Geesa

General conditions

GENERAL CONDITIONS OF SALE AND DELIVERY OF GEESA B.V.

filed at the office of the district court in Utrecht on 17 August 1994 under number 127/94.

ART. 1. APPLICABILITY OF GENERAL CONDITIONS OF SALE AND DELIVERY

These conditions apply to all offers and contracts of sale in respect of which Geesa b.v. (hereinafter referred to as Geesa) is acting as the offerer or vendor, unless both parties have expressly agreed otherwise in writing.

ART. 2. OFFER

An offer from Geesa is without commitment unless the offer expressly indicates the contrary. If an offer contains a proposal without commitment and this is accepted, Geesa is entitled to withdraw the offer within 2 working days of receiving acceptance. All pictures, drawings and data relating to weights, dimensions and colours are approximations only.

ART. 3. CONTRACT

Contracts of sale become effective from the point when Geesa sends written acceptance to the purchaser within 8 days of receiving the delivery order. Contrary to the above provision, Geesa can also accept the order placed by the purchaser by sending the goods to the purchaser within 8 days of receiving the delivery order. If the customer makes changes to the order verbally or over the telephone and fails to confirm these in writing, the risk of these changes being executed will be borne by the customer. Verbal promises by and agreements with Geesa's employees are only binding for Geesa if and in so far as they have been confirmed in writing by Geesa.

ART. 4. PRICES

The prices stated by Geesa exclude VAT and other charges on sale and delivery imposed by the government and are based on delivery ex works in accordance with Incoterms as valid on the date of the offer, unless otherwise specified in these conditions. The term 'works' is understood to mean the commercial premises of Geesa. Varying conditions of delivery for orders within the Netherlands regarding freight charges, surcharges on small orders and return consignments are stated in our price list. If one or more of the cost-price factors is subject to an increase after the date on which the contract becomes effective, even if this occurs as a result of circumstances which could have been anticipated, Geesa is entitled to increase the agreed price accordingly. If the price is increased within three months of concluding the contract, the customer is entitled to dissolve the contract, irrespective of the percentage of the increase. If the price is increased by more than 15% the customer is entitled to dissolve the contract, even if this occurs after the above period has expired.

ART. 5. DELIVERY

Delivery of the goods will take place at Geesa's plant by handing them over to the transporter or the customer. Geesa reserves the right to deliver in parts. The date of delivery stated in the order confirmation is a target date. Geesa will take every reasonable measure to ensure that delivery takes place on or before this date. If Geesa becomes aware of facts or circumstances which make it impossible to deliver on or before the target date, Geesa will immediately inform the purchaser in writing, stating the new delivery date. The other provisions of the contract will remain in full force. An agreed delivery date is not an absolute deadline, unless expressly agreed otherwise. Consequently, in the event of late delivery Geesa must be given written notice of default.

ART. 6. TRANSFER OF RISK AND OWNERSHIP

Immediately on delivery of the goods, or from the point when the customer defaults with regard to an action it is obliged to perform to assist in the delivery, the customer will bear the risk for all direct and consequential damage which may be caused to or by the product, unless the reason for this damage can be attributed to gross negligence or intention on the part of Geesa. If the customer defaults with regard to an action it is obliged to perform to assist in the delivery, Geesa is entitled to charge the cost of storing the product to the customer. Without prejudice to the above provision, ownership of the product is only transferred to the customer when the customer has settled in full the amount it owes to Geesa as a result of deliveries or activities, including interest and expenses. Where appropriate Geesa will be entitled to unhindered access to the product. The customer will offer Geesa any assistance necessary to enable Geesa to exercise the aforementioned retention of title by taking back possession of the product.

ART. 7. PAYMENT

Unless agreed otherwise payment must be made within 30 days of the invoice being sent. All payments must be made, without deductions or set-offs, to the offices of Geesa or into an account designated by Geesa. If the customer fails to pay within the agreed periods, it is in default by operation of law and Geesa is entitled to increase its claim by adding interest for overdue payment up to a percentage of 4 points above the Nederlandsche Bank's promissory note discount rate per month or part thereof, all starting from the due date of the invoice. The submission of bills of exchange, cheques and other similar documents is not considered as payment for as long as the amounts owed are not irrevocably in Geesa's possession. Complaints in respect of prices calculated and other comments relating to the invoice must be submitted in writing to Geesa within 8 days of the invoice date. If the customer is in default with the payment of any of Geesa's claims, Geesa is entitled to suspend the further performance of all current contracts between it and the customer until such payment is made. Furthermore, Geesa is entitled to demand sufficient security for the payment prior to delivery. Geesa can suspend the completion of the order until such security has been provided, if requested. Payments made by the customer always serve first of all to settle any interest and expenses owed and then to settle those invoices which have been outstanding the longest, even if the other party states that the payment relates to a later invoice. Geesa is also entitled, in addition to the aforementioned principal sum and the interest due, to charge the customer in full for any reasonable expenses, including both extrajudicial and court costs (in so far as they have not been settled), which have been incurred as a result of the customer failing to fulfil any obligation arising from the contract and these conditions. The extrajudicial collection costs are determined on the basis of the collection rate of the Netherlands' National Bar [Nederlandse Orde van Advocaten], with a minimum of NLG 100.-- excluding VAT.

ART. 8. GUARANTEE AND COMPLAINTS

Without prejudice to the restrictions stated below, Geesa guarantees both the reliability of the product it delivers and the quality of the material used and/or delivered for this purpose, provided that the problem encountered is the result of imperceptible defects in the product at the time of delivery which the customer proves have come to light within the guarantee period exclusively or predominantly as a direct consequence of an inaccuracy in the construction method employed by Geesa or as a result of poor workmanship or the use of poor quality material. The guarantee periods for our various products are stated on our price list. Geesa must be informed in writing of complaints due to visible defects within 8 days of delivery. If no such complaints are received the customer is deemed to have irrevocably accepted the product and will no longer be entitled to claim that the product delivered does not satisfy the contract. Geesa will decide whether to repair or replace the products if the purchaser can demonstrate that the product has been used and maintained in the proper manner and informs Geesa of any defects in writing within 10 days of the defects being discovered or within 10 days of the point when the customer could have reasonably been expected to discover the defects. Defects fall outside the guarantee in any case if they occur entirely or partly as a result of:

  1. ordinary wear and tear,
  2. failure to observe the ordinary intended use,
  3. assembly/installation or repair by third parties, including the customer,
  4. second-hand materials or goods used in consultation with the customer
  5. materials or goods supplied by the customer to Geesa for treatment,
  6. materials, goods, working methods and construction techniques, in so far as these have been applied on the explicit instruction of the customer, as well as materials and goods delivered by or on behalf of the customer,
  7. parts purchased by Geesa from third parties, in so far as the third party has failed to provide a guarantee to Geesa.

If Geesa replaces parts/products in order to fulfil its guarantee obligations, the parts/products replaced become the property of Geesa. The alleged failure of Geesa to perform its guarantee obligations does not relieve the customer from its own obligations resulting from any contract concluded with Geesa.

ART. 9. LIABILITY

Provided there is no question of force majeure, Geesa accepts statutory liability for any damage to persons or property resulting from attributable shortcomings in its performance of the contract. For each case of damage this liability will only extend to the maximum payment covered by the liability insurance it has concluded.

ART. 10 FORCE MAJEURE

In these General Conditions the term 'force majeure' is understood to mean any circumstance beyond the control of Geesa, even if this could have been anticipated at the time the contract became effective, and which temporarily or permanently prevents performance of the contract, as well as, if not already included, war, danger of war, civil war, riot, industrial action, lock-out, transportation problems, fire and other serious disruptions to the business of Geesa or its suppliers.

ART. 11. SUSPENSION AND DISSOLUTION

  1. In the event of force majeure preventing performance of the contract, Geesa is entitled, without judicial intervention, to suspend performance of the contract for a maximum of 6 months or to dissolve the contract in full or in part, without being liable for any compensation. During the suspension period Geesa is authorised, and at the end of the suspension period obliged, to decide whether to continue the performance of the contract or to dissolve it in full or in part.
  2. If the customer fails to fulfil its obligations due to an attributable shortcoming on its part, for example breach of contract, it will be liable, following prior warning or another form of declaration, in so far as this is required, to pay Geesa a penalty which is fixed at 50% of the sales price agreed between the parties or, at Geesa's discretion, the statutory compensation.
  3. Cancellation by the customer after the order has been confirmed is only binding for Geesa in so far as it approves such cancellation in writing. Geesa will still be entitled to charge the customer for any resulting damage it incurs, of whatever nature but expressly including loss of profit, or, at Geesa's discretion, to charge a fixed penalty equivalent to 40% of the sales price agreed before cancellation.

ART. 12. DISPUTES

  1. Subject to the applicability of section 2 of this article and without prejudice to the possibility of requesting provisional relief in interim injunction proceedings from the President of the competent District Court, all disputes which may arise from a contract to which the above conditions of delivery apply in full or in part, or from other contracts which ensue from such a contract, will be settled by an arbitration tribunal to the exclusion of the ordinary courts. This arbitration tribunal will be appointed in accordance with the articles of association of the Arbitration Board for the Metallurgical Industry and Trade Foundation [Stichting Raad van Arbitrage voor Metaalnijverheid en -Handel], based in The Hague, and will give judgement with due consideration for the Board's articles of association.
  2. In so far as the disputes described in the previous section fall within the jurisdiction of the subdistrict court, in accordance with the provisions of the Netherlands' law of civil procedure, only the competent subdistrict court will be entitled to settle the dispute.

ART. 13 APPLICABLE LAW

All contracts to which these conditions apply in full or in part are governed by the Dutch law which applies to the Kingdom of the Netherlands within Europe.