GENERAL TERMS AND CONDITIONS

as last filed with the Chamber of Commerce for Midden-Nederland
under number 51971984

Article 1 General
1.1 In these General Terms and Conditions the terms listed below have the following meaning, unless otherwise indicated:

Van den Berg Hardhout BV: the user of the General Terms and Agreements;
Principal: the other contractual party (a natural person or legal entity) of Van den Berg Hardhout BV;
Agreement: any agreement between Van den Berg Hardhout BV and a Principal, in the context of which the Principal has given an assignment to have goods supplied and/or services provided, including the provision of advisory and information services in the broadest sense of the words.

Article 2 Applicability of the General Terms and Conditions and the conclusion of an Agreement
2.1 These General Terms and Conditions govern any and all legal relationships with Van den Berg Hardhout BV in addition to any and all offers and/or Agreements in the context of which Van den Berg Hardhout BV supplies goods and/or services of any kind whatsoever to the Principal, including the provision of advisory and information services in the broadest sense of the words, even if such goods or services are not described (or are not described in any further detail) in these Terms and Conditions.
2.2 Any derogations from these General Terms and Conditions will be valid only if they have been explicitly agreed in writing.
2.3 Any and all offers made by Van den Berg Hardhout BV are without engagement unless the offer explicitly indicates otherwise in writing. Once the Principal has placed an order it will no longer be entitled to unilaterally revoke it or cancel it.
2.4 The Agreement will be deemed to have been concluded as soon as the acceptance of the offer has reached Van den Berg Hardhout BV. In the case of an oral acceptance or an oral order (including an oral repeat order) by the Principal, the Agreement will be deemed to have been concluded as soon as Van den Berg Hardhout BV has confirmed the assignment to the Principal in writing or as soon as Van den Berg Hardhout BV has commenced carrying out the assignment. By means of its acceptance, the Principal declares that it accepts the declaration of applicability of these General Terms and Conditions and it waives the declaration of applicability of its own general terms and conditions.
2.5 In the event that any reservations or changes are made in the acceptance compared with the offer, notwithstanding the provisions contained in the preceding subsection the agreement will be deemed to have been concluded only in the event that Van den Berg Hardhout BV has informed the Principal that it accepts those derogations from the offer.
2.6 In the event that any provision contained in these General Terms and Conditions is null and void or is nullified, the remaining provisions contained in these General Terms and Conditions will continue to apply in full and Van den Berg Hardhout BV and the Principal will consult in order to agree on new provisions to replace the provisions that are null and void or that have been nullified, in which context the purpose and purport of the provisions that are null and void or that have been nullified will be taken into consideration to every extent possible.
Article 3 Prices
3.1 Unless the parties have agreed otherwise the prices indicated by Van den Berg Hardhout BV are exclusive of transport costs and are exclusive of VAT.
3.2 In the event of sale or delivery on forward, an adjustment of exchange rates in one or more currencies on which the conclusion and/or performance of the Agreement is based, Van den Berg Hardhout BV will be entitled to adjust the price accordingly. In the event that the agreed price is increased by more than 10% as a result of the application of this provision, the Principal will be entitled to dissolve the Agreement, in which case the notice of dissolution must be given in writing within five working days after Van den Berg Hardhout BV has given the Principal notice of the price increase.
3.3 Any sale or delivery on forward will be subject to the explicit condition that the prices are based on the cost factors that applied at the time at which the Agreement was concluded, such as but not limited to export duties in the territory of origin, freight and insurance, landing charges, import duties, levies, taxes, etc. Any advantageous or disadvantageous differences at the time of the shipment or arrival or delivery will be to the benefit or at the expense of the Principal.
Article 4 Delivery and risk
4.1 Delivery times are deemed to have been agreed as approximations only, unless the parties have agreed in writing that a term is of the essence. As long as all the information that is required in order to perform the agreement is not yet in the possession of Van den Berg Hardhout BV, the agreed delivery time will be extended by a term equal to the resulting delay.
4.2 In the event that the parties agree that goods will be delivered on forward the risk related to improper – both quantitatively and qualitatively – or untimely arrival or failure to arrive, and the risk during the delivery on forward, will be borne exclusively by the Principal. In the event that the shipper or the party from whom and/or the party through whose intermediation the goods that have been bought are purchased is in default in respect of its compliance with its obligations in whole or in part after being given proper notice of default, regardless of the grounds or the cause, Van den Berg Hardhout BV will be entitled to dissolve the Agreement with the Principal.
4.3 If in the event that the parties have agreed on delivery on a call-off basis but the parties have not agreed on terms for the call off, Van den Berg Hardhout BV will be entitled to payment as from three months after Van den Berg Hardhout BV has given notice that the goods are available. In the event that the goods have not been called off in whole or in part within three months of their being made available, Van den Berg Hardhout BV will be entitled to demand the Principal in writing to indicate a term within which the total quantity will be called off, and the Principal will be obliged to comply with that demand within five days. The term to be indicated by the Principal after being demanded to do so may not exceed one month.
4.4 Van den Berg Hardhout BV will be entitled to extend to delivery time in the event that the circumstances referred to in Article 11 of these Terms and Conditions arise.
4.5 In the event of delivery carriage paid the goods will be transported at the expense and risk of Van den Berg Hardhout BV. In all other cases the goods will be transported at the expense and risk of the Principal. The Principal will bear the risk related to the goods in any event as from the time at which they are delivered, and any and all direct and indirect damage that arises to and/or as a result of the goods and or third parties will be for the Principal’s account. The risk will also be transferred at the time at which Van den Berg Hardhout BV offers the goods for delivery in accordance with the Agreement but the Principal fails to take delivery for any reason whatsoever.
4.6 The Principal will be obliged to take delivery of the goods that have been sold at the time at which they are delivered or at the time at which they are made available to it in accordance with the Agreement. In the event of delivery carriage paid, Van den Berg Hardhout BV will be obliged to transport the goods only to the place where the vehicle can reach a site that is or that has been made passable. The Principal will be obliged to take delivery of the goods at that location and to unload them immediately. In the event that the Principal refuses to take delivery or is negligent or incomplete in its provision of information or instructions that are necessary for the delivery, the goods will be stored at the Principal’s risk and expense, in which case the Principal will owe any and all additional costs in addition to its payment obligation, which additional costs will in any event include the interest, transport costs and storage costs.
4.7 When it delivers and invoices Van den Berg Hardhout BV will be entitled to apply an upward or downward delivery margin, subject to a maximum of 10%.
4.8 Van den Berg Hardhout BV will not take back the packaging unless the parties have agreed otherwise.

Article 5 Quality
5.1 Unless the Agreement explicitly provides otherwise, Van den Berg Hardhout BV will deliver normal quality and the customary trade practice will apply with respect to measurements, quantities, etc. Van den Berg Hardhout BV is entitled at all times to request an inspection before shipping or handling, including drying, the goods, in which case such an inspection must be conducted within two working days after Van den Berg Hardhout BV has given notice that the goods in question are ready to be inspected. Inspection and acceptance by management will be conducted only in the event that the parties have agreed to inspection and acceptance by management and the conditions pursuant to which that will be conducted.
5.2 The percentage of moisture content of wood that is dried artificially will be determined in accordance with the applicable Dutch (NEN) or European (EN) standard, applying sample size and acceptance level AQL10. Van den Berg Hardhout BV guarantees the agreed wood moisture content percentage up to a maximum of five days after notice is given of availability. Any complaints with respect to the quality of the drying must be received on the date of collection or delivery, and any such complaints must be confirmed in writing.
5.3 If applicable both the Principal and Van den Berg Hardhout BV may request that delivery be made in accordance with the assessment-specific KOMO guidelines, in which case that must be explicitly brought to the other party’s attention at the time of the application or the offer, stating the requirements to which the certificate relates.
5.4 In the event that the contract documents for the structure in which the wood will be used provide that the wood must be delivered in accordance with the KOMO guidelines, the Principal will be obliged to give Van den Berg Hardhout BV notice of that provision in writing in its application.
5.5 In the event that the parties have agreed on delivery in accordance with the KOMO guidelines within the meaning of the fourth subsection of this Article, the Principal and Van den Berg Hardhout BV will be equally authorised to have an inspection conducted by an authorised certifying (such as KIWA or SKH) to ensure compliance with the obligation that ensues for Van den Berg Hardhout BV. If and insofar as such an inspection gives rise to costs, the certifying agency will decide which party will pay those costs, depending on the result of the inspection; that decision is binding for both the Principal and Van den Berg Hardhout BV.
5.6 In the event that sheet material will be delivered, the standards stipulated in NEN-EN 314-2:1993 will apply insofar as manufacturers comply with those standards. In the event that manufacturers do not comply with those standards, reference will be made to the standards that apply in the product specification and/or the standards that apply in the country of origin of the products in respect of dimensional and flatness tolerance, gluing, structure of the sheets and qualities.

Article 6 Complaints
6.1 The Principal must inspect the goods immediately at the time of delivery, in which context the Principal must determine whether the goods that have been delivered are in accordance with the provisions contained in the Agreement in respect of
whether the correct goods have been delivered;
whether that goods that have been delivered are in accordance with the parties’ agreements in terms of specification, thickness, width, length and quantities; and
whether the goods that have been delivered are in accordance with the agreed quality requirements – or if no such quality requirements have been agreed – with the requirements that can be stipulated for the purposes of normal use and/or trade.

6.2 Notice of any complaint with respect to incomplete or incorrect delivery must be given immediately after delivery, in writing, clearly describing and substantiating the reason for the complaint. In the event that notice of the complaint is not given immediately, the quantities as described in the consignment notes, delivery receipts and similar documents will be deemed to have been acknowledged as correct.

6.3 The Principal must make note on the delivery receipt of any complaints with respect to any defects or damage.

6.4 Notice of complaints with respect to the characteristics of the goods that have been delivered must be submitted in writing, containing a clear description and substantiation, within a term of three working days after discovery and in any event within eight days after delivery.

6.5 The right to complain will lapse if notice of a compliant is not given in accordance with the provisions stipulated in Article 6.4. The Principal’s right to complain will also lapse in the event that the Principal had already approved the goods after the inspection as described in Article 5.1 and in the event that a consignment that has been delivered has been opened or processed in whole or in part.

6.6 In the event that the Principal exercises its right to complain in a timely manner it will give Van den Berg Hardhout BV an opportunity to inspect the goods at the location where they were delivered. The Principal may not simply return the goods that have been delivered without warning Van den Berg Hardhout BV. The Principal will be obliged to take care of the goods to ensure that their value does not decline, on pain of the Principal being obliged to accept those goods. Van den Berg Hardhout BV will not be obliged to take back wood on which a reject mark has been affixed.

6.7 Complaints submitted by the Principal will not entitle the Principal to suspend its payment obligations or to set off any amounts.

6.8 In the event that Van den Berg Hardhout BV considers complaints to be well founded, Van den Berg Hardhout BV will either pay the Principal fair compensation, subject to a maximum equal to the invoice value of the part of the goods that have been delivered in respect of which the Principal has complained, or to replace the goods in whole or in part, in which context the agreed goods to be replaced must be sent back, the foregoing completely at the discretion of Van den Berg Hardhout BV.

Article 7 Payment

7.1 Unless the parties have explicitly agreed otherwise, payment must be made within eight days after the invoice date. Van den Berg Hardhout BV is entitled at all times to demand security for payment, and the Principal will be entitled to furnish such security if it is requested to do so.

7.2 In the event that Van den Berg Hardhout BV has not received payment within the agreed term, the Principal will be in default by operation of law, in which case the Principal will owe Van den Berg Hardhout BV interest at the statutory interest rate that applies at time plus 2%, calculated on the amount due as from the due date, without any demand or notice of default being required and without prejudice to Van den Berg Hardhout BV’s right to immediately claim payment of the amount due plus interest and the costs related to extrajudicial or judicial collection. The parties will determine the costs of extrajudicial collection on the basis of the rate applied by the Dutch Bar Association (Nederlandse Orde van Advocaten), subject to a minimum equal to 15% of the principal amount. In the event that Van den Berg Hardhout BV can demonstrate that it has incurred higher costs that were reasonably necessary, those costs will also be eligible for reimbursement by the Principal.

7.3 In the event that the Principal fails to make payment to Van den Berg Hardhout BV, Van den Berg Hardhout BV will be entitled to suspend the performance of any and all Agreements with the Principal until that payment, including the payment of interest that has fallen due and costs, has been made; in addition, cash payment may be demanded for further delivery, even if the parties had agreed otherwise. The forgoing provisions are without prejudice to any and all obligations that the Principal has to comply with its obligations on the ground of the Agreement(s) that it has concluded with Van den Berg Hardhout BV.

7.4 All payments must be made effectively in euros unless Van den Berg Hardhout BV designates a different currency, in which case the Principal will be obliged to make payment effectively in that currency and it will not be entitled to make payment in any other currency.

Article 8 Liability

8.1 In the event that goods delivered by Van den Berg Hardhout BV are defective, Van den Berg Hardhout BV’s liability towards the Principal will be limited to the provisions stipulated in Article 6.8 of these Terms and Conditions (under ‘Complaints’).

8.2 In the event that Van den Berg Hardhout BV is liable for direct damage, that liability will be limited to a maximum equal to the amount of the invoice to which the liability relates. In all cases the liability is limited to a maximum equal to the amount of the benefits to be paid by Van den Berg Hardhout BV’s insurer in respect of the incident in question.

8.3 Direct damage is taken to mean exclusively:

the reasonable costs related to determining the cause and the scope of the damage, insofar as that determination relates to damage within the meaning of these Terms and Conditions;
any reasonable costs that are incurred to bring the defective goods and/or services provided by Van den Berg Hardhout BV in accordance with the Agreement, unless that defect cannot be attributed to Van den Berg Hardhout BV; and
the reasonable cost that are incurred in order to prevent or limit damage, insofar as the Principal demonstrates that those costs led to a limitation of direct damage within the meaning of these General Terms and Conditions.

8.4 Under no circumstances will Van den Berg Hardhout BV be liable for indirect damage, including consequential damage, loss of profits, lost savings and damage caused by business interruption.

8.5 The limitations of liability for direct damage stipulated in these Terms and Conditions will not apply in the event that the damage can be blamed on an intentional act or omission or wilful recklessness on the part of members of the management and/or supervisors of Van den Berg Hardhout BV.

8.6 In the event that Van den Berg Hardhout BV provides services, including the provision of advisory or information services in the broadest sense of the words, no liability can be accepted in respect of such services. The Principal indemnifies Van den Berg Hardhout BV against any and all claims that third parties bring against Van den Berg Hardhout BV in connection such any such recommendations.

8.7 Under no circumstances will Van den Berg Hardhout BV be liable for defects in the work performed by third parties or for goods supplied by third parties.

Article 9 Suspension and dissolution

9.1 Van den Berg Hardhout BV will be entitled to suspend its compliance with its obligations or to dissolve the Agreement in the event that:

the Principal fails to comply with the obligations pursuant to the Agreement in whole or in part;
circumstances that become known after the Agreement has been concluded that give rise to well founded fears that the Principal will not comply with its obligations; or
the Principal has been requested to furnish security for its compliance with its obligations pursuant to the Agreement and such security is not furnished or is insufficient.

9.2 Van den Berg Hardhout BV will also be entitled to dissolve each and every Agreement with the Principal without any judicial intervention being required at the time at which the Principal is declared bankrupt, applies for a provisional suspension of payments or, in the event that the Principal is a natural person, a court grants the Principal’s request to have the statutory debt rescheduling scheme applied, or in the event that the Principal loses the free disposal over all or part of its assets as a result of an attachment, guardianship order or otherwise, or in the event that the Principal manifestly becomes unable to comply with its financial obligations.

9.3 The parties’ mutual claims against each other will be immediately due and payable as a result of the dissolution. The Principal will be liable for the damage or loss that Van den Berg Hardhout BV sustains, consisting among other things of, but not limited to, loss of profits and transport costs, loss of value of goods that are in storage or that have already been purchased, storage costs and costs due to third parties.

Article 10 Retention of title

10.1 Goods that Van den Berg Hardhout BV delivers, including consignments that have already been opened and goods that already have been partially processed, both goods that have been paid for and those that have not, will remain the property of Van den Berg Hardhout BV, until the Principal has complied with all its obligations pursuant to all the Agreements that it has concluded with Van den Berg Hardhout BV.

10.2 The Principal is not authorised to pledge the goods that are subject to the retention of title or to encumber them in any other manner, unless it has received prior written permission to do so from Van den Berg Hardhout BV.

10.3 In the event that Van den Berg Hardhout BV exercises its retention of title it will be granted access to the goods that it has delivered. Insofar as necessary the buyer irrevocably authorises Van den Berg Hardhout BV to exercise its right to take back goods.

10.4 Without prejudice to all the provisions stipulated in these General Terms and Conditions, Van den Berg Hardhout BV reserves any and all intellectual property rights that vest in it and the powers that ensue from them.

Article 11 Force majeure

11.1 There will be deemed to be a situation involving force majeure on the part of Van den Berg Hardhout BV in the event that, after the Agreement is concluded, Van den Berg Hardhout BV is prevented from complying with its obligations pursuant to the Agreement or to prepare for doing so as a result of war, threat of war, civil war, riots, other risks associated with war, fire, water damage, floods, special weather conditions, strikes, plant occupation, lockouts, import and export impediments, government measures, defects in machinery, breakdowns in the power supply, all of the foregoing at Van den Berg Hardhout BV’s business and at the businesses of third parties from which Van den Berg Hardhout BV must purchase the raw materials or other materials in whole or in part, in addition to during storage or transport, under its own management or otherwise, and furthermore as a result of any and all other causes that arise outside the control or through no fault of Van den Berg Hardhout BV.

11.2 Both the Principal and Van den Berg Hardhout BV will be entitled to dissolve the Agreement in the event that the delivery is delayed by more than six months as a result of a situation involving force majeure. In the event that the Principal wishes to dissolve the Agreement, the Agreement may be deemed to have been dissolved only if Van den Berg Hardhout BV has accepted the notice of dissolution in writing. In the event that the Agreement is dissolved Van den Berg Hardhout BV will be entitled to compensation of only the costs that it has incurred.

Article 12 Applicable law and resolution of disputes

12.1 All the offers made by Van den Berg Hardhout BV and all the Agreements that Van den Berg Hardhout BV enters into are governed exclusively by Dutch law. The applicability of the Vienna Sales Convention is explicitly excluded.

12.2 Any dispute between Van den Berg Hardhout BV and the Principal, including the collection of sums of money, will be resolved exclusively by the District Court of Utrecht, the Netherlands. Nonetheless, Van den Berg Hardhout BV will be entitled to submit a dispute to another court having jurisdiction, or to choose to have the dispute resolved by means of arbitration proceedings.

12.3 The parties will submit a dispute to a court only after they have endeavoured to resolve the dispute in consultation.