GENERAL SALES AND DELIVERY TERMS AND CONDITIONS

API Transfer Technologies B.V.

Article 1: Applicability

All offers made by API Transfer Technologies B.V., trading under the name API Transfer Technologies (hereinafter: "API") and all agreements concluded with API, such as the sale and delivery of goods and the provision of services by API, rental agreements, lease agreements and maintenance agreements, etc., shall be governed exclusively by these General Terms and Conditions of Sale and Delivery (hereinafter: "Terms and Conditions").
In the event of a conflict between the agreements made by API and these terms and conditions, the agreements in the relevant agreement shall prevail.
The applicability of the general terms and conditions used by the customer is hereby expressly rejected, even in the event of prior notification or a declaration of applicability of the customer's own terms and conditions.
In these general terms and conditions, the term "buyer" means anyone who purchases goods and/or services from API or enters into any other agreement with API or requests a quotation from API or receives a quotation from API.
Deviations from the following general terms and conditions can only be agreed in writing and are only valid after express written confirmation by the legal representative of API to the purchaser.
API reserves the right to amend these terms and conditions at any time. These amendments shall enter into force fourteen days after API has notified the customer of them. For contracts already concluded, the conditions that were in force on the day the contract was concluded shall continue to apply.
If any provision of these Terms and Conditions is held by a court of competent jurisdiction to be void or otherwise not binding, such provision shall be read so as to override such inconsistency or invalidity. The remaining provisions of these Terms and Conditions shall remain in full force and effect in that event.

Article 2: Cost estimates

Unless otherwise agreed in writing, all offers made by API to the buyer shall be entirely without obligation and shall be valid for a period of thirty days from the date of dispatch to the other party.
The offers are prepared by API on the basis of the information provided by the buyer, who guarantees its accuracy.
The period referred to in paragraph 1 is always a cut-off period, which means that the offer can no longer be accepted after this period has expired.
API reserves the right to revoke a submitted offer within five working days of receipt of the acceptance. If it exercises this right, no contract shall be concluded.
API is authorised to change the specifications stated in its offers at any time.
Offers only apply to the quantities and products stated in the offer and do not automatically apply to repeat orders.
If API sends the customer a test sample for approval, the customer has five working days after receipt of the test sample to approve the sample in writing. If the buyer does not respond in writing within this period, API's offer or the order placed with API shall become invalid.
API applies a minimum order value of €1,000. Administrative fees are charged for orders below this amount.

Article 3: Formation of contracts

An agreement with API shall only be concluded if API has confirmed the agreement by means of an order confirmation (by e-mail or otherwise). Any protest against the content of this confirmation must be made by registered letter or e-mail no later than three days after receipt, failing which the recipient shall be deemed to have agreed to the content of the confirmation.
The content of the contract between the parties shall only be governed by what is stated in the order confirmation and in these terms and conditions. All information provided by API regarding specifications and other technical data is given to the best of its knowledge, but is non-binding.
In the case of contracts, deliveries and orders for which no written offer or written order confirmation has been received from API, the invoice or delivery note sent by API shall also be deemed to be the order confirmation, which shall also correctly and fully reflect the contract.
Agreements concluded through the mediation of representatives/agents of API shall only be binding on API if they have been confirmed in writing by API or if API has delivered.
The fact that API delivers to the purchaser and/or has previously delivered or performed services for the purchaser does not give the purchaser any right to future deliveries from API. A continuing obligation is therefore not created, unless expressly agreed otherwise in writing. API is not obliged to give a reason for refusing future deliveries to the purchaser.

Article 4: Prices

Unless expressly stated otherwise in writing, the prices stated in API's offers and price lists are in euros, exclusive of VAT, exclusive of the quantities and products stated therein and exclusive of the costs of packaging, quality control, loading and unloading, transport, insurance, installation and placement, training, waste disposal contribution, environmental levies and other government surcharges.
The prices in the quotations are based on delivery ex works in accordance with the Incoterms 2010. Factory means API's premises, warehouse or other storage location in the Netherlands.
In the event of a change in prices (charged to API by suppliers) and/or a change in (other) price-determining factors such as exchange rates, wages, taxes, import and export duties, insurance premiums, fees, freight charges and the like following an offer by API or an order by the customer, API is always authorised to change the prices accordingly, subject to the relevant mandatory statutory provisions, regardless of whether or not the change was foreseeable for API at the time of the offer or order. API shall inform the purchaser of these changes at the time API becomes aware of the changes.
The price changes referred to in the previous paragraph do not give the buyer the right to cancel, terminate or dissolve the contract in any way.
The brochures, price lists and other data provided by API are only indicative and not binding.

Article 5: Payment

Payment of the invoice shall be made within thirty days of the invoice date, unless expressly agreed otherwise in writing. Payment shall be made by deposit or credit to a bank or giro account specified by API, in euros and including VAT. The value date on API's bank/current account statements shall be decisive for determining the payment date.
The buyer is not authorised to suspend or offset payment.
If the amount owed according to the invoice is not paid on time, the Buyer shall be in default without any reminder or prior notice of default being required and API shall owe the statutory commercial interest as referred to in Article 6:119a of the Dutch Civil Code from the due date of the invoice.
API's claims against the purchaser, for whatever reason, shall in any case be immediately enforceable - in full - without notice of default or announcement in the following cases:
- if the buyer does not fulfil an obligation arising for him from a contract concluded with API, or does not
  fulfil it on time;
- if the buyer is declared insolvent or a petition in bankruptcy is filed, a moratorium on payments is applied
  for or the buyer is in a moratorium on payments;
- if the buyer applies for the debt rescheduling or the debt rescheduling is declared applicable or forced
  administration is applied for;
- if an attachment has been made on his property;
- if the customer dies, goes into liquidation or announces that it will cease or has ceased its business
  operations;
- in the event of the transfer of all or part of its business, including the contribution of the business to a
  company to be established or already existing, or in the event of the (partial) transfer of control of the
  company;
In the cases referred to in paragraph 4, API is authorised, without notice of default and without judicial intervention, to suspend all current agreements between the buyer and API or to demand cash payment for these, even if otherwise agreed, or to dissolve the agreements in whole or in part and to repossess the delivered goods immediately, without API being obliged to pay any compensation or guarantee, but without prejudice to the other rights to which it is entitled, such as the right to compensation.
API may at any time set off anything it owes the buyer under any agreement, whether due or not, against what the buyer owes it or its affiliates.
All - actual - judicial and extrajudicial (legal) costs of API arising from or in connection with the improper or late fulfilment of the buyer's obligations shall be borne in full by the buyer.
Court costs are expressly not limited to the legal costs to be liquidated, but are to be borne in full by the customer if he is (predominantly) rejected.
API is at all times entitled to require the purchaser to provide security, in person or in rem, to be determined by API, for the fulfilment of its (future) financial obligations towards API, all the more so if API has reasonable grounds to fear that the purchaser will not fulfil its payment obligations towards API on time. If and for as long as the customer refuses or is unable to provide security in this case, API shall be entitled to suspend the fulfilment of its obligations or to terminate the agreement(s) immediately, without being obliged to pay any compensation.

Article 6: Retention of title and transfer of ownership

All goods to be delivered by API to the Buyer shall remain the exclusive property of API until the Buyer has fulfilled all its obligations towards API in respect of the relevant, previous and subsequent similar deliveries, in respect of the additional work carried out or to be carried out by API and in respect of API's (future) claims against the Buyer due to the Buyer's (future) failure to fulfil its obligations towards API.
Until the transfer of title, the purchaser shall not be entitled to encumber the goods in any way with a limited security interest or right of use or otherwise remove them from API's recourse.
The purchaser shall be obliged to store the goods delivered subject to retention of title with due care and as recognisable property of API until title has passed to the purchaser.
The buyer is obliged to insure the goods for the duration of the retention of title at its own expense against fire, explosion and water damage, further damage or destruction for any reason whatsoever and against theft and to make the policies of this insurance available to API for inspection on first request.
If the customer does not fulfil its payment obligations towards API or if API has reasonable grounds to fear that it will not fulfil these obligations, API shall be entitled to immediately take back the goods delivered subject to retention of title. After repossession, the customer shall be credited with the market value, which may in no case be higher than the original purchase price, less the costs of repossession and the loss incurred by API as a result of the repossession of the goods.
If API claims the goods delivered under this provision as its property, the buyer shall indicate to API the place where the goods are located and grant API free access to its land and/or buildings at all times in order to inspect the goods and/or exercise API's rights.
If the purchaser forms a new item from the goods delivered by API that are subject to retention of title, the purchaser shall act in accordance with API's instructions when forming the new item and shall store the new item for API.

Article 7: Delivery and delivery times

The purchaser is obliged to accept the goods offered for delivery by API.
Unless otherwise agreed in writing, delivery shall be ex works, Gompenstraat 7, 5145 RM in Waalwijk, the Netherlands, in accordance with the Incoterms 2010. The risk shall pass to the buyer at the moment the goods are offered to the buyer or to a carrier appointed by the buyer. This is the moment at which API informs the buyer that the goods are ready for delivery in the warehouse.
In deviation from the provisions of the previous paragraph, it may be agreed in writing that API will take care of the transport. In this case, the risk and costs of storage, loading, transport and unloading shall also be transferred to the customer from the date of notification in accordance with 7.4. The customer is free to insure himself against these risks.
API shall inform the buyer in writing that the goods are ready for delivery in the warehouse. The customer shall then be obliged to take delivery of the goods to be delivered to him (or have them taken delivery of) within five working days of the aforementioned written confirmation.
If the customer does not accept the goods before the expiry of the delivery period and/or rejects the goods, the goods shall be deemed to have been purchased. API will send the buyer an invoice for the delivery.
If the products have not been accepted by the buyer after expiry of the agreed delivery period, API shall be authorised to store the products at API's expense and risk (insofar as API's storage facilities permit this). In the event of late acceptance, API shall be entitled to dissolve the agreement after a period of fourteen days after the expiry of the delivery period, without prejudice to API's right to compensation and API's right to sell the products to third parties.
Unless otherwise agreed in writing, the type of packaging shall be determined by API.
API is always authorised to deliver in parts, which can be invoiced separately. The buyer is obliged to pay for all partial deliveries in accordance with the provisions of Article 5 of these terms and conditions.
Stated delivery times for goods or services are never to be regarded as a deadline for API, unless otherwise agreed in writing.
The delivery period shall not commence until the contract has been concluded, all information and materials required for the fulfilment of the contract are in API's possession and any payment, insofar as it is to be made by the purchaser upon conclusion of the contract, has been made.
Only if a delivery period has been expressly agreed in writing as the final date, shall the buyer be entitled to demand cancellation of the agreement if API has not delivered the ordered goods within this period, but not after the buyer has given API a reasonable period of at least 14 (fourteen) days by registered letter to fulfil its obligations.
The mode of despatch, packaging etc. shall be determined by API at its own discretion if no further written instructions have been received from the purchaser. Special requests of the purchaser with regard to transport or despatch shall only be carried out if the purchaser has declared in writing that he will bear the additional costs.
If API has provided pallets, boxes, crates, containers, etc. ("packaging material") for packaging or has it provided by a third party, the buyer shall be obliged, unless it is a one-off packaging, to return the aforementioned packaging material at its own expense and risk to the address specified by API, failing which API may invoice the buyer for the costs of this packaging material.

Article 8: Inspection and complaints

The buyer is obliged to inspect the goods or services for quality and quantity immediately after delivery. Any quality or quantity defects must be reported in writing within 24 hours of delivery, stating the nature and extent of the complaints. Other complaints must in any case be received by API within fifteen days of receipt of the goods. Without timely written notification, the customer shall be deemed to have approved the goods delivered or services rendered and complaints can no longer be considered.
Subject to proof to the contrary, the quantities stated on the consignment notes or other delivery documents for API shall be deemed to be correct.
The purchaser is obliged, at API's first request, to return the allegedly defective goods to API within five working days of sending the complaint at its own expense and risk in the packaging prescribed by API.
A complaint is never a reason for suspending or settling the buyer's payment obligations towards API or for cancelling the agreement(s).
After the discovery of a defect, the buyer may not use or sell the item in question unless he has received written authorisation from API to do so. If the buyer does so, complaints will not be processed.
If a complaint is found to be justified by API, API shall, if possible, supply replacement goods or services or, if this is not possible, credit the customer with the amounts invoiced to him. API is not obliged to provide other services or to pay compensation.
API is not obliged to deliver replacement products or to reimburse the invoice value if the defective products were not made available to API in good time and/or the buyer did not strictly observe the storage instructions for the delivered products, as a result of which spoilage occurred or could have occurred and/or as a result of which it is no longer possible to verify the correctness of the complaints made by the buyer.
If a complaint is deemed unfounded by API, the returned goods shall be destroyed, unless the buyer submits a written request to API to receive the goods back. Such a request must be communicated to API at the time the goods are returned to API. The return of the goods to the buyer shall be at the buyer's expense and risk.

Article 9: Obligations of the buyer in general

The buyer guarantees that he:

advertises API's brands only in a manner authorised in writing by API.
refrains from making negative statements about API's name, brands, products and services.
The Buyer shall pay a penalty of € 10,000 (in words: ten thousand euros) for each breach or non-fulfilment of the obligations referred to in this article, not subject to discount or set-off, and accepts in such a case that API shall have the right to cancel or declare dissolved any purchase agreement(s) concluded and/or to exclude the Buyer from further deliveries of goods and/or services, all with the right to compensation, without prejudice to API's right to continue to demand fulfilment of the agreement with or without compensation.

Article 10: Liability and compensation

Except in the event of intent or wilful recklessness on its part or on the part of its managers, API shall not be liable for damage of any nature whatsoever suffered by the buyer, its personnel or other auxiliary persons, or a third party as a result of the non-conformity of the goods delivered or services provided by API or the unsuitability of the goods delivered or services provided by API and for damage as a result of advice given by API with regard to the goods delivered or services provided by API and for damage as a result of late, incorrect or incomplete delivery of the goods or services in question.
If it is legally established that API is liable for the damage referred to in the previous paragraph despite the provisions of that paragraph, its liability shall in any event be limited to the amount actually paid out by its insurance or, if for any reason there is no insurance cover, to the invoice value of the goods supplied or services rendered by it to which its liability relates.
The provisions of paragraphs 1 to 2 refer to both the contractual and non-contractual liability of API, including product liability.
The Supplier shall never be liable for damages resulting from loss of profit, business stagnation or other consequential damages suffered by the Customer. Any consequential and other damages are therefore expressly excluded.
The purchaser indemnifies API against all claims by its vicarious agents, including its employees or representatives, and/or third parties relating to damage for which API has excluded and/or limited its liability towards the purchaser.

Article 11: Warranty

A warranty shall only be provided for goods that API has purchased elsewhere if and insofar as the manufacturer/supplier concerned actually provides a warranty, unless expressly agreed otherwise in writing between the purchaser and API.
Unless otherwise agreed in writing, the warranty shall only cover the replacement of the goods or services concerned or the crediting of the invoice amount in accordance with Article 8.6. Any damage, whether direct or indirect, caused by non-conformity or unsuitability of the goods or services supplied by API shall not be covered by the warranty.
The warranty claim shall lapse if the (supplier's) instructions or those of API are not followed when using the goods, if the delivered goods are used for purposes other than the usual purposes or if the delivered goods are handled, stored or used improperly.
Any warranty claims shall lapse if repairs or modifications are made to the delivered goods by or on behalf of the purchaser without the consent of API.
Travel costs and labour (including travel expenses) are not covered by the warranty and will be charged to the customer by the supplier, unless otherwise agreed.
The proper functioning of the equipment and machines sold, rented or loaned by API is only guaranteed if packaging and auxiliary materials supplied by API or for which API has approved the specifications are used. The buyer has the option of concluding a maintenance contract with API for the packaging equipment sold. API will conclude a separate agreement with the customer for this purpose.
All warranty claims of the purchaser shall lapse if the purchaser does not use the material supplied by API or approved in writing in its specifications on the devices and machines.
If the Buyer fails to fulfil its obligations, API shall also be released from its (warranty) obligations.
The guarantees shall also lapse in the event of untimely or incorrect inspection or complaint in accordance with Article 8.

Article 12: Enforcement by third parties / Transfer of rights

API is authorised to use the services of third parties in the execution of the contract.
API may at any time transfer all or part of its rights and/or obligations under the agreements with the Buyer to a third party or provide such third party with any form of security, to which the Buyer hereby consents in advance.
The Buyer does not have the powers referred to in paragraph 2 in accordance with Article 3:83 paragraph 2 of the Civil Code.

Article 13: Force majeure

Force majeure on the part of API shall in any case be understood to mean: any circumstance beyond API's control that permanently or temporarily prevents the fulfilment of the obligations to which these terms and conditions apply.
Insofar as not already included in the above description, force majeure also includes transport bans, import bans, export bans, strikes, sit-down strikes, staff shortages, transport delays, war, riots, acts of war, epidemics, pandemics, fire, water damage, machine defects, disruptions in the energy supply, government measures (including in any case import and export restrictions), sales bans, in each case at API as well as nonperformance by API's suppliers, as a result of which API cannot (or can no longer) fulfill its obligations towards the buyer.
If API is of the opinion that the force majeure is temporary, it has the right to suspend the execution of the agreement until the circumstance that caused the force majeure no longer exists.
If, in API's opinion, the force majeure is of a permanent nature, API has the right to adjust the agreement to the circumstances without judicial intervention or to cancel it in whole or in part or to terminate it with immediate effect without having to pay any compensation to the buyer.
If API has already partially fulfilled the agreed obligations when the force majeure occurs, it shall be entitled to invoice the work carried out in the meantime separately and the buyer shall pay this invoice as if it were a separate transaction.

Article 14: Tolerances

With regard to the agreed specifications, the usual industry deviations upwards and downwards in terms of quantities, colours, weights, thicknesses, formats, machine speeds, technical specifications, dimensions and the like are permitted.
When assessing whether a delivery exceeds the permissible tolerances of the agreed specifications, a representative sample should always be taken, whereby at least 10% of the delivered goods should exceed these tolerances.

Article 15: Intellectual and/or industrial property rights

All intellectual and/or industrial property rights, both of API and its suppliers, to all goods delivered or services provided by API are reserved by API. The purchaser undertakes not to infringe these rights in any way, whether directly or indirectly, by use or otherwise, and recognises that API is entitled to do so.
The purchaser expressly indemnifies API against all claims by third parties for intellectual or industrial property rights based on goods or services used by API at the request or instruction of the purchaser.

Article 16: Cancellation

Cancellation by the buyer of an agreement concluded with API can only take place with the consent of API. If API agrees to the cancellation, the buyer shall immediately owe API a penalty of 25% of the invoice amount (including VAT).

Article 17: Suspension and dissolution

API shall be entitled to suspend the fulfilment of its obligations until the purchaser has paid all amounts due to API.
Each party shall be entitled to terminate a contract out of court by registered letter if the other party remains in default with the fulfilment of an obligation under a contract with API even after a written reminder with a reasonable deadline.
API shall be entitled, by the mere occurrence of the following circumstances, without any notice of default or judicial intervention being required, either to dissolve the agreement in whole or in part and to reclaim the delivered goods as its property and/or to claim the full amount owed to API by the buyer, all this without prejudice to API's right to compensation if
- the buyer does not fulfil an obligation to API, does not fulfil it on time or does not fulfil it correctly;
- the buyer has been declared insolvent or a corresponding petition has been filed, if he applies for
  suspension of payments or if he is subject to bankruptcy proceedings;
- the customer requests the application of the debt rescheduling scheme;
- all or part of the customer's property is or has been confiscated;
- the buyer proves to be insufficiently creditworthy in the opinion of API to fulfil its obligations to API;
- the buyer's company is dissolved or liquidated;
- the buyer ceases or has already ceased its business operations, transfers its business or a part thereof,
  including the transfer of its business to a business to be established or already existing, and the (partial)
  transfer of control of the business and the buyer has not yet fulfilled all its obligations towards API.
If, at the time of the cancellation of an agreement, the buyer has already received services for the execution of the agreement on the basis of the provisions of Article 17.2 of these terms and conditions, the cancellation shall only relate to the part of the agreement that has not yet been executed by API. Amounts invoiced by API in connection with what it has already delivered or performed prior to the cancellation shall remain fully due and payable immediately at the time of cancellation.

Article 18: Termination

If, despite the provisions of Article 3(4) of these terms and conditions, an agreement is concluded for a definite or indefinite period, API shall always be entitled to terminate the agreement for any reason whatsoever, subject to a reasonable notice period. API shall never be obliged to pay compensation.

Article 19: Offsetting

API shall always be entitled to set off all claims of the purchaser against API that have a monetary value against claims of API and the companies affiliated with API in any way against the purchaser.
If the buyer is in any way part of a group of companies, the buyer within the meaning of this article shall include all companies that in any way belong to this group.

Article 20: Applicable law and competent court

All agreements concluded with API to which these terms and conditions apply shall be governed exclusively by Dutch law. The Vienna Sales Convention and comparable contracts are not applicable.
All disputes arising from the agreements concluded between API and the buyer, including these terms and conditions, shall be submitted to the competent court of the District Court of East Brabant. If the dispute falls within the jurisdiction of the District Court, the statutory rules of jurisdiction shall apply.

Article 21: Final provisions

All claims for which API is liable shall lapse if the purchaser has not sued API within six months of receiving a written notice of default.
The general terms and conditions have been filed with the Chamber of Commerce in 's-Hertogenbosch under the number 09179043.

Note: The translation of our Dutch General Terms and Conditions into English is for illustrative purposes only and is not legally binding. In case of divergence between the English and Dutch version, only the Dutch version shall prevail under Dutch law.

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