Terms and Conditions

TERMS AND CONDITIONS OF DENKA INTERNATIONAL B.V.

Deposited at the Chamber of Commerce

1. Definitions

In these General Terms and Conditions the following words have the following meanings:

1.1 "Terms and Conditions": these Terms and Conditions drawn up for use by Denka International B.V.;
1.2 "Denka": Denka International B.v. with registration number 21019769;
1.3 "Customer": the customer of Denka International B.v. and any person or entity that requests a quotation or offer from Denka;
1.4 "Agreement": each agreement of sale between Denka and a Customer concerning the sale by Denka of goods, with any and all annexes and/or amendments and/or additions thereto and all quotations, offers, orders, confirmations and other documents and acts made and/or done in preparation of and/or prior to and/or in connection with a possible agreement.

2. Applicability

2.1 These Terms and Conditions apply to each and every Agreement between Denka and the Customer, and all further agreements resulting therefrom or connected therewith.
2.2 The applicability of terms and conditions of whatever kind or of whatever name of the Customer and/or referred to by the Customer is hereby explicitly rejected by Denka.
2.3 These Terms and Conditions form an integral part of each Agreement. In case of conflict between the contents of the Terms and Conditions and the contents of the Agreement, the contents of the Agreement will prevail.

3. Offers and acceptance

3.1 All quotations and offers made by Denka are without engagement and are not automatically valid for future orders. Oral offers and orders shall only be valid if these have been confirmed in writing by Denka or if Denka has delivered goods to the Customer in execution of such oral offer or order.
3.2 Orders and acceptance of offers by the Customer are irrevocable.

4. Delivery

4.1 Any agreed trade term shall be construed in accordance with the INCOTERMS in force at the formation of the Agreement.
4.2 Denka will only be required to deliver goods to the Customer after it (Denka) has at her disposal all the items, documents and data to be furnished by the Customer - either based on a request by Denka or based on applicable regulations" and (if agreed upon) after an advance payment has been received by Denka.
4.3 If not otherwise agreed upon, all deliveries of Denka are Ex Works. The transport of the goods is at the cost and risk of the Customer. This is also applicable when the transport has been arranged by Denka. Transport includes the loading and unloading of the goods.
4.4 Denka is entitled to deliver in parts. In such case these Terms and Conditions shall apply to each partial delivery as if it were an independent delivery. Complaints regarding these partial deliveries will not affect the further processing of the Agreement.
4.5 Denka fills its goods in prepackages in accordance with the estimated sign (e) (also referred to as 'e-mark'), unless otherwise agreed upon in writing. For each delivery a tolerance of 10% more or 10% less is allowed on the quantity of ordered goods. Payment will have to be made in accordance with the quantities delivered as mentioned on the invoice.
4.6 The Customer is required to ascertain that the ordered goods, the documentation in relation therewith, the packaging, labelling and/or other information comply with the provisions laid down by the authorities of the country of destination.
4.7 As soon as the goods have been delivered, the Customer bears all the risk for all direct and indirect damage that may occur due to the product.
4.8 The goods shall be for the risk of the Customer if collected by the Customer or - whichever is earlier - if the Customer has not collected the goods within 5 working days after the Customer has been informed that the goods are ready for collection. If the Customer remains in default for collecting the goods within 5 days after having been informed that the goods are ready for collection, Denka will be entitled to charge all costs of storage of the goods to the Customer.
4.9 The Customer is obliged to insure the goods adequately as from the moment that the goods leave the premises of Denka. The goods will have to remain insured adequately until the moment that the Customer has fulfilled all obligations under the Agreement and its obligations resulting therefrom.

5. Price

5.1 The price given by Denka does not include VAT or other (government) levies or taxes, nor the costs for transportation and taxes or levies related thereto.
5.2 If Denka itself undertakes the packaging, loading, transport, dispatch, unloading and/or insurance of the goods, and no price agreement for these activities has been made in writing prior to these activities, Denka is entitled to charge to the Customer the actual costs and/or the rates customary to Denka.
5.3 If one or more elements of cost price are subject to an increase after the date of entering into the Agreement - even if this occurs due to foreseeable circumstances - Denka is entitled to increase the price agreed upon accordingly.

6. Payment

6.1 Payment to Denka must be made by the Customer within 30 days after the invoice date, in a manner, place and currency as indicated by Denka, unless otherwise agreed in writing.
6.2 Payment must be made without any deduction or setting off or withholding of any nature.
6.3 Claims of the Customer shall not at any time suspend the payment obligations of the
Customer.
6.4 In the event the Customer has not made payment ultimately on the due date, the Customer will be in default, without any notice of default being required, and the Customer will be obliged to pay Denka a default interest of 1,5% per month (whereby a month is defined as a period of 30 days and a part of a month will count as a full month) on the amounts due as from the respective due date.
6.5 Payments made by the Customer shall at all times be primarily for the settlement of all interests and costs and subsequently for the payment of invoices longest outstanding, even if the Customer indicates otherwise.
6.6 In the event of payment default by the Customer, all costs and expenses (including full legal expenses, both in and out of court) incurred by Denka in respect of collection of the amount due, are for the account of the Customer.
6.7 Denka is at all times entitled to request the Customer to pay (wholly or partially) in advance or supply adequate security for its present and future payment obligations to Denka.

7. Guarantees and claims

7.1 Any guarantees given by Denka, pertaining to the characteristic properties of the delivered goods up to the indicated expiration date, are given under the condition that the goods are stored under the storing conditions as recommended by Denka, or, if no such storing conditions are recommended by Denka, under normal storing conditions.
7.2 The Customer will inspect the delivered goods on conformity (e.g. quality, agreed figures, measurements, weight and/or other indications) immediately (Le. within 24 hours) after receipt. If inspection does not take place immediately every right of claim will lapse.
7.3 If the Customer is not able to inspect the goods immediately due to the fact that due to transportation of the goods inspection can only take place upon receipt of the goods at the indicated quay or - if such is usual in the relation between Denka and the Customer - at the indicated warehouse, the goods have to be inspected within 24 hours after arrival of the goods at such location. In such cases the location of inspection is to be agreed upon between Denka and the Customer. If nothing is agreed between Denka and the Customer the customs of the country to which the goods are transported are guiding.
7.4 If the goods according to the Customer do not comply with what has been agreed, the Customer shall lodge a claim in writing within 24 hours after the inspection or, if it concerns a hidden defect, within 24 hours after it could or should have reasonably been detected. The claim will only be accepted by Denka if it is substantiated by a detailed description of the facts relevant to the claim.
7.5 Denka holds a sample of every delivery. In case of a claim this sample held by Denka, is normative for the quality and other indications of the delivered goods.
7.6 When no complaint has been made by the Customer in conformity with this clause 7 the goods will be esteemed to be accepted by the Customer.
7.7 Any claim of the Customer will have to be brought before the competent Court within one year,
to be calculated from the date of delivery of the goods or, if the claim is not based on the delivery of goods, within one year after the event on which the claim is based.
7.8 The Customer is only allowed to return the goods after written approval of Denka. The costs which the return entails are for the Customers account.

8. Liability

8.1 Denka's liability is limited to the amount paid out under the applicable liability insurance.
8.2 When Denka is processing materials provided by the Customer for toll manufacturing Denka's liability is limited to the cost price of these materials, unless the amount paid out under the applicable liability insurance is lower in which case clause 8.1 applies.
8.3 Denka accepts no liability for indirect damage, consequential damage and/or loss of profits on the part of the Customer.

9. Industrial and Intellectual Property

9.1 The industrial and intellectual property rights of the delivered goods belong to Denka or other entitled parties and will not be transferred to the Customer by the Agreement. This also applies when goods are specifically designed, developed and/or composed for the Customer.
9.2 The Customer will inform Denka when third parties infringe or threaten to infringe Denka's industrial and intellectual property rights.
9.3 The Customer will inform Denka when third parties are of the opinion that goods of Denka infringe their industrial or intellectual property rights.

10. Force Majeure

10.1 Force Majeure shall be understood to refer to circumstances, conditions and/or events, which are beyond control of either party, occurring in the absence of any fault of negligence of any party and which can not be avoided or prevented through the adoption of reasonable measures, which temporarily or permanently prevent the performance of any obligation (with the exception of payment obligations) under the Agreement. On the part of Denka circumstances of Force Majeure are circumstances such as strikes and labour disturbances, refusal of suppliers not to deliver or perform activities, mutinies, quarantines, epidemics, wars (whether declared or undeclared), acts of terrorism, blockades, embargo's, riots, civil disturbances, civil wars, fires, storms and/or other weather conditions and/or other acts of nature, provided that no cause has been given and no contribution has been made to said events.
10.2 In the event that the performance of obligations under the Agreement is prevented due to a Force Majeure occurrence, Denka is entitled to lengthen the delivery deadline for the duration of the Force Majeure or, if the Force Majeure occurrence has lasted three month or more, terminate the Agreement for the part which has not been performed yet.
10.3 Denka will in no event be liable for direct or indirect damages of the Customer allegedly caused by the Force Majeure occurrence, nor can Denka be held to deliver any goods during the period of Force Majeure.

11. Miscellaneous

11.1 Until the Customer has fulfilled all its obligations under the Agreement and its obligations resulting therefrom (such as full payment of the ordered goods and settlement of any debt or claim), Denka will retain title to all goods delivered to or ordered by the Customer.
11.2 The Customer shall at all times store the delivered goods in such a manner that the goods can be identified as goods delivered by Denka and in such a manner that the goods can be separated upon the first request by Denka.
11.3 All information received from Denka by the Customer shall be treated as confidential by the Customer.

12. Applicable law and disputes

12.1 The Agreement, and any further agreement resulting therefrom, including any question regarding the existence, validity or termination thereof, shall exclusively be governed by and construed in accordance with Dutch law.
12.2 The Agreement, and any further agreement resulting therefrom, including any question regarding the existence, validity or termination thereof, shall be submitted to the exclusive jurisdiction of the District Court (Rechtbank) of Utrecht, the Netherlands.
12.3 The Vienna Convention on the International Sale of Goods 1980 does not apply on the Agreement, and any further agreement resulting there from, including any question regarding the existence, validity or termination thereof.