SALES TERMS AND CONDITIONS

ANNEX TO ORGALIME SI 14 (‘GENERAL CONDITIONS FOR THE SUPPLY AND INSTALLATION OF MECHANICAL, ELECTRICAL AND ELECTRONIC PRODUCTS’)

This appendix reflects special provisions and deviations from the General Conditions for the Supply and Assembly of Mechanical, Electrical and Electronic Products (ORGALIME SI14, January 2014 edition) and therefore prevails over the ORGALIME SI14 conditions. Definitions used refer to the definitions in the ORGALIME SI14 conditions.

A. – PRICES

If between the date of Contractor’s submission of an order confirmation and the date of invoicing, the price to be invoiced of materials (including steel, electronic components and others), labor and electricity, increases, Contractor shall have the right to apply the following price revision formula to the Contract Price;

Pn = P0 (0.10 + 0.90 * ((0.20 * (Salary Cost n / Salary Cost 0)) + (0.70 * (Material Price n / Material Price 0)) + (0.1 * (Electricity Price n / Electricity Price 0)))

– Pn = price at date of the relevant invoice

– P0 = price at date of submission of an order confirmation

– Salary cost n = CAO Metalectro index (CBS, Statistics I cbs.nl) on date of relevant invoice

– Salary costs 0 = CAO Metalectro index (CBS, Statistics I cbs.nl) date of submission of an order confirmation

– Material (steel, electrical/electronic components, etc.) price n = industrial domestic output Producer price index for manufacturing Netherlands – (Statistics | Eurostat (europa.eu) ) on the date of relevant invoice

– Material (steel, electrical/electronic components, etc.) price 0 = industrial domestic output Producer price index for manufacturing The Netherlands – (Statistics | Eurostat (europa.eu) ) at the date of submission of an order confirmation

– Electricity n = electricity prices for non-households, biennially (from 2007 onwards) The Netherlands (Statistics | Eurostat (europa.eu) ) at the date of the relevant invoice

– Electricity 0 = electricity prices for non-households, biennially (from 2007 onwards) The Netherlands (Statistics | Eurostat (europa.eu) at date of submission of an order confirmation

B. – EXCUSABLE DELAY AND CONTINGENCIES

Contractor shall not be responsible for any delay or failure in the performance of this Contract if such delay or failure is caused by negligence of suppliers, scarcity of supply and/or, unforeseeable delay in the delivery of materials by any supplier or subcontractor, public utility or transportation company.

C. – TESTS FOR SHIPMENT

Notwithstanding clauses 6 through 9 of the ORGALIME SI14 conditions, Contractor has not provided for any client representation during the tests Contractor performs during its internal manufacturing process. Contractor shall perform these tests at its sole discretion and schedule.

D. – DESIGN OF THE WORK

The Works will be designed and delivered based on the information as provided by the client. Contractor may rely on this information to be correct and complete. The client shall bear the responsibility for the necessary permits and consents (e.g. environmental-/building permit etc.) for the performance and operations of the Works on Site and for any restrictions arising therefrom. The sales lay-out design of the Works as included in the order confirmation is for guidance only and may still be subject to changes during further engineering works. The client shall commit itself to a review within two weeks after submission of any engineering documents by Contractor, in which period the client shall approve or comment on Contractor’s documents. In case a timely response is lacking, Contractor may assume its engineering documents are approved by the client. Contractor has taken only one review cycle into account in its price and schedule.

E. – INSTALLATION COSTS

If installation has been offered at a fixed price, the 4th item mentioned in clause 47 d) of the ORGALIME SI14 conditions, shall be regarded as deleted. The client shall be responsible for the disposal of all waste after completion of the installation Works.

F. – TAKING-OVER TESTS

In case a specific taking-over test is included in the order confirmation, the client shall provide, free of charge, the necessary and proper input material as specified in the order confirmation, together with sufficient weighing facilities, all in addition to the items listed in clause 32 of the ORGALIME SI14 conditions. Such takeover test is entirely dependent on the throughput and product quality of the input material. Therefore, Parties will together analyse a sufficient sample of the input material to be used for the takeover tests. Only in case this analysis proves there is sufficient and proper input material, the takeover test will be performed. Any delay to such take over test due to missing or improper input material will be for the account of the client.  

G. – LIABILITY

The Contractor’s total liability for any claim whatsoever, whether or not arising from non-performance, delay, defects, or otherwise, for loss or damage arising out of or in connection with the delivered Plant and/or the Works shall in no event exceed ten percent (10%) of the agreed Contract Price with the exception of gross negligence, fraud or willful misconduct by the Contractor. In this respect, the percentages mentioned in clauses 44 and 69 of the ORGALIME SI14 conditions are to be considered as modified to 10%.

H. – DEFECTS

In addition to clause 59 and in deviation from clause 60 of the ORGALIME SI14 conditions, a fixed period of one year with also a maximum of 2000 operational hours shall apply for defects in the Works, provided that the manual and the maintenance elements described therein have been observed. Any other (legal) liability for defects after one year or 2000 operational hours is excluded. Provided there is no obvious inconvenience to the client, the correction of any multiple defects, can be done at once within one year after taking over.

I. – DISPUTES AND APPLICABLE LAW

Notwithstanding articles 78 and 79 of the ORGALIME SI14 conditions, all disputes that may arise between the Contractor and the client in connection with the Contract shall be settled in the first instance by the competent court in Groningen, The Netherlands, under the application of Dutch law to the exclusion of articles 7:752 paragraphs 2 and 3, 7:754, 7:756 and 7:761 paragraphs 1 and 2 of the Dutch Civil Code. In addition, the application of the Vienna Sales Convention is expressly excluded.