GENERAL TERMS AND CONDITIONS OF NAAKTGEBOREN ROTTERDAM B.V. Purchase Article 1 – GENERAL 1.1 These general terms and conditions apply to all quotations, offers, orders and agreements between Naaktgeboren Rotterdam B.V. (hereinafter referred to as: Naaktgeboren) and the counterparty. By accepting an offer or agreement or by placing an order, the counterparty accepts the applicability of these terms and conditions, also after the termination of an agreement. All rights and entitlements, such as those stipulated in these terms and conditions and any further agreements for the benefit of Naaktgeboren, are likewise stipulated for intermediaries and third parties engaged by Naaktgeboren. 1.2 The provisions in these Terms and Conditions may only be derogated from in writing, in which case the other provisions remain in full force. References by the counterparty to any general terms and conditions are explicitly rejected. 1.3 If provisions from these General Terms and Conditions turn out to be void or are declared void, the rest of the General Terms and Conditions will remain fully valid. In that case, the parties will consult each other in order to agree upon new provisions to replace the null and void or nullified provisions, with the objective and purport of the original provisions being duly observed as much as possible. 1.4 In the event of uncertainty regarding the interpretation of one or more provisions or in the event of a situation arising not provided for by these general terms and conditions, such a lacuna must be assessed or arranged in the spirit of these general terms and conditions. 1.5 If Naaktgeboren at any time does not require strict compliance with these terms and conditions, this will not mean that the provisions detailed therein do not apply, or that Naaktgeboren would lose its right to any degree to require strict compliance with the general terms and conditions in other cases. Article 2 – OFFERS AND QUOTATIONS 2.1 Every quotation, offer or delivery is unrelated to any other. No rights may be derived with regard to other offers, follow-up deliveries and repeat orders. 2.2 Naaktgeboren is not obliged to abide by its offers or quotations, if it is reasonably understandable for the counterparty that the offers or quotations, or parts thereof, contain an apparent error or mistake. 2.3 If the acceptance (on a matter of detail or otherwise) differs from the offer detailed in the offer or quotation, Naaktgeboren will not be bound thereto. The agreement will in that case not be formed in accordance with this varying acceptance, unless Naaktgeboren indicates otherwise. 2.4 A compound price quotation does not oblige Naaktgeboren to perform part of the engagement for a proportional part of the quoted price. Article 3 – COSTS AND PAYMENT 3.1 All prices and amounts used by Naaktgeboren are given in euros, unless specified otherwise, excluding turnover tax (VAT), excluding costs and/or government levies, excluding costs of transport and insurance, and are valid for no more than one month after their date. 3.2 The costs of return, for whatever reason, are for the account of the counterparty. 3.3 The counterparty effects the payments owed to Naaktgeboren without discount or claim for set-off, except in the case of the set-off against advances that it has paid Naaktgeboren with respect to the payment concerned. 3.4 Payment must be effected without discount or compensation in accordance with the agreements in the order confirmation. Delivery is subject to payment having been made in full. Invoices are to be paid on delivery, unless otherwise agreed. 3.5 If the payment term is exceeded, the counterparty will owe interest on the invoice amount, which interest will equal the statutory commercial interest rate as referred to in Section 6:119 of the Dutch Civil Code. 3.6 All work performed by Naaktgeboren under an agreement but which is not specified in the order confirmation automatically counts as additional work, the costs of which will be charged to the counterparty. If possible, the counterparty will be informed of the additional work beforehand in writing or orally. 3.7 If a counterparty cancels an agreement entered into with Naaktgeboren before Naaktgeboren has started execution of this agreement, that counterparty will owe cancellation costs equal to 15% of the agreed order amount. Cancellation of the agreement is no longer possible if Naaktgeboren has already started execution of the agreement. 3.8 All costs, both judicial and extra-judicial, which are incurred in collecting any claim are for the account of the counterparty. 3.9 The counterparty is obliged to provide security immediately on Naaktgeboren’s demand for the full performance of its obligations with respect to the agreements performed or the agreements that are yet to be performed either fully or in part by Naaktgeboren, which security is to be provided in any form desired by Naaktgeboren. Failure on the part of the counterparty to comply with the foregoing will result in all of the counterparty’s obligations becoming immediately payable. 3.10 Naaktgeboren is entitled to use any payments made by the counterparty firstly to defray the costs, subsequently to pay the interest due and finally to pay the principal sum and accrued interest. 3.11 The counterparty is under no circumstances entitled to set off and/or compensate amounts it owes Naaktgeboren. 3.12 The payment obligation will not be suspended in the event an objection is lodged against the invoice amount. The counterparty that is not entitled to invoke Chapter 6.5.3 of the Dutch Civil Code is also not entitled to suspend payment of an invoice for any other reason. Article 4 – EXECUTION AND AMENDMENT OF THE AGREEMENT 4.1 Naaktgeboren reserves the right to have certain work carried out by third parties. 4.2 Naaktgeboren is entitled to execute the agreement in different phases and to invoice any parts thus completed separately. 4.3 If the agreement is executed in different phases, Naaktgeboren will be entitled to suspend the execution of those parts which are part of a following phase, until the counterparty has approved the results of the preceding phase in writing. 4.4 The parties will consult with one another in the event changes occur in the basic principles or other circumstances that relate directly to the engagement or in the event Naaktgeboren needs to perform additional work to guarantee the careful execution of the engagement. 4.5 Circumstances which result in the need to consult, as referred to in the previous paragraph, include in any event: changes to government or other regulations or rulings; changes to the schedule of requirements of the original engagement; changes desired by the counterparty to or variations of work that has already been approved or is part of a phase that has already been approved; and additional work that turns out to be necessary during the execution of the engagement by Naaktgeboren. 4.6 The counterparty will accept the possibility of changes made to the agreement, including those in price and term of the execution. If the agreement is changed, including any supplements, Naaktgeboren will be entitled to execute this subject to approval by the persons authorised to that effect in Naaktgeboren’s organisation and the agreement of the counterparty to the price quoted for the execution and the changed conditions, including the time, to be determined at that time, at which the execution is to be carried out. Naaktgeboren will not be in breach of contract if the changed agreement is not executed or not executed immediately, and neither does such constitute a reason for the counterparty to terminate the agreement. 4.7 If Naaktgeboren and the counterparty have agreed a price, Naaktgeboren is nevertheless entitled to increase this price, without the counterparty in that case being entitled to dissolve the agreement for that reason, if the increase arises from a legal or regulatory authority or obligation, is caused by a rise in prices for raw materials, salaries, etc., or is due to any other reason which could not reasonably be foreseen at the time the agreement was concluded. Article 5 – TERMINATION, SUSPENSION AND DISSOLUTION 5.1 Naaktgeboren is entitled to suspend the fulfilment of its obligations or to dissolve the agreement, if: – the counterparty fails to fulfil its obligations under the agreement or fails to do so in time or in full; – after concluding the agreement, circumstances of which Naaktgeboren has become aware give Naaktgeboren good reason to fear that the counterparty will not fulfil its obligations; – upon entering into the agreement, the counterparty was requested to provide security for fulfilment of its obligations under the agreement and such security has not been provided or proves to be insufficient. 5.2 If due to the delay on the part of the counterparty, Naaktgeboren can no longer be required to execute the agreement under the conditions as agreed originally, Naaktgeboren will be entitled to dissolve the agreement, after the counterparty has been given proper notice of default if necessary. 5.3 Naaktgeboren will furthermore be entitled to dissolve the agreement in the event of circumstances the nature of which prevent execution of the agreement, or any other circumstances as a result of which Naaktgeboren cannot reasonably be expected to execute the agreement without changes being made to it. 5.4 Any claims of Naaktgeboren against the counterparty will become immediately due and payable upon dissolution of the agreement. 5.5 Naaktgeboren’s suspension of the fulfilment of its obligations does not affect its statutory rights or any entitlements under the agreement. 5.6 If Naaktgeboren proceeds to suspend or dissolve the agreement, it will be in no way liable to compensate the counterparty for any resulting damage or costs. 5.7 If the agreement is terminated by Naaktgeboren prematurely, Naaktgeboren, in consultation with the counterparty, will arrange for any outstanding work to be transferred to third parties. The foregoing does not apply if the termination is attributable to a shortcoming on the part of the counterparty. If Naaktgeboren incurs additional costs as a result of any work being transferred, the counterparty will be charged for these costs accordingly. 5.8 In the event of liquidation, moratorium, filing for moratorium, bankruptcy of or attachment against the counterparty, or debt rescheduling or any other circumstances as a result of which the counterparty can no longer freely dispose of its assets, Naaktgeboren is free to immediately terminate the agreement or cancel the order or agreement, without any obligation on its part to pay damages or compensation. In that case, any claims Naaktgeboren has against the counterparty will become immediately due and payable. Article 6 – DELIVERY AND DELIVERY TIMES 6.1 Delivery to the counterparty will be effected from Naaktgeboren’s designated business location in Rotterdam. The counterparty is obliged to accept the goods from the time these are made available to it. If the counterparty refuses to take possession or is negligent in providing information or instructions required for the delivery, Naaktgeboren is entitled to store the goods at the expense and risk of the counterparty. 6.2 The delivery times specified are not binding due-dates unless expressly agreed otherwise. If a hard delivery time is agreed with an associated penalty clause, the counterparty may only invoke that penalty clause after Naaktgeboren has been given notice of default and has been granted a term of at least 10 working days in which to make the delivery. 6.3 Each engagement that results in a change, adjustment and/or expansion of the original engagement, no matter how minor, will always result in the delivery time being pushed back. As a result, therefore, any penalty clause relating to failure to meet an agreed delivery time will lapse. 6.4 The risk of loss, damage or reduction in value is transferred to the counterparty from the time Naaktgeboren transfers control of the goods to the counterparty. Article 7 – RETENTION OF TITLE 7.1 Naaktgeboren retains ownership of the goods delivered by Naaktgeboren to the counterparty as long as the counterparty has not fully met its payment obligations arising from any agreement with Naaktgeboren. 7.2 If Naaktgeboren invokes the retention of title, the agreement has been dissolved without prejudice to Naaktgeboren’s right to compensation. 7.3 Goods delivered by Naaktgeboren that fall under the retention of title, as set out above, may not be transferred, in the broadest sense of the word, and may never be used as a means of payment. The counterparty is not authorised to pledge the goods that are subject to the retention of title, or to encumber them in any other way whatsoever. 7.4 The counterparty must make every effort which may reasonably be expected from it to protect the proprietary rights of Naaktgeboren at all times. 7.5 If a third party attaches or wishes to attach products delivered under retention of title or if it wishes to establish rights or lay claim to them, the counterparty is obliged to immediately notify Naaktgeboren accordingly. 7.6 The counterparty is obliged to insure the goods delivered under retention of title and to keep them insured against damage or losses caused by fire, explosion and water as well as theft, and to submit the insurance policy to Naaktgeboren for inspection immediately on demand. Naaktgeboren will be entitled to any payments made by virtue of this insurance. To the extent necessary, the counterparty undertakes towards Naaktgeboren in advance to render its assistance in all that would appear to be necessary or desired within that framework. 7.7 In the event that Naaktgeboren wishes to exercise the proprietary rights referred to in this article, the counterparty will give its unconditional and irrevocable approval in advance to Naaktgeboren, or any third party designated by Naaktgeboren, to access any location in which the property of Naaktgeboren may be stored and to retrieve those goods. Article 8 – CLAIMS AND WARRANTIES 8.1 The warranty referred to in this article applies to goods for intended use within the Netherlands. In the event of use outside the Netherlands, the counterparty itself must verify whether the use of the goods is suitable in the country in question and meets the conditions applicable in that country. In that case, Naaktgeboren can stipulate different warranties and other conditions with regard to the goods to be delivered or work to be carried out. 8.2 Claims must be submitted in writing, within 14 days of the delivery of the goods concerned. Goods may only be returned following advance written permission under conditions to be determined by Naaktgeboren. 8.3 The investigation of a claim by Naaktgeboren implies in no way whatsoever any acknowledgement of liability. 8.4 Naaktgeboren guarantees the sound condition of the goods it delivers for a period of 12 months following delivery. 8.5 The warranty for delivered goods is limited to material, factory and construction defects, in which case Naaktgeboren only undertakes to repair or replace the defective components, unless third parties have attempted to repair the defect, in which case any warranty will lapse. The warranty lapses if the good are used for a purpose other than the purpose for which they were intended when purchased. 8.6 Repairs to goods will be effected at Naaktgeboren’s designated business location in Rotterdam. The cost of transport to and from the designated business location are for the account of the counterparty. If repairs take place elsewhere at the counterparty’s request, any transport and storage costs are for the account of the counterparty. 8.7 Naaktgeboren will not provide another warranty for replaced or repaired goods or components. Naaktgeboren will not provide any further warranty to components obtained from third parties than the warranty provided to Naaktgeboren by its supplier. 8.8 A claim by the counterparty does not suspend the counterparty’s payment obligation. In that case, the counterparty continues to be obliged to accept and pay for any goods ordered. 8.9 Any entitlement to warranty will lapse if a defect was caused by or arises from improper or injudicious use of the goods, or incorrect storage or maintenance thereof by the counterparty or third parties, or when, without the written approval of Naaktgeboren, the counterparty or third parties have made or tried to make changes to the goods, have attached other elements to the goods which should not be attached to the good, or if the goods are processed or treated in any way other than prescribed. The counterparty can also not claim under the warranty provisions if the fault is due to or the result of circumstances which are beyond the control of Naaktgeboren, including extreme weather conditions. 8.10 The counterparty is obliged to inspect the goods delivered immediately after the goods have been made available to it or the relevant work has been completed. As part of that process, the counterparty must inspect whether the quality and quantity of the goods delivered are in accordance with the agreement and meet the requirements which the parties have agreed in that respect. Any visual defects must be reported to Naaktgeboren in writing within fourteen days of delivery. Any hidden defects must be reported to Naaktgeboren in writing immediately, but in no case later than fourteen days after discovery thereof. If the counterparty does not observe the term set, any right it may have to repair, replacement or compensation will lapse. 8.11 After expiration of the warranty term, all costs for repair or replacement, including administrative costs, shipping costs and/or call-out fees, will be borne by the counterparty. Article 9 – INTELLECTUAL AND INDUSTRIAL PROPERTY RIGHTS AND KNOW-HOW 9.1 All intellectual and industrial property rights and know-how that are vested in or may be vested in information, recorded in any form and which is obtained either directly or indirectly by the counterparty in connection with an agreement with Naaktgeboren, remain held by Naaktgeboren. 9.2 The counterparty is obliged to keep secret all information in which intellectual and industrial rights and know-how are vested; this obligation of secrecy also prohibits the counterparty from granting access to third parties. Article 10 – LIABILITY 10.1 Naaktgeboren can never be held liable for any damage, of whatever kind, except in the case of intent or gross negligence on the part of one of Naaktgeboren’s management board, managers and subordinates. This exclusion of liability applies regardless of the base of the alleged claim for compensation; whether the claim concerns an attributable shortcoming, a wrongful act,undue payment, unjustified enrichment, the management of another’s affairs or the principles of reasonable and fairness. 10.2 Without prejudice to the provisions of the previous paragraph of this article, any liability on the part of Naaktgeboren with respect to loss of profits or other indirect damage, for whatever reason, is expressly excluded. Furthermore, without prejudice to the provisions of the previous paragraph, any liability on the part of Naaktgeboren with respect to any claim based on unjustified enrichment or any other basis is excluded. 10.3 Without prejudice to the provisions of the previous paragraphs of this article, Naaktgeboren is not bound to comply with or satisfy obligations to undo following the dissolution of the agreement. The counterparty is not entitled to dissolve or nullify the agreement. 10.4 The counterparty indemnifies Naaktgeboren against claims from third parties, whatever the basis of the claims, or from damages resulting from wrongful or careless use of the services delivered to the counterparty by Naaktgeboren and/or work performed by Naaktgeboren. 10.5 Naaktgeboren cannot be held liable for the work and/or services and/or damage of or caused by a third party engaged for the performance of the engagement. 10.6 If Naaktgeboren is nevertheless deemed liable in any way for any damage, this liability will be limited to the amount that Naaktgeboren’s insurer pays to Naaktgeboren with respect to the liability. If the insurer refuses to pay, Naaktgeboren’s liability will be limited to no more than the amount invoiced by Naaktgeboren at the time the damage occurred. Article 11 – FORCE MAJEURE 11.1 Force majeure includes but is not limited to: a strike by Naaktgeboren’s personnel or by others, production delays for whatever reason and any other circumstance that cannot be attributed to Naaktgeboren, because it is beyond Naaktgeboren’s control and its consequences should not be borne by the Naaktgeboren pursuant to the law, a legal act or common opinion. 11.2 If the proper fulfilment of any obligation by Naaktgeboren is either impossible or only partially possible as a result of one or more circumstances that cannot be attributed to Naaktgeboren, including the circumstances referred to in the previous paragraph, Naaktgeboren will have: If one or more of the provisions in these Terms and Conditions or any other agreement with Naaktgeboren are contrary to any applicable mandatory legal provisions, the provision in question will become void and be replaced by a new legally permissible similar provision to be determined by Naaktgeboren. 11.3 Insofar as Naaktgeboren, at the time the force majeure commences, has meanwhile partly fulfilled its obligations by virtue of the agreement, or will be able to do so, and the fulfilled part and/or the part to be fulfilled represents independent value, Naaktgeboren is entitled to separately invoice the part concerned. The counterparty is obliged to pay this invoice on the basis of an assumed separate agreement. Article 12 – INDEMNIFICATION 12.1 The counterparty is obliged to indemnify Naaktgeboren against any claims from third parties for compensation, for which Naaktgeboren’s liability vis-à-vis the counterparty is excluded in these terms and conditions. 12.2 If Naaktgeboren is held accountable by third parties on that account, the counterparty is obliged to assist Naaktgeboren both in and out of court and promptly do all that can be expected from it in that case. In the event that the counterparty remains in default in terms of taking such measures, Naaktgeboren is entitled to take these measures itself, without notice of default being required. All costs and damage incurred and sustained by Naaktgeboren and third parties as a result will be fully for the account and risk of the counterparty. Article 13 – LIMITATION PERIOD 13.1 Any right of claim and/or defence against Naaktgeboren lapses by the passage of one year following the delivery. Article 14 – DISPUTES 14.1 All disputes between the counterparty and Naaktgeboren, which cannot be resolved to the satisfaction of both parties by mutual consultation, may be referred to the competent court, though exclusively the court in Rotterdam, unless Naaktgeboren Rotterdam B.V. prefers to submit the matter to the competent court in the place of residence of the counterparty. All rights, obligations, quotations, offers, orders and agreements to which these Terms and Conditions apply are governed solely by Dutch law. 14.2 All agreements with Naaktgeboren are exclusively governed by the laws of the Netherlands, with the exclusion of the Vienna Sales Convention 14.3 The parties will only appeal to the court after they have made every effort to resolve their dispute by mutual agreement. Article 15 – MISCELLANEOUS 15.1 These General Terms and Conditions have been filed with the Rotterdam Chamber of Commerce under number 24369842. 15.2 The Dutch version of this text will be binding in the event translations are produced.
With its registered office in Rotterdam
