GENERAL TERMS AND CONDITIONS OF SALE AND DELIVERY OF CENTICHEM B.V.

 

  1. Definitions

            In these General Terms and Conditions the terms below have the meaning as indicated. In the text below, defined terms are indicated with a capital letter.

 

            Purchaser: the party requesting offers or quotations for Products of CentiChem or ordering these Products, and on behalf of whom said offers, quotations, orders and (subsequent) Agreements have been effected;

 

            General Terms and Conditions: these general terms and conditions of sale and delivery;

 

            CentiChem: CentiChem B.V., having its principal place of business at Nieuwe Tiendweg 11A, (2922 EN) Krimpen aan den IJssel, the Netherlands and registered in the commercial register of the Chamber of Commerce under number 23277329;

 

            Agreement(s): Each agreement between CentiChem and the Purchaser, including any amendment and/or addition to such, as well as all (legal) acts in preparation and/or in the performance of such agreement;

 

            Products: All goods that are (or shall be) delivered by CentiChem in performance of an Agreement to the Purchaser. Insofar as applicable, in these General Terms and Conditions the term ‘Products’ shall also include services delivered        by CentiChem.

 

  1. Agreements, formation and amendments

2.1.      These General Terms and Conditions apply to all Agreements between CentiChem and the Purchaser, including all requests, offers and quotations to this end.

2.2       Stipulations that supplement or deviate from these General Terms and Conditions may only be relied on if and insofar as these provisions have been accepted by CentiChem in writing.

2.3       The applicability of the general and/or other terms and conditions used by the Purchaser is hereby expressly rejected.

2.4       The Purchaser with whom a contract has been concluded once on the basis of the current conditions agrees with the applicability of these General Terms and Conditions to later agreements between the purchaser and CentiChem.

2.5.      If any provision in these General Terms and Conditions is, for any reason whatsoever, void or voided, the other provisions of       these General Terms and Conditions will remain in full force and the Purchaser and CentiChem shall enter into consultation in order to agree new provisions in replacement of the void or voided provisions whereby the objective and purport of the void or voided provision is taken into account as far as possible.

2.6       All offers by CentiChem are without obligation and based on the information provided by the Purchaser. Orders by the Purchaser do not bind CentiChem. The Agreement between CentiChem and the Purchaser is only formed if and as soon as the order of the Purchaser is definitively confirmed by CentiChem, or after CentiChem has commenced with the performance.

2.7       Each Agreement is entered into by CentiChem under the condition precedent that the Purchaser appears to be sufficiently creditworthy for its performance.

2.8       The provisions in an Agreement between CentiChem and the Purchaser are only applicable to the relevant Agreement and the Product to which such relates.

2.9       Amendments to the Agreement must be agreed between the parties in writing.

2.10     Unless explicitly otherwise agreed, CentiChem is authorised to engage third parties in the performance of the Agreement or to have the Agreement performed, wholly or in part, by third parties.

 

  1. Offers and prices

3.1       Offers and quotations of CentiChem are always without obligation, unless explicitly indicated otherwise in writing.

3.2       All prices are based on the prices and fees in force at the time the Agreement was entered into.

3.3       Unless explicitly agreed otherwise, all prices are in euros and exclusive of VAT and/or other levies.

3.4       In the event of demonstrable amendments in one or more of the cost price-determining factors, such as purchase prices, exchange rates, taxes, rights, charges, shipments and such like, CentiChem is entitled to change the agreed prices accordingly. If CentiChem changes the prices within three months after entering into the Agreement, the Purchaser is entitled to terminate the Agreement on payment of the direct costs incurred by CentiChem in this respect, unless the Agreement has already been performed, wholly or in part.

 

  1. Delivery

4.1       Unless otherwise agreed by the parties in writing, the delivery of the Products takes place in accordance with the condition EXW CentiChem Krimpen aan den IJssel, or another place to be indicated by CentiChem (Incoterms 2010), with the express provision that CentiChem will load the Products in the first          means of transport at the request of the Purchaser and/or at the request of its carrier at the risk of the Purchaser, unless explicitly agreed otherwise.

4.2       Delivery periods are stated by way of indication only and are not strict deadlines, unless explicitly agreed otherwise in writing. Deliveries may take place in consignments.

4.3       Products not purchased by the Purchaser after expiry of the delivery period remain at the disposal of the Purchaser and shall be stored by CentiChem for the account and at the risk of the Purchaser. CentiChem shall within three working days after such storage has taken place notify the Purchaser in writing of the fact that the Products are stored and the location of the storage. This does not affect the payment obligation of the Purchaser.

 

  1. Retention of title

5.1       The ownership of the Products only transfers to the     Purchaser after payment by the Purchaser of all that CentiChem can claim from the Purchaser pursuant to the (previous) Agreement, including interest and costs, as well as for failing in the performance of any agreement with CentiChem.

5.2       The Purchaser is obliged to look after the Products subject to a retention of title in favour of CentiChem with due care and to keep and/or make them identifiable and to keep them separate from the other goods in the possession of the Purchaser.

5.3       If and for as long as the ownership of the delivered Products has been retained by CentiChem, the Purchaser may not dispose of these Products other than in the normal performance of its business, or to encumber them with any limited real right. The Purchaser has duty of care in respect of the Products subject to the retention of title and must insure such and keep them insured against all the usual risks in the sector.

5.4       If the Purchaser fails in the performance of its payment obligations toward CentiChem or CentiChem has good reasons to fear that the Purchaser will fail in those obligations, CentiChem is entitled to take back the Products delivered subject to the retention of title. In that case the Purchaser declares irrevocably to grant all cooperation to the seller for the return of the goods and to give CentiChem access to the place where the goods are located. The costs of the return of the Products are for the account of the Purchaser.

 

  1. Complaints

6.1       The Purchaser is obliged to check the delivered Products immediately after delivery regarding quality and any defects and to report this as soon as possible but at the latest within a term of 30 days after the Products have been delivered in writing to CentiChem carefully stating the grounds for the complaints. Hidden defects must be reported in writing within 7 days from the day on which the defects were discovered, or at any rate within 7 days after the defects should reasonably have been discovered to CentiChem in writing.

6.2       Proof of timely submission and the accuracy of the complaint rests with the Purchaser. The Purchaser is obliged to render CentiChem all cooperation in any investigation into the defects.

6.3       Deviations and differences in quality, quantity etc that are minor and/or usual in the branch can never form a ground for complaints.

6.4       The Purchaser can only return delivered Products if CentiChem has agreed to this in writing in advance. Acceptance of the return shipment may never be considered by the Purchaser as an acknowledgement by CentiChem of defects in the delivered goods or as acknowledgement of liability.

6.5       If the Purchaser has not complained within the periods set out in the previous paragraphs, or if the Purchaser continues to use the delivered Products, the Purchaser is deemed to have agreed with the delivered products and to have waived all rights and authorities available to the Purchaser on the basis of the law and/or the Agreement. In the event of a complaint, the Purchaser is not entitled to suspend its obligations towards CentiChem.

 

  1. Liability

7.1       Any liability of CentiChem for trading, consequential or indirect loss on the side of the Purchaser is excluded.

7.2       Without prejudice to the provisions above, CentiChem’s liability is in all cases limited to the invoice value of the delivered Products causing the loss, or, if the loss is covered by an insurance policy of CentiChem, to the amount that is actually paid by the insurer in the relevant case.

7.3       Each claim by the Purchaser against CentiChem lapses by the mere expiry of one year after the time of delivery or the time the delivery should have taken place.

 

  1. Payment and security

8.1       CentiChem is at all times entitled to demand advance payment or payment in cash for the Products and/or Services to be delivered and/or demand security for the payment of such. The Purchaser is obliged to comply with this.

8.2       Payment must be made at the agreed time.

8.3       If the Purchaser has not complied with its payment obligations, or has not complied with them on time or in full, the Purchaser is deemed to be in default by operation of law and owes interest on the outstanding amount equal to the statutory commercial interest on the basis of Article 6:119a Dutch Civil Code. In the relevant cases, CentiChem is entitled to suspend the performance of the Agreement until payment has been received. All storage costs incurred in this context, as well as other costs, are for the account of the Purchaser.

8.4       All judicial and extrajudicial costs relating to the collection of any claim on the Purchaser are for the account of the Purchaser. This includes in any event the costs of collection agencies, bailiffs, lawyers and experts. The extrajudicial costs are in addition deemed to be at least 10% of the claimed amount, with a minimum of EUR 500.

8.5       Each payment is deemed to be a payment of any due interest and/or costs and subsequently of the oldest still outstanding invoice, irrespective of whether otherwise stated on the payment.

8.6       The Purchaser may not offset any, whether or not disputed, debt to CentiChem with any, whether or not disputed, debt of CentiChem to the Purchaser, unless this has been agreed in writing by the parties. The Purchaser may also not suspend its payment on the basis of any alleged counterclaim or objections regarding the performance of the Agreement.

 

  1. Force majeure

9.1       Force majeure means the situation impeding the performance of the Agreement, wholly or in part, whether or not temporarily, due to circumstances outside the control and influence of CentiChem, even if these circumstances were already foreseeable at the time the Agreement was formed. This includes,          but is not limited to: work strike and lock-out, exceptionally high absenteeism, delay in or failure to deliver by suppliers, communication and transport failures, government measures including import and export barriers, quota arrangements, trade restrictions and sales bans, accidents and business interruptions.

9.2       In the event of force majeure, the obligations of the parties are suspended. If the force majeure lasts longer than 30 days, each of the parties is entitled to terminate the Agreement for the unperformed part, without being liable to each other to pay any compensation.

9.3       The parties shall notify each other as soon as possible of the existence of a (possible) force majeure situation.

 

  1. Compliance

10.1     The Purchaser guarantees CentiChem that:

  1. the Purchaser is not subject to trade sanctions imposed by the United States, the EU and/or the UN; and
  2. the Purchaser shall always act with due observance of all applicable laws and regulations, including those relating to anti-bribery, anti-corruption and trade restrictions and export controls (including trade sanctions imposed by the United States, the EU and/or the UN) relating to the Products.

10.2     At the reasonable request of CentiChem, the Purchaser shall submit proof of its actions.

 

  1. Termination

11.1     CentiChem has the right, without any notice of default or legal intervention being required, to either deem the Agreement as being terminated and reclaim the delivered goods as its property in the manner as determined in article 5, or claim any amount due by the Purchaser to CentiChem in its totality, if one of the following situations occurs:

  1. the Purchaser fails to perform any obligation towards CentiChem pursuant to the law or these General Terms and Conditions, or fails to perform such on time, completely or correctly;
  2. the Purchaser is declared bankrupt or has submitted a petition to this end, has applied for or has been granted a suspension of payment, the application of the debt restructuring scheme has been requested or has been granted;
  3. attachment has been levied on the entirety or part of the property of the Purchaser;
  4. the Purchaser is dissolved or liquidated, there is a division or merger;
  5. the Purchaser ceases or transfers its business or an important part of such;
  6. the information provided by the Purchaser to CentiChem appears not to correspond with actual circumstances;

            whilst the Purchaser has not yet complied with all its obligations towards CentiChem.

11.2     In addition, CentiChem is at all times entitled to claim compensation from the Purchaser.

 

  1. Disputes and applicable law

12.1     All obligations between CentiChem and the Purchaser are exclusively governed by Dutch        law. Applicability of the United Nations Convention on Contracts for the International Sale of Goods (‘Vienna Sales Convention’) is excluded.

12.2     Any disputes as a result of, or relating to, the General Terms and Conditions or the Agreement or other obligations between CentiChem and the Purchaser shall exclusively be heard by the Court with jurisdiction in Rotterdam.