General Terms and Conditions

General Terms and Conditions of J. Kersten B.V., Galvanibaan 14, 3439 MG Nieuwegein, filed with the Registry of the District Court and Chamber of Commerce under number 30106287

Article 1: General

1. These General Terms and Conditions are applicable to all agreements concluded by J. Kersten B.V., of Nieuwegein (The Netherlands), with a contract party that acts in the conduct of a profession or a business. These Conditions may be deviated from in mutual consultation and provided that this is laid down in writing only.
2. The agreements referred to in article 1.1 include all agreements that are concluded by Kersten, but specifically contracts of sale.
3. The rights and obligations under agreements concluded between Kersten and a third party may only be assigned by the contract party with the written consent of Kersten.
4. Any general reference to the terms and conditions of the buyer is not accepted and will not affect the applicability of these Conditions.
5. The general terms of conditions of a contract party of J. Kersten B.V., if any, are not applicable.

Article 2: Offers

1. All offers made by Kersten are without engagement, unless the offer includes a term for acceptance.
2. Unless stated otherwise, all prices quoted in our offers are exclusive of turnover tax and a minimum surcharge of 1,5% for freight, packaging and insurance (FPI surcharge)..
3. Kersten shall not be obliged to deliver at a price quoted in an offer if this price is based on a manifest printing or typing error.
4. If an order is placed by telephone or fax, Kersten shall not be liable for incorrect delivery and/ or billing as a result of the telephone or fax order. This shall not be affected by written order confirmations of telephone / fax orders that are received after the date of delivery.

Article 3: Agreement
An agreement is concluded if Kersten has confirmed the order in writing only or if Kersten has actually executed the order. In the event of a contract of sale under which delivery in various instalments is requested, the agreement shall be deemed to have been fully concluded if the first instalment is delivered or if the first partial delivery has been made.

Article 4: Price Adjustments
If more than three months have passed between the concluding of an agreement and delivery, and if during this period one or more factors that decide Kersten’s cost price has risen to such extent that Kersten cost price has increased with more than 5%, Kersten may charge a selling price that is in accordance with the rise of the cost price.

Article 5: Force Majeure

1. Force majeure is understood to mean any situation in which Kersten is unable to comply with its obligations, or part thereof, due to circumstances beyond its control and which circumstances cannot be attributed to Kersten by law, under a guarantee provided by Kersten , or according to common opinion.
2. Force majeure situations shall in any event include:
   • natural disasters;
   • wars, international or domestic armed conflicts and preparations thereof;
   • measures taken by national, international or supranational governments, including but not limited to decisions related to import quotas, and all other government decisions, including specifically with respect to customs, that affect Kersten.
3. In the event of a situation of force majeure as described in articles 5.1 and 5.2 that impede performance of the agreement (permanently or temporarily), the seller may, at its discretion, either extend the delivery time with a period equal to the length of the impediment, or cancel the order, insofar as the order is affected by the impediment. If the seller is requested by the buyer in writing to do so, the seller shall give the reasons for its choice within eight days. If the impediment lasts less than one month, the seller shall not be entitled to cancel its order. Kersten shall in no event be liable for any (partial) failure to deliver if it has not explicitly undertaken in writing to make the delivery after having been requested to do so in accordance with the preceding sentence.

Article 6: On-call Deliveries
If Kersten and the contract party have agreed on-call delivery, the contract party shall be charged all reasonable costs, with no exception, caused by the contract party’s failure to take delivery in time.

Article 7: Cancellations

1. The contract party may cancel an agreement or return delivered goods with the prior written consent of Kersten only.
2. If, subject to article 7.1, an agreement is cancelled or the delivered goods are returned, the contract party shall compensate Kersten the costs Kersten has incurred as well as pay a reasonable compensation for the loss or loss of profit Kersten has suffered.

Article 8: Delivery

1. All deliveries are ex warehouse, unless otherwise agreed. In all other instances the choice of means of transport is decided by Kersten. The actual delivery takes place at the nearest location to the work or warehouse that the means of transport may safely reach and exit via a route that is accessible for the means of transport concerned.
2. The contract party is obliged to unload the goods, in accordance with article 8.1, as soon as reasonably possible after the arrival of the means of transport. To this end the contract party shall observe a normal unloading time and shall make sufficient personnel and material available. The contract party shall follow the instructions of the transporter with respect to the unloading.
3. If delivery ex works or ex warehouse has been agreed, delivery shall take place by the actual loading of the goods on a means of transport selected by the contract party.

Article 9: Risk

1. If delivery takes place in accordance with article 8.1, the goods shall be for the risk of Kersten until the moment of unloading, as referred to in article 8.2..
2. Unloading in accordance with article 8.2 shall be for the full account and risk of the contract party.
3. If delivery takes place in accordance with article 8.3, the goods shall be for the risk of Kersten until the goods are loaded; as soon as the goods are loaded on the means of transport the risk passes to the contract party. As from that moment the goods travel for the account and risk of the contract party.

Article 10: Obligations of the Buyer
With respect to delivery in accordance with article 8.1 the following applies:

1. If goods are delivered to the contract party in accordance with article 8.1, the contract party shall ensure that a note of all visible defects or damage is made immediately on the delivery note or the transport document, or that the carrier makes a record of the fact.
2. If goods are delivered to the contract party in accordance with article 8.1 by delivery to a third party who keeps the goods on behalf of the contract party, the contract party shall be obliged to have the inspection referred to in article 10.1 carried out within 24 hours after the said third party has received the goods on its behalf.
In the event of delivery ex warehouse:
3. If delivery takes place ex works or ex warehouse, the contract party shall be obliged to inspect the goods immediately after delivery, in order to determine whether they correspond with the agreement, especially as regards the nature of the goods, the quantity, and the agreed quality requirements, or as regards such requirements that as a rule may be set in similar instances.

Article 11: Non-Conformity

1. The contract party may only invoke towards Kersten that the delivered goods do not correspond with the agreement, if it does so as soon as possible but not later than 8 days after delivery. The contract party shall notify Kersten of such invocation in writing or shall confirm such notification in writing with all due speed.
2. The contract party cannot invoke the fact that there are clearly visible defects or damage to the delivered goods towards Kersten if these defects and/or damage are not noted on the delivery note or the transport document or if the carrier has made no record of the fact.
3. Evidence that the delivered goods do not correspond with the agreement has to be provided by the contract party.
4. Minor differences in the delivered goods, as regards size, colour, shape, and packaging, shall not constitute a reason for the contract party to cancel the order or to refuse the delivered goods, or to refuse to pay for the goods entirely or in part, or to claim damages from Kersten. The same applies in the event that the supplier/manufacturer from whom Kersten obtains his materials has made any modifications, provided that these modifications have not materially affected the goods. In addition it is not possible to submit a complaint if: the delivered goods are used for a purpose other than for which they are normally intended; the manifested defects are due to normal wear and tear; the damage is caused by negligence on the part of the client or of a third party (including but not limited to inadequate maintenance); or because the client has acted contrary to the instructions, directions, and advice of Kersten.
5. If the contract party submits a complaint to Kersten in respect of the delivered goods, the contract party shall give Kersten the opportunity to inspect and to examine the goods with all due speed. Kersten shall carry out such further examination in the least onerous manner possible, and shall be given the opportunity to do so by the contract party, if necessary by surrendering the goods. In the event that the complaints turn out to be unfounded, all costs that are reasonably incurred in connection with the necessary examination shall be for the account of the contract party.
6. Without prejudice to the right of the contract party to invoke a right of suspension, the contract party shall remain obliged to pay for and to take delivery of the ordered goods. This is also applicable if the contract party has timely notified Kersten that the goods do not correspond with the agreement.
7. Return shipments are to be shipped carriage paid and are accepted after prior consultation only. For the purpose of this provision, each partial delivery shall be regarded as a separate delivery.

Article 12: Liability for Delivered Goods

1. Kersten is only liable with respect to delivered goods subject to the following provisions:
1. in the event that Kersten has given written guarantees, Kersten only accepts liability to the extent that this clearly arises from such guarantees;
2. All liability of Kersten will be eliminated in the event of a situation of force majeure on its part, in which event Kersten will have the right to dissolve the agreement or part of it due to the permanent or temporary inability to perform;
3. Kersten’s liability shall at all times be limited to an amount that corresponds with the invoiced amount. Kersten shall in no event be liable for any loss of profit and/or loss due to business interruption;
4. In the event of partial deliveries and partial invoices, any calculation of the limitation of liability shall be based on the partial invoice pertaining to the delivery that has given rise to the liability;
2. If Kersten fails to comply with its delivery obligations and such non-compliance may be attributed to Kersten, Kersten shall be liable for the resulting loss; this liability shall be limited to an amount corresponding with 100% of the amount that would have been billed if the delivery had been made.
3. The buyer shall indemnify Kersten against any third-party action based on any infringement of copyright, in respect of any order that the contract party has placed for execution with Kersten.
4. The contract party shall indemnify Kersten against any customs debt(s) in respect of the orders the contract party has placed for execution with Kersten, unless the contract party is able to prove that such liability as referred to above is the result of an intentional act and/or gross negligence on the part of Kersten itself.
5. Nor shall Kersten be liable in the event of an intentional act or gross negligence on the part of third parties who are engaged by Kersten in the execution of the agreement.

Article 13: Delivery Times

1. Unless explicitly stated otherwise, Kersten shall not be in default if it fails to deliver the goods on the delivery times it has stated. Kersten may only be in default after it is held in default in writing by the contract party.
2. If the delay in the delivery times is within reason, this shall not constitute ground for the contract party to dissolve the agreement.
3. Kersten’s liability for any loss the contract party suffers due to exceeding a stated strict delivery time shall be limited to the following:
   • if tardy compliance results in loss and this tardy compliance is caused by an intentional act or the gross negligence on the part of directors of Kersten or of supervising employees, or by an intentional act or the gross negligence of other employees of Kersten, Kersten shall be fully liable.
   • Kersten’s liability in the event of tardy compliance shall be limited to an amount corresponding with the invoiced amount. Kersten shall in no event be liable for loss of profit or loss due to business interruption.

Article 14: Payment Conditions, Extra-Judicial Collection Costs and Right of Retention

1. All amounts are payable, without any discount or set off, within 30 days after the date of invoice, unless otherwise agreed. If the contract party fails to pay within this term it shall be in default without any notice of default being required, regardless of whether or not exceeding the term of payment may be attributed to the contract party.
2. If the contract party defaults on its payment obligations, it shall owe Kersten statutory interest on the still outstanding invoiced amount, or part thereof, whereby a part of a month shall be calculated as a full month, as of 30 days after the date of invoice. In addition, all reasonable costs for obtaining settlement out of court shall be charged to the contract party, which, on the basis of the Voorwerk II report, shall amount to 15% of the total invoice amount.
3. For reasons of its own, Kersten may grant payment discount, provided that this is explicitly agreed between the parties. Such discount shall be calculated on the invoiced amount, exclusive of the freight and insurance costs, deposits, and taxes and shall be stated by Kersten on the invoice.
4. Kersten may, at its discretion, decide to the paying off of which debts payments made by the contract party will be applied, provided that they shall first of all be applied to payment of interest and extra-judicial collection costs.
5. Kersten shall in any event be entitled to exercise its right of retention in respect of goods of the contract party that it has in its possession until its entire claim (including interest and costs) on the contract party has been paid.

Article 15: Retention of Title; Lien

1. If the place of delivery of the goods is located in Germany, Kersten opts, in respect of its retention of title, for the applicability of German law:
1. Kersten retains title in all goods it delivers (retained goods) until the contract party has fully complied with its payment obligations within the context of their mutual business relationship. This retention of title is also applicable to the acknowledged balance, to the extent that Kersten books any claims on the contract party on a current account.
2. The contract party is entitled to resell the delivered goods as part of its normal business operations; however, the contract party assigns now for then all claims it acquires under the resale, for up to the amount of the purchase price it has agreed with Kersten (including turnover tax), to Kersten, regardless of whether or not the delivered goods have been treated before they are resold. The contract party shall remain entitled to collect these debts after it has assigned them, without prejudice to Kersten’s right to collect the debts itself; however, Kersten undertakes not to collect the debts for as long as the contract party duly complies with its payment obligations and is not in default. In the event of default Kersten may claim however that the contract party informs it about the claims it has assigned and the debtors concerned, and that it provides it with all information that is necessary in order to collect the debts, that it submits the relevant documents, and that it notifies the (third-party) debtors of the assignment of the claims.
3. The contract party shall treat or adapt the delivered goods at all times for the benefit of Kersten. If the delivered goods are treated together with other goods that are not the property of Kersten, Kersten will acquire the co-ownership to these goods in proportion to the value of the delivered goods vis-à-vis the other treated goods at the time of treatment.
4. If the delivered goods form an integral part with goods that are not the property of Kersten, Kersten will acquire the co-ownership to the new good in proportion to the value of the delivered goods vis-à-vis the other joined goods. The contract party shall retain possession of the co-ownership for the benefit of Kersten.
5. The contract party shall not be allowed to pledge the delivered goods or to transfer the ownership of them as security. The contract party shall notify Kersten immediately of any attachment or other acts of disposition executed by third parties and shall provide Kersten with all information and documents the latter requires in order to enforce its rights. Bailiffs and other third parties shall be notified of Kersten’s proprietary rights.
6. If the contract party fails to comply with its contractual obligations and specifically if it defaults on its payment obligations, Kersten shall be entitled, after having given due notice to the contract party, to repossess the delivered goods. Repossessing the delivered goods constitutes the retraction of the agreement by Kersten. After it has repossessed the delivered goods Kersten shall be entitled to liquidate them and to set off the proceeds thereof with the obligations of the contract party after deducting the general liquidation costs.
7. If the contract party defaults on its payment obligations it shall be obliged to submit to Kersten, at the latter’s first request, a list of all delivered goods that are still in its possession, including those that have already been treated or that have been joined or mixed with other goods, and to provide a statement of all claims including copies of all relevant invoices to these third-party debtors.
8. If the aggregate value of all security rights to which Kersten is entitled exceeds the relevant claims by more than 20%, Kersten shall release, at the request of the contract party, a corresponding part (to its discretion) of its security rights.
2. If the place of delivery of the goods is located in a country where the retention of title, to the extent
   1. Kersten retains title to the goods it has delivered until the contract party has paid for the (delivered) goods in full and the contract party has complied with its obligations to pay compensation, if any. All goods delivered by the seller remain the seller’s property until the moment when all amounts due, including interest and costs, are paid in full, or, in the event that goods are delivered on current account, until the moment when the buyer has settled the balance on that account that is for his account.
   2. All goods in which Kersten has retained title may only be resold as part of the contract party’s normal business activities. The buyer shall not be allowed to pledge the goods to third parties or to transfer the ownership thereof before the said full payment or set off is effected, other than in the normal conduct of its business or other than the normal designation of the goods. Violation of this provision results in the purchase becoming immediately and fully payable, regardless of the payment conditions.
   3. If the contract party fails to comply with its obligations towards Kersten, or if there is a wellfounded fear that the contract party will fail to do so, Kersten shall be entitled to take away the goods in which it has retained title from the contract party or from the third parties who keep the goods on behalf of the contract party, or to have them taken away. The contract party shall fully cooperate with Kersten in this regard and shall in addition pay all costs involved, in default of which the contract party shall forfeit to Kersten a penalty of 10% of everything that the contract party owes, for each day that the contract party remains in default towards Kersten. In addition, the seller shall in that event be entitled to repossess the goods, without any authorisation of the buyer or of the court (or have them repossessed) from the location where they are stored. The buyer shall be obliged to ensure that the seller’s goods shall not be object of any attachment.
   4. The contract party undertakes to notify Kersten immediately if third parties wish to create or assert rights on the goods in which Kersten has retained title and to notify these third parties of Kersten’s retention of title.
   5. The contract party undertakes towards Kersten to cooperate, within reason, with all measures that Kersten wishes to take in order to protect its retention of title with respect to the goods.
   
   
   Article 16: Copyrights, Models and Designs
   1. Kersten shall at all times remain the owner of the copyrights and of the rights to accounts, models, designs, calculations, et cetera.
   2. The contract party is not allowed to use the rights mentioned in article 16.1 without the written consent of Kersten.
   
   Article 17: Incoterms
   All trade terms, expressions and abbreviations used in agreements or in correspondence related thereto are to be interpreted in accordance with the meaning given to them in the most recent ‘Incoterms’ published by the International Chamber of Commerce
   
   Article 18: Competent Court
   All disputes, including those that are only regarded as a dispute by one of the parties, shall be decided by the competent court in the Netherlands and, in the absence thereof, by the District Court in Utrecht.
   
   Article 19: Applicable law
   All agreements between Kersten and the contract party are exclusively governed by Netherlands law.