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Terms of Sale

GENERAL SALES AND DELIVERY TERMS AND CONDITIONS

Deposited at the Chamber of Commerce in The Hague-Netherlands

Date: 1 September 2011

I GENERAL CLAUSE

Applicability

  1. If these General Terms and Conditions constitute part of proposals for and agreements concerning the sale and delivery by the parts- & service provider, all provisions of these General Terms and Conditions shall apply between the parties, insofar not expressly and in writing deviated from the same by both of them. They also apply to all commitments deriving from agreements concerning the sale and delivery by the parts- & service provider concluded thereafter, which are directly related to the work in question. Reference by the principal to its own sales, tendering or other terms and conditions are not accepted by the parts- & service provider.

Definition

  1. In these Delivery Terms and Conditions the following is understood to be:

–       The parts- & service provider: MR-Spares B.V.;

–       The principal: the party to whom the proposal is addressed;

–       Installation(s): all types and brands of spare parts for equipment on vessels, such as pumps, compressors, hull cleaning, etc.

–       The work: the total of the stipulated activities (incl. possible design) and/or deliveries.

 

II OFFER

  1. The offer is without engagement, mentions the payment method and provides insight in the price and the price calculation method: contracting (fixed contracting sum) or direction.
  2. Data mentioned in catalogues, images, drawings, dimension and weight specifications and the like are only binding if and insofar expressly included in an agreement signed by the parties or an order confirmation signed by the parts- & service provider.
  3. The offer made by the parts- & service provider as well as the drawings, calculations, software, descriptions, models, tools and the like manufactured or provided by the same shall remain its property, regardless if costs have been charged in connection with the same. The information which is included in the same or on which the manufacturing and construction methods, products and the like are based shall remain exclusively reserved to the parts- & service provider, even if costs have been charged in connection with the same. The principal guarantees that the intended information, without prejudice to the execution of the agreement, is not copied, disclosed to third parties, published or used other than upon the written approval of the parts- & service provider.
  4. If the principal does not accept the offer, the same shall be obliged to forthwith return all data intended by the preceding article to the parts- & service provider.
  5. The parts- & service provider shall be entitled to charge the costs associated with the offer, provided the principal has in advance been pointed to these costs in writing.

 

III CONCLUSION OF THE AGREEMENT

  1. If the agreement is entered into in writing, it comes into effect on the day the agreement is signed by the parts- & service provider or on the day the written order confirmation is sent by the parts- & service provider.
  2. The parts- & service provider cannot be held to commence the execution of the work any sooner than after all thereto required data are in its possession and the stipulated payment (instalment) has been received.

 

IV EXECUTION OF THE AGREEMENT

Obligations of the principal

  1. The principal is held vis-à-vis the parts- & service provider to render the execution of the work possible within the normal working hours of the parts- & service provider and under conditions that comply with the statutory safety regulations and other government regulations.
  2. The principal ensures that the parts- & service provider can timely dispose of the approvals (such as permits and exemptions) required in connection with the work and the data to be provided by the same for the work.
  3. The principal timely provides the connection possibilities for the benefit of the work and the testing of the required energy. The costs of the required energy are at the expense of the principal. Timely is understood as at the latest on the day on which the execution of the work is started at the building site.
  4. The principal provides for the application for the connection of the installation to the network of the relevant utilities companies respectively to the various public transmission networks. The connection costs are at the expense of the principal. The parts- & service provider shall provide instructions in its area of expertise.
  5. The principal should ensure that activities to be carried out by third parties (such as architectural) and/or deliveries, which do not belong to the work of the parts- & service provider, are carried out such and timely that the work is not delayed. If a delay as intended by this article nonetheless occurs, the principal should forthwith inform the parts- & service provider accordingly. Unless mentioned otherwise in the agreement, the obligations of the parts- & service provider shall not include:

a)             Rendering a dry, heated, illuminated and well-lockable room of a sufficient size and equipped in accordance with the requirements of the Dutch Working Conditions Act available during the execution of the assembly at a well-accessible location near the assembly site for the staff of the parts- & service provider, their personal belongings and the storage of materials to be processed and tools;

b)             The performance of paving, concrete, breaking, foundation, earth-moving, picking, drilling, bricklaying, painting, demolition, upholstering, plastering and carpeting work;

c)              The placing or breaking, drilling or sawing and, where necessary, sealing of openings in architectural constructions;

d)             The supply and placement in architectural constructions of anchor rails,Edisonbases and drilling anchors;

e)             The supply of and the placement up to the drive of definitive electrical feeder cables for power and illumination with the inclusion of the devices to be placed therein, such as main switches, group switches and safeties;

  1. If the commencement and the progress of the work are delayed due to circumstances for which the principal is responsible, the damages deriving there from on the part of the parts- & service provider should be compensated by the principal.
  2. The principal shall provide for the timely availability of adequate and safe auxiliary tools for the horizontal and vertical placement of heavy components required in connection with the work and for the accessibility of the location where the work is carried out as well as for the suitability of the access roads to the work location. The obligations of the principal also comprise the operation of the aforementioned auxiliary tools, the placement, and after use removal, of work illumination and work floors with protection at the locations where assembly activities are to be carried out.
  3. The principal bears the risk for damages to and loss of materials, parts and tools transferred to the building site.
  4. The principal bears the risk for damages caused by deficiencies or unsuitability of goods originating from or prescribed by the same or purchased from a prescribed supplier as also for the non or untimely delivery of the intended goods.
  5. The principal bears the risk for damages caused by errors or deficiencies in accounts, calculations, constructions, specifications and execution guidelines provided by the same and shall timely inform the parts- & service provider of changes in user conditions or use of the installation(s), other than mentioned or described in the offer and/or the order confirmation.
  6. The principal bears the risk for faulty fulfilment of the agreement which can be blamed on auxiliary staff prescribed by the same.
  7. The principal bears the risk for damages which can be blamed on unlawful acts of sub-contractors and their auxiliary staff.
  8. The principal bears the risk for the design originating from the parts- & service provider if and insofar approved by the same.
  9. The principal shall indemnify the parts- & service provider against all claims of third parties in connection with damages which, in pursuance of these General Terms and Conditions, are to be borne by the principal, with the inclusion of damages resulting from infringements of intellectual and industrial property rights on account of the use of data provided by or on behalf of the principal.
  10. The principal allows the parts- & service provider to place name indications and advertising at the building site or on the installation(s).

Activities not anticipated by the agreement

  1. The principal shall not be entitled to have the auxiliary staff hired by the parts- & service provider in connection with the execution of the work carry out activities which are not connected to the work.

Settlement of more or less work

  1. More work is considered all that which is delivered and/or placed by the parts- & service provider in consultation, whether or not established in writing, with the principal during the execution of the agreement exceeding the quantities expressly set out in the agreement or in the order confirmation or is carried out by the same in excess of the activities expressly set out in the agreement or in the order confirmation.
  2. Charging of more work takes place all in once when the subsequent payment term lapses. In case a payment term has not been agreed upon, following completion of the additional work.
  3. Less work is settled with the final invoice.

Force majeure

  1. In case of force majeure the parts- & service provider shall be authorised to, without judicial intervention, either suspend the execution of the work for a maximum of six months or to terminate the work in an incomplete condition, without being held to pay compensation for damages. All costs up to then incurred by the parts- & service provider shall immediately and fully be claimable.
  2. Force majeure in these General Delivery Terms and Conditions is understood as any circumstance regardless of the will of the parts- & service provider, even if this could have already been anticipated upon conclusion of the agreement, which permanently or temporarily prevents fulfilment of the agreement. This is understood to also comprise noncompliance of suppliers of the parts- & service providers with their obligations, transport difficulties, fire, strikes or work interruptions, loss of parts to be processed, import or trade embargos, the refusal or cancellation of the required permits or licences or the imposition of such burdensome conditions thereon by the government that it can no longer be expected of the parts- & service provider that the same shall comply with the agreement.

Acceptance

  1. The stipulated delivery shall, as much as possible, be taken into account but shall, however, not be binding. In case the delivery time is exceeded the parts- & service provider shall consult the principal. The delivery time is based on the work conditions known at the time the agreement is concluded as well as timely delivery of materials ordered by the parts- & service provider in connection with the execution of the work. If, beyond the control of the parts- & service provider, a delay occurs as a result of a change in the aforementioned work conditions or because materials ordered in connection with the execution of the work are not delivered on time, the delivery time shall, where necessary, be extended. The delivery time commences on the later of the following moments in time:
    1.          The day the agreement is concluded;
    2.          The day the documents, data, permits, designs approved by the principal and the like, required in connection with the execution of the agreement, are received;
    3.          The day the fulfilment of the formalities required in connection with the commencement of the activities is completed;
    4.          The day of receipt of the advance which is, according to the agreement, to be paid prior to commencement of the activities.

In case of force majeure as described in article 31 the delivery time is automatically extended by at least the time of the thus created delay. Without prejudice to gross culpability on the part of the parts- & service provider, exceeding the delivery time shall never entitle the principal to, either wholly or partly, dissolve the agreement or claim compensation for damages. Exceeding the delivery time – as a result of whatever reason – does not entitle the principal to carry out or have carried out activities in connection with the execution of the agreement without judicial authorisation. A contractual penalty payment imposed on exceeding of the delivery time is held to replace any possible right of the principal to claim compensation for damages. This kind of penalty payment shall not be due if exceeding of the delivery time results from an act of force majeure.

  1. The work is held to be accepted:

–       Either when the parts- & service provider informed the principal that the work has been completed, tested and commissioned and the latter has accepted the work;

–       Or when a maximum of eight days has passed since the parts- & service provider informed the principal in writing that the work has been completed, tested and commissioned and the latter refrained from accepting the work within this deadline;

–       The acceptance is also held to have taken place if, as a result of untimely availability of the deliveries and/or activities required in connection with the work which are not part of the obligations of the parts- & service provider, the installation(s) cannot be tested and commissioned.

  1. Small deficiencies that can be repaired within the warranty period and that do not affect the functioning of the work, shall not hinder the acceptance.
  2. Acceptance discharges the parts- & service provider from all any and all liability for deficiencies which the principal should within reason have discovered at that time.
  3. As a consequence of the acceptance the risk of the work transfers from the parts- & service provider to the principal without prejudice to the provisions set out in articles 18 up to and including 23.

Dissolution

  1. Without prejudice to the other rights attributed to the same, the parts- & service provider shall be entitled to, without judicial intervention and without notice of default, either suspend the execution of the work or to terminate the work in an incomplete condition, if the principal:
    1.          filed for or is granted suspension of payment;
    2.          is declared bankrupt or filed a petition thereto;
    3.          failed, or there is good reason for the service provider to fear that the same will fail, the fulfilment of an obligation.

Termination and suspension take place by means of a written statement without the parts- & service provider being held to provide any compensation for damages or warranty.

  1. All claims the parts- & service provider would in these instances have or obtain vis-à-vis the principal shall immediately and fully be claimable.

 

V PAYMENT

Guarantee

  1. Following the conclusion of the agreement the parts- & service provider shall be authorised to desire a satisfactory guarantee from the principal if the former has good reason to fear that the principal shall not comply with its payment obligation. Articles 37 and 38 equally apply if the principal is in default with regard to the provision of the desired guarantee.

Risk regulation

  1. All prices are exclusive of VAT. If, following the date of the conclusion of the agreement, one or more of the cost price factors undergoes an increase – even if this takes place as a result of predictable circumstances – the parts- & service provider shall be entitled to increase the stipulated price accordingly.

Payment

  1. Payment by the principal takes place in instalments in proportion to the progress (direction) or time (contracting) of the work, without being entitled to any discount or settlement.
  2. Payment term is strictly 30 days after invoice date.
  3. In case of the 5 instalment method payment will be settled according the following:

–       1st instalment: 30% of the total price, after closing agreement;

–       2nd instalment: 35% of the total price, before attending work according to agreement;

–       3rd instalment: 15% of the total price at 50% of completion of work

–       4th instalment: 15% of the total price after testing and commissioning

–       5th instalment: 5% of the total price after official handover

If the attendance is postponed by principal, the original date of the 2nd instalment will be maintained.

In case of an agreement of delivering spares payment will be settled in two equal instalments:

–       1st instalment: 50% within 7 days after closing agreement;

–       2nd instalment: 50% within 7 days after delivering spares.

Agreements for delivering spares are in accordance with articles 33, 36 and 50.

  1. Payment of more work is to take place in accordance with article 28.

Default of the principal

  1. If the payment is not effectuated in a timely manner the principal is automatically in default and shall the parts- & service provider be authorised to suspend the work and the warranty, without prejudice to the other rights allocated to the same.
  2. When the principal is in default, the parts- & service provider shall be authorised to, without further notice of default, proceed with collection of the amount payable to the same. All thereto connected (extra-) judicial costs are at the expense of the principal.
  3. As from the expiration date the parts- & service provider may charge interest over the amount payable to the same over the time that the principal has been in default with the payment. On an annual basis this interest corresponds with the legal interest in theNetherlandsincreased by 3%.
  4. A payment effectuated by the principal shall first of all extend to reduction of all payable costs and interest and finally to reduction of the claimable invoices outstanding for the longest period of time, even if the principal indicates that the fulfilment is related to later invoices.

Reservation of title

  1. The title of all goods (such as materials and parts) only transfers to the principal when all that which is payable to the parts- & service provider by the principal on account of deliveries or activities, with the inclusion of interest and costs, has fully been paid to the parts- & service provider. As long as the principal does not comply with the aforementioned payment obligations the same shall not be entitled to loan, pledge, mortgage or otherwise transfer the delivered and/or assembled goods to third parties. As the occasion arises, the parts- & service provider shall be entitled to unhindered access to the goods. The principal shall provide the parts- & service provider all cooperation in order to provide the parts- & service provider with the opportunity to exercise the aforementioned reservation of title by taking back the goods, with the inclusion of the possibly required disassembly.

If the disassembly of existing, released or removed, installation parts belongs to the commission, these parts become the property of the parts- & service provider and are removed by the same.

 

VI WARRANTY

  1. Within the limitations of the following provisions the parts- & service provider commits to during an inspection respectively a take-over testing repair all non-visible deficiencies free of charge within 6 months following the acceptance. Contrary to that which is set out in the preceding sentence, the warranty period amounts to 12 months is the preventive maintenance of the installation is performed by the parts- & service provider. A warranty is out of the question with regard to materials supplied by others than the parts- & service provider.
  2. This obligation only extends to deficiencies that occur in the operating circumstances as contained in the scope from the EC declaration of conformity and in case of correct and stipulated use of the work. It does not extend to deficiencies resulting from insufficient preventive maintenance by the principal, changes implemented without written approval of the parts- & service provider or repairs carried out by the principal as well as regular wear and tear or deficiencies for which the principal is liable in pursuance of the General Terms and Conditions.
  3. In order to invoke the rights deriving from article 50 vis-à-vis the parts- & service provider, the principal should:

–       Forthwith inform the former of the observed deficiencies, however at the latest within 14 days following the expiration of the warranty period, in case these deadlines are exceeded any and all claim vis-à-vis the parts- & service provider in connection with these deficiencies expires;

–       Evidence that the deficiencies exclusively or essentially result from a flaw in the construction applied by the parts- & service provider or from a defective finishing or use of bad material, without prejudice to the provisions set out in articles 19 up to and including 23;

–       Grant all cooperation in order to enable the former to remove the deficiencies within a reasonable period of time.

–       Only repair activities carried out by the parts- & service provider fall within the warranty; repair activities carried out by the principal fall outside the warranty.

  1. The parts replaced by the parts- & service provider in pursuance of the warranty obligation become the property of the same.
  2. Deficiencies falling under the warranty shall be remedied by the parts- & service provider, either by repair or replacement of the defective part. Claims in connection with deficiencies should be filed within 1 year following the timely complaint on penalty of forfeiture.

 

VII LIABILITY OF THE PARTS- & SERVICE PROVIDER

  1. The parts- & service provider repairs damages to the work, incurred before the work is delivered, at its own expense unless the damages are not caused by the same or it would otherwise appear unreasonable to have these damages borne by the same and without prejudice to the provisions set out in article 18.
  2. The liability of the parts- & service provider is limited to fulfilment of the warranty obligations set out in section VI of these General Terms and Conditions.
  3. Without prejudice to gross culpability on the part of het parts- & service provider and without prejudice to the provisions set out in article 56, any and all liability of the parts- & service provider, such as interruption damages, other indirect damages and damages resulting from the liability vis-à-vis third parties, is excluded.
  4. Hence, the parts- & service provider shall never be liable for:

–       Infringement of patents, licences or other rights of third parties resulting from the use of information supplied by or on behalf of the principal;

–       Damages to or loss of, due to whatever reason, raw materials, semi-manufactures, models, tools and other goods rendered available by the principal.

  1. If the parts- & service provider, without commission of the assembly, does provide support and assistance during the assembly – of whatever nature – this shall take place at the risk of the principal.
  2. The principal is held to indemnify respectively compensate the parts- & service provider in connection with all claims of third parties regarding compensation for damages for which the liability of the parts- & service provider has been excluded in these General Terms and Condition in the relation with the principal.

 

VIII CLOSING PROVISION

  1. Dutch law exclusively applies to the agreement and all agreements deriving there from.
  2. Each and every dispute between the parts- & service provider and the principal shall, with the exclusion of the regular Court, be settled by the Arbitration Council for the Metal Industry and Trade (“Raad van Arbitrage voor de Metaalnijverheid en –Handel”) inThe Hague.
  3. Contrary to the preceding article, the parts- & service provider shall be authorised to have the dispute settled by the regular Court, if the Court is competent, in the city or the district in which the parts- & service provider holds its registered office.