exclusively at the prejudice of EBT, while termination on this basis is excluded.

51.     The guarantee period is not subject to suspension and the guarantee applies exclusively to the buyer.

9.       FORCE MAJEURE

52.     If the execution of the agreement is not possible and cannot be attributed to a shortcoming of one of the parties and if it is furthermore foreseeable that the delay will last longer than six weeks, each of the parties shall be entitled to terminate the agreement by mutual agreement without the other party being liable for any compensation.

53.     In the event of a circumstance as referred to in the previous paragraph, EBT has the right to set off the proportional part of the contract sum based on the work already performed, materials delivered and other costs incurred.

54.     The first paragraph applies to any event or circumstance, including those that could have been foreseen at the time of the conclusion of the agreement, that makes compliance difficult or impossible or becomes so difficult for EBT from a commercial point of view that further execution of the work by EBT can no longer reasonably be demanded.

10.     LIABILITY FOR DAMAGE

55.     In case of attributable failure in the performance of the agreement on its part, EBT is only liable for replacement damages, i.e. compensation of the value of the omitted performance. Any liability of EBT for any other form of damage is excluded, including additional compensation in any form whatsoever, compensation for indirect or consequential damage or damage due to loss of profit.

56.     Furthermore, EBT is under no circumstances liable for damage due to delay, damage due to loss of data, damage due to exceeding of delivery times as a result of changed circumstances, damage due to defective cooperation, information or materials provided by the buyer and damage due to information or advice given by EBT, the content of which does not explicitly form part of a written agreement.

57.     The compensation to be paid by EBT for attributable failure in the performance of an agreement shall in no case exceed 50% (fifty percent) of the amounts invoiced and invoiceable by EBT to the buyer on the basis of that agreement.

58.     In the event of an unlawful act on the part of EBT, or of its employees or subordinates for which EBT can be held legally liable, EBT is only liable for compensation of damage due to death or physical injury and of other damage, the latter to the extent that it is caused by intent or gross negligence. In these cases, the compensation will in no case exceed € 1,250,000 per event, whereby a series of connected events is considered one event, subject to a maximum amount of € 2,500,000 per year.

59.     EBT's liability for damages due to an unlawful act other than that referred to in Article 55 is expressly excluded. If and insofar as this cannot be invoked, the compensation per event - whereby a series of connected events is considered one event - will in no case exceed the price stipulated in the agreement between parties in the context of which the event occurred.

60.     The liability to compensate damage from defects of products delivered by EBT is determined by EBT and shall not exceed a maximum of an amount of 2 times the amount of the delivery.

61.     A condition for the occurrence of any right to compensation is always that the buyer has reported the damage in writing to EBT as soon as reasonably possible after the occurrence thereof.

62.     No liability can be accepted:

- for damage or costs resulting from the incorrect use of delivered and/or insufficiently and/or inadequately packaged products;

- for incorrect storage of goods by the buyer;

- for damage, which is a direct or indirect result of services provided by EBT.

63.     The buyer indemnifies EBT against all damage that EBT may suffer as a result of third-party claims in connection with the goods or services delivered by EBT, including:

- claims of third parties, including buyer's employees, who suffer damage as a result of unlawful acts of employees of EBT who have been made available to the buyer and work under the buyer's supervision or on the buyer's instructions;

- claims of third parties, including employees of EBT, who suffer damage in connection with the execution of the agreement, which is the result of acts or omissions of the buyer or of unsafe situations in its company.

- claims of third parties who suffer damage resulting from a defect in products or services delivered by EBT and used by the buyer, which products or services have been further delivered under addition of or in connection with the buyer's own products or services, unless the buyer proves that the defect is not the result of use, modification or delivery as referred to above.

11.     FINAL PROVISIONS

64.     All disputes that may arise from agreements to which these terms of delivery apply shall be exclusively adjudicated by the competent court in Rotterdam, unless the buyer, within one month after being informed by EBT that it will bring the dispute before the court applicable on the basis of these terms of delivery, has notified EBT in writing that it will choose the competent court by law and subject to EBT's right to choose the competent court by law.

65.     An agreement concluded with EBT is exclusively governed by Dutch law.