Terms and conditions of delivery and payment

GENERAL TERMS AND CONDITIONS OF DELIVERY AND PAYMENT OF:

Faes Cases BV
Chamber of Commerce Eindhoven: 61705063
Netherlands VAT (BTW): NL8544.54.512.B01

Hamelendijk 2
5541 RA Reusel
The Netherlands

Telephone number: +31 (0)497 381165

Article 1: DEFINITIONS

The following terms shall have the following meaning in these general terms and conditions, unless denoted explicitly otherwise:
Faes Cases BV: the user of the general terms and conditions, the seller, the producer, the contractor;
The opposite party: the opposite party of Faes, the purchaser, the client;

Article 2: GENERAL

1. These general terms and conditions shall apply to any and each bid, order, and agreement between Faes and the opposite party in so far as Faes has not explicitly deviated from such terms and conditions in writing;
2. The current terms and conditions shall also apply to all agreements entered into with Faes, for the performance of which Faes engages the services of third parties;
3. The applicability of possible terms and conditions of the opposite party are explicitly excluded;
4. In the event that one or more of the provisions included in these terms and conditions shall be or become null and void, then the remaining provisions of these terms and conditions shall remain applicable.

Article 3: BIDS, ORDERS AND AGREEMENTS

1. A bid made by Faes is without engagement, unless explicitly agreed upon otherwise;
2. Agreements will not become effective until the order is confirmed in writing, in any form whatsoever, or by acceptance of a bid or by the performance of the agreement by Faes;
3. In case of oral agreements the invoice is considered to represent the agreement correctly and completely, except for complaints made within 30 days from the invoice date;
4. In the event that Faes receives an order by word of mouth from the opposite party or of an employee or a representative of the opposite party for additional work during the production or activities and after such additional work has been completed, the opposite party accepts such additional work, at least does not protest against such additional work, then Faes can assume that the additional work has been carried out at the explicit request of the opposite party at prices and rates normally used by Faes;
5. In the event that a natural person concludes an agreement on behalf of or for the account of an other natural party, he shall declare – by signing the agreement – to be empowered thereto. Such person shall be mutually and severally liable with regard to any and all obligations arising from the agreement and this in addition to such other natural person;
6. Faes shall reserve the right to refuse an order without stating reasons;
7. In the event that the acceptance by the opposite party deviates from the offer made then Faes shall not be bound. The agreement shall not become effective in accordance with such deviating acceptance unless Faes states differently;
8. Prices mentioned in the bids are in Euros, exclusive of Netherlands VAT and any other government charges such as duties and taxes, as well as exclusive of storage, export, shipment and possible transport costs, unless explicitly agreed upon otherwise;
9. In the event that Faes takes care of shipment/transport of the goods bought, then this shall be done at the risk and for the account of the opposite party;
10. In the event that delivery is made cash on delivery, Faes shall always charge the opposite party with cash on delivery costs;
11. A composite quotation does not oblige Faes to carry out a party of the order against a corresponding part of the quotation;
12. Bids or offers do not apply to follow up orders.

Article 4: MODELS/PICTURES (REPRESENTATIONS)

1. Models, pictures, representations, specifications, numbers, measurements, weights or descriptions included in the catalogues/price lists/bid/advertisements are only included as indication;
2. Written and oral approval by the opposite party of composed type, printer’s, photo and film proofs and other proofs shall be considered to be acknowledgement that Faes has carried out correctly the activities preceding the completion of the proofs;
3. Any and each composed type, printer’s, photo and film proof and other proof made at the request of the opposite party shall be charged in addition to the agreed price, unless explicitly agreed that the costs of these proofs are included in such price.

Article 5: PRICE AND COSTS

1. Faes shall be allowed to charge price increases on after three (3) months, in the event that price changes with regard to i.e. social security contributions, turnover tax, rates of exchange, wages, raw materials, semi-finished products or packaging, of more than 5% occurred between the moment the bid or offer was made and the performance of the agreement/execution of the delivery;
2. Faes shall inform the opposite party of its intention to increase the price or rate in writing. In doing so Faes shall mention the extent of the increase and effective date.

Article 6: CANCELLATION

1. In the event that the opposite party, after an agreement has been concluded and before Faes has started the production of the piece of good/goods, wishes to cancel such, then 10% of the order price (exclusive of Netherlands VAT) shall be charged as cancellation costs, notwithstanding the right of Faes to complete compensation of damage including lost profit;
2. In the event that in case of cancellation the opposite party refuses to accept the goods already produced specially for the opposite party by Faes, then the opposite party shall also be under the obligation to pay to Faes any and all costs arising from this;
3. In the event that an item is (temporarily) not deliverable, then the opposite party shall be informed of such delay by Faes within one month after receipt of the order at most. Should this happen then the opposite party may cancel the order free of charge. In the event that the opposite party has already paid Faes for such item, then the opposite party shall be repaid or settlement shall take place;
4. Cancellation must be done in writing.

Article 7: SUSPENSION AND DISSOLUTION

1. Faes shall be authorized to suspend fulfilment of the obligations or to dissolve the agreement in the event that: the opposite party does not (not in time or not completely) fulfil the obligations arising from the agreement; Faes has learned of circumstances after the conclusion of the agreement on the basis of which there is good reason for fear that the opposite party shall not (not in time or not completely) fulfil the obligations – in case there is good reason for fear that the opposite party shall only perform partly or not properly, then the suspension shall only be allowed in so far as the shortcoming justifies this; the opposite party is requested at the conclusion of the agreement to grant security with regard to the fulfilment of its obligations arising from the agreement and such security is not provided or is insufficient;
2. Furthermore Faes shall be authorized to dissolve the agreement (have it dissolved), in the event that circumstances occur of such nature that performance of the agreement is impossible or according to standards of reasonableness and fairness can no longer be required or in the event that circumstances occur in any other way of such nature that unadjusted maintenance of the agreement cannot be expected in all reasonableness;
3. In the event that the agreement is dissolved, the claims of Faes on the opposite party shall be forthwith exigible. In the event that Faes suspends the fulfilment of the obligations, it shall retain its claims on the basis of the law and the current agreement. Faes shall always retain the right to claim compensation of damage.

Article 8: PERFORMANCE OF THE AGREEMENT

1. Faes shall execute the agreement to the best of its knowledge and ability and in accordance with the requirements of good workmanship. All this on the basis of the specifications agreed by the parties;
2. Faes shall determine the manner of execution of the agreement in so far as the parties have not explicitly agreed differently in writing;
3. Faes shall not be liable for damage or loss of any nature whatsoever because Faes started from incorrect and/or incomplete data and specifications provided by the opposite party;
4. The opposite party must always inform Faes of the objective for which the item is purchased, failing which Faes cannot be held liable for any damage or loss arising from the uselessness of such item;
5. In the event that and in so far as good performance requires this, Faes shall have the right to have activities carried out by third parties;
6. In the event that the opposite party has reserved for itself the execution of certain part of the work, then the opposite party shall be liable for late supply or late execution thereof;
7. The opposite party shall ensure that any and all data and consents in relation with which Faes states that these are necessary or of which the opposite party in all reasonableness must understand that these are necessary for the performance of the agreement, shall be provided to Faes in time. In the event that the data and consents necessary for the performance of the agreement have not been provided to Faes in time, then Faes shall have the right to suspend the agreement and/or to charge the opposite party with any and all additional costs arising from the delay and this against the standard rates;
8. In the event that the commencement or progress of the work is delayed because of factors the opposite party is liable for, then loss and costs arising there from for Faes must be compensated by the opposite party;
9. The opposite party shall indemnify Faes against any possible claims of third parties who suffer loss or damage in connection with the performance of the agreement when such damage is attributable to the opposite party;
10. In the event that it has been agreed that the agreement shall be executed in phases then Faes shall be allowed to suspend the execution of such parts to the next phase until the opposite party has approved the results of the preceding phase in writing.

Article 9: DELIVERY

1. Delivery of items is FCA, unless parties explicitly agree otherwise;
2. In the event that Faes delivers the items, they shall always be delivered at the last known delivery address stated to Faes by the opposite party;
3. The opposite party shall be obliged to take off respectively accept the items directly after completion unless differently agreed. When the items are available for the opposite party or have been presented for delivery to the opposite party but are not taken off by the opposite party for whatever reason, then delivery shall take place by notification to that effect in writing from Faes to the opposite party;
4. In the event that the opposite party refuses or fails to provide information or instructions necessary for delivering the items, then Faes shall be entitled to store the items for the account and risk of the opposite party. In the event that the opposite party does not take off the items within two months, Faes shall be entitled to sell the item to someone else. In case the item is insellable, Faes shall be entitled to destroy the item. Any and all damage or loss arising from sale or destruction shall be payable by the opposite party;
5. Contract orders must be taken off within the agreed terms, failing which Faes shall be entitled to deliver the undelivered part of the order in one batch and to charge the opposite party with regard to any price increases;
6. In the event that the opposite party refuses to take off the items, the claims of Faes, inclusive of costs of transport and storage, on the opposite party shall be forthwith exigible;
7. In the event that Faes needs any data of the opposite party within the scope of the performance of the agreement, the term of delivery shall commence after the opposite party has put these at the disposal of Faes;
8. In the event that Faes states a term of delivery, then this shall be indicative. So a term of delivery mentioned is never a peremptory term. The opposite party must declare Faes to be in default in writing in a case of transgression of a term and must grant him a reasonable term;
9. Faes shall be entitled to charge an advance payment. After settling the advance payment, delivery or performance shall take place by Faes unless parties agree differently.

Article 10: DELIVERY, INSPECTION AND COMPLAINTS

1. The opposite party shall be held to inspect the purchased items or the executed order at the time of delivery (have such inspected). Complaints on the delivered items must be made to Faes by the opposite party within seven (7) days in writing. The notice of default must describe the shortcoming as detailed as possible for Faes to react adequately;
2. Damage to packaging or the item must be noted on the packing note/road waybill/air bill and Faes must be informed in writing immediately. After having been informed of the complaint, Faes will deal with it forthwith;
3. In the event that the opposite party wishes to return inferior items, then this can only be done after prior consent of Faes in writing and in the manner as indicated by Faes. Return shipments must be sent carriage/postage paid, undamaged and in their original packaging;
4. Any composed type, print or writing error in catalogues, on the internet site, or in the bid can never give rise to any complaint;
5. In the event that a complaint is well-founded, Faes shall replace or adapt the deliverd item(s) unless in the meantime this has become demonstrably pointless for the opposite party. The opposite party must make the latter clear in writing. However, Faes shall only be liable within the limits denoted by the provisions included in the articles “Warranty” and “Liability”;
6. Attending to complaints leaves the ordering and payment obligations of the opposite party intact.

Article 11: TRANSFER OF RISK

1. The risk of loss or damage to the items that are the object of the agreement, shall pass on to the opposite party at the time at which these items are legal and/or actually delivered to the opposite party and with that into the powers of the opposite party or of a third party to be designated by the opposite party or at the moment that the items are ready for delivery, all this after the opposite party has been informed of this in writing;
2. In the event that Faes secures transport of the items that are the object of the agreement, this will be fully done for the account and at the risk of the opposite party. The opposite party itself shall take out a appropriate transport insurance.

Article 12: CIRCUMSTANCES BEYOND ONE’S CONTROL

1. In case of circumstances beyond its control, Faes shall have the right to dissolve the agreement. In the event that the circumstances beyond Faes’ control are only of a temporary nature, Faes shall have the right to suspend the performance of the agreement. In the event that the period of circumstances beyond Faes’ control is longer than two (2) months the parties shall be authorized to dissolve the agreement without Faes being obliged to pay any form of damages;
2. Circumstances beyond one’s control shall mean in these terms and conditions, in addition to all that is included in the law and in case law in this respect, any and all extraneous causes, foreseen or unforeseen, that Faes does not have any influence upon, but owing to which Faes is not in a position to fulfil the obligations. Stoppages of work or strikes in the enterprise of Faes, computer and electricity breakdowns, fire, theft, traffic blocks, export impediments and stagnation in the delivery of raw materials/parts by subcontractors are included;
3. In so far as Faes at the time of the commencement of such circumstances has already partly fulfilled his obligations arising from the agreement or will be able to fulfil these, and the fulfilled respectively to be fulfilled part has a value of its own, then Faes shall be entitled to invoice the already fulfilled or to be fulfilled part separately.

Article 13: WARRANTY

1. Items produced by Faes shall meet the technical demands and specifications stated by Faes;
2. Faes shall grant a warranty to the direct opposite party in relation with the quality of the items produced by Faes and this until one (1) year after delivery, unless parties have agreed a different term in writing;
3. Warranties are not granted in connection with rendered services, unless parties have agreed differently in writing;
4. Warranties can only be invoked after submission of the purchase invoice;
5. The opposite party itself must check in advance whether the item to be delivered is suitable for the purpose stated;
6. The duration of the warranty is explicitly stated on the sales invoice;
7. This warranty is limited to: manufacturing faults and so does not include damage arising from improper, negligent or inexpert use, assembly or maintenance by the opposite party or a third party; deliveries to the opposite party in the EU; to replace the purchased item;
8. This warranty shall become null and void: on the resale of the delivered parties, unless parties have explicitly agreed differently; in case of processing, changes, adjustments or repairs by a third party to or of the delivered item(s); in case of exposure to hazardous substances and too high or too low temperatures; in case of overcharging of pulling and pushing force; by not using and maintaining the delivered item(s) in conformity with the instructions for use; when using the delivered item(s) for a different purpose than the one the opposite party stated to Faes or for which it is suitable;
9. As long as the opposite party does not fulfil its obligations arising from the agreements concluded by the parties, he can not invoke this warranty provision.

Article 14: LIABILITY AND INDEMNITY

1. In the event that Faes should be liable than such liability shall be limited to what is laid down in the current provision;
2. Faes shall never be liable for: deviations, damage, faults and defects that remained unobserved in items approved by the opposite party; deviations, damage, faults and defects because of incorrect assembly, maintenance or use by the opposite party or a third party; with regard to indirect damage, including consequential damage, lost turnover and profits, missed savings and loss in case of business interruptions; damage or loss as a result of rejected raw materials, because of changes made in environmental laws after the conclusion of the agreement; unlawful, improper or unprofessional use by the opposite party or by a third party of the delivered items; for damage or loss as a result of use not in conformity with the instructions of use, environmental laws or product information;
3. In the event that Faes is liable for damage or loss, then such liability shall be limited to at most the sum of money that the insurer will pay out to Faes, at least to at most the amount claimed, at least such part of the amount claimed that such liability refers to;
4. Faes shall never be liable for damage or loss arising from advice given. Advice is always given on the ground of facts and circumstances known to Faes and in consultation, whereby the intention of the opposite party is always the leading principle and starting point for Faes;
5. Any possible claim for damages must be submitted in writing to Faes forthwith after the damage or loss arose;
6. The opposite party shall be obliged to inform its purchaser in conformity with the instruction for use and product information. The opposite party shall indemnify Faes against claims of third parties in the event that Faes is held liable for which Faes is liable because the opposite party has failed in its performance;
7. Unless differently agreed, the opposite party itself must examine in advance whether the purchased item(s) will be suitable for the purpose for which it is going to use the purchased item(s). In the event that afterwards it appears that the purchased item(s) is/are not suitable for the purpose, the opposite party cannot hold Faes liable for any damage or loss arising there from.
8. The restrictions included in these general terms and conditions as regards liability in case of damage or loss, shall not apply in the event that the damage or loss is attributable to intention or gross negligence of Faes or its employees;
9. The opposite party shall be held to ensure that – prior to the delivery of data, documents, material and/or products – the information carriers concerned are copied or duplicate files are made;
10. In the event that the opposite party provides information carriers, electronic files or software etc. to Faes, then the former shall guarantee that such information carriers, electronic files or software etc, are free of viruses and show no defects.

Article 15: INTELLECTUAL PROPERTY AND COPY RIGHTS

1. Notwithstanding the provisions included in these general terms and conditions, Faes shall retain the rights and powers that are vested in Faes on the basis of the intellectual property rights and the Netherlands Copy Right Act (Auteurswet);
2. Any and all items sold and/or produced, designs, sketches, calculations, drawings, models and brochures submitted by Faes shall be exclusively intended to be used by the opposite party and may not be multiplied, sold on, processed, changed, copied, reproduced, made public or brought to the knowledge of third parties without prior consent of Faes, unless as an effect of the nature of the sold items or submitted documents this is different;
3. Templates produced by Faes shall remain the property of Faes and shall not be returned to the opposite party;
4. The opposite party shall not be entitled to remove the name or the trade mark of Faes from the delivered item(s);
5. Faes shall also retain the right to use the knowledge increased during the execution of the activities for other purpose provided that in doing so confidential information shall not be brought to the knowledge of third parties.

Article 16: RETENTION OF TITLE

1. Any and all items delivered by Faes, whether or not manufactured or processed, shall remain the property of Faes until the opposite party has fulfilled all obligations arising from all agreements concluded with Faes;
2. The opposite party shall not be authorized to pledge the items covered by retention of title or encumber such in any other manner;
3. The opposite party shall be obliged to insure the items covered by retention of title against value when new. Any damages paid out by the insurer shall take the place of the items mentioned above and shall accrue to Faes;
4. The opposite party shall be obliged to inform Faes as quickly as reasonably can be expected in case third parties attach the items covered by retention of title or establish or assert rights on such items;
5. In case Faes wishes to exercise its property rights laid down in this article, the opposite party shall now, unconditionally and irrevocably, grant permission to Faes or to third parties to be designated by Faes to access all places where there is property of Faes and to take such items along with him/her.

Article 17: EXPORT

1. Payment of export transactions must be effected by means of an irrevocable letter of credit issued and confirmed by a Netherlands bank unless agreed differently in writing. Both trans-shipment and partial shipments shall be possible on the basis of such letter of credit. The letter of credit can be transferred by Faes;
2. The opposite party guarantees that in the event that import of items into a particular country or for a particular destination requires an import certification or permit, such import certification of import permit has been acquired or will be acquired before shipment, failing which the opposite party shall be liable for any loss or damage arising here from;
3. The customer is responsible for Export compliance and fulfilling export control regulations which are applicable in all countries in and outside the European Union.

Article 18: PAYMENT

1. Payment must be effected in cash or in advance by means of an advance on the invoice date or within eight (8) days from the invoice in a manner to be designated by Faes and in the currency in which is charged. Complaints regarding the height of the invoice do not suspend the payment obligation;
2. In the event that the opposite party remains in default as regards payment within the term agreed, then the opposite party shall be in default by operation of law. The opposite party shall then owe an interest of 1.5% per month or part thereof unless the statutory interest or the statutory commercial interest is higher, in which case the highest interest shall apply. The interest on the exigible amount will be calculated as of the moment that the opposite party is in default until the time the full amount is paid;
3. In case of liquidation, (application for) bankruptcy, admission of the opposite party to the statutory debt repayment schedule on the basis of the Netherlands Debt Repayment (Natural Persons) Act (Wet Schuldsanering Natuurlijke Personen), tutelage order, attachment or (provisional) suspension of payment of the opposite party, any claims of Faes on the opposite party shall be forthwith exigible;
4. Payments shall be deducted in the first place from costs due, then from interest due and finally deducted from the principal sum and accrued interest.

Article 19: COLLECTION COSTS

1. In the event that the opposite party is in default as regards the (timely) fulfilment of its obligations, any and all reasonable costs to obtain payment outside court shall be payable by the opposite party. In any case, the opposite party shall owe collection costs in case of a monetary claim. Collection costs shall be calculated in conformity with the collection rates as advised by the Netherlands association of Attorneys at Law in collection cases with a minimum of € 350;
2. In the event that Faes has incurred higher costs which were reasonably necessary, such shall also be eligible for compensation. Legal costs and costs resulting from enforcing a court order shall also be payable by the opposite party.

Article 20: STAFF

1. The opposite party shall not be authorized, without written consent of Faes, to enter into an employment relationship with an employee of Faes, and this during and within one year from the performance of the agreement;
2. In the event that the opposite party, without the consent of Faes, enters into a employment relationship with an employee (directly or not), the opposite party shall owe Faes a compensation of at least six (6) times the gross monthly salary of the employee on the basis of forty (40) working hours per week. In addition the opposite party shall be obliged to fulfil completely its obligations arising from the agreement existing between the parties.

Article 21: TRANSLATIONS OF THESE TERMS AND CONDITIONS

The Netherlands version of these terms and conditions is authentic by exclusion of any other.
In the event that a translation deviates in any manner, then the Netherlands text shall prevail.

Article 22: DISPUTES

Any and all disputes in connection with the agreement concluded between the parties will be decided in the first instance by the competent Netherlands court in the place where the registered office of Faes is established. Notwithstanding the previous provision, Faes shall have the right to submit the dispute to the court that is competent in accordance with the law or an Arbitration Board.

Article 23: APPLICABLE LAW

The Netherlands law shall apply to each agreement concluded between Faes and the opposite party. The Vienna Sales Convention shall be explicitly excluded.

Article 24: FILING

These terms and conditions have been filed at the office of the Chamber of Commerce and Industry for Oost-Brabant under number 61705063.