General terms and conditions of the Dutch Association of Suppliers of

building materials

(Filed with the District Court in Amsterdam, on November 1, 2017, under number 72/2017)

Article 1 Applicability

1.1 The General Terms and Conditions shall apply to all offers, agreements and deliveries of products, being raw materials for the concrete, road, water, rail, housing and utility construction sectors, as well as for special applications outside these sectors, as well as to services of the user of these General Terms and Conditions (hereinafter to be referred to as: seller) vis-à-vis its other party (hereinafter to be referred to as: buyer). In the following, products also include the aforementioned services. The General Terms and Conditions shall also apply to future and/or follow-up agreements between the Seller and the Buyer.

1.2 Deviations from these General Terms and Conditions, including any Buyer's own purchasing conditions, shall only be valid if and insofar as they have been expressly accepted in writing by the Seller prior to the relevant agreement. Such acceptance does not imply that such deviations (will) also apply to other agreements with the buyer.

1.3 If, in the opinion of the competent court, any provision of these general terms and conditions is inapplicable or contrary to public policy or law, only the provision in question shall be considered unwritten. The general terms and conditions shall otherwise remain in full force and effect. Instead of any invalid provision, a provision that most closely approximates the intention of the parties shall apply.
1.4 If parts of the agreement and the accompanying appendix(es) deviate from the General Terms and Conditions, the following order of precedence shall apply: first the agreement, second the appendix(es) and third the General Terms and Conditions.

Article 2 Formation of agreements; offers

2.1 All seller's offers are without obligation unless expressly stated to the contrary in writing.

2.2 Agreements are only established by a written order confirmation from the seller or (start of) actual execution by the seller.

2.3 Documentation, processing and other advice provided by or on behalf of the Seller shall be without obligation unless expressly stated otherwise.

Article 3 Prizes

3.1 Prices and other conditions are based on the type and scope of products and services to be supplied as stated in the offer. Partial orders give Seller the right to revise the prices and conditions stated in the offer.

3.2 All prices are net, exclusive of taxes and duties (including sales tax and import and export duties). Seller shall be entitled to increase the prices on the invoices with a credit surcharge, which surcharge shall expire upon payment of the invoices within a term specified therefor on the invoices.

3.3 The Seller is entitled to increase the price after the offer and/or during the period of execution of the agreement, but only if and insofar as the increase is the objective result of one or more cost-determining elements of the products and/or services such as government levies, general price increases in raw materials, energy, currencies, etc. This increase will then apply to those parts of the agreement that have not yet been executed at the time of the increase. Seller shall notify buyer of this increase for the (partial) deliveries to which this increase relates.

Article 4 Low Water

4.1 In the event of a navigable depth below the maximum permissible navigable depth, in a river or canal bed over which the transport takes place, the Seller shall be authorized to charge the Buyer a low-water surcharge on the purchase price of the products delivered by ship in each of the following cases:

a. if the water level on the Maxau gauge is below 461 cm or 201 cm on the Kaub gauge (whichever is lower) for vessels navigating down the Rhine following their usual route;
b. if the water level on the Cologne gauge is below 221 cm for vessels navigating down the Rhine following their usual route;
c. d. if the water level at the gauge in Ruhrort is lower than 301 cm for vessels sailing down the Rhine following their usual route;
d. if the draught on the section Millingen-Loevenstein is lower than 301 cm for vessels sailing down the Waal following their usual route;
e. if the draught between the head of the river IJssel and Zutphen is lower than 281 cm for vessels sailing down the Gelderland IJssel following their usual route.

4.2 The low water surcharge shall be calculated on the basis of the published water level or least sounded depth in the relevant river section at 08.00 on the day the loading is completed.

4.3 Seller is required to notify Buyer in a timely manner whether and how much low water surcharge it will charge.
Buyer shall notify Seller within a period of time to be specified by Seller whether:

a. wishes delivery of the products at the agreed time and place, in which case the buyer is obliged to pay the low-water surcharge;
b. wishes to delay delivery of the products until the condition of low water has ended;
c. wishes to adjust the place of delivery, as referred to in Article 6.2.

Article 5 Payment

5.1 Payments must be made within thirty days of the invoice date, failing which the buyer shall be in default by operation of law.

5.2 If payment is not made on time, the buyer shall be liable for default interest from the due date.

5.3 If, even after an initial payment reminder, the buyer remains in default of payment of what he owes, he shall be obliged to reimburse the seller for the extrajudicial collection costs.

5.4 In the event that the seller has submitted its claim to legal proceedings, including arbitration and binding advice, the buyer will be obliged to reimburse the actual costs involved in these proceedings, without prejudice to the seller's claims under the previous article. This includes the costs of lawyers, bailiffs and process agents as well as the fees payable to arbitrators or binding advisors and the fixed fee, insofar as these exceed any procedural costs awarded to the buyer on the basis of article 56 and following of the Code of Civil Procedure.
5.5 The vendor is authorized to require advance payment and security from the buyer prior to delivery. The seller shall also have this authority during the term of the agreement and with regard to follow-up agreements, if a reduced creditworthiness of the buyer gives the seller cause to do so.

Article 6 Mode of delivery; definitions

6.1 Deliveries may be made "ex works", "carriage paid to shore", "carriage paid to shore" and "carriage paid to work", as specified in the agreement.

6.2 Delivery "ex works" shall mean the delivery of products from the winery, loading plant, storage yard or depot of the Seller or any other location to be designated by the Seller, these hereinafter collectively referred to as: the Delivery Location.

6.3 Delivery "free ashore" means delivery of products by ship from or on behalf of Seller before an unloading quay.

6.4 Delivery "free on shore" means delivery of products by ship from or on behalf of Seller at an unloading quay.

6.5 Delivery "carriage paid" means the delivery of products at the place of unloading agreed with Buyer and designated by Buyer, other than "ex works", "in front of the shore" or "on the shore"

Article 7 Time and place of delivery

7.1 The time of delivery "ex works" is the time at which the product to be delivered falls into the hold of the means of transport offered for loading by or on behalf of Buyer for that purpose or, if earlier, the time at which Buyer has accepted or is deemed to have accepted the delivery. The place of delivery "ex works" is the place of delivery mentioned above in clause 6.2. Seller shall determine the order and times of delivery and loading in case of delivery "ex works".

7.2 The time of delivery "free ashore" is the time at which the buyer begins to unload the products - before the unloading quay - from the hold of the seller's vessel or, if earlier, at the time at which the buyer has accepted or must be deemed to have accepted the delivery.
Delivery free ashore takes place at the place - before the quay - and the time agreed between the seller and the buyer at the buyer's instruction. If no exact indication of the place of delivery has been given, delivery can be made in front of the nearest quay on a major waterway accessible to the seller. If the place of delivery has been precisely designated by the buyer but is not or hardly accessible to the seller at the agreed time, the seller shall be entitled to choose the nearest accessible place as the place of delivery. The seller shall be entitled to recover from the buyer all losses suffered as a result of the buyer not being able to unload at the agreed place and/or time.
The buyer shall be obliged to unload the product from the seller's vessel at the agreed time and also within the statutory loading and unloading times. If the Buyer fails to do so, the Seller shall be entitled to unload itself, this entirely at the Buyer's expense and risk. The seller may then also recover from the buyer all (other) losses suffered as a result of such failure.

7.3 The time of delivery "free ashore" is the time at which the seller has unloaded the products on the unloading quay or, if this is earlier, at the time at which the buyer has accepted or must be deemed to have accepted the delivery.
Delivery "free ashore" takes place at the place - on the quay - and the time agreed upon by the seller and the buyer at the buyer's instruction. Unloading ashore shall be done by the seller. If unloading is not possible at the place designated by the buyer and/or at the agreed time, the seller must notify the buyer immediately, whereupon the buyer shall be obliged to designate another unloading place where unloading is possible within half a day of such notification. If the buyer fails to designate that other place of unloading, the seller will have complied with its obligation to deliver by unloading the products at a place as close as possible to the place of unloading originally designated. The Seller shall be entitled to recover from the Buyer all damages it suffers on account of not being able to unload at the agreed place and/or time.

7.4 The time of delivery "carriage paid" is the time at which the Seller has unloaded the products or, if this is earlier, the time at which the Buyer has accepted or must be deemed to have accepted the delivery.
Delivery "carriage paid" takes place at the place and time agreed on by the Seller and the Buyer on the Buyer's instructions.
If it is not possible or difficult for the Seller to deliver the products at the place and/or time indicated by the Buyer, the Seller will be entitled to deliver the products to the place nearest to the Seller's reach. The Seller shall never be obliged to transport the products further than where the Seller's means of transport can normally reach. The Seller shall be entitled to recover from the Buyer all damage it suffers as a result of not being able to unload at the agreed place and/or time.

7.5 The Buyer must provide the Seller with sufficient information about the nature and condition of the place of destination of the products to be delivered by the Seller, so that the Seller can adequately select the means of transport to be used by the Seller - which means of transport is otherwise at the Seller's discretion.

Article 8 Delivery periods

8.1 Delivery terms stated by the vendor do not apply to the vendor as strict deadlines, unless expressly agreed otherwise in writing. In the event of late delivery the vendor shall therefore only be in default after written notice of default.
If delivery terms are exceeded or in the event of default as referred to above, the buyer shall not be entitled to compensation for any loss, direct or indirect, of whatever nature, except in the event of intent or gross negligence on the part of the vendor.

8.2 Buyer is obliged to take delivery of the products within the delivery and/or call-off periods stated for that purpose in the agreement. If the agreement only stipulates that the Buyer will take delivery of the products in a certain period and no further periods have been set with regard to the call, the Buyer is obliged to take delivery of the products gradually and spread over that period, taking into account seasonal circumstances. The Seller shall, if in its judgment the Buyer fails to comply with these obligations, be entitled to give the Buyer a further term within which the Buyer shall be obliged to take delivery of the products or part of the products.

8.3 If Buyer has not taken delivery of the products on time with due observance of the above, Buyer shall be in default by operation of law. Seller shall have the right, in addition to any other rights which then arise under the law for him from Buyer's default, to dissolve the agreement for the part not yet performed by simple notification without any judicial intervention.

Article 9 Passage of risk; retention of title

9.1 From the time of delivery, the delivered goods are at the expense and risk of the buyer.

9.2 All products delivered and to be delivered shall remain the property of the Seller until the Buyer has paid in full all claims that the Seller has or will have against it, on whatever account.

9.3 As long as the Seller's delivered products are subject to retention of title, the Seller shall not be entitled to process, dispose of or give the use of such products to third parties or to establish any form of security thereon, unless all this is done in the ordinary course of business.

9.4 If the products delivered by the seller are processed in or into other products by the buyer in the normal course of business, a lien will be established thereon for the seller's benefit.

9.5 The Buyer will be obliged to make the products delivered under retention of title identifiable and store them separately from other products in the Buyer's possession.
9.6 The Buyer will have a duty of care with respect to the products delivered under retention of title and must insure these products against all risks customary in the industry. The Buyer is thereby obliged to unconditionally transfer all claims against its insurers to the Seller on demand.

Article 10 Quantity

10.1 In the case of delivery by ship, the quantity delivered will be determined in a binding manner for the seller and the buyer on the basis of the unloading slip signed by the seller and the buyer on which the calibration measurements before and after unloading are stated. The measurement shall be made by an authorized calibrator and at the buyer's expense. In the absence of a calibration recording, the quantity shall be determined in a manner binding on the seller and the buyer on the basis of the measurement certificate or the loading certificate, at the seller's discretion.

10.2 In the case of delivery by truck, the quantity delivered will be determined in a manner binding on the Seller and the Buyer by weighing and/or volumetric determination by the Seller or, as the case may be, the shipper as stated on the weighing form, loading note or similar document signed by the driver, unless it is established beyond doubt that a different quantity has been delivered than that stated on the said document; in that case, the actual quantity will be delivered to the Buyer and this actual quantity will be invoiced to the Buyer.

10.3 If the quantity delivered deviates from the agreed quantity and this deviation does not exceed that which is customary and normal in the industry of the product in question, the actual quantity delivered will replace the agreed quantity and the buyer will not be entitled to complain regarding the deviation in quantity.

10.4 If upon delivery in vessels the quantity loaded is greater than the agreed quantity and this deviation exceeds what is customary and normal in the industry of the product concerned and this is not a result of intentional act or omission on the part of the seller or shipper and if this greater quantity cannot easily be unloaded from the vessel at the loading location, this greater quantity will form part of the delivery to the buyer and will be invoiced to the buyer. However, in deviation from the provisions in article 16.5 in that case the risk of payment to government agencies of any fines incurred as a result of overloading shall be borne by the seller or the shipping agent.
10.5 Without prejudice to the provisions in the previous paragraphs of this article, complaints about the quantity must be made known to the seller in writing immediately after delivery and in any event before unloading from the vessel or vehicle.

Article 11 Hatred

11.1 If and insofar as the quality of the products has not been expressly agreed upon, Buyer can only claim a quality in accordance with what is normal and customary in the industry of the product concerned.

11.2 If and insofar as it has been agreed that the quality shall be according to a sample, the sample shall be used to determine the average quality of the products delivered. Minor deviations from the quality according to the sample which do not substantially affect the usability of the products shall not count as a defect in the product.

11.3 If and insofar as it has been agreed with regard to the quality that it shall be in accordance with specifications and/or that the delivery shall take place on the inspection and/or to the satisfaction of the buyer, clients or a construction management, the buyer can only derive claims from this that go beyond the provisions of the previous paragraphs, if and insofar as those more far-reaching claims arise from the buyer's commitment to specifications, the contents of which the buyer has notified the seller in writing and in good time, so that the seller has been able to take these into account in his offer.

Article 12 Inspection, Control and Testing.

12.1 In the case of delivery "ex works" by ship, "free on board" by ship, "free ashore" and "free on shore", the buyer is obliged to inspect the quality of the goods delivered
before they are unloaded from the ship. In case of delivery "ex works" this inspection as well as any complaints regarding defects found during this inspection must take place within one working day after arrival of the buyer's ship at the unloading quay. In case of delivery "free ashore", "free ashore" and "free work" by ship this inspection as well as the check and re-inspection mentioned in article 13 must be carried out in the seller's ship and therefore before the products are unloaded. This inspection and complaints regarding any defects found during this inspection must be made no later than:
▪ if the time of arrival of the ship at the place of destination is before 12.00 noon: no later than the same working day;
▪ if the time of arrival of the ship at the place of destination is after 12.00 noon: no later than 12.00 noon of the following working day.

12.2 In the case of delivery "ex works" in trucks, the buyer will be obliged, before the truck has left the seller's storage site and before the loading note or similar document has been signed by the driver, to inspect the delivered goods for quality and to complain about any defects found during this inspection. For one working day after that time, the Buyer shall still be entitled to complain if an inspection carried out by the Buyer during that working day reveals defects in the products which could not reasonably have been discovered during the inspection referred to in the previous sentence.

12.3 In the event of delivery "carriage paid" by lorry, the inspection and testing referred to in this article as well as the inspection and re-inspection referred to in article 14 must be carried out before mixing of the products delivered with material of other origin or composition or processing of the products has taken place. The inspection and complaints following the inspection must be made immediately after unloading; the inspection and complaints following the inspection must be made within one working day after the time of unloading.

Article 13 Expiration of rights

If the Buyer fails to comply with the regulations referred to above in Articles 10 to 12 concerning, for example, times and place, etc., with respect to the inspection, testing and/or complaints, the Buyer's right to inspection, testing and/or complaints, as well as the right to inspection and re-inspection referred to in Article 14, shall lapse, and the products delivered by the Seller shall be deemed to have been accepted by the Buyer in the quantities and qualities delivered by the Seller.

Article 14 Consequences of complaints

14.1 If, as a result of an examination or inspection referred to in Article 12, a complaint is made by the buyer, the procedure described below will be followed.

14.2 Upon receipt by the seller of the complaint, the delivered goods shall be inspected for the objections by an inspector of the seller; the time of this inspection shall be notified to the buyer by the seller in a timely manner.

14.3 If the auditor considers the buyer's objections to be well-founded, the seller may, at its option:

a. dissolve the agreement, whereupon the goods delivered shall be at the free disposal of the vendor and the vendor shall be bound to pay the purchaser compensation limited to the freight charges incurred in vain by the purchaser;
b. replace that part of the goods delivered in respect of which the objections were deemed justified by products which do meet the agreed quality;
c. reduce the purchase price for the goods delivered in accordance with that part of the goods delivered in respect of which the objections were deemed justified. Seller shall not be bound to any other or further obligation and/or compensation.

14.4 If the inspector is of the opinion that the Buyer's objections are unfounded and the Buyer cannot agree with this opinion, the Seller and the Buyer will jointly appoint a recognized inspection institute that will re-inspect the delivered goods. If the buyer and the seller have not proceeded to appoint a recognized inspection institute within 24 hours after the buyer has indicated that he does not agree with the inspector's assessment, this inspection institute shall be appointed by the first party to take action.

14.5 The decision of the inspection institute with regard to the quality
of the delivery shall be binding on both parties. 17.1

14.6 If the inspection institute determines that the delivered goods comply with the agreed quality, the buyer will be obliged to accept the delivered goods. The Seller shall then be entitled to recover from the Buyer all damage suffered by the Seller as a result of the delay in the performance of the agreement as a result of the objections made by the Buyer and/or the re-inspection. The costs of the re-inspection by the inspection institute shall then also be borne by the buyer.

14.7 If the inspection institute determines that the delivered goods do not meet the agreed quality, the provisions of Article 14.3 shall apply to the Seller. In that case the costs of the re-inspection by the inspection institute shall be borne by the seller.

14.8 On penalty of forfeiture of any claim against the Seller, the Buyer shall be obliged to carefully store the products in respect of which the Buyer has complained and not to move these products and to leave them untouched until the inspection by the 17.2
inspection institute has been fully completed and/or to make these products available to the Seller's inspector and/or the inspection institute referred to above at the Seller's first request.

14.9 If defects are discovered by the buyer during an inspection while the delivered products are in or have been in vehicles and vessels used by or on behalf of the buyer for transport or navigation (this applies to deliveries "ex works"), the buyer must make it plausible that those defects were already present in the delivered products before they were loaded in those vehicles or vessels.

Article 15 Force majeure

15.1 In the event of force majeure on the part of the seller, the seller shall have the right, at its discretion, to suspend the performance of the agreement for the duration of the force majeure or to terminate the agreement for the part not yet performed, without the seller being obliged to pay any compensation to the buyer.

15.2 Force majeure is defined as any circumstance on the basis of which (further) performance of the agreement can no longer reasonably be required by the buyer. Such circumstances include, but are not limited to, strikes, lock-outs, fires and other calamities that prevent or restrict business operations; failure to obtain the supplies necessary for the seller, such as raw materials, gas (oil),
water, electricity; government measures; impediments or obstructions in transport routes on land and/or on water, such as those due to high or low water levels, ice, slipperiness and fog.

Article 16 Liability

16.1 Without prejudice to the provisions of Article 14.3, the Seller shall never be liable for any damage, of whatever nature, suffered by the Buyer or its customers, (other) contracting parties or other third parties in its (their) business operations as a result of any act or omission on the part of the Seller in connection with the Agreement, other than damage caused by the Seller's intent or gross negligence.

16.2 In all cases, liability is limited to the amount of the invoice value (excluding VAT).

16.3 Any liability of the seller to the buyer shall lapse if the products delivered to the buyer have been mixed with other products, the products have been processed or are (otherwise) no longer identifiable.

16.4 The Buyer shall indemnify the Seller against all claims of whatever nature that third parties may enforce against the Seller with respect to any loss suffered or to be suffered.
The Buyer shall not be entitled to invoke any right of suspension or set-off against the Seller.

Article 18 Disputes and Applicable Law

18.1 All agreements between seller and buyer are governed by Dutch law, to the exclusion of the provisions of international treaties, insofar as they do not contain mandatory law.

18.2 All disputes, of whatever nature, which may arise between the parties and cannot be solved amicably, shall be submitted to the Council for Arbitration for the Construction Industry in Utrecht, in accordance with the arbitration regulations in force at the time when the dispute is submitted. The above provisions leave open the possibility of bringing a legal action before the Subdistrict Court if a dispute falls within the competence of the Subdistrict Court. In the latter case the cantonal judge of the seller's domicile shall be competent.

Article 19 Entry into force

These General Terms and Conditions shall enter into force on January 1, 2018 and were filed with the District Court of Amsterdam on November 1, 2017, under number 72.16.5 The Buyer shall indemnify the Seller for any fines that governmental authorities will or may wish to levy against the Seller in connection with improper loading, unless such fines are a result of the overloading referred to in Article 10.4.

Article 17 - Dissolution, suspension and settlement
Seller is entitled, without prejudice to its right to compensation, without notice of default and without judicial intervention with immediate effect, to (a) suspend performance of the agreement and/or (b) dissolve the agreement in whole or in part, if: a. b. c. d. e.
the buyer fails to meet any obligation under the agreement, fails to meet it on time or fails to meet it properly;
bankruptcy or suspension of payment has been applied for in respect of the buyer, or if the buyer is a natural person, debt restructuring has been applied for;
the buyer's company is dissolved, liquidated or shut down;
an attachment under execution is levied on a substantial part of the Buyer's assets;
the Seller has good reason to fear that the Buyer is not or will not be able to meet its obligations under the agreement concluded with the Buyer.