General Terms and Conditions, Waterland Trading, 2009 Article 1: Definitions 1.1 In these terms and conditions Waterland Trading means Waterland Trading B.V., having its registered office in (1446 WZ) Purmerend at Component 1. 1.2 General Terms and Conditions is understood to mean the present General Terms and Conditions of Waterland Trading. 1.3 In these terms and conditions Buyer means every natural person or legal entity, partnership, and/or company without legal personality to which Waterland Trading supplies machines and/or parts under an agreement and/or for which Waterland Trading performs services. 1.4 In these terms and conditions Offerer means each natural person or legal entity, partnership, and/or company without legal personality that offers its own used machines and/or parts in the framework of a sale to Waterland Trading. Article 2: Scope 2.1 These General Terms and Conditions apply to all agreements entered into with Waterland Trading for the sale of machines and/or parts, the purchase of new or used machines and/or parts, all agreements for repair, service and maintenance activities, and all (follow-up) agreements pertaining to these. These General Terms and Conditions apply also to all tenders, offers, letters or declarations of intent, orders, written confirmations of orders, and other documents pertaining to one of the agreements stated in the preceding sentence. These General Terms and Conditions also apply to any supplementary or follow-up agreements. 2.2 No terms and conditions of whatever nature or name used by a Buyer or Offerer and/or referenced by a Buyer or Offerer shall apply to any agreements, tenders, offers, letters or declarations of intent, orders, written confirmations of orders, and other documents pertaining to these as stated in the first paragraph of this Article. The applicability of such terms and conditions is hereby expressly rejected by Waterland Trading in advance and these General Terms and Conditions shall prevail at all times. 2.3 These General Terms and Conditions form an integral part of all agreements described in Article 2.1. In case of conflict between the General Terms and Conditions and the content of these agreements, the text of the agreement shall prevail. Article 3: Offers and agreements 3.1 An offer by Waterland Trading is not binding unless the contrary is explicitly evident from the offer. 3.2 The Buyer s acceptance of an offer shall be irrevocable. The Buyer is not entitled to terminate the agreement. 3.3 All agreements shall be made in writing. 3.4 Written agreements entered into by an employee of Waterland Trading who is not an authorized signatory shall become valid only when confirmed in writing by a person designated as an authorized signatory by Waterland Trading. In the absence of such confirmation, a Buyer cannot invoke such an agreement in any way. 3.5 Oral agreements are entered into under the suspensive condition that a person designated as an authorized signatory by Waterland Trading confirms this agreement in writing within thirty (30) days. The lack of such written confirmation will result in the termination of such an agreement without notice at the end of the thirty (30) days. The Buyer is not entitled to terminate the agreement. Article 4: Prices 4.1 Prices and rates are expressed in the European currency, the Euro, exclusive of BTW (Dutch VAT) and/or other government levies and are based on the delivery condition Ex Waterland Trading, which entails delivery being made at Waterland Trading s place of business. 4.2 If transport of the machine and/or the part to some other destination address is agreed, all associated additional (transport) costs shall be borne by the Buyer. 4.3 Unless explicitly indicated otherwise, the stated price for the machine and/or the part does not include the price for options, repair, service, maintenance and other additional activities. 4.4 The price for repair, service, maintenance and other additional activities shall be determined on the basis of work site rates applicable at the time the agreement is carried out. Unless explicitly agreed otherwise work site rates shall be exclusive of costs of parts, materials and any third party costs. 4.5 Quotations made by Waterland Trading for repair, service, maintenance and other additional activities are only estimates subject to confirmation. Waterland Trading will notify the Buyer if the quotation is likely to be exceeded by more than 10%. 4.6 If there should be any changes to duties, rates, taxes, currency exchange rates, factory prices, import prices, and/or third party labour rates after the formation of an agreement, Waterland Trading is entitled to charge such changes through to the Buyer. Waterland Trading will so notify the Buyer. 1
Article 5: Payment 5.1 To the extent not explicitly agreed otherwise, the agreed price for machines must be paid into the bank account designated by Waterland Trading, without any discount, on or before the time of delivery. 5.2 To the extent not explicitly agreed otherwise, the agreed price for parts and/or repair, service, maintenance and other additional activities must be paid into the bank account designated by Waterland Trading, without any discount, within thirty (30) of the date on the invoice. 5.3 Upon failure to make timely payment the Buyer is in breach without further notice being required and the Buyer also becomes bound to pay default interest of 1.5% per month or any part thereof on the invoiced amount for the duration of the breach. The Buyer shall also be bound to compensate all costs of collection, whether extrajudicial or not, which are estimated in advance to be at least 10% of the amount owing. 5.4 Waterland Trading is entitled, at its discretion, to require full or partial payment in advance and/or to require the Buyer to secure the fulfilment of its obligations under the agreement by means of an irrevocable and unconditional bank guarantee issued by a financial institution acceptable to Waterland Trading. 5.5 The Buyer is not entitled under any circumstances to suspend payment. Unless otherwise agreed in writing, the Buyer also irrevocably waives any right to set off any sums owing between the parties. Article 6: Delivery, transfer of risk and purchase obligation 6.1 Unless otherwise provided in the agreement, all deliveries are Ex Waterland Trading. The risk of the machine and/or part sold shall transfer from Waterland Trading to the Buyer at the moment of delivery. 6.2 Delivery dates are only estimates and shall never be considered absolute deadlines. Waterland Trading shall notify the Buyer of the actual date of delivery. 6.3 Unless explicitly agreed otherwise the Buyer is obliged to collect the machine and/or the part on the delivery date specified by Waterland Trading. 6.4 If the Buyer fails to carry out some transaction in which it must participate for the delivery, Waterland Trading can deem the machine and/or the part to have been delivered and store it at the Buyer s risk. Waterland Trading is then entitled to charge the Buyer for storage costs. 6.5 In addition to the provisions in Article 10.3 and 10.4 with respect to parts, the Buyer bears a general purchase obligation. Upon failure to fulfil this purchase obligation, the Buyer is bound to compensate Waterland Trading for any related loss. Article 7: Risk transfer upon and during transport to another destination address 7.1 If it is agreed that the machine and/or the part should be delivered to another destination address, this shall have no effect upon the agreed delivery condition Ex Waterland Trading and upon the transfer of risk as agreed in Article 6.1. The machine and/or the part shall be transported to the other location at the Buyer s risk. 7.2 Unless explicitly agreed otherwise the Buyer must assure that the machine and/or the part is insured (third party and comprehensive cover), reported and registered before its transport. Article 8: Retention of title 8.1 Title to the machine and/or the part shall transfer from Waterland Trading to the Buyer after delivery and after the Buyer has fulfilled its obligation to pay as provided in Article 5. 8.2 During the time that title to the machine and/or the part pursuant to the first paragraph of this Article has not yet transferred to the Buyer, but delivery having already been made, the Buyer must insure the machine and/or part (third party and comprehensive cover) and is not permitted to alienate, encumber, pledge, lease, put the machine and/or the part out on loan, and/or to make it available in any other way to third parties or to transfer it to third parties. The Buyer must indemnify Waterland Trading during this time against all third party claims. 8.3 During the period of time referred to in the second paragraph of this Article, the Buyer is bound to handle the machine and/or the part with utmost care and, at the request of Waterland Trading, return it in good condition. Article 9: Right of retention and right of pledge 9.1 In addition to Waterland Trading s right to require security as arranged in Article 5, Waterland Trading also has a right of retention over any of the Buyer s goods and documents that it may have in its possession, towards anyone who wishes their surrender. Waterland Trading can exercise this right over all that the Buyer owes it. Waterland Trading shall never be liable for any damage that could arise from its exercise of its right of retention. 9.2 Waterland Trading also has a right of pledge on all goods, documents and monies which Waterland Trading may or will hold on whatever basis and for whatever purpose for all claims it has or may in the future have upon the Buyer. 9.3 The Buyer shall not acquire any rights under this Article. 2
Article 10: Parts 10.1 Mainly new parts are used in the execution of the agreement. Waterland Trading will notify the Buyer if used parts were to be fitted. 10.2 All replaced parts and materials shall be made available to the Buyer only if this is explicitly agreed. In all other cases, the replaced parts and materials become the property of Waterland Trading without the Buyer having the right to any compensation, unless agreed otherwise. 10.3 The Buyer must purchase all parts that were specially modified and/or ordered by/for it, even if follow-on activities, such as fitting the parts, are not performed. These parts cannot be returned or exchanged. 10.4 Waterland Trading shall exchange or accept in return parts other than those named in Article 10.3 only if the Buyer delivers them undamaged and in their original packaging. Waterland Trading will charge, in all cases, a 10% processing fee, with a minimum of EUR 25.00. Article 11: Buyer s Duty of Inspection 11.1 Before or upon entering any purchase agreement involving used machines and/or parts the Buyer is obliged to inspect the machines and/or parts carefully and thoroughly, or to have them inspected by a third party acting on its behalf. Any deviations and/or defects detected must be reported immediately to Waterland Trading. 11.2 The Buyer is obliged to inspect the (used) machines and/or parts carefully and thoroughly, or to have them inspected by a third party acting on its behalf, upon delivery. Any deviations and/or defects detected must be reported immediately to Waterland Trading. A previous inspection conducted in accordance with the first paragraph of this Article does not relieve the Buyer of its duty of inspection under the second paragraph. 11.3 If transport to another destination address is agreed, the machine and/or the part must be inspected in accordance with the second paragraph of this Article after its arrival at this destination address. 11.4 The second and third paragraphs of this Article apply equally to machines and/or parts on which Waterland Trading has carried out repair, service, maintenance and other additional activities. The machines and/or parts must be inspected upon being made available. Article 12: Purchase of used machines and/or parts 12.1 The Offerer tendering a used machine and/or part to Waterland Trading bears the obligation to disclose to Waterland Trading all possible and observed defects of the machine and/or the part before or upon concluding the purchase agreement. The Offerer must further disclose to Waterland Trading details of the full past history of the machine and/or the part (such as, but not limited to, accidents, major repairs, last service overhaul, etc.). The purchase price is subject to the reservations set forth in the fourth paragraph of this Article. 12.2 If the Offerer wishes to continue use of the machine and/or part until its delivery to Waterland Trading, the Offerer is obliged to use the machine and/or the part with utmost care during that time. Furthermore, the purchase price stated by Waterland Trading shall be deemed in such a case to be an estimate of a possible future purchase price that will be determined only after the inspection described in the fourth paragraph. Waterland Trading is not bound to any purchase price named previously. 12.3 Unless explicitly agreed otherwise the used machine and/or the part shall be delivered to Waterland Trading or some other place to be determined jointly. The costs to transport the machine and/or the part to its place of delivery shall be payable by the Offerer. The risk for the machine and/or the part shall transfer to Waterland Trading only at the moment that Waterland Trading has or acquires actual disposition of the machine and/or the part. 12.4 Waterland Trading shall inspect the used machine and/or the part, or cause it to be inspected, within eight (8) days after it has been placed at its disposal. If in the opinion of Waterland Trading the machine and/or the part is not or no longer in the same condition as it was when the purchase agreement was formed and/or Waterland Trading detects (hidden) defects, Waterland Trading is entitled to refuse the machine and/or the part and to terminate the purchase agreement with the Offerer, or, as the case may be, to appraise the machine and/or the part once again and to set its purchase price accordingly. The ultimate purchase price shall also be reduced by the cost of necessary repairs or, as the case may be, the amount to recover any reduction in value/damage from the failure (inability) to present a valid vehicle license certificate and/or registration and any other official documents (such as, but not limited to, import certificate, proof of warranty, manuals, operators guides, parts books, CE-Certificates, etc.). 12.5 Unless otherwise agreed Waterland Trading shall pay the purchase price and any BTW owing to the Offerer no later than fourteen (14) days after the ultimate purchase price is determined in accordance with the fourth paragraph of this Article. 12.6 If the purchase of a used machine and/or part as described in this Article, the "Purchase Agreement", is accompanied by the sale of a machine and/or part as described in these General Terms and Conditions, the "Sales Agreement", the termination and/or amendment of the Purchase Agreement shall not impair the validity of the Sales Agreement. Upon termination of the Sales Agreement Waterland Trading is entitled to terminate the Purchase Agreement. 3
Article 13: Warranty 13.1 Unless otherwise agreed in writing, warranties shall be issued for new machines and parts only during the first year after their delivery and solely as issued by the manufacturer and/or other suppliers. In case of the manufacturer s and/or suppliers bankruptcy, moratorium, or if the manufacturer and/or supplier cease to exist for any other reason, the warranty obligations as stated above shall expire. 13.2 Should any furnished warranty be linked to a maximum number of operating hours, the warranty cannot be invoked once this maximum has been exceeded. The Buyer must demonstrate when invoking a warranty that the maximum number of operating hours has not been exceeded. 13.3 Unless otherwise agreed in writing no warranty shall be provided for used machines and/or parts. 13.4 Waterland Trading shall never be bound to make available any replacement machines and/or parts. 13.5 Waterland Trading guarantees the competent execution of all agreed repair, service, maintenance and other additional activities for a term of three (3) months under normal use of the machine and/or the part, to be calculated as from the moment that the machine and/or the part is made available to the Buyer once more after the work has been completed. 13.6 Notwithstanding the above provision, the warranty for any repair, service, maintenance and other additional activities that Waterland Trading has performed by third parties in the framework of executing the agreement is limited to the warranty that Waterland Trading obtains from such third parties. 13.7 Claims under the warranty shall lapse if: a. the Buyer does not notify Waterland Trading in writing immediately upon detecting the defects; b. the written notice under Sub a above does not reach Waterland Trading within the warranty period stated above; c. the Buyer does not give Waterland Trading and/or a third party designated by Waterland Trading the opportunity to repair the defect within a reasonable period of time; d. third parties have performed work without Waterland Trading s prior knowledge or permission that is related to work to be performed by Waterland Trading and/or a third party designated by Waterland Trading about which a claim has been made under the warranty; e. the machine and/or the part has been used improperly, which is understood to mean, but not exclusively: - any use for other than normal purposes; - any use of improper fuel, oils and/or other improper maintenance materials; - any maintenance other than that prescribed by Waterland Trading and/or the manufacturer, importer and other suppliers of the machine and/or the part; - incompetent operation, use and/or maintenance; f. the Buyer has modified the machine and/or the part unless done strictly according to the written recommendation or permission of Waterland Trading and/or the manufacturer, importer and/or other suppliers. 13.8 The warranty on repair, service, maintenance and other additional activities is limited to Waterland Trading carrying out the originally agreed activities once more at its own expense. Any travel and/or transport costs that Waterland Trading incurs in connection with carrying out such warranty activities shall be at the Buyer s expense. If in Waterland Trading s opinion carrying out the warranty activities is not or no longer possible or worthwhile, the Buyer then is entitled to reasonable compensation in place of such activities up to the amount invoiced for the original activities. Completed warranty activities are, themselves, also guaranteed under the same terms and conditions. 13.9 The warranty excludes: - defects that can be traced to ordinary wear and tear; - defects caused by outside forces (for example, tire puncture, vandalism, etc.); - damage to a machine and/or part that is the consequence of previous damage covered by the warranty that was not repaired; - emergency repairs; - defective materials or parts prescribed or made available by the Buyer; - defects in parts that the Buyer later swapped out or fitted itself; - defects consequent to designs, drawings, constructions or procedures made available by the Buyer or, as the case may be, advice given by the Buyer; - deviations in the colour or quality of the coating deemed admissible or unavoidable by the industry. Article 14: Reservations 14.1 If the production and/or supply of a particular machine and/or part is not or no longer possible, Waterland Trading reserves the right either to terminate the agreement or, in consultation with the Buyer, to supply a different machine and/or part, without being obliged to pay any compensation. 14.2 The first paragraph of this Article is equally applicable if Waterland Trading has sold the Buyer a used machine and/or part and this machine and/or this part cannot be delivered to the Buyer due to circumstances that cannot be attributed to Waterland Trading. 14.3 If the manufacturer, importer or supplier alters the modification and/or the construction of the machine and/or the part, Waterland Trading reserves the right to supply this altered machine and/or this part, provided that the altered machine and/or part has at least the same normal properties for use as had the machine and/or part originally specified in the agreement. 4
Article 15: Force Majeure 15.1 Waterland Trading shall in no case be liable for the consequences of not meeting its obligations at all, on time, or fully as a result of force majeure. Force majeure is understood to mean any shortcoming on the part of Waterland Trading that is not attributable to its fault, or any legal act or generally accepted practice that under the law is not its responsibility. Such circumstances include strikes, factory sit-ins, interruption of production due to machinery breakdown, interruption of power and water supply or fire, et al., and import, export and production prohibitions and other government measures, transport interruptions and any breach by manufacturers, importers, suppliers or assistants. 15.2 In case of force majeure Waterland Trading is entitled to extend the agreed time for the fulfilment of its obligations by the duration of the situation of force majeure, or, as the case may be, to terminate the agreement in whole or in part without Waterland Trading being liable for any compensation. Article 16: Conflict with industrial/intellectual property rights/trademarks 16.1 Whenever Waterland Trading uses the Buyer s drawings, models, instructions, etc. in fulfilling an agreement with that Buyer and a third party sues Waterland Trading for infringement of industrial or intellectual property rights in connection with its use of the Buyer s drawings, models, instructions, etc., the Buyer must assume the handling and settlement of this third party claim and indemnify Waterland Trading against all third party claims. The Buyer shall bear all expenses related to this. Article 17: Liability 17.1 Waterland Trading is liable toward the Buyer solely for damage to a machine and/or part it delivered or, as the case may be, damage that can be traced to repair, service, maintenance and other additional activities if the Buyer can demonstrate that such damage is the direct and immediate consequence of a breach by Waterland Trading in the fulfilment of the agreement. The Buyer must notify Waterland Trading immediately in writing of the damage that occurred. 17.2 Waterland Trading s liability pursuant to the first paragraph of this Article is limited to no more than the current market value of the machine and/or the part. 17.3 Waterland Trading is not liable for any other form of (consequential) damage to the Buyer or, as the case may be, any (consequential) damage to third parties. The Buyer must indemnify Waterland Trading against third party claims upon Waterland Trading for compensation for (consequential) damage. 17.4 Waterland Trading is not bound to offer the Buyer a replacement machine and/or part. 17.5 Any claim of the Buyer or Offerer for any possible liability of Waterland Trading shall lapse if the Buyer has not commenced legal action against Waterland Trading on this matter within six (6) months after it has discovered the damage. Article 18: Applicable law and competent court 18.1 All agreements referred to in these General Terms and Conditions, all other agreements consequent to these, and all disputes concerning the existence, validity and/or termination of these agreements, shall be subject to and interpreted under the law of the Netherlands exclusively. 18.2 All disputes arising in respect of these agreements referred to in these General Terms and Conditions, or other agreements consequent to these, and all disputes concerning the existence, validity and/or termination of these agreements, shall be brought before the District Court in Amsterdam, the Netherlands, to the exclusion of all other courts. Article 19: Miscellaneous 19.1 Unless explicitly agreed otherwise in writing, the Buyer is not entitled to transfer one or more of its rights and/or obligations under an agreement referred to in these General Terms and Conditions to a third party. 19.2 Waterland Trading s failure to exercise any right that it holds under an agreement referred to in these General Terms and Conditions cannot be construed to be a waiver of such a right. 19.3 No waiver of any provision of an agreement or of any provision of these General Terms and Conditions by Waterland Trading shall be construed to be a farther-reaching or continuous waiver of any other provision thereof. 19.4 The headings of the articles of these General Terms and Conditions are intended to make their reading convenient and have no effect on the interpretation of the provisions of these General Terms and Conditions. 19.5 If any provision or part of an agreement and/or these General Terms and Conditions is null or unenforceable for whatever reason, such nullity and unenforceability is then limited to that provision and does not extend beyond such provision. All such null or unenforceable parts of an agreement and/or these General Terms and Conditions shall be replaced (or deemed to have been replaced) by provisions that are neither null nor unenforceable and that differ as little as possible from the null and/or unenforceable provisions, bearing in mind the intent of the agreement and of the General Terms and Conditions and of the provisions concerned. 5