Ariëns Service Engineering B.V.

These standard terms of sale and payment were filed with the registry of the court in Arnhem under number 20030101 MN/lm .

Article 1. General

1.1 These standard terms of sale and payment apply to all offers made and all agreements whereby Ariëns Service Engineering B.V. (ASE) acts as vendor or supplier of goods or services and those whereby it gives advice and/or carries out commissioned work. These standard terms form part of the agreement established between ASE and its customer. Any deviations from ASE’s standard terms must be explicitly agreed upon, in writing.

1.2 The customer may not transfer the rights and obligations arising from the agreements between ASE and the customer to third parties, except with ASE’s written consent.

Article 2. Establishment of agreement(s)

2.1 All offers are without obligation and are valid for 30 days, unless otherwise agreed upon in writing. An offer containing a time limit may nevertheless be withdrawn by ASE, even after receipt of the order, provided it does so within 5 days.

2.2 An agreement is only established between ASE and the customer once ASE has accepted the order, in writing, or if ASE has commenced performance of the agreement. The content of the agreement is also determined by ASE’s offer, and by the provisions of these standard terms of sale and payment.

2.3 Amendments or supplements to the agreement must be agreed upon in writing. However, if they are not agreed upon in writing, this will not prevent ASE charging the additional costs it has incurred to the customer.

Article 3. Prices

3.1 All quotations and the prices charged by ASE are the prices that apply at the time of the offer or at the time the agreement is established and are exclusive of VAT and other costs associated with the agreement, such as transport costs, insurance, duties and tariffs. All prices are quoted in euro, unless otherwise explicitly agreed upon.

3.2 If there are interim changes in the wages, raw material prices, prices of semi-finished products, taxes, duties, transport costs, import duties, subsidies and/or exchange rates to be paid by ASE, ASE is entitled to pass these increased costs on to the customer, even if the agreement has been established in the intervening period.

3.3 Price changes of more than 10% entitle the customer to dissolve the agreement, provided he does so in writing and within seven days of receipt of our notification of the relevant price increase. Dissolution in this manner does not entitle the customer to payment of any damages.

Article 4. Terms of payment

4.1 The customer must make payment by the method stipulated by ASE, within the period stipulated by ASE or, if no such period is stipulated, within 30 days of the invoice date.

4.2 If payment in instalments has been agreed upon, these instalments will be as follows, unless explicitly stipulated otherwise, in writing:
- 50% at the time of the order;
- 40 % upon delivery of the goods to the customer;
- 10 % upon final delivery of the goods.

4.3 Payment for contract extras must be made as soon as they are invoiced to the customer by ASE.

4.4 The customer is not authorised to offset, reduce and/or suspend his obligations. It is specifically stated that complaints do not suspend the term of payment.

4.5 Once the term of payment has elapsed, the customer is automatically in default, without the need for any specific notice. As of the due date, the customer will owe interest equal to the statutory rate in force in the Netherlands at that time, plus a surcharge of seven percentage points, and will also be required to reimburse all the costs incurred by ASE in order to collect its claim, the minimum reimbursement being 15% of the amount due.

4.6 If the customer’s payment is overdue, ASE has the right to suspend the performance of the agreement and to refuse to hand over items belonging to the customer that are in ASE’s possession, until such time as the customer has satisfied all of his payment obligations. This is without prejudice to ASE’s right to dissolution on the basis of article 11.

4.7 The customer is obliged at all times to provide ASE, upon first request, with security which ASE deems adequate for the fulfilment of all the customer’s obligations. Such security might, for example, take the form of a bank guarantee or a pledge of goods.

4.8 Payments received go to satisfy the longest outstanding items, including interest and costs, even if the buyer states otherwise.

4.9 In the event of late payment, any exchange difference to ASE’s detriment will be borne by the buyer. The reference dates are the invoice due date and the date on which payment is made.

4.10 Payments are made in euro, unless otherwise agreed upon in writing.

Article 5. Delivery date, delivery and risk

5.1 The delivery date stated or agreed upon in the offer and/or order confirmation must never be considered a firm date, even if the customer has explicitly accepted it. In the event of overdue delivery, ASE will not be in default until it receives written notice of default.

5.2 In any event, but not exclusively, the stated or agreed delivery date will be automatically extended by period(s) during which:

- there is a delay in the supply and/or dispatch and/or any other circumstance that temporarily prevents performance, regardless of whether or not this is imputable to ASE;

- the customer fails in the performance of one or more obligations vis-à-vis ASE or there is a reasonable fear that he will fail, regardless of whether or not there are valid reasons for this;

- the customer does not enable ASE to perform the agreement; this situation would occur, for instance, if the customer fails to notify ASE of the place for delivery or fails to provide information, items or facilities required for the performance.

5.3 Delivery is deemed to have taken place at the time at which the goods were placed at the customer’s disposal by ASE and were approved by the customer. If the customer does not take delivery of the goods, they will be stored at his expense and risk or sold by ASE. ASE is entitled to recover its claim from the proceeds.

5.4 Unless otherwise agreed upon, in writing, all goods will be transported at the customer’s expense and risk, even if the goods are shipped carriage paid.

5.5 If ASE arranges shipment of the goods at the customer’s request, the shipment time, method and route will be at the discretion of ASE.

5.6 ASE will only take out insurance for goods in transit at the customer’s express request; all associated costs will be borne by the customer.

5.7 Partial deliveries are permitted.

Article 6. Retention of title

6.1 ASE will retain full title to all goods it supplies, until such time as the customer has satisfied, in full (principal, interest and costs), all of its obligations vis-à-vis ASE with regard to all goods supplied or to be supplied by ASE under any agreement, any work carried out or to be carried out on the customer’s behalf or any claims on account of failings in the performance of such agreements.

6.2 The customer may not invoke any right of retention.

6.3 For as long as the customer has not fulfilled all of his obligations, he is not permitted to sell, use or consume and/or create limited rights to the goods without ASE’s written consent.

Article 7. Inspection and complaint

7.1 Immediately after delivery of the goods or the rendering of services by ASE, the customer is obliged to check that ASE has fulfilled all of its obligations. If ASE has not performed in accordance with the agreement, the customer is obliged to inform ASE of this, in writing, no later than seven days after delivery of the goods or completion (of part of) the work and to specify the points in respect of which he feels ASE has failed.

7.2 Defects that cannot reasonably be discovered within the aforementioned period must be notified to ASE immediately, in writing, but no later then seven days after they are discovered.

7.3 If no complaint is made within the period stipulated in article 7.1 and 7.2, the customer will forfeit any claim with regard to the defects.

7.4 Slight discrepancies with regard to stated goods and/or services, dimensions, weights, numbers, colours etc. do no constitute a defect and will not constitute grounds for the customer to seek damages or the dissolution of the agreement.

7.5 Insofar as ASE fails imputably in the performance of its obligations, ASE is entitled to dissolve the agreement, remedy the defects or complaints, exchange the goods or give a discount on the price.

7.6 The costs of inspection will be borne by the customer.

Article 8. Guarantee

8.1 For a period of six months following delivery pursuant to art. 5, ASE gives a guarantee in respect of the parts it has delivered and the work it has carried out. Under this guarantee, ASE will, at its own expense, rectify the mistakes or – at ASE’s sole discretion - take back all or part of the delivery and replace it with a new delivery. If ASE replaces (parts of) delivered goods in fulfilment of its guarantee obligations, the replaced (parts of) goods will become ASE’s property. All costs over and above the obligation described above will be borne by the customer, including but not limited to shipping costs, travel expenses and costs of disassembly and assembly. If ASE undertakes repairs to delivered goods in performance of its guarantee obligations, the goods concerned will remain entirely for the customer’s risk.

8.2 The guarantee as referred to in art. 8.1 will not apply:

a. if the faults are due to improper use or causes other than faultiness of the materials supplied by ASE;

b. if ASE has delivered in accordance with the materials or goods described in the offer or agreement;

c. if ASE has rendered the services in accordance with the offer/agreement;

d. if the cause of the faults cannot be clearly demonstrated;

e. if not all the instructions and other specifically applicable guarantee terms for the use of the goods have been promptly and fully observed.

8.3 If goods are handed over for processing, repair etc., a guarantee is only given in respect of the soundness of the execution of the commissioned processing work. For parts not manufactured by ASE itself, ASE’s guarantee is limited to that given by its suppliers.

8.4 The guarantee as referred to in art. 8.1 will be ineffective if:

a. the faults are due wholly or in part to government regulations with regard to the quality or nature of the materials used or with regard to manufacture;

b. the customer does not fulfil, or does not punctually or properly fulfil, any one of his obligations arising from this or any other related agreement, including but not limited to the inspection and complaint obligations mentioned in these terms;

c. the customer does follow all written instructions given by ASE to the letter, or if the goods are not kept or used in the appropriate manner.

Article 9. Liability

9.1 ASE accepts no liability for any direct or consequential damage to goods or persons of the customer and/or any third party, with regard to its delivery obligation, the delivery of goods, delivered goods and/or services, commissioned work or any advice given by ASE, except and insofar as there has been gross negligence or intention on the part of managerial staff of ASE.

9.2 Insofar as the provisions of article 9.1 are declared nonbinding or inapplicable, by a judge or otherwise, ASE’s liability will be limited to the amount that is paid out in the actual situation under any liability insurance taken out. ASE itself will pay the excess on any such insurance policy.

9.3 Insofar as it is established in law that it is liable, ASE’s liability will in all cases be limited to the amount it has invoiced with regard to that isolated transaction.

9.4 ASE accepts no liability for third parties engaged by it.

Article 10. Non-attributable failing/force majeure

10.1 A failure in the performance of the agreement between the customer and ASE cannot be attributed to ASE if ASE is not to be blamed for the failure and is not required, either by law or according to common opinion, to bear the consequences of the failure. ASE accepts no liability vis-à-vis either the customer or third parties for direct and/or consequential damages suffered as a result of non-attributable failing by ASE.

10.2 Circumstances that constitute a non-attributable failing pursuant to article 10.1 include, but are not limited to: any kind of restrictive government measure, fire, epidemics, mobilisation, war, revolution, strikes, civil commotion, seizure, interruption to production, shortage of raw materials, semi-finished products and/or ancillary materials and/or energy, natural disasters, which expressly includes flood or high water at the manufacturing company, hold-ups encountered during shipment, total or partial default by suppliers, and any other circumstance for which ASE is not required to bear the consequences by law or according to juristic acts or commonly prevailing opinion, such as circumstances which ASE could not have foreseen or which are beyond its control.

Article 11. Nonperformance, suspension and dissolution of the agreement

11.1 ASE is entitled to wholly or partially dissolve the agreement, with immediate effect and without judicial intervention, or to suspend the performance of the agreement, without prejudice to its other rights to performance and/or compensation, in the cases mentioned in these standard terms of sale and payment.

11.2 The provisions of the first paragraph also apply if:

- the customer contravenes any provision of the agreement between the parties;

- the customer applies for a (provisional) moratorium on payments or for a bankruptcy order;

- a petition is filed for the bankruptcy of the customer;

- a debt rescheduling arrangement is provisionally and/or definitively pronounced;

- a substantial attachment is made against the customer;

- the customer gets into financial difficulties;

- the customer’s business is closed down or liquidated;

- a private composition is proposed;

- the customer is taken over or a third party acquires actual control over the customer.

11.3 With regard to the cases mentioned in art. 11.1 and 11.2, all claims on the customer are immediately due and payable, without ASE being obliged to pay any damages.

11.4 The provisions of article 11.1 apply analogously if the customer, having been sent a written request to do so, does not provide what ASE deems to be appropriate security, within a seven-day period.

11.5 If the customer defaults with payment and/or taking delivery for a period in excess of fourteen days, ASE is entitled without further notice to re-sell the sold goods, in which case the down payment made to ASE will be forfeited as compensation for the damages it has suffered, unless the customer can prove that the damages suffered are lower.

Article 12. Partial nullity

12.1 If one or more provisions of this agreement with the customer are not, or not wholly legally effective, this does not affect the other provisions, which will remain in full force.
The invalid provisions will be replaced by an appropriate, legally valid provision that comes as close as possible to the parties’ purpose and their desired economic results.

Article 13. Applicable law and competent courts

13.1 All agreements between ASE and the customer are governed by the laws of the Netherlands, to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods.

13.2 All disputes arising between the parties will be referred to the competent court of justice in the Netherlands, without prejudice to the parties’ authority to take precautionary legal measures and to use the remedies necessary to preserve such measures. If the dispute is within the court’s jurisdiction, the dispute must be referred to the court in Arnhem.