Terms and Conditions

GENERAL CONDITIONS OF SALE AND DELIVERY

of Ferm B.V., with offices at Lingenstraat 6, 8028 PM ZWOLLE,
The Netherlands.

Filed under no. 05033255 on May 2014 with the Chamber of
Commerce in Zwolle.


A. DEFINITION OF TERMS
1. Unless explicitly stated otherwise the following terms shall
have the following meanings in these general terms and
conditions:

We: Ferm B.V., with offices in Zwolle;
Buyer: the party to which we submit an offer or with which we
conclude an agreement for the delivery of goods;
Manufacturer/(sub-)supplier: a third party, being a supplier of
certain goods;
Agreement: the agreement between the Buyer and us.

B. GENERAL
1. Insofar as they are not explicitly deviated from in writing, the
general terms and conditions apply to all our offers to Buyers
and to all agreements, including related agreements and to
all other legal relationships arisen between the Buyer and
us as a result of the performance of these agreements. The
applicability of the general terms and conditions of the Buyer
is explicitly excluded.
2. Insofar as one or more stipulations of these terms and
conditions or parts thereof do not apply in the court’s opinion,
they shall be deemed to be replaced by a stipulation agreed
between the parties that comes closest to the objective
envisaged by the parties and expressed by the stipulation that
has been declared not applicable. In such an instance, the
other stipulations of these terms and conditions shall remain
in full force.
3. If these terms and conditions are provided in a language other
than the Dutch language, the Dutch version of these terms
and conditions shall prevail.

C. OFFERS AND AGREEMENTS
1. All our offers are without engagement unless agreed
otherwise in writing.
2. Catalogues, photos, pictures and drawings made available by
us or our suppliers in the framework of offers are not binding
and only provided for information purposes. They do not oblige
us to deliver in accordance with the displayed measurements,
weights or technical details and can never be considered as
a guarantee. The catalogues, photos, pictures and drawings
shall remain our property at all times and cannot be copied
nor provided to third parties or given to them for inspection
without our written permission.
3. We do not accept any liability for pictures and drawings
provided by us or our suppliers, except in the event of gross
negligence or intention. Our buyers cannot derive any rights
from any differences between the aforementioned pictures
and drawings and goods ordered as a result thereof,
irrespective of whether these deviations are the result of
errors in the drawing, construction changes in the interim
period or any other cause.
4. The Buyer shall assess whether the goods are suitable for
the purpose for which it intends to use them. We do not
guarantee that the goods are suitable for the purpose for
which the Buyer intends to use them, not even if such purpose
has been made known to us. Any advice given by us in the
framework of the delivery of the goods shall not lead to any
liability on our part.
5. The agreement is formed on the date on which our written
order confirmation is sent.
6. Each order from the Buyer is accepted on the condition
that the Buyer’s creditworthiness is proved by information
obtained. Either party can suspend the fulfilment of its
obligations if circumstances that have come to its knowledge
after the agreement has been concluded give such party
good grounds to fear that the other party will not fulfil its
obligations.

D. PRICE
1. Unless the prices are agreed as “fixed prices”, we only book
orders against the prices in force on the shipment date.
Prices are including packaging and excluding turnover tax and
other government levies.
2. We have the right to charge handling costs for all orders.
They depend on the size of the order and the country in which
the Buyer’s offices are located, respectively the destination of
the delivery.
3. If there is a period of time of at least three months between
the order and the delivery, all price increases resulting from
government levies, wage increases, exchange rate increases
or other cost price increasing factors which have come into
effect after an agreement has been concluded will be passed
on to the Buyer.

E. DELIVERY
1. Unless stipulated otherwise, delivery shall take place exwarehouse
in Zwolle in accordance with the Incoterms in force
at the time when the agreement is concluded.
2. All the goods are transported by transport means selected by
us. The transport shall be for the Buyer’s risk.
3. All charges, both current and future, that burden the
transport and/or increase the costs thereof in any other way
shall be for the Buyer’s account insofar as they relate to the
sold goods.
4. All the activities and costs of receiving the goods shall be for
the Buyer’s risk and account.
5. If the Buyer refuses to buy or is negligent with regard to
providing information or instructions required for the delivery,
the goods shall be stored for the Buyer’s risk. In such an
instance, the Buyer shall pay all the additional costs, including
at any rate storage costs.
6. We are only under an obligation to insure goods stored with
us for the Buyer against fire damage and theft in accordance
with our policy conditions. All other forms of risk, including
war risk shall be for the Buyer’s account.
7. If necessary we can deliver in parts. A partial delivery will
be considered as a separate agreement, subject to these
general terms and conditions and can therefore be invoiced
as such.
8. The communicated delivery dates are approximates and shall
never constitute a deadline. If the parties have not agreed
upon a delivery date, the Buyer shall allow us a term in writing
of at least one month to deliver the goods before the Buyer
can claim that the delivery date has been exceeded. We will
continuously try to meet a stated delivery date to the best
of our ability, but exceeding it shall never result in liability on
our part, except in the event of gross negligence or intention
on our part. Furthermore, in the event that the delivery term
is exceeded, the Buyer shall not have the right to cancel the
order or refuse to receive the goods. We have to be given the
opportunity to deliver, respectively perform properly.

F. PAYMENTS
1. The Buyer shall make all payments in compliance with the
payment terms stated on the invoice without any deduction,
suspension or settlement. In the absence of specific terms all
payments must be made within thirty days after the invoice
date in the agreed currency into a bank account indicated by
us. Unless we have stipulated otherwise, payments made by
the Buyer shall first be deducted from all the payable interest
and costs and secondly from payable invoices that have been
outstanding for the longest period of time, even if the Buyer
states that the payment concerned relates to an invoice of a
later date.
2. If the Buyer fails to pay or fails to pay in a timely manner,
the Buyer shall be in default by operation of law without any
warning and/or notice of default and judicial intervention being
required and we shall have the right to charge interest for
the overdue payment in the amount of 1 % per month as of
the day on which the payment is due, in which case the total
amount of the claims on the Buyer shall also be fully payable.
Any delay in the delivery which is not our fault and caused
as described in Article I shall not affect the defined payment
terms.
3. The stipulations mentioned under F. 1 also apply to goods
stored in our warehouses at the Buyer’s request, and to
partial deliveries.
4. Furthermore, the Buyer shall pay to us all the costs, both
in and out of court, that we incur to pay our claim. The
extrajudicial collection costs when the claim is passed on
for collection amount to 15 % of the amount concerned,
such without a maximum and a with minimum of €25.00.
The single fact that we assure ourselves of the assistance
of a third party to collect the outstanding amount proves the
amount of and the Buyer’s obligation to pay the extrajudicial
collection costs. If a petition is filed for the Buyer’s bankruptcy
in the framework of collection measures, the Buyer shall also
pay the usual costs of a bankruptcy petition in the district
concerned.
5. The circumstances mentioned under C. 2, C. 3 and K. 2
do not give the Buyer the right to refuse, reduce, set off or
suspend the reception or payment of goods or to demand any
reimbursement from us.
6. Complaints do not give the Buyer the right to refuse, reduce,
set off or suspend payment.
7. We have the right to reclaim the as yet unpaid goods
delivered under retention of title without judicial intervention
being required, irrespective of our right to claim damages in
the following cases:
a. if the Buyer fails to fulfil its obligations and has been put into
default.
b. if the Buyer is declared bankrupt, files for suspension of
payments or liquidates its company wholly or in part.
c. if the ownership of the company is changed due to the
transfer of shares or death.
d. in the event of the seizure and forced sale of the goods and/or
properties of the Buyer, such including the goods delivered by
us which have not yet been fully paid. If we exercise this right
we will set off the part of the purchase price that has already
been paid to us. In such an instance we will retain our claim
with regard to damages.

G. RETENTION OF TITLE
1. The ownership of the goods shall not be transferred to the
Buyer until the Buyer has fully fulfilled all its obligations arising
from all the agreements concluded with us with regard to the
delivery of goods.
2. The Buyer does not have the right to alienate, encumber,
pledge or otherwise bring the goods under the control of third
parties in any way as long as the ownership of the goods has
not been transferred to the Buyer.
3. As long as the retention of title is in force we shall be entitled
to be given unlimited access to the goods. The Buyer shall
fully cooperate with us and give us the opportunity to exercise
the retention of title mentioned in H. 1 by taking back the
goods including disassembling them if this is required.
4. If third parties intend to vest or exercise any right to the
goods under retention of title, the Buyer is under an obligation
to inform us thereof as soon as can be reasonably expected.
5. The Buyer undertakes to do the following at our first request:
a. insure the goods delivered under retention of title and keep
them insured against fire, explosion and water damage and
against theft and to submit the schedule of this policy for
inspection.
b. pledge all the claims of the Buyer to insurers with regard
to the goods delivered under retention of title in the manner
prescribed by Section 3, Subsection 239 of the Dutch Civil
Code (DCC).
c. mark the goods delivered under retention of title as our
property.
d. cooperate in other ways with all the reasonable measures
which we intend to take to protect our ownership rights to the
goods and which do not unreasonably impair the Buyer in the
ordinary course of the Buyer’s business.

H. COMPLAINTS
1. Complaints about immediately noticeable deviations in
comparison with the order confirmation, the delivered goods,
or the invoice must be submitted in writing within fourteen
days after the order confirmation has been received, the
delivery has taken place, or the invoice has been received.
2. The Buyer shall prove invisible defects of the delivered goods
to us in writing within seven days after their detection, though
not later than within thirty days after delivery.
3. Complaints regarding delivered goods cannot affect goods
that have been delivered at an earlier date, nor products to
be delivered at a later date, not even if such goods are or will
be delivered to carry out the same agreement.
4. If a complaint is accepted by us we will take effective
measures as we deem fit.
5. If the Buyer complains, the Buyer shall allow us to have an
expert or independent inspection body inspect the goods
concerned. If the expert declares the complaint to be founded,
the costs of the inspection shall be for our account. If not, the
costs shall be for the Buyer’s account.
6. All the goods, including those covered by the guarantee
provisions and other repair consignments can only be
returned after our explicit and written permission. The costs
of the return shipment shall be for the Buyer’s account.
Return shipments shall not affect the obligation to pay the
invoiced amounts. Reception of the return shipments shall in
no circumstances be considered as our acceptance of the
reason stated for the return shipment by the Buyer. The risk
of the returned goods shall remain with the Buyer until we
have credited the goods concerned.

I. FORCE MAJEURE
1. The term force majeure shall be taken to mean all the
circumstances that prevent the fulfilment of the agreement,
whether or not temporarily, and which cannot be attributed to
the party that invokes force majeure. The term force majeure
shall at any rate include strikes, exclusions, measures taken
by the authorities, war or siege, fire, natural disasters,
epidemics, the lack of raw materials and/or labour required
for the delivery of the goods, transport problems when the
seller transports the goods and problems when sending or
receiving messages and data electronically. Force majeure as
described above at sub-suppliers or other third parties on
which we depend shall also be considered to constitute force
majeure on our part.
2. Situations of force majeure shall be reported immediately
when they occur by the party that invokes the situation of
force majeure. If the Buyer invokes force majeure we shall
have the right to charge any extra costs, such as but not
limited to waiting hours and extra travel and accommodation
costs to the Buyer’s account. When the situation of force
majeure ends, the party that invokes force majeure shall
immediately notify the other party thereof in writing.
3. During the situation of force majeure our delivery and other
obligations will be suspended. If the period of force majeure
takes longer than six months, both parties shall have the
right to dissolve the agreement without any obligation to pay
damages.
4. If we have already partly fulfilled the agreement, either
through the production or a partial delivery of the goods, we
shall be entitled to a reasonable reimbursement of the costs
incurred for such fulfilment up to the point in time when the
situation of force majeure occurred.

J. GUARANTEE
1. We give no other guarantee than specifically described in the
agreement or in these general terms and conditions. This
guarantee shall only apply with regard to the Buyer.
2. We guarantee the proper functioning of goods of our own
brand “Ferm” for a period of three years and of the other
brands for a period of two years, or as agreed otherwise.
The guarantee period shall commence as of the delivery
mentioned in Article E. 1.
3. The Buyer does not have the right to give any guarantees on
our behalf for the delivered goods and we do not accept any
liability for guarantees given by the Buyer to third parties.
4. We will repair defects covered by the guarantee without
charge, in our discretion, by repairing or replacing the
faulty goods either at the Buyer’s premises or by delivery in
compliance with the agreed INCOTERM of the goods to be
replaced, all this always at our discretion.
5. The labour costs arising from and related to the repair of
a defect shall be for our account only to the extent that the
manufacturer of the goods concerned reimburses them and
under the condition that the working hours are in accordance
with the time determined for this by the manufacturer.
6. All the activities carried out under our guarantee provisions
shall, in principle, only take place during normal working
hours. If, because of the Buyer’s doing, the activities have to
be carried out outside normal working hours, the additional
costs shall be for the Buyer’s account.
7. If we are not given sufficient opportunity to repair a defect, all
the costs arising from this shall be for the Buyer’s account.
8. All the costs that exceed the obligation described in the
previous articles, such as, though not limited to transport
costs, travel and accommodation costs, labour costs,
disassembly and reassembly costs, shall be for the Buyer’s
risk and account.
9. All the documents related to replacement or repair activities
carried out as activities covered by the guarantee, including
activities carried out by others than the seller shall be
submitted to us by the Buyer at its request. We will provide
the Buyer with guarantees for replacement parts at the
Buyer’s request.
10. We do not accept any liability for defects caused by normal
wear and tear and for consumable parts or defects caused
by the wrong use of the goods and/or use in violation of the
operation and maintenance instructions. Neither does the
guarantee apply if it appears that the delivered goods have
not been assembled in compliance with the instructions given
when the goods were taken into use and/or if the goods have
not been taken into use in compliance with the instructions
for their taking into use or the assembly instructions.
11. The guarantee shall not apply if the Buyer or any third
parties have adapted the delivered goods without our written
permission.
12. If the Buyer fails to fulfil any obligation arising from the
agreement concluded with us, or fails to fulfil such obligation
properly or in a timely manner, we shall not be bound to any
guarantee whatsoever. If the Buyer disassembles, repairs or
carries out other activities on the delivered goods without
our prior written permission, all claims pursuant to the
guarantee shall be cancelled.
13. If we replace goods to fulfil our guarantee obligation, the
replaced goods shall become our property and shall be made
available to us at the time when they are replaced.

K. LIABILITY
1. After delivery our liability shall be limited to the guarantee
obligations in accordance with Article J at the most. Unless
there is gross negligence or intention on our part we shall not
be liable for any damage arising from the delivered goods.
Furthermore, we are never liable for consequential damages,
including ensuing damage, lost profits, lost savings and
damage due to business stagnation.
2. We do not accept any liability for any errors or defects in any
sense of the word if the activities or goods, to which those
errors or defects are applicable, no consideration is due.
3. If the Buyer dissolves the agreement wholly or in part as a
consequence of gross negligence or intention on our part, we
shall not be bound to pay more than a reimbursement for a
replacement performance up to the contractual value of the
unfulfilled respectively dissolved part of the agreement.
4. Insofar as liability is not excluded and without prejudice to
the stipulations regarding this article K.1 to K.3, our liability
for damage shall each time be limited to a maximum of 50%
of the amount of the order or up to a maximum amount of
€5,000.00, if this amount is lower than the former maximum
amount.
5. The liability arrangement of these general terms and
conditions shall also apply to goods that we purchase from
third parties and deliver on to the Buyer unprocessed, unless
we have to accept further limitations from the manufacturer.
In the latter case the enclosed specific terms and conditions
of the manufacturer shall apply.
6. Damage claims shall be cancelled if the Buyer fails to notify
us and hold us liable in writing, stating all the relevant
data, within 1 month after the facts have occurred that can
constitute grounds to claim damages. If the Buyer has notified
and held us liable us with due observance of the stipulations
of the previous sentence, the damage claim shall also be
cancelled if the Buyer fails to institute a claim against us
with the competent institution within six months after the
notification.
7. The limitation of liability of these general terms and conditions
shall also be deemed to be imposed for the benefit of third
parties engaged by us for the delivery of the goods.

L. INDEMNIFICATION
The Buyer shall indemnify us against all claims of employees or
representatives of the Buyer or third parties for any injury or
other damage which is the direct or indirect result of the use
or application by, of or on behalf of us of the goods and designs,
advice studies or other services delivered to the Buyer.

M. INTELLECTUAL PROPERTY
1. We reserve all rights with regard to the industrial and
intellectual property of our goods. The term goods shall be
taken to include: offers, designs, pictures, drawings (test)
models, software etc. The copyrights and the industrial and
intellectual property rights to the goods mentioned above
shall remain our property irrespective of whether costs for
the production thereof have been charged to the Buyer’s
account. These goods as described above, cannot be copied,
used or shown to third parties without our explicit permission.
In the event of a violation of these obligations the Buyer shall
forfeit a penalty of €5,000.00 per violation and per day that
the violation continues, without prejudice to our right to claim
full damages. The Buyer shall return the goods as described
above within the term specified by us. The costs thereof shall
be for the Buyer’s account.
2. The Buyer shall not modify the delivered goods partly or in
whole or to provide them with a different brand name or
packaging, or use the brand concerned in any other way and/
or register it in its own name.

N. APPLICABLE LAW AND DISPUTES
1. These general terms and conditions and all our offers, and
agreements concluded between us and the Buyer, and/or
agreements ensuing therefrom, shall be governed by Dutch
law, excluding the United Nations Convention on Contracts for
the International Sale of Goods (CISG) of 11 April 1980.
2. Any disputes arising from the present agreement and/or
further agreements ensuing from this agreement, which
cannot be settled in mutual consultation, shall be submitted
to the competent court of the district in which our registered
office is located, without prejudice to our right to settle the
dispute in accordance with the Rules and Regulations of the
Netherlands Arbitration Institute (NAI) in Rotterdam.