Automatic Choice Europe - general terms and conditions of sale, delivery and payment

Article 1 - Definitions

1) In these General Terms and Conditions, ACE is defined as: the private company with

limited liability Automatic Choice Europe BV., with registered office and place of business in Veenendaal, The Netherlands.

2) In these General Terms and Conditions, the Buyer is defined as: the party at the

order of which, on the account of which, or with which a purchase agreement for the

delivery of goods is entered into.

Article 2 - Applicability

1) All quotations of ACE are made under declaration of the applicability of these General

Terms and Conditions, both to the quotations and their acceptance and to the contract

entered into thereby.

2) Any other terms and conditions are only part of the agreement insofar as accepted by

ACE explicitly and in writing. Any other terms and conditions accepted by ACE only apply

to the offer or agreement to which they specifically pertain.

3) Any terms and conditions of the Buyer that may be applicable to agreements between

ACE and the Buyer can only have effect insofar as not contrary to the present terms and

conditions. If there is any doubt as to whether the terms and conditions conflict, the

General Terms and Conditions of ACE prevail.

Article 3 - Offers

1) All offers remain valid for a period of four weeks, unless explicitly stated otherwise in

the quotation. The offer of ACE is non-obligational and can only be considered as an

invitation to make an offer to enter into a contract.

2) The quotations of ACE are based on the information provided by the Buyer together

with the request for a quotation, if any, and ACE may assume the accuracy of this

information. Unless otherwise agreed, the quotations apply strictly to the country from

which they are requested.

2) The Buyer may only accept or reject a quotation issued by ACE in its entirety. In the

case of composite price statements, ACE is under no obligation to deliver a portion at

a corresponding portion of the price presented for the whole.

Article 4 - Agreements

1) The agreement is entered into as soon as the acceptance of the offer reaches ACE.

Acceptance must be in writing, which may include data communications such as fax

or e-mail.

2) If the acceptance contains reservations or changes to the quotation, contrary to the

provisions of the preceding paragraph the agreement is only entered into once ACE

has informed the Buyer in writing that it consents to the departures from the

quotation.

3) Supplemental verbal agreements are considered to have no validity.

4) ACE is entitled to have the agreement performed by third parties in whole or in part,

and/or to engage third parties in the performance of the order.

Article 5 – Quality and description

1) ACE undertakes the obligation towards the Buyer to supply goods answering to the

description, quality and amounts as specified in the quotation.

2) ACE undertakes the obligation towards the Buyer to supply goods that are as close as

possible to the design models described by ACE. Goods supplied may differ from

what is determined and described in quotations and to a degree considered

permissible in the industry.

Article 6 – Shipment, delivery and delivery periods

1) ACE undertakes the obligation towards the Buyer to package the goods appropriately

and to secure them such that they will reach their destination in good condition under

normal conditions of transportation.

2) Delivery periods are approximate. The delivery period commences when consensus

is reached on the total order and after all necessary information is provided to ACE,

and ACE has received either the agreed payment/partial payment or payment security

deemed adequate by ACE.

3) The delivery period is set in the expectation that ACE may continue to work as

foreseen at the time of the offer and that the required materials will be supplied in a

timely manner. If the Buyer requires that exceeding the delivery period constitutes

grounds for compensation of damages, this must be explicitly agreed in writing.

Otherwise, ACE is not liable for payment of damages due to late fulfilment, excepting

where mandatory provisions of law determine differently.

4) If the goods cannot be sent as the result of circumstances for which ACE is not liable

and which can be attributed to the Buyer, ACE is considered to have met its

obligations by keeping the goods available to the Buyer, so long as it gives notice

thereof to the Buyer within three business days after an attempt is made to deliver the

goods to the Buyer. In that event, the payment period commences on the date on

which delivery would have taken place.

5) Delivery by ACE is ex factory. As from that time, the buyer bears the risk for the object

of the delivery. The shipping costs will be charged on to the Buyer.

6) ACE will either deliver the goods or send the goods for delivery to the agreed

location(s) in the manner as previously determined or subsequently agreed. ACE is

entitled to have the goods sent to the Buyer C.O.D. (Cash on Delivery). The Buyer is

entitled to collect goods at ACE for payment in cash, so long as this is arranged in

advance in consultation with ACE.

Article 7 - Storage

1) If for any reason whatsoever, the Buyer is not capable of receiving the goods at the

agreed time, and these goods are ready for shipment, then ACE will store the goods

at the Buyer’s request, ACE’s storage capacity permitting, and make every

reasonable effort to ensure that the goods retain their quality until they are delivered

to the Buyer.

2) The Buyer is obliged to pay to ACE the costs of storage at ACE’s standard rate, or

failing that, at the standard rate applicable in the industry, as from the time that the

goods are shipment-ready, or as from the delivery date agreed in the purchase

agreement, whichever is later.

Article 8 - Purchase

1) The Buyer is obliged to purchase the object of the sale within the agreed time frame.

If the Buyer does not do so, then ACE is entitled, without notice of default and without

judicial intervention, to demand payment of the sale price/the not yet purchased and

not paid portion, or, likewise without notice of default and without judicial intervention,

to declare the agreement/the portion of the agreement not yet performed dissolved,

irrespective of ACE’s right to full compensation of the damages.

2) ACE is permitted to deliver the order earlier than the agreed delivery period.

Article 9 – Retention of title and right of pledge

1) The title to all goods delivered by ACE to the Buyer remains with ACE so long as the

buyer has not paid the claims of ACE pertaining to this or a similar agreement, and so

long as the Buyer has not paid the claims of ACE for non-fulfilment/incomplete

fulfilment of such obligations, including claims relating to interest, costs and penalties.

In such a case, ACE is authorised to take possession of the goods delivered. In that

case, the title only transfers to the Buyer once the Buyer has met all its obligations

towards ACE.

2) Under no circumstances is the Buyer entitled to alienate the goods delivered by ACE

as long as the outstanding claims are not paid.

Likewise, the Buyer is not permitted to rent, lend out, or otherwise relinquish control

of the goods in question or to establish a pledge or silent pledge on the goods.

3) Immediately upon being requested to do so by ACE, the Buyer will undertake the

obligation to state to third parties wishing to establish a pledge or silent pledge on the

goods of ACE that the Buyer is in no way authorised to establish such a right.

The Buyer undertakes the obligation to refrain from signing any deed establishing a

right of pledge so long as the claim in regard to the goods delivered by ACE is not

paid. If the Buyer does so and the claim has not been paid, the Buyer is committing

an act of misappropriation.

4) ACE reserves the right to establish a right of pledge on goods transferred in title to the

Buyer as security for all present and future claims that ACE may have or acquire

against the Buyer outside of this or a similar agreement.

The Buyer undertakes the obligation to, immediately upon the request of ACE,

cooperate with the drafting of an authenticated deed and/or the registration of a

private instrument pertaining to the goods in question.

5) If there is any reasonable doubt on the part of ACE concerning the payment capacity

of the Buyer, ACE is authorised to postpone delivery of the goods until the Buyer has

furnished security for payment. The Buyer is liable for the damages suffered by ACE

as a result of this deferred delivery.

6) The Buyer is obliged to inform ACE immediately, in writing, of any instance of third

parties exerting rights to goods on which a retention of title rests pursuant to this

article.

Should it become apparent at any time that the Buyer has not met this obligation,

then the Buyer is forfeit an immediately exigible penalty, without judicial

intervention being required, of 10% of the unpaid portion of the purchase price or

the contracting fee.

In such cases, ACE is also authorised to take possession of the goods delivered, and

this includes entering the Buyer’s locations so as to remove the goods in question

from the warehouses/storage sites itself.

Article 10 – Prices and payment

1) All prices are based on the purchase prices, taxes, charges, etc. applicable at the

time the agreement is entered into. ACE reserves the right to apply price changes if

changes in purchasing prices, taxes, charges, etc. occur before the agreed moment

of delivery. ACE must inform the Buyer of any price changes in a timely manner and

no later than the delivery.

2) Unless otherwise agreed, the prices are gross and exclusive of VAT, without any

deduction, and do not include shipping costs.

3) Payment of the invoices must be made within thirty days net after the date of invoice,

and without any deduction, unless agreed otherwise in writing.

4) The Buyer’s right to settle any claims it may have against ACE is explicitly

excluded.

5) If as a result of changes in the order by the Buyer, ACE's costs increase, ACE is

authorised to charge these increased costs to the Buyer.

6) Payment of an invoice on or after the payment deadline has the effect of making

all amounts owed by the Buyer, including those under other invoices,

immediately exigible. ACE is then authorised to consider the total amount of

exigible claims at that time as one invoiced amount.

7) If payment of the invoice sent has not been made within one month following the

date that invoice is sent, ACE is authorised to, after the expiry of this period,

charge to the Buyer a fee for loss of interest in the amount of 10% of the total

invoice amount per year or in the amount of statutory interest, whichever is

higher.

8) ACE is also authorised, along with the principal claim and the interest, to claim

from the Buyer all costs, judicial and extra-judicial, incurred due to nonpayment/

late payment. In any event, the Buyer will owe extra-judicial costs if

ACE has obtained the assistance of a third party for the collection.

9) The simple fact that ACE has obtained the assistance of a third party serves as

evidence of the amount and the obligation to pay extra-judicial costs.

Article 11 - Solvency

1) ACE is at all times authorised to, prior to delivering or proceeding to perform the

order, require security as deemed adequate by ACE for the fulfilment of the Buyer’s

payment obligations. This provision likewise applies if credit is stipulated.

2) ACE is also authorised to suspend delivery if the Buyer is in default of the fulfilment of

its payment obligations or other obligations, even in the event that a fixed delivery

period is agreed.

3) The Buyer's refusal to furnish the required security entitles ACE to consider the

agreement dissolved, without prejudice to ACE's right to compensation of

expenses and loss of profit.

Article 12 - Complaints

1) Complaints are defined as: all grievances on the part of the buyer concerning the

quality of the deliveries.

2) Objections and complaints directed against any bill or invoice of ACE or

regarding the state of goods delivered must be lodged with ACE by registered

letter within eight days after completion/delivery. The Buyer can derive no rights

or claims from complaints or objections lodged later or in another manner. If no

complaint or objection is received within the specified term in the specified

manner, the goods are deemed to have been received in good order.

3) Complaints made are only valid if the goods to which the complaint pertains are

still in the state in which they were delivered. Irregularities deemed permissible or

unavoidable in the industry and/or the trade do not constitute grounds for

complaint. Under no circumstances do complaints give entitlement to suspend

payment for the goods delivered.

4) ACE warrants that any defects arising within six months after delivery, and which

the Buyer can demonstrate must be attributed to poor quality of the goods

delivered, will be remedied at no cost with all due despatch.

If the order confirmation stipulates a different warranty period, this period prevails

over the six-month warranty period indicated above.

Goods delivered that are shown to have defects in construction, manufacturing or

materials will be repaired or replaced at ACE’s option.

5) The warranty provided in paragraph 4 must be invoked by the Buyer by reporting

the defects in question to ACE in writing within an appropriate period after their

discovery, and in any event no later than three months after delivery, failing

which the Buyer's warranty claims expire.

6) The warranty applies only to goods still in their original state and not repaired,

modified or processed and incorporated by third parties. The warranty can only

be invoked by the Buyer, and therefore not by a third party.

7) Goods returned under warranty must be accompanied by sufficient information to

allow ACE to process the claim, i.e. company name, invoice number and reasons

for return.

Article 13 - Liability

1) Under no circumstances is ACE obliged to compensate direct or indirect

damages (of any kind) arising due to defects in the goods delivered.

ACE’s meeting its warranty obligations qualifies as the sole and total

compensation of damages. All other damage claims are excluded.

2) ACE is only liable for damages suffered by the Buyer that are the direct and

exclusive consequence of the fault of ACE, with the proviso that only damages

against which ACE is insured or which should reasonably have been insured in

view of standard industry practice are subject to compensation.

This means that consequential loss (loss of income, etc.) resulting from any cause

whatsoever is not subject to compensation. If desired, the Buyer must insure itself

against this type of damages.

3) ACE is not liable for improper installation of the goods delivered.

4) ACE is not liable for external influences on the goods it delivers.

5) In all cases, ACE's liability is limited to the net amount invoiced to the Buyer for

the goods to which the liability pertains.

Article 14 - Force majeure

1) Notwithstanding the provisions of Article 9, the agreement is dissolved without judicial

intervention upon a written declaration of the time at which the Buyer is declared

bankrupt, applies for provisional suspension of payments, is declared subject to the

Individual Voluntary Arrangement (IVA) or loses the disposal of all or part of its assets

due to attachment, conservatorship or otherwise, unless the trustee or administrator

acknowledges the obligations under this agreement as debts of the estate.

2) By virtue of dissolution of the agreement, all outstanding claims between the

parties become immediately exigible. The Buyer is liable for the damages

suffered by ACE, including but not limited to loss of profit and transport costs.

3) If purchase/delivery is delayed for a period of more than six months due to force

majeure, either party (to the exclusion of further rights) is entitled to dissolve the

Purchase Agreement under the law. The period will be extended or reduced to the

extent to which one of the parties can demonstrate that according to the standards of

reasonableness and fairness dissolution at an earlier or later time is justified.

The following are by definition classified as force majeure:

- the circumstance that a performance ACE requires in relation to its own

performance is not delivered to ACE, or not delivered properly or in a timely

manner;

- strikes;

- disruptions in work traffic;

- governmental measures that impede ACE from fulfilling its obligations in a timely

or sound manner;

- circumstances making it impossible to timely deliver goods due to disturbances,

weather conditions and transportation problems.

4) In the event of unforeseen circumstances of such nature that the Buyer or ACE

cannot expect fulfilment by the counter-party in consideration of reasonableness and

fairness, the competent court may dissolve the agreement in whole or in part at the

request of ACE or the Buyer, respectively.

5) In cases in which ACE cannot deliver as a result of force majeure, it is entitled to

cancel the signed agreement of purchase and sale or service agreement, without

obliging ACE to pay damages in any form or any amount.

Article 15 - Sanctions countries

1) ACE complies with the European regulations imposed by the Office of Foreign Assets Control (OFAC) of the US Department of the Treasury regarding sanctioned countries. Based on these regulations, ACE makes no transactions, or limited transactions with persons or entities in countries that are included in the list of sanctioned countries and/or Specfically Designed Nationals or Blocked Persons.

2) The Buyer is prohibited from subsequently selling the delivered goods to a sanctioned country and/ or Specifically Designated Nationals or Blocked Persons that are described on the OFAC website, by means of the chain clause that is imposed by the EU and OFAC.

3) ACE takes no responsibility if the Buyer delivers the delivered goods and/ or sells good to a sanctioned country or Specifically Designated Nationals or Blocked Persons.

4) ACE has the right to withdraw an offer on suspicion that the regulations concerning the sanctioned countries or Specifically Designated Nationals or Blocked Persons are not being complied with.

Article 16 – Applicable law and disputes

1) Agreements between ACE and the Buyer are governed exclusively by the law of the

Netherlands.

2) All disputes between ACE and the Buyer will be submitted to a competent court in Utrecht or, at the discretion of ACE, to a competent court in the domicile of

the Buyer, unless the local court has competence over any such dispute.

3) The parties may agree on another form of dispute resolution, such as mediation

or arbitration.

These terms and conditions, which may be amended and/or supplemented by ACE at any time, have been filed with the Chamber of Commerce and Industry for Eemland and Environs in Amersfoort on 6 November 2006 under the number 30171034 and can be consulted on the internet at www.automaticchoice.com.

The terms and conditions are available from ACE upon request.