General terms and conditions of sale and delivery

General terms and conditions of sale and delivery of Americol BV, established in Zaandam, filed with the Chamber of Commerce in Zaandam on 6 September 1993 under number 468.

1. GENERAL

1.1. In these general terms and conditions, buyer is understood to be: anyone who enters into or wants to enter into an agreement with Americol regarding goods and/or products produced and/or traded by Americol.

1.2. These Terms and Conditions apply to all offers and all sales and/or delivery transactions concluded with Americol.

1.3. The Buyer’s Terms and Conditions shall not apply unless expressly accepted by Americol in writing. In case of doubt or conflict, the present terms and conditions prevail, unless expressly agreed otherwise in writing.

2. OFFERS

2.1. All quotations, offers and advice from Americol, in whatever form, are without obligation; transactions shall not be binding on Americol unless confirmed in writing by Americol. Offers, commitments and agreements made by Americol employees are only valid after approval by Americol’s management, unless expressly stipulated otherwise in writing by Americol.

2.2. If no agreement is concluded, Americol has the right, to charge all costs that Americol has had to incur in providing advice, quotation and quotation, including the costs for the production of models, drawings and designs, to the person who has requested Americol for advice, quotation, quotation or offer.

2.3. All offers, quotations and advice are, unless expressly stated otherwise in writing, based on execution under normal circumstances.

2.4. The measures, weights and technical data stated in Americol’s quotation, catalogues, stock lists, circulars and other advertising material, as well as the offers contained therein, are always approximate and without obligation, unless Americol has expressly provided a guarantee in writing.

3. CONCLUSION OF THE AGREEMENT

3.1. If the agreement is entered into in writing, it will be concluded on the day on which the contract is signed by Americol, or on the day on which the written confirmation of the assignment is sent by Americol.

3.2. Any subsequent agreements or changes made are only valid if they have been confirmed in writing by Americol and the buyer has not objected to this in writing within eight working days after the confirmation has been sent.

3.3. In this way, Americol may request a letter of agreement signed by the buyer. Americol is not obliged to carry out any execution of the relevant assignment if and as long as the relevant agreement has not come into the possession of Americol.

4. SCOPE OF THE AGREEMENT

4.1. In all cases, the performance of the agreement is limited to what is described in the agreement. All changes in the work to be performed, whether due to a special order from the buyer or as a result of the circumstance that the information provided to Americol does not correspond to the buyer’s previous statement, will be charged to the buyer separately on the basis of subsequent calculation if several costs arise as a result.

4.2. Changes in the execution of the order requested by the buyer after the order has been issued must be notified to Americol by the buyer in a timely manner and in writing. If they are given orally or by telephone, the risk of the implementation of the changes is borne by the purchaser.

5. QUANTITY

5.1. Measurements and weighing by Americol, as well as numbers and weight statements to be provided by Americol will be binding and decisive for the parties for the quantities to be delivered and delivered.

5.2. If the nature of the agreement so requires, the quantity must be purchased in approximately equal monthly quantities, unless otherwise agreed in writing. Americol shall not be obliged to supply more than such a monthly quantity plus 10% for any month of the contract. If delivery of an estimated need has been agreed upon without specifying a maximum quantity, Americol shall at all times be entitled to limit its delivery to that estimated quantity, plus 10% thereof.

6. DELIVERY AND DELIVERY TIMES

6.1. Unless otherwise agreed in writing, delivery takes place upon loading. The place of delivery is the place of loading of the agreed means of transport, unless otherwise agreed in writing.

6.2. The Buyer is therefore deemed to have taken delivery of the purchased cargo. Immediately after the goods or the most important parts thereof are considered to have been delivered in the sense referred to above, the buyer bears the risk for all direct and/or indirect damage that may arise to or by these goods or parts thereof. The buyer must properly insure this risk. Americol is entitled to cover the goods and/or products at the expense of the buyer against the risks to be determined by Americol.

6.3. Goods that are delivered free of charge according to written confirmation from Americol remain at the risk of Americol, whereby the risk of molestation is always at the expense of the buyer. Delivery free of charge or free of charge is generally considered to be delivery to buyers’ storage tanks or buyers’ storage places, or to delivery to a nearby location that is easily accessible to the means of transport. In Americol opinion, if the delivery cannot be carried out without objection, Americol considers itself free not to deliver.

6.4. Even if Americol provides the transport, this does not change the provisions of the previous paragraphs of this article.

6.5. Without prejudice to Americol’s right to compensation and without prejudice to the buyer’s obligation to pay, Americol is not obliged to redeem if, in the opinion of Americol, the buyer:

6.5.1. Fails to ensure the availability of an unloading option in a timely manner;

6.5.2. For the purpose of the delivery of (highly) viscous products, does not ensure the timely presence of a free and, if necessary, heated discharge pipe in such a way that unloading can take place without delay;

6.5.3. Fails to ensure the presence of tanks in which the product is to be deposited in a timely manner for the purpose of deposit;

6.5.4. Fails to provide the necessary facilities for the normal delivery of the goods in a timely manner for the purpose of the delivery of other goods.

6.6. Delivery times are determined by us approximately and expressed in the expected number of working days required, unless a certain delivery period has been expressly agreed in writing. Exceeding the said delivery times, for whatever reason, does not oblige Americol to the buyer to pay any compensation for any damage suffered by him or third parties, nor does this give the buyer the right to suspend any obligation that may rest on him by virtue of the transaction in question or another transaction entered into with him. The same applies to urgent delivery requested by the buyer and/or to deliveries for which the buyer has set a deadline.

6.7. After the expiry of the delivery period, the buyer is entitled to set Americol a new reasonable term in writing, in the absence of delivery within which the buyer is entitled to dissolve the agreement by notifying Americol thereof by registered letter within fourteen days thereafter.

6.8. Americol is entitled to deliver an order in its entirety, or after the successive purchase of the goods, in parts. If Americol will deliver a part, it is nevertheless entitled to demand payment by invoice relating to a partial delivery in accordance with the applicable payment conditions.

6.9. In all cases, the buyer is obliged to take delivery of the delivered goods and unload them immediately. Goods that have not been received at the agreed time or within the agreed period will be stored by Americol at the place designated for this purpose according to contract and/or general use, at the expense and risk of the buyer.

6.10. If the transport takes place by rail wagon, the Buyer is obliged to unload it immediately and to return it to Americol empty and free of contamination within twenty-four hours of arrival and if the transport takes place by (tanker) truck and barge within one hour of arrival to enable Americol to start the unloading or to have it unloaded and to complete it without interruption. In the event of a delay, the buyer will owe Americol an immediately due and payable compensation of € 100.00 and € 25,000.00 respectively for each day or part thereof that the return of a wagon or the unloading of a barge and/or tanker is delayed.

6.11. If normal transport is hindered, for whatever reason, the resulting additional costs for Americol will be borne by the buyer.

6.12. Unless otherwise agreed, one-off packaging issued on invoice will not be taken back by Americol. Containers are reported empty and free of contamination for return within ten weeks. For each day of delay, € 50.00 will be charged. If the buyer has not reported the container empty within four months of delivery, he will also reimburse the replacement value. Damage, defects and/or contamination found to a returned container or other packaging are at the expense of the buyer.

7. PRICES

7.1. Unless otherwise agreed, invoicing will be based on the price applicable on the delivery date, or the price applicable on the day of receipt of the order, at the sole discretion of Americol.

7.2. The prices quoted by Americol are always without obligation, based on the factory and/or trade prices, foreign exchange rates, import duties and equivalent levies, insurance rates, freights, taxes, margin arrangements and other such factors applicable at the time of the conclusion of the agreement. If one or more of these factors changes before the delivery has taken place, Americol is entitled to adjust the prices without prior notice. If the price increase is more than 10%, the buyer has the right to dissolve the agreement by notifying Americol by registered letter within fourteen days after the announcement of the aforementioned price increase.

7.3. If the execution of the order is delayed at the request of the buyer or due to the absence of information or instructions to be provided by the buyer or otherwise caused by the buyer, all prices of Americol will be increased by the additional costs, including loss of interest, that arise for Americol as a result.

8. CANCELLATION

8.1. In the event of force majeure and other circumstances of such a nature that Americol cannot reasonably be required to perform a transaction – including the event that Americol’s own supplier is unable to fulfil its obligations towards Americol – the delivery obligation will be suspended and the delivery times will be extended by a period of time equal to the continuation of those circumstances.

8.2. Should the extension of delivery times exceed three months, Americol shall be entitled to cancel the transaction in whole or in part for the part not yet carried out without being obliged to pay any compensation. In the event of a partial execution, the buyer will owe a proportionate part of the total price.

9. PAYMENT

9.1. Payment must be made within 30 days of the invoice date, without any discount or compensation, unless otherwise agreed in writing. If this period is exceeded, the buyer is deemed to be in default by operation of law, without Americol being obliged to give him further notice of default in any way.

9.2. If the period referred to in paragraph one is exceeded, the buyer will owe a default interest of 2% per month or part thereof on the invoice amounts due, to be calculated from the invoice date. If this period is exceeded, the defaulting buyer shall also be liable for all costs, both judicial and extrajudicial, including the costs of a bankruptcy application and all costs that exceed the liquidation by the court and are incurred by Americol for collection.

9.3. Extrajudicial costs are payable by the buyer in any case in which Americol has secured the assistance of third parties for the collection of the amount due, or the fulfilment of what the buyer is obliged to do towards Americol. These extrajudicial costs amount to 15% of the amount owed by the buyer, including the aforementioned default interest, with a minimum of € 75.00, without Americol being obliged to demonstrate that Americol has lapsed into the costs.

9.4. If the buyer does not fulfil, or does not comply properly or in a timely manner, with any obligation arising for him from the agreement concluded with Americol or from a related agreement, or if there is serious doubt as to whether the buyer is able to fulfil his contractual obligations towards Americol, as well as in the event of bankruptcy, suspension of payments, cessation, liquidation or transfer in whole or in part – whether or not as security – of the company, including the transfer of a substantial part of its claims, Americol is entitled, without notice of default and without judicial intervention, either to suspend the performance of the agreements for a maximum of six months, or to dissolve them in whole or in part, this without Americol being obliged to pay any compensation and without prejudice to Americol’s claim for compensation, as well as Americol’s other rights, while Americol is then also entitled to cancel all other transactions with the buyer in question, insofar as they have not yet been carried out, under the same conditions. Any cancellation will always result in the due and payable of all that is owed to Americol by the buyer. During the suspension, Americol is always entitled to opt for execution, or for full or partial dissolution of the suspended agreement(s).

9.5. Americol has the right to demand security for the fulfilment of the Buyers in the event of any change in the business situation of the Buyer, change of ownership, reasonable doubt about the solvency of the Buyer and the like, in the event of any change in the business situation of the Buyer, change of ownership, reasonable doubt about the solvency of the Buyer and the like, in the event of any change in the business situation of the Buyer, reasonable doubt as to the solvency of the Buyer and the like, to require the Buyers to provide security for the fulfilment of the contract, failing which Americol is entitled to cancel and/or suspend the sale.

10. RETENTION OF TITLE

10.1. Ownership of the goods and/or products delivered by Americol shall only pass to the buyer as soon as the buyer has paid Americol all that is due to Americol in respect of the delivery of those goods and/or products (including not only the purchase price including the surcharges and fees payable pursuant to these terms and conditions, but also any interest and costs). Americol also expressly reserves ownership of the delivered goods and/or products, as long as all its claims from the sale and delivery of other goods have not been paid or have not been paid in full by the buyer.

10.2. If the buyer has delivered the goods in the ordinary course of business before the ownership has been transferred to him, the buyer of the buyer becomes the custodian of the goods vis-à-vis Americol. The buyer is obliged to make a reservation to that effect upon delivery. The custodian must indicate on Americol’s first reminder the place where the goods in question are stored and enable Americol to take back the goods. As long as ownership has not been transferred to the buyer, the buyer may not pledge the goods, transfer ownership as security or confer any other rights thereon to third parties. Nor any claims he may obtain on insurance tokens with regard to goods and/or products delivered or to be delivered by Americol.

10.3. In the unlikely event that the buyer fails to comply with one of the obligations, Americol is entitled to reclaim the goods delivered by Americol, for which full payment has not been obtained, as property, both from the buyer and from third parties after delivery as referred to above. The buyer will be credited by Americol, with a view to the repossession of the said goods, for the value that must be attributed to those goods at the discretion of Americol, less the costs incurred on the repossession, without prejudice to Americol’s right to compensation for any damage resulting from the foregoing for Americol.

10.4. Only with the express written consent of Americol is the buyer entitled to use and/or trade the products and/or goods delivered by Americol if this is necessary for the normal performance of business.

11. RIGHT OF RETENTION

11.1. Americol is entitled to retain goods and products that it has in the buyer’s possession until payment of all costs that Americol has spent in the execution of orders that the same buyer, regardless of whether these orders relate to the aforementioned or other goods and/or products of the buyer, unless the buyer has provided sufficient security for those costs. Americol is also entitled to retention in the event that the buyer becomes bankrupt.

12. ADVERTISING

12.1. Control of the delivered goods rests with the buyer. The quantity or number of pieces on the consignment note, delivery note or any document certified for that purpose shall be recognized as correct, unless the buyer immediately notes defects on the relevant receipt. Complaints must be submitted to Americol by registered letter within ten working days.

12.2. Complaints about the quality of the delivered goods and/or deviations from the specifications must also be submitted to Americol by registered letter within ten days of receipt by the buyer. The buyer’s right to complain expires if the purchased goods and/or products have been processed or sold in whole or in part.

12.3. The buyer must report non-visible defects to Americol by registered letter within eight days of discovery, but no later than three months after delivery.

12.4. The buyer must give Americol the opportunity to inspect the goods and/or products as delivered in an unaltered capacity, in order to determine whether or not the complaints are justified.

12.5. Goods and/or products that are the subject of a complaint and that are located in a place other than under the supervision of Americol must be locked up by the buyer at his own expense and risk. In this case, the buyer must take care of the goods with due care, including adequate insurance against usual risks.

12.6. Due to the delivery of goods, Americol will only take on those guarantees vis-à-vis the buyer that Americol’s supplier assumes vis-à-vis Americol, entirely in accordance with the same conditions. Further guarantees can only rest with Americol if this is apparent from a written statement given by Americol.

13. LIABILITY

13.1. Americol is only liable to the buyer for damage caused by intent or gross negligence on the part of Americol or its managerial subordinates. However, liability for profitable, consequential or indirect damage is always excluded. More specifically, Americol is not liable for:

13.1.1. Indirect damage, such as trading loss such as shutdown, delay, malfunction or any other trading loss of any kind;

13.1.2. Personal accidents and/or damage to objects, machines, installations and buildings, as well as any other damage, whatsoever, caused by incorrect delivery or errors and defects in the goods and/or products delivered by Americol;

13.1.3. Costs and damages that may arise as a direct or indirect result of acts or omissions of Americol, Americol’s subordinates or other persons employed by Americol;

13.1.4. Advice given by Americol with regard to the transport, storage, use or application of the goods and/or products delivered by Americol;

13.1.5. Damage if a tank, caused by insufficient copper equipment or any other reason, should overflow during delivery.

13.2. Should Americol be held liable in any way, the compensation shall never exceed the invoice value associated with the deliveries causing the damage.

13.3. The buyer indemnifies Americol against all damages and costs that may arise for Americol as a result of claims from third parties that are related to the goods delivered by Americol.

14. OVERPOWER

14.1. Failure by Americol to comply (in full) with its obligations shall not be regarded as breach of contract vis-à-vis Americol if the failure to perform is caused by and/or is related to force majeure or circumstances, as a result of which fulfilment becomes wholly or partially impossible for Americol.

14.2. These circumstances include, but are not limited to: nuclear reactions, war, insurrection, hostilities, piracy, epidemics, natural disasters, strikes, fires, restrictions and/or obstacles (as a result of requests, measures or directives from national, international or supranational governmental bodies) relating to the supply, transport, production, manufacture, import, export and/or availability of raw materials, excipients and/or finished products; the forced cessation of the operation of wells, refineries and/or installations; the loss of ships, drastic price increases; furthermore, all circumstances that disrupt the regular running of the business of Americol and the parent company of Americol – regardless of whether the parent company or companies affiliated with Americol could be accused of fault and/or negligence, as well as the event that the supplier(s) are wholly or partially in default.

15. ASSIGNMENT

15.1. Americol is entitled to transfer its rights and obligations towards the buyer to another party, whereby the latter then becomes a contracting party in its place and is authorized to replace the trademarks, under which Americol was allowed to sell, with others.

16. FINAL PROVISION

16.1. All legal proceedings that Americol conducts are exclusively governed by Dutch law. All disputes arising from offers or agreements concluded with us are subject to the judgment of the civil court, which has jurisdiction in the place of Americol’s registered office, unless Americol should prefer the normal rules of jurisdiction.