Conditions of Sale

GENERAL TERMS AND CONDITIONS OF SALE

of RUBITECH B.V., a private limited liability company having its registered office in Steenwijk, the Netherlands, and affiliated companies, filed with the registry of the Court of Zwolle-Lelystad on 23 October 2012 under number 31/2012.

Article 1 Applicability of these Terms and Conditions

• 1.1 These terms and conditions apply to every offer and every agreement between Rubitech B.V. and/or companies affiliated with Rubitech B.V. on the one hand, hereinafter to be called ‘Rubitech’, and a buyer on the other, to which Rubitech has declared these terms and conditions applicable, insofar as the parties do not deviate therefrom in writing.
• 1.2 Unless the parties agree otherwise in writing, after an agreement between the parties to which these general terms and conditions are applicable, all subsequent agreements between the parties will also be governed by these general terms and conditions.

Article 2 Quotation, Assignment, Agreement

• 2.1 Rubitech’s quotations will be without commitment; they will be valid for one month unless specified otherwise.
• 2.2 Rubitech will be bound by quotations only if it confirms the buyer’s acceptance of such quotations in writing within 30 days or if Rubitech has commenced the actual execution of the agreement.
• 2.3 An assignment or order to Rubitech will be binding on Rubitech only if it has accepted the assignment or order in writing within 30 days.
• 2.4 Changes to agreements already concluded may be agreed by the parties in writing only. Statements or promises by unauthorised employees of Rubitech will not be binding on Rubitech.
• 2.5 All prices stated are exclusive of VAT unless otherwise specified.
• 2.6 In the execution of a framework agreement the agreement is concluded always when Rubitech, in the context of the framework agreement concerned, has received and accepted the assignment for a (an instalment) delivery.
• 2.7 The buyer agrees that Rubitech corresponds and communicates with the buyer and third parties by digital means of communication.

Article 3 Delivery

• 3.1 Unless otherwise agreed in writing, delivery will be made ex factory/warehouse of Rubitech. If one of the INCO terms has been agreed as a condition of delivery, the INCO terms effective at the time of conclusion of the agreement will apply.
• 3.2 The buyer is required to take delivery of the goods bought when they will be made available to him under the agreement or when they are delivered to him.
• If the buyer refuses to take delivery or fails to provide information or instructions required for delivery, the buyer is in default without a notice of default, and the goods will be stored at the buyer’s risk. In that case the buyer pays all additional costs, including at any rate the costs of storage. In that case Rubitech is not required to deliver the goods until the buyer has paid the agreed price and the costs incurred by Rubitech due to the buyer’s refusal to take delivery.
• 3.3 Unless otherwise agreed in writing, Rubitech will make deliveries to the buyer not based on exclusivity.
• 3.4 Rubitech is authorised to postpone delivery of the goods sold until the buyer has provided security for payment. In that case the buyer shall reimburse Rubitech for the loss and damage sustained due to the delay. Rubitech also has the right to deliver cash on delivery.

Article 4 Delivery Term, Instalment Deliveries

• 4.1 Agreed delivery terms are not fatal, unless otherwise agreed in writing. In the event of late delivery the buyer shall send Rubitech a written notice of default.
• 4.2 Rubitech may deliver goods sold in instalments. If the goods are delivered in instalments, Rubitech has the right to invoice each instalment separately.
• 4.3 If changes in the assignment to Rubitech mean that more time is required to execute the agreement, the delivery term will be extended by the extra time required.

Article 5 Description, Quality, (Technical) Requirements and Complaints

• 5.1 Rubitech will deliver the goods to the buyer in accordance with the description and in the quantity specified in the quotation or order confirmation (possibly as amended later), on the understanding that slight variations in colour, quality and/or specifications are admissible insofar as they do not affect the commercial value. Where necessary Rubitech will carry out inspections but with regard to an inspection certificate to be issued accepts responsibility only for the accuracy of the functional measurements taken. The buyer, however, will remain responsible for the functional measurements and tolerances stated to Rubitech and the choice of materials and specifications to be used, unless otherwise agreed in writing.
• 5.2 Rubitech does not warrant that the goods are suitable for the purpose for which the buyer wishes to use them, not even if this purpose has been notified to Rubitech, unless the contrary has been agreed between the parties in writing.
• 5.3 Rubitech will not be liable for any loss or damage, of whatever nature, arisen because Rubitech worked from incorrect and/or incomplete data provided by the buyer.
• 5.4 If the goods to be delivered in the Netherlands are to be used outside the Netherlands, Rubitech will be responsible for the goods to be delivered to satisfy the technical requirements or standards set by the laws or regulations of the country where the goods are to be used if upon conclusion of the agreement regarding use in another country and the relevant standards and requirements have been mentioned in writing. Upon conclusion of the contract of sale the buyer shall also mention in writing all other (technical) requirements set by the buyer for the goods to be delivered that deviate from the normal requirements.
• 5.5 The buyer shall inspect the goods bought upon delivery or as soon as possible afterwards. Upon inspection the buyer shall examine whether the goods delivered comply with the agreement. Complaints about visible defects or deficits shall be reported to Rubitech in writing within eight days of delivery.
• The buyer shall notify Rubitech in writing of hidden defects within eight days after the defect has been discovered or reasonably should have been discovered, but no later than within six months after delivery.
• 5.6 The buyer invoking a defect or deficit as referred to in Article 5.5 does not suspend his payment obligation.

Article 6 Packaging and Shipment

• 6.1 Rubitech will properly package and secure the goods to be delivered (unless the nature of the goods so opposes) that they will reach their destination in a good condition by regular transport. Unless otherwise agreed Rubitech will arrange for the usual transport insurance.
• 6.2 Unless otherwise agreed in writing, Rubitech will deliver or cause others to deliver the goods in the manner and place(s) agreed (afterwards).
• 6.3 If Rubitech has made available for the packaging and transport pallets, crates, collars, boxes, containers, etc. or has a third party make the same available – whether or not against payment of a deposit – the buyer shall return such pallets, etc. at his expense to the address stated by Rubitech, failing which the buyer will owe Rubitech compensation.
• 6.4 The buyer may return goods to Rubitech only after Rubitech has given its written permission. The buyer shall return the goods in their original packaging. Unless otherwise agreed in writing, the goods shall be returned carriage paid and at the risk of the buyer, to the place(s) specified by Rubitech.

Article 7 Samples, Models and Examples
If Rubitech has shown or provided a sample, model or example, this will be deemed an indication: the qualities of the goods to be delivered may deviate from the sample, model or example, unless it has been stated explicitly that the delivery will be in conformity with the sample, model or example shown or provided.

Article 8 Risk, Retention of Title

• 8.1 The risk in the goods to be delivered will pass to the buyer upon delivery.
• 8.2 The goods delivered by Rubitech will remain Rubitech’s property until the buyer has fulfilled all the following obligations arising from the contracts of sale made with Rubitech:
  • - the consideration(s) with regard to the good(s) delivered or to be delivered;
  • - the consideration(s) with regard to the services performed or to be performed by Rubitech under the contract(s) of sale;
  • - any claims on account of non-compliance by the buyer with the contract(s) of sale.
• 8.3 If the right of the country of destination of the goods bought provides for more extensive possibilities to reserve title than stipulated in paragraph 2, such possibilities will be deemed to have been stipulated between the parties on Rubitech’s behalf, on the understanding that if objectively it is impossible to establish the more extensive regulations to which this provision relates, the provisions contained in paragraph 2 will remain effective.
• 8.4 Goods delivered by Rubitech, which pursuant to paragraphs 2 and/or 3 come under the retention of title may be resold only in the course of ordinary business. In the event of the buyer’s bankruptcy or suspension of payments reselling in the course of ordinary business is not allowed. The buyer does not have the right to pledge the goods or create another right on those goods.
• 8.5 In respect of goods title to which has passed to the buyer by payment and that are still in the buyer’s possession Rubitech reserves the rights of pledge as referred to in Article 3:237 of the Dutch Civil Code by way of additional security for claims, other than those referred to in paragraphs 2 and 3, which Rubitech may have against the buyer on whatever account. This right also applies to goods delivered by Rubitech that have been treated or processed by the buyer, as a result of which Rubitech has lost its retention of title.
• 8.6 If the buyer fails to fulfil his obligations or if there is a valid reason to fear that he will fail, Rubitech has the right to remove or cause others to remove goods from the buyer or third parties holding the goods for the buyer that are subject to the retention of title referred to in paragraphs 2 and/or 3. The buyer shall fully cooperate on pain of a penalty of 10% of the outstanding amount per day.
• 8.7 If third parties wish to create or enforce a right on goods delivered subject to retention of title the buyer shall inform Rubitech as soon as may be reasonably expected.
• 8.8 Payment by a third party of the amount owed by the buyer to Rubitech will not result in the condition precedent of payment being fulfilled in connection with the retention of title. In that case therefore this third party may also invoke the retention of title. 
• 8.9 The buyer shall insure and keep insured the goods delivered subject to retention of title against damage caused by fires, explosions and water and against theft and show Rubitech the policy and proof of premium payments at its first request. Moreover, at Rubitech’s first request, the buyer shall:
  • - pledge to Rubitech all his claims against insurers in respect of the goods delivered subject to retention of title in the manner prescribed by Article 3:239 of the Dutch Civil Code;
  • - pledge to Rubitech all the claims he acquires against his buyers when reselling goods delivered subject to retention of title in the manner prescribed by Article 3:239 of the Dutch Civil Code;
  • - mark the goods delivered subject to retention of title as Rubitech’s property;
  • - cooperate in other ways in all reasonable measures that Rubitech wishes to take to protect its title to the goods, which do not interfere unreasonably with the buyer’s ordinary course of business.

Article 9 Force Majeure

• 9.1 Force majeure means: circumstances that prevent performance of the obligation, which cannot be attributed to Rubitech. During a situation constituting force majeure Rubitech’s delivery and payment obligations will be suspended.
• 9.2 Force majeure means at any rate: the circumstance that a service relevant to its own service is not provided, not provided in time or not provided properly, such as a delay in the transport of the good or service to be delivered in the broadest sense; disruptions during assembly of goods under the control of Rubitech or third parties engaged by Rubitech; late delivery by a supplier of Rubitech due to interruptions in production at that supplier; power cuts; excessive sickness absence levels; strikes; disruptions in traffic; government measures that prevent Rubitech from fulfilling its obligations in time or properly; a general lack of raw materials required and other goods or services required to deliver the agreed service.
• 9.3 If due to force majeure the service is delayed more than three months, either party will have the right to terminate the agreement, without any compensation being required by either party.
• 9.4 Rubitech also has the right to invoke force majeure if the circumstance preventing (further) performance arises after Rubitech should have performed its obligation.
• 9.5 If when the situation constituting force majeure arose Rubitech has partially performed its obligations or can perform its obligations only partially, Rubitech will have the right to invoice the part delivered or to be delivered separately and the buyer will be required to pay this invoice as if it were a separate contract. This, however, does not apply if the part delivered or to be delivered does not have an independent value.

Article 10 Confidentiality
Save for the applicable legal obligations both parties are required to treat all confidential information they have obtained about each other under the agreement or from another source as strictly confidential. Information will be regarded as confidential if so qualified by the disclosing party or if this arises from the nature of the information.

Article 11 Trademark, Intellectual and Industrial Property Rights

• 11.1 The buyer has the right to provide the packaging of the goods with his own trademark but not such that Rubitech’s manufacturing mark is no longer visible.
• 11.2 Rubitech has the right to have an accountant audit the buyer’s books to verify compliance with the provisions contained in this article.
• 11.3 Rubitech remains the owner of and retains all industrial and intellectual property rights in the goods it has delivered and any included and accompanying software, drawings, designs, models, moulds, knowhow, etc.
• The buyer may not copy said goods/data or make the same available to third parties in any way whatsoever without Rubitech’s prior written permission.

Article 12 Warranty

• 12.1 For a period of six months after delivery, unless agreed otherwise in writing, Rubitech warrants that the goods delivered comply with the functional measurements and specifications stated by the buyer and accepted by Rubitech.
• 12.2 If the goods do not comply with the agreed functional measurements and specifications, the buyer is entitled to repair of the goods if he notifies Rubitech within the warranty period. A good will be deemed repaired if the good complies (again) with the functional requirements that may be reasonably set.
• Rubitech may choose to replace a good if repair meets with difficulties. The buyer is entitled to replacement only if repair is impossible. Replaced goods will become Rubitech’s property.
• 12.3 The warranty does not apply if loss or damage is the result of improper treatment.

Article 13 Liability

• 13.1 Rubitech is liable towards the buyer only as follows:
  • 1. for defects in goods delivered liability applies as regulated in Article 12 (Warranty) of these terms and conditions.
  • 2. Rubitech´s liability is limited to the loss or damage sustained by the buyer that is the direct and exclusive consequences of a fault on Rubitech´s part.
  • This loss and damage qualifies for compensation if Rubitech has insurance against such liability, up to the maximum amount paid under that insurance.
  • 3. if Rubitech´s insurance does not make payment or the loss or damage is not covered by the insurance, Rubitech will not be liable for an amount exceeding the invoice amount of the invoice amount for the good or part in question.
• 13.2 Rubitech is not liable for any consequential loss or damage such as loss of profit and other indirect loss or damage.
• 13.3 Each right of action of the buyer against Rubitech will lapse after expiry of one year to be computed from the date on which the goods delivered were delivered to the buyer, or were made available to the buyer, unless the buyer has filed proceedings against Rubitech within that term and has filed the claim in the principal action.
• 13.4 The above limitations of liability do not apply if the loss or damage is caused by wilfulness or gross negligence of Rubitech or persons charged with the management of its business.

Article 14 Indemnity

• 14.1 The buyer will indemnify Rubitech in respect of loss or damage arisen due to or in the execution of the agreement against claims of third parties against whom Rubitech cannot invoke these terms and conditions. In this context third parties will also mean personnel employed by the buyer and other persons used by the buyer. The buyer is under the duty of indemnity only insofar as the loss and damage concerned is not for Rubitech’s account and risk under this agreement and these general terms and conditions in the relationship with the buyer.
• 14.2 The buyer indemnifies Rubitech against all claims of third parties in respect of advice, reports, designs, drawings, etc. from Rubitech in the event that these have been made available by the buyer to those third parties, whether or not with Rubitech’s permission.

Article 15 Price, Payment

• 15.1 The prices stated by Rubitech are exclusive of VAT and are expressed in the agreed currency.
• 15.2 Unless agreed otherwise in writing payment shall be made within 14 days of invoice by transfer of the amount due into Rubitech’s bank account. After expiry of 14 days of invoice the buyer will be in default if no payment has been made; as from the moment of default the buyer will owe interest on the amount due equalling the interest at the statutory rate (as referred to in Article 6:119a of the Dutch Civil Code).
• 15.3 Payment shall be made without discount or set-off. Any costs charged by the bank in the context of payment shall be paid by the buyer.
• 15.4 Any payments made by the buyer serve first of all as payment of all interest and costs due, and second as payment of the invoices outstanding longest even if the buyer states that payment relates to a later invoice.

Article 16 Termination
Without prejudice to the provisions contained in the preceding articles of these general terms and conditions the buyer – in the event of non-compliance, late compliance or inadequate compliance with any of his obligations under the agreement and in the event of bankruptcy, suspension of payments or liquidation – will be deemed in default by operation of the law. In that event Rubitech has the right to suspend the execution of the agreement and/or to dissolve the agreement in whole or in part, such at the option of Rubitech, without any notice of default or judicial intervention being required and without Rubitech being required to pay compensation and without prejudice to its right to compensation of the loss and damage due to the bankruptcy, suspension of payments, liquidation or breach of contract and of suspension and termination.
In these events each claim that Rubitech has against the buyer will become immediately and fully payable.

Article 17 Dispute Resolution, Applicable Law

• 17.1 In deviation from the statutory regulations regarding jurisdiction of the civil court any dispute between Rubitech and the buyer will be resolved by the Court of Zwolle if the court is competent. This does not apply if the cantonal division of the Court is competent. Rubitech, however, has the right to submit disputes to a court that is competent according to the law or an applicable international convention.
• 17.2 Every agreement between Rubitech and the buyer is governed by Dutch law.

Article 18 Translations
In the event of discrepancies between these terms and conditions and translations of the same, the Dutch text will prevail.