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General Terms and Conditions for Sales and Delivery

General Terms and Conditions for Sales and Delivery applied by Tallgroup B.V. and its group companies, registered in the trade register under trade register number 11054369.

1 General
1.1 In these General Terms and Conditions, “Tallgroup” refers to: the private company with limited liability Tallgroup B.V, with its registered offices in Geldermalsen and registered in the trade register under number 11054369, as well as to the legal persons and partnerships Tallgroup is associated with in the group as meant in this article and as referred to in Article 2:24b of the Dutch Civil Code.
1.2 These General Terms and Conditions exclusively apply to all existing and future commitments of any legal person or partnership that is part of Tallgroup in its role of provider or supplier of goods (hereinafter referred to as the “Contractor”) to another party (hereinafter referred to as the “Client”). When the Client enters into an agreement with the Contractor, the Client agrees to the applicability and the content of the present Terms and Conditions. 
1.3 The Contractor explicitly rejects any terms and conditions (such as Purchasing Terms and Conditions) applied by the Client. The Client agrees to this.
1.4 Any changes in and additions to these General Terms and Conditions will take effect three months after the Client has been informed about the content of these changes and additions. These General Terms and Conditions can only be derogated from by means of a document specifying the deviation and signed by both the Contractor and the Client. 
1.5 The Client’s contracting party is the Contractor exclusively and not a person associated with the Contractor, such as a director or an employee.
1.6 In so far as legally permitted, the parties waive their rights to terminate, annul or change the provisions in these General Terms and Conditions, except in so far as the General Terms and Conditions themselves provide for this.
1.7 Commitments towards the Contractor, including claims against the Client, are non-transferable, unless provided otherwise in these General Terms and Conditions. This stipulation qualifies as a stipulation in the meaning of Article 3:83(2) of the Dutch Civil Code.

2 Establishing prices, agreements and terms.
2.1 Unless explicitly indicated otherwise in a price quotation or any other type of offer, the Contractor’s offers are non-binding. The Contractor can cancel such offers within five working days after the Client’s acceptance has been received. 
2.2 An offer remains valid for sixty calendar days after it has been sent, unless the offer indicates otherwise and/or unless the offer made by the Contractor is withdrawn by the Contractor within this period of time.
2.3 The prices quoted in an offer are always based on the cost prices known to the Contractor at the time the offer is made, which prices in turn are based on delivery ex works or from the Contractor’s place of business (“EXW,” in accordance with the Incoterms 2010) and the prices are exclusive of value added tax, unless indicated otherwise.
2.4 Third party terms and conditions and agreements with third parties as stated in an offer are always based on the documents provided by those third parties at the time the offer is made; these terms and conditions apply subject to any changes these third parties may implement and which changes may consequently affect the Contractor’s terms and conditions.
2.5 The Contractor is entitled to pass on to the Client any increases in prices or levies charged by suppliers, transporters, government bodies or other persons or agencies, as these may occur after an offer has been made. 
2.6 If the Contractor has not made a price quotation or any other offer in writing, an order for delivery will not be binding until the Contractor has started the actual delivery, and pricing will be based on the Contractor’s standard pricing list. 

3 Term of delivery
3.1 The Contractor sets an approximate term of delivery in an offer; this term will never be regarded as a deadline, unless explicitly agreed upon otherwise in writing.
3.2 A term of delivery does not start until the parties have agreed on all the subject matters of the agreement.
3.3 Each term of delivery, even a term which sets a deadline, is based on the Contractor’s assumption that the Contractor can implement the order in the manner and under the circumstances known to Contractor at that point in time, that the (instalment) payments agreed upon have been paid in due time and that the securities requested have been provided in due time.
3.4 Circumstances that may result in the term of delivery being extended are in any case: an order to change the performance of activities, including an order for additional work, information and/or materials to be made available by the Client not being provided in time, weather conditions unfit to work in where work outdoors is involved, and the Contractor justifiably invoking its right to suspension.
3.5 Any costs incurred by the Contractor for extending the term of delivery as a result of any of the circumstances described in Article 3.4 will be at the Client’s expense.
3.6 If there should be any circumstances that result in the term of delivery having to be extended pursuant to the law or the present Terms and Conditions, the Contractor may extend the term of delivery by the period of time the Contractor needs to perform the activities, with due regard both for the Contractor’s planning schedule and for the relevant circumstances.
3.7 Should the Client fail to carry out any activities required for the proper delivery of any of the goods, the goods will at the Client’s risk from the point in time the goods are ready for shipment, regardless of where the goods are at that time. In that event, the Client will also be liable, in addition to the purchase price, for compensation of any storage costs incurred by the Contractor.
3.8 If a term of delivery agreed upon is exceeded, for whatever reason, the Client will not be entitled to terminate (ontbinden) the agreement or to suspend its obligations towards the Contractor. Neither will the Client be entitled to claim any compensation of damages, unless the Contractor should fail to perform as yet, after having been given written notice, its obligations under the agreement, either in part or in full, within the reasonable period of time after the expiry of the term of delivery. Termination (ontbinding) is only permitted in so far as the Client cannot be reasonably expected to continue the agreement.

4 Delivery, transport and transfer of risk.
4.1 Unless agreed upon otherwise, delivery takes place ex works, in accordance with the Incoterms 2010, from the Contractor’s or the manufacturer’s place of business.
4.2 If the parties have agreed that the Contractor is to organise the transport of the goods, the Contractor is free to select the carrier and the means of transport. The risk of storage, loading, unloading, delay, loss, damage and destruction of the goods to be delivered is transferred to the Client as soon as transport of the goods starts, even if no delivery ex works has been agreed upon. The Client is to insure this risk through its own transport insurance. The risk as referred to above is also transferred at the point in time when the Contractor presents the goods for delivery as agreed upon, and the Client, for any reason whatsoever, does not take possession of the goods.
4.3 The Contractor is entitled to deliver the goods in part deliveries and request payment for each partial delivery.

5 Trial sale
5.1 If the Contractor and the Client agree that the purchase is made on condition that the Client does indeed wish to purchase the goods delivered on trial, this is referred to as a trial sale. If such trial delivery has been agreed upon, the Client will be obliged to insure the goods delivered on trial against risks of damage, loss or theft for the duration of the trial period.
5.2 The Client will inform the Contractor within ten calendar days after the goods have been delivered on trial whether it wants to purchase the goods. If the Client has not returned the goods delivered on trial within ten calendar days, the Client is deemed to have purchased the goods on the day the goods were delivered.
5.3 The costs and the risks referred to in Article 4.2 with respect to the transport of the goods to be delivered on trial are always at the Client’s expense.

6 Payment
6.1 Unless agreed upon otherwise and without prejudice to the right to request an advance payment or payment upon delivery should the Contractor see any reason for this, payment is to be made into the bank account indicated by the Contractor within fourteen days following the date of the relevant invoice. The Contractor is entitled to invoice part deliveries separately.
6.2 The Client is not entitled to suspend discounts on any payments. The Client is only permitted to settle against a counterclaim in so far as the Contractor has explicitly accepted the counterclaim or if this counterclaim has been irrevocably upheld by the court.
6.3 In the event of late payment, the Client will be in default without any notice of default or reminder being required, and immediately payable interest, equal to the statutory commercial interest, will then be payable on the amount due with a minimum of 10% per year if the statutory commercial interest amounts to less than 10%. In this context, part of a month is regarded as a full month. Furthermore, the Contractor may suspend the entire delivery, in so far as delivery under an agreement with the Client has yet not taken place, until the payment of the amount due has been received in full. If, after the reminder, the payment is not made within the additional term set, the Contractor is authorised to terminate (ontbinden) the agreement, either in full or in part, at its own discretion, by means of a written notification, without prejudice to its right to compensation of damages or its rights of recovery in those cases in which the Contractor has already performed the activities agreed upon, either in full or in part.
6.4 Should the Contractor incur any extrajudicial collection costs as referred to in Article 6:96(2) sub c of the Dutch Civil Code, these costs will be calculated on the basis of the Extrajudicial Collection Cost Standard Act (Wet normering buitengerechtelijke incassokosten) and the corresponding Decree (Besluit). These costs will be payable by the Client to the Contractor in addition to the principal sum and the interest.
6.5 Regardless the stage of the performance of activities to be delivered by the Contractor, all that is payable or will be payable by the Client to the Contractor under the agreement will be due on demand in the event that a payment term has been exceeded, a requested security has not been provided, a petition for bankruptcy or suspension of payments has been filed against the Client, property belonging to the Client has been attached, a Client (legal person) is in liquidation and being wound up or involved in a legal merger or demerger and in the event an administrator has been appointed for the Client (natural person) subject to statutory debt restructuring, or the Client who has been placed under guardianship or who has died.

7 Retention of title (eigendomsvoorbehoud) and the right of pledge (pandrecht)
7.1 Notwithstanding actual delivery made by the Contractor, the Client only acquires title to the goods delivered or still to be delivered by the Contractor on the condition precedent that all amounts due and payable by the Client to the Contractor with respect to the sale and delivery of the goods, including the Contractor’s claims arising from the Client’s failure to meet its obligations under the agreement, have been paid to the Contractor in full.
7.2 The Client is not entitled to transfer title to the goods referred to in Article 7.1 to any third party or encumber these goods with any restricted rights as long as the condition precedent referred to in this article still applies. This stipulation qualifies as a stipulation referred to in Article 3:83(2) of the Dutch Civil Code.
7.3 In the event the Client fails to meet any of its obligation towards the Contractor under the agreement with respect to the goods sold or activities to be performed, the Contractor is entitled to repossess the goods without any notice of default being required. The Client gives permission to the Contractor or to any third party designated by the Contractor, now for then, unconditionally and irrevocably, to enter all places where the Contractor’s property will be located at that time, and to remove those goods in respect of which the Contractor wants to exercise its property rights.
7.4 If any third party should attach the goods delivered under retention of title, or should wish to create rights on these goods or claim any rights to these goods, the Client is obliged to inform the Contractor of any of these events as soon as reasonably possible.
7.5 Without prejudice to any of the provisions in this Article 7 regarding the Contractor’s rights to retention of title, the Contractor reserves a non-possessory right of pledge (bezitloos pandrecht) on all goods delivered to the Client (“the Reserved right of Pledge”).
7.6 The Reserved right of Pledge also extends to the goods acquired after adaptation, processing, accession, confusion, specification or separation of components, all in the broadest sense of the word, of the goods for which the Reserved right of Pledge applies or as addition, replacement or expansion thereof, as well as for all claims that replace these goods, and all valuable papers and other documentary evidence with respect to these goods and claims. In so far as necessary, the Client pledges, now for then, these adapted, processed, acceded, confused, separated, specified, added, replaced, or expanded goods and the claims replacing the goods which are subject to the Reserved right of Pledge to the Contractor, who accepts this pledging.
7.7 The Reserved right of Pledge provides the Contractor with security for the payments due by the Client to the Contractor, now for then, for whatever reason.
7.8 The provisions in Article 7 do not prejudice the Contractor’s right to require, at any time, before or after delivery, that the Client should provide security, at the Contractor’s satisfaction, for the performance of the Contractor’s obligations.
7.9 Should the Client fail to provide the security required, the Contractor will be entitled to suspend performance of the agreement and terminate (ontbinden) the agreement, either in full or in part, all of this subject to the Client’s obligation to compensate, in full, any damages suffered by the Contractor, including but not limited to loss of profits, installation and transport costs.

8 Obligation to complain (Article 6:89 DCC)
8.1 The Client is obliged to carefully inspect the goods delivered by the Contractor for any defects in the goods delivered within eight days following the delivery of these goods.
8.2 The Client can no longer claim a failure in the Contractor’s performance if the Client has not made a complaint to the Contractor (“the Complaint”) within eight days after such a defect has been detected or should reasonably have been detected, for example during an inspection as referred to in Article 8.1 or in the event a Complaint has been made, if the Client does not provide the Contractor with the opportunity to inspect the goods delivered in their original packaging or in their original condition.
8.3 A Complaint is to be submitted in writing and should include at least the following details: the date of the invoice and the invoice number; the nature of the defect; the time this was detected; the circumstances under which the defect became clear; and the way in which the defect was discovered.
8.4 If a Complaint should be unfounded after inspection by or on behalf of the Contractor, the Client will be obliged to compensate the Contractor for the costs incurred by this inspection.
8.5 A Complaint does not entitle the Client to suspend any of its obligations towards the Contractor.
8.6 Goods that are subject to a Complaint can only be returned upon the Contractor’s prior written permission and in accordance with the (transport) instructions to be provided by the Contractor. Without the Contractor’s prior written permission, the Contractor is not obliged to accept any return shipments. Should the Contractor nevertheless take receipt of the goods returned in these circumstances, the returned goods will be stored at the Client’s risk and expense and will remain at the Client’s disposal. The Contractor’s permission to return the goods or the Contractor’s taking receipt of the goods does not imply that the Contractor acknowledges the validity of the Complaint made by the Client.

9 Guarantee
9.1 During the period agreed upon, the Contractor guarantees proper performance of the activities agreed upon in accordance with the provisions of this Article 9 (“the Guarantee”). Unless otherwise agreed upon, the guarantee period is six months following the first delivery of the activities.
9.2 At the Contractor’s discretion, the Guarantee entails either proper performance as yet of the activities agreed upon, or crediting of the invoice sent for the activities. If the performance should only be proper in part, the Contractor is entitled to credit only that part of the invoice that lists the activities that were not performed properly.
9.3 If the Contractor performs the Guarantee by repairing or replacing the goods delivered, the Client is obliged, subject to lapse of the Guarantee, either to return the relevant goods to the Contractor or, at the Contractor’s discretion, to provide the Contractor with the opportunity to repair these goods and test them at the Client’s premises.
9.4 Unless agreed upon otherwise, the Guarantee does not include transport and shipping costs, assembly or disassembly costs or travel and accommodation expenses.
9.5 The Guarantee can only be relied upon if the Client has met all its obligations towards the Contractor or has provided proper security for this.
9.6 The Guarantee does not apply for defects as a result of normal wear and tear, improper installation, treatment or use, including the use of packaging materials not listed in the agreement, improper maintenance, incorrect maintenance, including maintenance with the help of maintenance tools not recommended by the Contractor, defects that occur after any changes or repairs carried out by or on behalf of the Client itself or by third parties without the Contractor’s prior written permission, defects as the result of the use of second-hand goods and defects with respect to which guarantees by third parties can be relied upon, such as manufacturer’s guarantees.
9.7 The Guarantee cannot be transferred to third parties. This stipulation qualifies as a stipulation referred to in Article 3:83(2) of the Dutch Civil Code.

10 Force majeure
10.1 Circumstances beyond a party’s control occur if either party should non-imputably fail to meet its obligations under the agreement and this party cannot be held liable for this failure because the failure cannot be imputed to that party pursuant to the law, legal act or generally prevailing opinion or because the fault does not lie with that party. Circumstances beyond a party’s control are understood to include, amongst other things, the Contractor’s failure to meet its obligations under the agreement as a consequence of acts of war, terror, rioting, wilful damage, fire, water damage, work strikes, business occupation, theft or breakdowns in energy supply, all of this both at the Contractor’s place of business and at the places of business of third parties who supply the requisite materials or goods to the Contractor, either completely or in part, as well as at storage locations or during transport, whether at or by the company itself or not, and furthermore all other events that are beyond the Controller’s control or that occur through no fault or action of the Controller (all of this: force majeure situation).
10.2 In the event of a force majeure situation which prevents performance temporarily, the Contractor will be entitled to suspend performance of its obligations.
10.3 In the event of a force majeure situation which prevents performance permanently or for a period of more than six months, both parties will be entitled to terminate (ontbinden) the agreement with immediate effect, but only for the part of the agreement that cannot be performed.
10.4 Termination as referred to in Article 10.3 does not entitle either party to claim compensation of damages.

11 Work at the Client’s premises
11.1 If it has been agreed upon that the Contractor will carry out work at a location other than the Client’s place of business, as designated by the Client, the Client is to see to it that the Contractor can carry out its activities undisturbed and at the agreed date and time, and that the Contractor will be granted access to the facilities required for implementing the work, such as gas, water and electricity, heating, and if necessary, dry, lockable storage space, and any other facilities required pursuant to the Working Conditions Act (Arbeidsomstandighedenwet) and relevant labour regulations.
11.2 Any risk and liability for damage with respect to loss, theft and damage of goods of the Contractor, the Client and of third parties, which goods are at the premises referred to in Article 11.1, is at the Client’s expense and the Client is obliged to take out adequate insurance and to provide the Contractor promptly with evidence thereof, upon Client’s request.
11.3 Every failure on the Client’s side to comply with the provisions included in this Article 11 will entitle the Contractor to suspend the performance of the activities agreed upon until these provisions have been complied with and until the Contractor’s planning schedule permits the Contractor to resume the performance of the activities, without prejudice to the Contractor’s right to compensation of damages should there be any reason for this.

12 Safety, product liability
12.1 The Client is to comply with and observe the directions for use, warnings and safety instructions provided by the Contractor and is to inform and instruct third parties who use the goods with respect to these directions, warnings and instructions. The Client is responsible for having the relevant documents translated into a language other than Dutch if any party involved does not have a proper command of the Dutch language. Furthermore, the Client is to comply with any regulations imposed by the competent authorities in this context and the Client will be responsible for compliance therewith.
12.2 In the event parts of a machine or device supplied by the Contractor should be repaired or replaced, the Client may only use the parts recommended by the Contractor in the component drawings and parts lists provided as suitable for the relevant machine or device. Furthermore, the Client is to observe the directions for use, warnings and safety instructions referred to in Article 12.1 in the event such activities are to be carried out.
12.3 In the event the Client resells parts or goods delivered by the Contractor, the Client is to enter into an agreement with its customer stipulating that this customer will observe the obligations described in Articles 12.1 and 12.2. The Client is also responsible for making available to this customer the directions for use, warnings and safety instructions provided by the Contractor.
12.4 If the Contractor is held liable for any damage caused by a defect in a product delivered by the Contractor and this damage or liability could have been prevented by compliance with the provisions laid down in Articles 12.1, 12.2 or 12.3, the Client will indemnify the Contractor from this damage. The burden of proof that the provisions in Articles 12.1, 12.2 and 12.3 have been complied with lies with the Client. The Client will also indemnify the Contractor from third-party claims arising from product liability as a consequence of a defect in a product the Client delivered to a third party and which consisted (in part) of products and/or materials delivered by the Contractor. The indemnities in this Article 12.4 comprise the Client’s sole obligation to compensate the Contractor for all damage suffered in this context, including costs of legal defence.
12.5 The provisions in this Article 12 do not prejudice the provisions in Article 13.

13 Liability
13.1 In so far as permissible by law, the Client has no legal claims on the Contractor other than the legal claim to (alternative) compensation of damages as provided for in this Article 13.
13.2 The Contractor is not liable for any damage other than damage which is the direct consequence of its acting in violation of standards. Even if this is the immediate consequence of a violation of standards, the Contractor will not be liable for (a) consequential damage (gevolgschade) such as damage to reputation, business interruption loss, loss of production, loss of profit, transport costs and travel and accommodation expenses, (b) damage to property in care (opzichtschade), such as damage caused by or during the performance of activities involving goods that are being worked on or goods in the vicinity of the place where activities are carried out and (c) damage resulting from intent or deliberate recklessness of auxiliary personnel or non-managing employees of the Contractor.
13.3 The Contractor’s liability is always limited to the higher of the following two amounts: the amount which the Contractor’s insurer irrevocably covers, if applicable; or the amount payable by the Client for the performance of the activities that have caused the damage, being the gross invoice value minus VAT, other government taxes, where applicable, and costs of transport and insurance.
13.4 The Contractor cannot rely on any provisions which limit its liability if the violation of standards was the result of intent or gross negligence on the side of its management.

14 Disputes, applicable law; competent court
14.1 These General Terms and Conditions and all agreements to which these General Terms and Conditions apply are governed by the laws of the Netherlands.
14.2 Any dispute arising from an agreement between parties, in so far as the District Court is competent to hear this dispute, will be exclusively submitted to the competent district court of the district in which the Contractor’s place of business is located, unless the Contractor should choose to submit the dispute for judgment by another competent court, whether in the Netherlands or not.
14.3 The provisions of the Vienna Convention do not apply, nor will any future international arrangement be applicable, in so far as they pertain to the purchase of movable tangible property, of which the effects can be excluded by the parties.

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