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General terms of sale and delivery

for Perla AluCast B.V. based in Delft, Chamber of Commerce 59640707

1 Applicability
1.1 These general terms of sale (hereafter referred to as: “General terms”) apply to all agreements reached between Perla AluCast B.V. (“Seller”) and buyer (see below under 1.2), such as order for delivery and/or manufacture of items and/or the provision of services or performance of activities, as well as the execution thereof.
1.2 In these General terms, the “buyer” will mean: any (legal) entity that has placed or who wishes to place an order with the Seller (hereafter: “Buyer”).
1.3 The general terms of the Buyer do not apply and they are hereby explicitly rejected.

2 Agreements
2.1 All offers are made entirely without obligation, unless another explicit agreement has been reached.
2.2 All orders will only be created after they have been confirmed in writing by the Seller to the Buyer.
2.3 In the event of a discrepancy between the contents of an order between the Seller and the Buyer and these General terms, then the stipulations from the order apply, provided that this order has been confirmed in writing by the Seller.
2.4 If the Buyer furnishes the Seller with data, samples, numbers (number per order and/or per year), weight for products, drawings, specifications, etc., then the Seller may assume that these details are correct and the Seller will base the quotation on these details.

3 Changes to the orders
3.1 If the Buyer demands changes to the implementation of an order after the order has been confirmed, then these must be approved by the Seller in a timely manner and in writing.
3.2 The Seller retains the right to change the agreed price based on the changes to the order.
3.3 Changes to an order that has already been confirmed can result in the Seller exceeding the agreed delivery time. The Seller is not liable for such overruns.

4 Execution of the orders
4.1 The Seller will attempt to execute the order to the best of his ability.
4.2 The Seller determines the manner in which an activity should be carried out.
4.3 The Seller can outsource the order or parts thereof to a third party or to have the order completed by a third party not employed by the Seller, without requiring permission from the Buyer.

5 Moulds and product-specific tools (hereafter referred to as: ”Tools”)
5.1 The Tools required in the production will become the complete and inalienable property of the Buyer, as soon as full payment thereof has been received by the Seller. The Tools will be used exclusively for the production of the Buyer. The Tools will be clearly marked and registered as the Buyer’s property.
5.2 The Buyer has the right to recall the Tools that form part of his property at any time. All costs, including but not limited to the transportation and/or shipping costs, packaging costs, taxes, clearance charges and import/export duties, are entirely at the expense of the Buyer. The Seller will send the Buyer an invoice for this, which must be paid by the Buyer prior to shipment of the Tools.
5.3 The Tools will be returned in the normal state of wear-and-tear and ageing at the time of delivery by the Seller.
5.4 The Buyer must first have paid all outstanding receivables of the Seller before the Tools – following a request from the Buyer – will be returned to the Buyer.
5.5 A minimum guaranteed production number will be stated on the quotation for each tool. All costs for maintenance, repairs and/or replacement of the Tool within the set minimum guaranteed production number will be covered by the Seller.
5.6 The Tools will be listed as a separate item. A separate agreement will also be made for the payment of the Tools. A separate agreement will also be made regarding the delivery time of the Tools. Any breach of the agreed delivery time shall never result in entitlement to repayment of the down-payment for the Tool or to compensation.
5.7 The Seller will store the Tools free of charge for a period of 2 years after the last production delivery. After this period, both parties will consult on this matter. The following options exist, to be determined by the Buyer: a) the Buyer will have to pay storage costs for the Tools in question, b) the Seller will destroy the Tools or c) the Tools will be offered to the Buyer under the conditions stipulated in article 5.2, 5.3 and 5.4 of these General terms.

6 Increased or decreased workload (production numbers)
6.1 The Seller is entitled to deviate from the production numbers as agreed in the order without consulting with the Seller, provided that this number does not deviate more or less than 5 % from the original agreed production number. The relevant invoice will correspond to the delivered number of items.
6.2 If the production numbers deviate more than 5 % from the original agreed production number, then Buyer and Seller consult about the measures that need to be implemented.

7 Prices and payment
7.1 The Seller’s prices are “ex works” Netherlands, in accordance with Incoterms 2000. The prices exclude value added tax.
7.2 All payment conditions will be specified in more detail in the Seller’s quotation.
7.3 If payment is not made before the agreed deadline, the Buyer has legally defaulted and interest will be owed on the outstanding amount at the statutory commercial interest rate as stipulated in art.6:119 a BW.
7.4 Immediate payment in full can be demanded immediately if;
a. a payment deadline is missed;
b. Buyer goes bankrupt or applies for a suspension of payment;
c. if the Buyer’s property or claims are seized;
d. The Buyer is disbanded or liquidated.
7.5 If the Seller is compelled to relinquish an unpaid invoice to a third party (lawyer, bailiff, debt collection agency, etc), then the Seller is entitled to charge the Buyer compensation for the costs incurred of at least 15 % of the gross invoice value, including the statutory commercial interest rate listed in article 7.4 (with a minimum value of € 250).
7.6 Parties may not be entitled to set off any claims, whether or not such claims are due and payable, against claims that a Party has against the other Party.

8 Delivery
8.1 The delivery time will only come into effect once agreement has been reached on all commercial and technical details, all essential data, definitively approved drawings, etc. are in the possession of the Seller, the agreed (periodic) payment has been received and the necessary conditions for the execution of the order have been met.
8.2 Any breach of the agreed delivery time can never result in a claim for damages, unless both parties have agreed on this in writing.
8.3 Part deliveries are permitted.
8.4 Delivery takes place ex works Netherlands, in accordance with Incoterms 2000.
8.5 Regardless of the previous section, the Seller and Buyer can agree that the Seller will arrange the transportation. In such cases, the risks of storage, loading, transportation and unloading will rest with the Buyer. The Buyer can take out insurance to cover these risks.

9 Impracticability of the order
9.1 The Seller has the right to suspend fulfilment of his obligations if circumstances that could not have been foreseen when concluding the order and that are beyond his control cause him to be temporarily unable to meet his obligations.
9.2 Conditions that could not be foreseen by the Seller and that are beyond his control include, but are not limited to, the circumstance where suppliers and/or sub-contractors of the Seller do not meet their obligations (in a timely manner), weather conditions, earthquakes, fire, loss or theft of tools, the loss of the materials that require processing, road blocks, strikes or walkouts and importation or trade restrictions or force majeure as defined in article 17 of these General terms.

10 Complaints
10.1 If the Buyer fails to lodge a complaint with the Seller in writing no later than 14 working days after receipt of the goods or no later than 14 working days after the Buyer has discovered the defect, or could reasonably have been expected to discover the defect, the Buyer can no longer plead a defect in the goods delivered.
10.2 If the complaint/defect is justified, the Seller will ensure – at his discretion – replacement of the goods or compensation for the payment made minus the costs incurred.
10.3 Returning delivered goods is only possible after prior written consent from the Seller, subject to conditions to be set by the Seller.
10.4 Any goods for sale or services offered, once offered to the Buyer, that are not accepted by the Buyer for reasons that are not the Seller’s liability will be available to the Buyer for a period of 2 weeks. During this period, these items will be stored at the Buyers expense and risk. After the abovementioned period, the Seller is entitled – at the Seller’s discretion – to demand compliance with the order, or to terminate the agreement partially or in full through annulment or cancellation without legal intervention being required and without prejudice to the Seller’s right to demand compensation from the Buyer.

11 Furnishing of security
11.1 The Seller is always entitled to demand sufficient security from the Buyer to guarantee compliance with payment before starting or continuing activities and before starting or continuing with deliveries.
11.2 If the security demanded is not or insufficiently provided, the Seller has the right to dissolve the order partially or completely, without legal intervention and take back the part that has already been delivered and not yet processed, without prejudice to Seller’s rights to payment of what is owed on the basis of the services that have been offered, the projects that have been delivered and costs that have been incurred.

12 Right of retention
12.1 The Seller is entitled to retain goods that the Seller has in his possession on behalf of the Buyer until all costs incurred by the Seller in the execution of the order on behalf of aforementioned Buyer have been paid, regardless of whether these orders relate to the aforementioned or other matters for the Buyer, unless the Buyer has provided sufficient guarantee of payment for these costs.

13 Retention of title
13.1 All items delivered or to be delivered by the Seller will remain the Seller’s property as long as the Buyer has not paid the invoice relating to the goods delivered or to be delivered, as well as any claims due to failure to comply with the order (including the interest owed and extra-judicial costs).
13.2 As long as the title for the goods delivered or to be delivered rests with the Seller, as stipulated in the section under article 13.1, the Buyer – other than in the normal course of his business – is not entitled to sell, encumber, rent or pawn the goods to third parties or make them available to a third party under any other name.
13.3 Any infringement of the stipulations under 13.2 will result in the Buyer owing an immediately payable penalty to the Seller to the value of 1½ times the net invoice value for the items in question, without prejudice to the Seller’s right to claim additional compensation.
13.4 Once the Seller has invoked his retention of title, he is permitted to reclaim the delivered goods. The Buyer will allow the Seller to enter the property where these items are located.

14 Intellectual property rights
14.1 Both parties retain their own intellectual property rights on the offers that they make and the designs, drawings and models that they supply.
14.2 All established intellectual property rights regarding designs, images, descriptions, drawings, models, programmes, etc. (copyright, design rights, etc.) must be observed by both parties.
14.3 Both parties guarantee that the goods and services to be delivered by them and the use thereof do not infringe the rights of third parties, including copyright, patent rights, brand rights, drawing and design rights. The relevant party indemnifies the other party from all third party claims and will reimburse the full damages incurred by the other party or the consumer as a result of the infringement.

15 Liability and indemnity
15.1 The Seller guarantees that all goods and services delivered to the Buyer comply with the drawings and specifications submitted by the Buyer.
15.2 The Buyer indemnifies the Seller, or third party contracted by the Seller, from all claims by third parties resulting from the applications or the use of the produced product.
15.3 Except for mandatory legislative provisions regarding (product) liability, as well as in compliance with the rule of law concerning public order and good faith, the Seller is not obliged to offer any compensation for damages of any nature – direct or indirect – including loss of business (including stagnation damage and loss of profit), to movable or immovable property, or to individuals of the Buyer.
15.4 The Seller is not liable for any damage, of any kind whatsoever, that is caused as a result of the Seller acting or refraining from acting on the basis of incorrect and/or incomplete information provided by the Buyer. The Seller will never be responsible for direct or indirect, material or immaterial damage to the Buyer and/or third parties that occurs as a result of incorrect use of the product by the Buyer and/or third parties.
15.5 The Seller’s liability in any case does not extend beyond the amount for which it is insured, or – if no insurance policy has been taken out for this matter – to the amount of 1 times the net invoice value of the relevant order.
15.6 The Seller is not liable for any damage as a result of a breach in a delivery deadline.
15.7 The Buyer indemnifies the Seller from all claims by third parties with regard to activities performed by the Seller and/or items delivered, which may have resulted in damages for the third party, regardless of the cause or the time at which this damage was incurred.

16 Termination
16.1 Except for indefinite orders, all other orders will terminate upon their completion or at a time determined by the parties or by common convention.
16.2 Termination of indefinite orders should be submitted in writing by registered mail and must observe the notice period of at least 3 months.

17 Force majeure
17.1 The Seller cannot be held liable for failure to execute orders granted to the Seller completely, correctly or in a timely manner as a consequence of force majeure in the broadest sense of the term. Force majeure includes, but is not limited to: severe malfunctions in the production process and otherwise, war, riots, epidemics, natural disasters, fire and other calamities, transportation problems, strikes, lockouts, government measures, insofar as these have direct consequences on the correct execution of the order.
17.2 The Seller will inform the Buyer immediately if one of the conditions listed under 17.1 occurs.
17.3 In the event of an ongoing situation of force majeure, following receipt of the notification under 17.2, the as yet uncompleted part of the order will be deemed annulled, under the obligation that the Buyer will be obliged to purchase the completed part of the order from the Seller and reimburse the Seller for this part. The same applies when fulfilment by the Seller is only temporarily impossible, yet is expected to last longer than twice the agreed delivery period.
17.4 During the situation of force majeure, the Seller is not obliged to compensate any damages to or incurred by the Buyer, nor is the Seller obliged to do so upon termination of the order as in section 17.3 of this article.

18 Annulment of the order
18.1 The Seller is entitled to suspend fulfilment of the obligation, or to annul the agreement without prior notification by means of a written declaration, without prejudice to the Seller’s right to claim damages, for reasons including:
a. The Buyer fails to meet one of these obligations (correctly); there is a situation of force majeure as defined in article 17 of these General terms;
b. The Buyer applies for a suspension of payment;
c. The Buyer is in a state of bankruptcy; the Buyer’s company is being liquidated;
d. the relevant authorities refuse to grant any required import and/or export licenses for the goods to be delivered.
e. circumstances that have come to the Seller’s attention after conclusion of the Agreement that provide good grounds for fearing that the Buyer will not comply with its obligations.
18.2 All claims that the Seller may have, or acquire, under such circumstances shall be payable immediately on the date of occurrence.

19 Confidentiality
19.1 Parties are obliged to treat facts and circumstances, which come to the other party’s attention as part of the order, as confidential. Third parties who are involved in the execution of the order will be obliged to maintain the same confidentiality with regard to these facts and circumstances derived from the other party.

20 Statute of limitations
20.1 With the exceptions of the provisions of mandatory law, all claims of the other party pursuant to the Agreement will reach the statute of limitations after one year, to be calculated from the day on which the goods were delivered or should have been delivered, or the day on which the activities were completed or should have been completed.

21 Applicable law
21.1 Dutch Law is applicable to all orders to which these General terms are fully or partially applicable.
21.2 The Dutch Court in The Hague is the only body competent to rule on any disputes between the parties, arising as a result of these orders, of subsequent agreements and/or of these General terms.
21.3 The United Nations Convention on Contracts for the International Sale of Goods is not applicable.
21.4 Parties can agree on another form of dispute resolution, such as arbitration or mediation.

22 Final provisions
22.1 If one or more of the provisions contained in these General terms are null and void or are declared null and void, the remaining provisions contained in these General terms will continue to apply in full, in which case, both parties will consult in order to agree on new provisions to replace the provisions that are or that have been declared null and void, in which –
22.2 If the Seller does not demand strict compliance with these General terms – this does not imply that these General terms are not applicable or that the other party loses the right to demand strict compliance with these General terms in future cases, whether these cases are similar or not.

These General terms of sale and delivery are filed with the Chamber of Commerce.

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