General Terms and Conditions

of Keyser & Mackay

1. These general terms and conditions (T&C’s) are applicable to all offer (an Offer) made by and all current and future agreements (an Agreement) with or (legal) acts performed by Keyser & Mackay C.V. (K&M), a limited partnership (Commanditaire Vennootschap) organized under the laws of the Netherlands and all of its group companies, having its registered seat and office address in (1017 NA) Amsterdam, the Netherlands at Leidsegracht 19, and registered in the Trade Register of the Dutch Chamber of Commerce under number 33056519 and all of K&M’s group companies.
2. All products sold or otherwise provided (the Goods) or services provided by K&M are sold or provided on the basis of these T&C’s. The applicability of other (purchase) terms and conditions, such as those of K&M’s opposite party (Buyer), is expressly rejected.

Offers

3. Offers are open for acceptance within the period stated by K&M in the Offer or, when no period is stated, within thirty (30) days from the date of the Offer, provided that any Offer may be withdrawn or revoked by K&M at any time.
4. An order by Buyer shall only be regarded as having been accepted by K&M following written confirmation by K&M.
5. All Offers are subject to price changes.

Prices and Payment

6. The price for the Goods will be the price quoted by K&M or in the absence of such quote K&M’s current pricelist. The prices quoted by K&M are exclusive of value added tax and any other tax, import duty or charges that may apply to the Goods. All prices are based on at the time of the conclusion of the Agreement applicable monetary ratios of domestic and foreign currencies.
7. The payment term is 30 days after the invoice date. Buyer waives all rights to invoke suspension or set-off. In the event of failure to pay within this term, Buyer shall be in default without any notice of default or reminder being required and Buyer shall be obliged to pay over the outstanding amount a monthly interest of 1.5% or the highest interest rate permitted by applicable law whichever is lower.
8. Buyer will pay for the quantity delivered and may not reject any delivery of Goods on the ground of variation of quantity if such variation is not more than 10% of the quantity ordered.

Delivery and Transportation

9. Unless a different method of delivery has been agreed by K&M, delivery will take place Ex Works in accordance the most recent version of the Incoterms as published by the International Chamber of Commerce, without prejudice to Article 14.
10. The agreed delivery time is only an estimation, meaning it is not a deadline and K&M is entitled to deliver around the agreed delivery time.
11. If delivery takes place into trucks, containers and/or other equipment (Transportation) of Buyer, the Transportation must be in ready-to-use condition at the supplying factory. Transportation, owned by or made available by K&M, must be returned in ready-to-use condition within 24 hours after arrival at the place of delivery. For later returns rent may be charged by K&M (rent depends on the type or capacity).
12. Packaging, loading and/or filling of the Goods into Transportation takes place entirely under Buyer’s responsibility even if this is done by K&M. K&M is authorized to refuse delivery of the Goods if the Transportation provided by Buyer, in K&M’s opinion, does not meet the safety requirements. K&M is not liable for the consequences arising from the delay in the event of such refusal.

Third Parties

13. K&M shall be entitled to (partially) use third party goods and services for the execution of the Agreement. K&M is not liable for damages arising out of any (partial) third party goods or acts or omissions of third parties.

Title, Risk and Liability

14. The risk of the Goods shall pass to Buyer upon delivery. Legal title to the Goods shall remain with K&M until K&M has received payment in full.
15. Until legal title to the Goods passes to Buyer, Buyer only holds the Goods for K&M and Buyer shall:
a. keep the Goods separately stored, properly protected, insured for their replacement value, free from any charge, lien or encumbrance and clearly identified as K&M’s property;
b. not destroy, deface or obscure any identifying mark or packaging on or relating to the Goods;
c. maintain the Goods in satisfactory condition; and
d. notify K&M immediately upon the happening of any of the termination events set out in Article 22.
Buyer may however sell the Goods in its ordinary course of business.
16. K&M’s total liability in connection with an attributable failure in the performance the Agreement, wrongful act or any legal ground whatsoever is (cumulatively) limited to the amount paid out in the relevant matter under the liability insurance of K&M. If, for any reason, no payment is made under the insurance, each instance of liability is limited to EUR 50,000 or the invoiced amount of the Goods concerned whichever amount is lower.
17. In no event will K&M be liable for any consequential, immaterial and punitive damage, loss of business profits, business interruption or other indirect damage.
18. Every claim against K&M becomes time barred 12 months after the damaged party was aware of or should have been aware of the harmful event.

Force Majeure

19. Force Majeure is understood to mean the following: all circumstances, unforeseen or occurring beyond the reasonable control of K&M, which prevents, hinders or delays K&M from complying with the Agreement and/or supplying the Goods. If a Force Majeure event affects K&M, K&M will inform Buyer as soon as reasonably practicable.
20. If, in K&M’s opinion, the Force Majeure event will be of a temporary nature, K&M has the right to suspend the Agreement or the supply of the Goods until the Force Majeure is no longer in effect. If, in K&M’s opinion, the Force Majeure is of a permanent nature, K&M may terminate the Agreement without any liability to Buyer.
21. K&M has the right to claim payment under the Agreement including any deliveries made prior to the occurrence of the Force Majeure event upon any suspension or termination which is due to a Force Majeure event.

Suspension or Termination

22. K&M may:
i. stop any Goods in transit;
ii. suspend further deliveries to Buyer; and/or
iii. terminate the Agreement with immediate effect by written notice to Buyer,
on or at any time after the occurrence of any of the following events:
b. Buyer being in breach of an obligation under the Agreement with K&M;
c. Buyer passing a resolution for its winding up or a court of competent jurisdiction making an order for Buyer’s winding up or dissolution, or the making of an administrative order in relation to Buyer or the appointment of a receiver over, or an encumbrancer taking possession of or selling, an asset of Buyer;
d. Buyer making an arrangement or composition with its creditors generally or making an application to a court of competent jurisdiction for protection from its creditors generally;
e. a significant change of control or change in ownership in respect of Buyer; or
f. Buyer becoming unable to pay its debts when they fall due.
23. Upon termination of the Agreement any indebtedness of Buyer to K&M becomes immediately due and payable and K&M is relieved of any further obligation to supply Goods to Buyer.

Miscellaneous

24. Buyer is not allowed to assign any rights and obligations under the Agreement without prior consent other K&M. K&M may assign its payments claims on Buyer for the purpose of collecting payment, and Buyer already consents with such assignment.
25. The Agreement and any further legal relationship with K&M are governed by Dutch law, with the exception of the United Nations Convention on Contracts for the International Sale of Goods (CISG).
26. All disputes arising out of or in connection with this Agreement will be resolved by the Amsterdam District Court following proceedings in English before the Chamber for International Commercial Matters (Netherlands Commercial Court or NCC). An action for interim measures, including protective measures, available under Dutch law may be brought in the NCC’s Court in Summary Proceedings in proceedings in English.

Filed with the Dutch Chamber of Commerce under number 33056519
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