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Conditions of sale and delivery of: Microbac Europe B.V.

 

Microbac Europe B.V.

Dorsvloerweg 435

2661 MN Bergschenhoek

Definitions:

a) Client: A natural person or legal entity that requested an offer from or issued an assignment to

Microbac Europe B.V. or purchased goods.

b) Assignment: The consensus reached between Microbac Europe B.V. and the Client with respect to the

performance of the activities.

c) Location: The place where the assignment is performed.

Article 1: General

A. The applicability of the Client's general terms and conditions is expressly excluded, unless the parties

have agreed otherwise in writing.

B. If Microbac Europe B.V. concludes agreements with the Client more than once, the present Conditions will apply

to all subsequent agreements, whether or not they are expressly declared applicable.

C. The Client will provide in time all information and documents required for the correct performance of the

Agreement.

D. Microbac Europe B.V. has the right to engage third parties if it deems this necessary or desirable for correct performance of the Agreement.

Article 2: Offers

A. Quotations made by Microbac Europe B.V. in any form whatsoever do not bind Microbac Europe B.V., but merely constitute an invitation to place an order.

B. All quotations provided by Microbac Europe B.V. are revocable and may be changed without prior notification.

C. The offers made by Microbac Europe B.V. are based on the analyses and data provided by the Client, unless expressly agreed otherwise. Microbac Europe B.V. is allowed to assume the correctness of the information provided by the Client.

D. Drawings and other documents belonging to the offer or quotation are deemed to form an integral part

thereof. They remain the property of Microbac Europe  B.V. at all times and may not be reproduced and third

parties may not be allowed to inspect them without its approval. They must be returned at Microbac Europe

B.V.'s first request. They are not charged to the Client if the party requesting the offer awards the

assignment concerned to Microbac Europe B.V. They will be charged to the Client on the basis of a reasonable production hourly wage in all other cases.

Article 3: Assignments

A. An agreement for the performance of an assignment is not concluded until after Microbac Europe B.V. has provided the Client with an express, written acceptance.

B. The order confirmation by Microbac Europe B.V. is deemed to represent the Agreement correctly and

completely, unless the Client immediately objects to the same in writing.

C. Agreements concluded by intermediaries on behalf of Microbac Europe B.V. are not concluded until after

Microbac Europe B.V. has provided the Client with written acceptance of the assignment.

D. The provisions of paragraphs A and B also apply with respect to additions and changes to agreements

that were concluded previously.

Article 4: Prices

A. The stated and agreed prices are:

1. Exclusive of turnover tax (VAT), import duties, other taxes, levies, charges and/or all other

applicable payments, duties and levies that are levied in respect of the goods and/or the deliveries

in a certain country;

2. Exclusive of the costs of packaging, loading and unloading, transport and insurance;

3. Indicated in euros;

4. Based on delivery from the company, warehouse or another storage area.

B. Taxes, levies and/or other charges that are levied in respect of the goods are for the account of the

Buyer.

C. The agreed prices are based on the costs of materials, consumables, raw materials, parts, Ions, social

security costs and suchlike and on the exchange rates, import duties, taxes, energy prices and suchlike,

applicable on the day the agreement is concluded.

D. In the event the prices of the cost items referred to in paragraph C of this article increase after the date

of the conclusion of the agreement and before the date of delivery of the goods and/or services ordered,

Microbac Europe B.V. will have the right to change the agreed price accordingly.

E. The seller has the right upon or after conclusion of the Agreement, but prior to further performance, to

demand that the Buyer provides security that both the payment obligations and the other obligations will

be met.

F. Payments must be made within 30 days after the date of the invoice sent by the Seller to the Buyer.

G. Payments can only be made by means of a transfer into the bank account indicated on the invoice.

H. All payments must be made without tax deduction and without setoff or application of a counterclaim.

Article 5: Delivery

A. Goods are delivered from Microbac Europe B.V.’s warehouse, unless expressly indicated otherwise.

B. Any term agreed or stated with respect to the completion of certain activities or the delivery of certain

goods will never constitute a strict deadline. In the event a term is exceeded, the counterparty will be

obliged, therefore, to give the other party written notice of default in this connection. A reasonable term

must be granted in this connection to perform the agreement as yet.

C. The goods are for the Client's risk and account from the moment they leave Microbac Europe B.V.’s warehouse. All transport and insurance costs are therefore for the Client’s account. The goods remain for the Client’s account and risk also in the event it was agreed otherwise with respect to the transport and the transport costs.

D. Delivery and completion times are followed as closely as possible by Microbac Europe B.V., but are determined merely by approximation.

E. A possible exceeding of the agreed delivery or completion time can only be reason for the Client to

evade the purchase obligation or to have the agreement dissolved or to claim compensation in

connection with late delivery, if such was agreed expressly between the parties.

F. An assignment is deemed to have been completed when:

i. Microbac Europe B.V. has notified the Client that the work has been completed in writing or orally;

ii. the Client has put the location into operation in whole or in part.

G. In the event the Client refuses to accept the offered goods, Microbac Europe B.V. will have the right to store them elsewhere, such for the account and risk of the Client.

H. In the event the goods offered are refused and in the event the activities performed are not approved,

Microbac Europe B.V. will have the right to dissolve the agreement or have it dissolved, without judicial

intervention and after having sent the Client a written demand by registered letter to proceed with

acceptance of the goods or approval of the activities as yet, such without prejudice to the entitlement to

payment for the goods refused or already delivered and the activities already performed, as well as

compensation of the damage arising from this refusal and pursuant to the future performances to be

delivered as yet on the basis of the agreement to be dissolved.

I. In case of a change to the assignment on the part of the Client following confirmation by Microbac Europe B.V., the delivery times will be deemed to have been changed accordingly.

J. Microbac Europe B.V. has the right, but is not obliged to insure the goods purchased on behalf and for the

account of the Client.

K. Ownership of the goods does not pass to the Client and full legal and beneficial ownership is reserved

by Microbac Europe  B.V., unless and until the Client has received full payment concerning the goods, including all secondary costs, such as interest, charges, costs etcetera. In case of termination of the basis of

these Conditions, Microbac Europe B.V. will have the right to demand that the unpaid goods are delivered back immediately based on its retention of title, without prejudice to all other rights.

L. If third parties levy an attachment against the products covered by the retention of title or wish to create

or enforce rights in respect thereof, the Client will be obliged to notify Microbac Europe B.V. therevof as soon as possible.

M. The Buyer is obliged to insure the goods subject to retention of title against fire, explosion and water

damage as well as against theft, and allow the Seller to inspect the policies of these insurances upon

first demand.

N. Microbac Europe B.V. has the right at all times to remove the goods delivered subject to retention of title from the Client or its holders, if the Client fails to comply with its obligations towards Microbac Europe B.V. In this connection, the Client will cooperate fully and grant access at Microbac Europe B.V.’s first demand.

O. Costs relating to taking back goods are for the account of the Client.

Article 6: Payment

A. The following may be agreed as payment conditions:

i. Advance payment:

Before the goods and/or services ordered are ordered or purchased from third parties by Microbac Europe

B.V., the Client will be obliged to pay 50% or a percentage of the invoice to be determined further. The

remainder of the invoice must be paid prior to delivery of the goods.

ii. Partial payment:

The Client will pay 25% or a percentage of the invoice amount to be determined further following

conclusion of the assignment. The remainder must be paid in instalments to be determined further.

iii. Payment before delivery:

The amount owed by the Client must be received by Microbac Europe B.V. prior to deliver of the goods.

iv. Payment following delivery:

In the event the provisions of this article were not implemented or delivery took place without or with

only partial payment, the Client will be obliged to pay the amount due as yet within thirty days after the

invoice date and such without deduction or discount, unless a different payment term or different

payment obligations were agreed expressly.

B. Irrespective of the provisions of paragraph A of this article, Microbac Europe B.V. has the right to demand a

bank guarantee equal to the sum due or a different form of security for payment from the Client.

C. In case of late payment, all payment discounts that may have been agreed between the parties will

lapse and the Client will be in default by operation of law and Microbac Europe B.V. will have the right, without requiring any notice of default, to charge to the Client interest amounting to 1.5% per month as from

the date of default or, if this amount is higher, the promissory note discount rate applied by the Dutch

Central Bank at that time to be increased by 2%, all of the above increased by any VAT due. A part of

a month is considered equivalent to a full month.

D. In the event the Client fails to comply with its payment obligations, Microbac Europe B.V. will also have the

right to suspend the other deliveries or services still to be provided, such for the Client’s account,

without prejudice to Microbac Europe B.V.’s right to compensation of the damage that arises as a result.

E. All extrajudicial costs caused as a result of late payment are for the Client’s account. The costs are

calculated in accordance with the debt collection rate of the Netherlands Bar Association, subject to a

minimum of € 454,55 per case, which will be increased by any VAT and disbursements due.

F. In case of a dispute concerning the invoice amount or a dispute concerning the quality and/or

performance of the goods/services delivered, the Client will be obliged at Microbac Europe B.V.’s first request

to deposit the invoice amount due, while reserving all rights, with a bank to be designated by Microbac Europe B.V. for the benefit of Microbac Europe B.V.

G. The increases referred to in paragraphs C and E of this article are exclusively intended as

compensation of losses due to delay.

Article 7: Suspension/dissolution

A. If the Client fails to comply with its obligation towards Microbac Europe B.V. or in the event Microbac Europe B.V. has reasonable doubts concerning the Client’s compliance with its obligations towards Microbac Europe B.V., Microbac Europe B.V. will have the right to suspend the agreement until the Client has provided certainty that he Agreement will be performed.

B. Microbac Europe B.V. has the right to dissolve the agreement without judicial intervention and to demand that all goods delivered and unpaid be returned and to take them back if:

• the Client or another party applies for the Client’s bankruptcy;

• the Client becomes insolvent;

• the Client is no longer able to pay its outstanding debts;

• an administrator, insolvency practitioner or manager is appointed with respect to the assets of

the Client;

• the Client enters into a composition or assigns rights for the benefit of its creditors.

C. The Client hereby authorises Microbac Europe B.V. irrevocably to enter all buildings and sites where the goods are or could be located.

Article 8: Intellectual property rights

A. In the event goods that were created in the preparation or performance of the agreement by or on behalf of Microbac Europe B.V. are encumbered with intellectual or industrial property rights pursuant to the law, such rights will be vested in Microbac Europe B.V. in full.

Article 9: Liability

A. In the event Microbac Europe B.V. is liable, such liability will be limited to matters regulated in this provision.

B. In the event Microbac Europe B.V. uses products/materials and/or documents, instructions and/or designs

provided/delivered by the Client in the performance of its activities, liability will always be excluded if the

damage is (also) the consequence of the use thereof.

C. Announcements by or on behalf of Microbac Europe B.V. made with respect to the quality, composition and characteristics of the products/goods sold, as well as all technical advice, are made entirely without

obligations and to the best of Microbac Europe B.V.’s knowledge and efforts, as well as in accordance with the latest state of the art, without any liability. The products/goods sold and delivered by Microbac Europe B.V. and the claims of the Client added to them are used by the Client entirely for the account and risk of the

Client. Microbac Europe B.V. is never responsible and/or liable in this connection. The Client will carry out the

necessary tests itself in order to assess whether the products and goods are suitable for the purpose

and use intended by the Client.

D. Microbac Europe B.V. is not responsible for the products/goods’ compliance with certain technical requirements and/or standards as provided for in specific laws or provisions, unless this was agreed expressly between the parties.

E. Microbac Europe B.V. is only liable for direct losses.

F. Direct losses are defined exclusively as:

a. the reasonable costs to determine the cause and the scope of the damage, to the extent

that the determination is related to damage within the meaning of these Conditions;

b. any reasonable costs incurred to have Microbac Europe B.V.’s defective performance comply

with the agreement, insofar as these costs can be attributed to Microbac Europe B.V.;

c. reasonable costs incurred in order to prevent or limit damage, to the extent that the

Client demonstrates that these costs resulted in limitation of the direct damage within the

meaning of these Conditions.

G. Microbac Europe B.V. is never liable for indirect losses, including consequential losses, lost profit, missed

savings and losses resulting from business or other forms of interruption. In case of a consumer

purchase, this provision does not extend beyond what is permitted pursuant to Article 7:24 paragraph 2

of the Dutch Civil Code.

H. In the event Microbac Europe B.V. is liable for any form of damage, such liability on the part of Microbac Europe B.V. will be limited to at most three times the invoice value of the order or, at any rate, to that part of the order to which the liability relates.

I. Microbac Europe B.V.’s liability is limited in any event to the amount that is paid by its insurer in relevant cases.

J. Microbac Europe B.V. will never be liable for damage resulting from (the use of) the products/goods if the Client

made changes to the products/goods or their composition.

K. The provisions concerning liability included in this article do not apply if the damage is attributable to the

intent or gross negligence of Microbac Europe B.V. or its supervisor/subordinates.

Article 10: Complaints

A. Complaints caused by or relating to activities carried out or goods delivered by or on behalf of

Microbac Europe B.V., must be submitted to Microbac Europe B.V. by means of a registered letter, subject to

forfeiture or all rights and powers available to the Client on the basis of the defectiveness, and if it

concerns visible defects within eight days after the provision of the services or the delivery of the

goods, and if it concerns invisible defects within eight days after the defect could reasonably have

been discovered, such at most three months after the performance of the services or the delivery of

the goods.

Article 11: Force majeure and dissolution

A. In the event Microbac Europe B.V. is prevented from performing the agreement or its performance is rendered more costly or onerous as a result of force majeure or performance of the agreement can no longer be reasonably expected of Microbac Europe B.V., Microbac Europe B.V. will have the right without further notification to cease or suspend the performance of the agreement in whole or in part or to dissolve the agreement, without Microbac Europe B.V. being obliged to perform the agreement, to pay any compensation or comply with any other financial arrangement.

B. Force majeure within the meaning of the previous paragraph includes: war, revolution, floods, storms,

fires, industrial action, sabotage, machinery breakdown, devaluation and revaluation, government

measures as well as sudden increases of import duties and/or excise duties and/or fees and/or

failures to comply with obligations on the part of Microbac Europe B.V.’ suppliers.

C. Full or partial dissolution takes place by means of a written declaration of the party so authorised.

Before the Client addresses a written declaration of dissolution to Microbac Europe B.V., it will at all times first

give Microbac Europe B.V. written notice of default and award it a reasonable term to comply with its

obligations as yet or remedy the shortcomings, which shortcomings must be reported accurately by

the Client in writing.

Article 12: Risk transfer

A. The risk of loss, damage or decrease in value transfers to the Client at the moment the goods are

actually brought under the control of the Client.

Article 13: Indemnification

A. The Client indemnifies Microbac Europe B.V. against any claims from third parties that sustain damage in

connection with the performance of the agreement.

B. In the event Microbac Europe B.V. is held liable by third parties on that basis, the Client will be obliged to assist Microbac Europe B.V. both in and out of court and to immediately do all that may be expected of it in such cases. If the Client fails to implement adequate measures, Microbac B.V. will have the right to implement these itself without giving notice of default. All costs and damage on the part of Microbac Europe B.V. and third parties that arise as a result thereof will be fully for the account and risk of Microbac Europe B.V.

C. In the event the Client uses/applies/processes/resells to third parties products/goods sold and delivered

by Microbac Europe B.V. for purposes for which admission/approval is required pursuant to the law, including

but not limited to the Plant Protection Products and Biocides Act, it will be the Client’s responsibility to

apply for and obtain the required approval/admission. The Client will be liable for the consequences if it

fails to do so.

D. Microbac Europe B.V. is not liable for the consequences that have arisen or that will arise if the Client did not apply for and obtain the required admission/approval.

E. The Client indemnifies Microbac Europe B.V. against all claims that arise from the failure to comply with the

obligations as set out above under C and D.

Article 14: Applicable law / disputes

A. All agreements to be concluded by and with Microbac Europe B.V. are governed by Dutch law.

B. If any provision of these Conditions is void or declared void, the remaining provisions will remain fully in

force. The provision that is void or voidable will be replaced with a valid provision which corresponds to

the purport of the invalid provision as much as possible.

All disputes arising from the agreement concluded by and/or with Microbac Europe B.V. will be submitted to and settled by the competent court in Rotterdam, but with due observance of the statutory rules concerning the territorial jurisdiction of the Court.

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