Terms and Conditions

LOWLAND COATINGS INTERNATIONAL B.V.

GENERAL TERMS AND CONDITIONS OF LOWLAND COATINGS INTERNATIONAL B.V.
Filed with the Chamber of Commerce under number 08181066

1. Applicable Terms and Conditions

a. These General Terms and Conditions apply to all quotations, offers, orders, and agreements concerning the delivery of goods and the provision of ancillary
(consulting) services (hereinafter collectively referred to as “Delivery”) by Lowland Coatings International B.V., or a company affiliated with Lowland Coatings International B.V. within a group within the meaning of Article 2:24b of the Dutch Civil Code (each of these companies hereinafter referred to as “LCI”) to a (prospective) contracting party (hereinafter
referred to as “Customer”).

b. Amendments to the agreement and deviations from or additions to these General Terms and Conditions are only applicable to the extent that they have been expressly accepted in writing by LCI and
apply only to the agreement to which they relate. This is an evidence agreement.

c. In these General Terms and Conditions, “in writing” also includes communication via email.

d. The applicability of any general terms and conditions of the Customer is expressly rejected.

e. If any provision of these General Terms and Conditions is null and void or is set aside, the remaining provisions shall remain in full force and effect. In that case, the parties shall consult with each other in order to agree on new, legally valid provisions to replace the void, invalid, or annulled provisions, taking into account as much as possible the purpose and intent of the latter
provisions.

f. In the event of a conflict between a provision in an agreement and a provision in these General Terms and Conditions, the provision in the agreement shall prevail.

2. Quotes; Formation of the Agreement

a. Quotations issued by LCI are non-binding, even if a deadline for acceptance is included.

b. The price stated in the quotation excludes VAT, import duties, and other taxes, levies, and fees, unless otherwise indicated.

c. An agreement between LCI and the Customer is not concluded until LCI has issued a written order confirmation or until LCI has commenced performance of the agreement. This is a contract based on evidence.

d. The content of LCI’s website, brochures, printed materials, and the like is not binding on LCI, unless such content is expressly referenced in the agreement.

e. Any new price quotation from LCI supersedes the previous one.

3. Delivery

a. Deliveries shall take place at the agreed location and at the agreed time. Unless otherwise agreed in writing, delivery shall be made under the EXW (“Ex Works”) delivery term in accordance with the version of the Incoterms in force at the time of the order, without prejudice to the provisions of these General Terms and Conditions.

b. The purchased products shall at all times be transported at the Customer’s expense and risk; the Customer must therefore ensure that they are adequately insured.

c. The Customer is obliged to take delivery of the purchased products at the time they are made available to them or delivered in accordance with the agreement. If the Customer refuses to take delivery or fails to provide information or instructions necessary for delivery, the Customer shall be in default without notice of default being required, and the products shall be stored at the Customer’s expense and risk. The Customer shall therefore be liable to LCI for all additional costs, including, in any event, storage costs and transport costs to the storage facility.

d. An agreed delivery time is not a strict deadline, unless otherwise agreed in writing. In the event of late delivery, the Customer must therefore give LCI written notice of default.

e. The delivery period shall only commence once the Customer has provided LCI with all the information which LCI specifies as being necessary, or which the Customer ought reasonably to understand to be necessary for the performance of the contract.

f. If changes to the order placed with LCI result in the time required to perform the contract being extended, the delivery period shall be extended by that additional time.

g. The delivery time is based on the expectation that LCI will receive the materials and raw materials required for the performance of the contract in good time.

h. LCI is entitled to deliver the products sold in instalments. If the products are delivered in instalments, LCI is authorised to invoice each instalment separately. This does not apply if a partial delivery has no independent value.

i. A tolerance of 10% is permitted for each agreed quantity, on the understanding that the buyer is obliged to accept and pay for 10% more or less, subject to a minimum of 1 kilogram or 1 litre, as the case may be.

j. Packaging returned carriage paid to the warehouse within six months of the invoice date, which is in good condition and for which LCI has charged the Customer, entitles the Customer to a refund of
the amount charged, unless LCI rejects the returned packaging. The buyer shall be notified of any rejection, after which the packaging shall be held at the buyer’s disposal for one week, after which LCI shall be free to dispose of it without any obligation to pay compensation. Packaging not itemised separately on the invoice shall not be taken back by the seller.

4. (Additional) LCI consultancy services

a. LCI’s advice is provided by LCI on the basis of the information supplied to LCI by the Client. LCI’s advice is therefore only valid provided that the facts and circumstances remain unchanged
and for a maximum of one year following the issue of the advice in question.

b. The Client shall ensure that all information which LCI indicates is necessary, or which the Client ought reasonably to understand is necessary for the performance of the agreement, is provided to LCI in a timely, accurate and complete manner. If the information required for the performance of the agreement is not provided to LCI in good time, LCI shall be entitled to suspend the performance of the agreement and/or to charge the Client for the costs arising from the delay in accordance with the rates agreed with the Client, or, in the absence thereof, in accordance with the usual rates.

c. An agreed timeframe for performance is not a strict deadline, unless otherwise agreed in writing. In the event of late performance, the Customer must therefore give LCI written notice of default.

d. An agreed period shall not commence until the Customer has provided LCI with all information which LCI specifies as being necessary, or which the Customer ought reasonably to understand to be necessary for the performance of the contract.

5. Technical requirements and samples

a. If the products to be supplied are to be used outside the Netherlands, LCI shall only be responsible for ensuring that the products to be supplied comply with the requirements or standards laid down by the laws or regulations of the country in which the products are to be used if, prior to the conclusion of the contract, the intended use in that country and the requirements and standards applicable there have been expressly stated in writing. Any other requirements imposed by the Customer on the products to be supplied which deviate from the normal requirements must also be expressly stated in writing by the Customer at the time the contract is concluded.

b. If LCI provides a sample, this is always for illustrative purposes only: the characteristics of the delivery may differ from those of the sample.

6. Laws and regulations

a. The Customer shall comply with all applicable legal obligations incumbent upon it (including those relating to safety and REACH) and shall, upon first request, provide LCI with the information LCI requires in order to comply with its own legal obligations.

b. The Customer shall ensure that all persons engaged by it – in connection with the application of the products supplied by LCI to the Customer – hold all relevant safety qualifications and certificates (which, in the Netherlands, shall in any event include a VCA certificate).

c. The Customer shall reimburse LCI for all costs incurred by LCI in connection with the obligations imposed on LCI under REACH arising from the Customer’s order or the Customer’s intended use of the products.

d. All information and data provided by LCI regarding the constituents of the products are strictly confidential and may only be disclosed by the Customer if this is necessary to comply with the obligations under REACH.

7. Termination of the contract

a. LCI’s claims against the Customer shall become due and payable immediately, without the need for notice of default, in the following cases, amongst others:

  • the Customer fails to fulfil, or fails to fulfil in a timely manner or in full, its obligations under the agreement;
  • the Customer fails to fulfil, or fails to fulfil in a timely manner or in full, its obligations under another agreement with LCI;
  • circumstances coming to LCI’s attention after the conclusion of the agreement give LCI good reason to fear that the Customer will fail to fulfil, or will fail to fulfil in a timely manner or in full, its obligations;
  • the Customer is being wound up or dissolved;
  • the Customer is subject to bankruptcy or (provisional) suspension of payments, or an application has been made for such proceedings;
  • an attachment has been levied against the Customer and that attachment has not been lifted within three months;
  • LCI requested the Customer, upon conclusion of the agreement, to provide security for the fulfilment of its obligations under the agreement and such security is not provided or is insufficient;
  • circumstances arise which are of such a nature that the performance of the contract becomes impossible or so onerous and/or disproportionately costly that fulfilment of the obligation under the contract can no longer reasonably be expected.

b. In the cases referred to in the preceding paragraph, LCI shall also be entitled, without any notice of default being required, to suspend the (further) performance of the contract and/or to terminate the contract in whole or in part, subject to the Customer being obliged to compensate LCI for any loss suffered as a result and without prejudice to any other rights to which LCI is entitled.

8. Warranty

a. Unless otherwise agreed in writing, LCI guarantees that its Delivery complies with the specifications provided by it to the Customer.

b. The Customer may rely on the warranty described above for a period of six months following delivery. If a breach of the warranty is reported to LCI in writing within the warranty period, the Customer is entitled to repair or replacement, at LCI’s discretion, unless such breach results from an instruction or request by the Customer. Any replaced Goods shall become the property of LCI.

c. The warranty applies only if the installation:

  • has been carried out by skilled and qualified personnel;
  • has been carried out in accordance with the instructions, manuals and/or guidelines issued by LCI;
  • has been carried out on a substrate suitable for the delivered product and pre-treated in accordance with LCI’s instructions.

d. The warranty applies only if the Customer has fulfilled all its obligations towards LCI or has provided sufficient security (for example, in the form of a bank guarantee) in this regard.

9. Retention of title

a. The products supplied by LCI shall remain the property of LCI until the Customer has fulfilled all the following obligations arising from all agreements concluded with LCI:

  • the consideration(s) relating to the products supplied or to be supplied;
  • the consideration(s) relating to the services performed or to be performed by LCI under the agreement(s);
  • any claims arising from the Customer’s breach of one or more agreements.

b. Products delivered by LCI that are subject to retention of title may only be processed or resold in the ordinary course of business. In the event of the Customer’s bankruptcy or suspension of payments, processing or resale in the ordinary course of business is also prohibited. Furthermore, the Customer is not authorised to pledge the products or to create any other right in them.

c. With regard to delivered products which have passed into the Customer’s ownership upon payment and are still in the Customer’s possession, LCI hereby reserves, as of now, the rights of pledge as referred to in Article 3:237 of the Dutch Civil Code as additional security for any claims that LCI may have against the Customer on whatever grounds whatsoever.

d. If the Customer fails to fulfil its obligations or if there is reasonable cause to fear that it will not do so, LCI is entitled to remove, or arrange for the removal of, products delivered to the Customer that are subject to retention of title, whether from the Customer or from third parties holding the goods on the Customer’s behalf. The Customer is obliged to cooperate fully in this regard, on pain of a penalty of 10% of the amount owed by the Customer per day.

e. Once LCI has collected products subject to retention of title from the Customer, the Customer will be credited with an amount equal to the purchase price applicable on the day of collection, but not exceeding the amount invoiced to the Customer. LCI may deduct from the amount to be credited any sum relating to depreciation due, for example, to damage or obsolescence, and any costs incurred by LCI.

f. If third parties wish to establish or assert any right to the products supplied subject to retention of title, the Customer is obliged to notify LCI of this as soon as possible.

10. Defects; time limits for complaints

a. The Customer must inspect the purchased products (or have them inspected) upon delivery. In doing so, the Customer must verify that the goods delivered comply with the contract, namely: whether the correct products have been delivered and the correct price has been charged; whether the delivered products correspond to what was agreed in terms of quantity (for example, the number of items); whether the delivered products and/or packaging meet the agreed quality requirements or – in the absence of such requirements – the standards that may be expected for normal use and/or commercial purposes. Where necessary, the Customer shall carry out spot checks in this regard.

b. The Customer must notify LCI in writing of any visible defects or shortages as described in the preceding paragraph within fourteen (14) days of delivery. Any right of the Customer against LCI in respect of the visible defects or shortages shall lapse if the Customer fails to notify LCI in writing of the defects or shortages within this period. Visible defects or shortages as referred to in this paragraph also include those defects and shortages which should reasonably have been discovered during the inspection referred to in the preceding paragraph.

c. The Customer must notify LCI in writing of any hidden defects within fourteen (14) days of their discovery, or of the date on which they should reasonably have been discovered. Any right of the Customer against LCI in respect of such hidden defects shall lapse if the Customer fails to notify LCI in writing within these time limits, if, at the time of notification, six months have already elapsed since delivery, or if the Customer has already resold the Goods whilst the alleged defect was visible.

d. Even if the Customer lodges a complaint in good time, their obligation to pay for and take delivery of the purchased products remains in full force.

e. Defects in the products supplied by LCI may only be demonstrated by the Customer – to the exclusion of any other means of evidence – by submitting a report from the most appropriate department of TNO, with the costs of the report to be borne by the party found to be at fault.

f. Goods may only be returned to LCI with LCI’s prior written consent.

g. Any notification of defects and shortcomings must contain as detailed a description as possible of the defects and shortcomings in question, so that LCI is able to respond appropriately. The Customer must allow LCI the opportunity to investigate the complaint(s), including, but not limited to, by granting LCI access to the purchased goods or arranging for such access to be granted.

11. Price and payment

a. Unless otherwise stated, LCI’s prices are:

  • based on delivery Ex Works – LCI’s factory, warehouse or other storage facility;
  • exclusive of VAT, import duties and other taxes, levies and duties.

b. LCI is entitled to amend prices, unless otherwise agreed in writing. In the event of a price change, the Customer is entitled to terminate the agreement by means of a written notice if the price increase exceeds 10%. Termination must take place without delay after the Customer becomes aware of the price increase. If a price increase is the result of a statutory or other government measure, LCI is entitled to pass on the price increase to the Customer, even if it has been agreed that the price is fixed, without this giving rise to a right of termination on the part of the Customer.

c. Unless otherwise agreed, payment must be made within 30 days of the invoice date by transferring the amount due to LCI’s bank account. If full payment has not been made by the end of the 30-day period following the invoice date, the Customer shall be in default. From the moment the Customer is in default, the Customer shall owe statutory commercial interest on the amount due.

d. Payment by the Customer of the invoiced amounts must be made without any discount or set-off.

e. Payments made by the Customer shall always be applied, firstly, to settle all interest and costs due and, secondly, to settle the longest-outstanding invoices, even if the Customer states that the payment relates to a later invoice.

f. The Customer shall not be entitled to invoke suspension and/or set-off.

12. Debt collection costs

a. If the Customer is in default of one or more of its obligations, all reasonable costs incurred in obtaining payment out of court shall be borne by the Customer, subject to a minimum of 15% of the outstanding amount. Extrajudicial collection costs are also payable even if only a single reminder has been sent.

b. The Customer shall be liable to LCI for the legal costs incurred by LCI at all levels of jurisdiction. This shall apply only if LCI and the Customer are engaged in legal proceedings relating to a contract to which these general terms and conditions apply, and a final and binding court judgement is handed down in which the Customer is found to be wholly or predominantly in the wrong.

13. Liability

a. A defect in the products supplied shall only be deemed to exist if there is a breach of the warranty as set out in Article 8 (Warranty) of these General Terms and Conditions. Liability arising from any breach of this warranty shall be governed by this Article.

b. A breach of the aforementioned warranty may only be demonstrated by the Customer – to the exclusion of any other means of proof – by submitting a report from the most appropriate department of TNO, with the costs of the report to be borne by the party found to be at fault.

c. Any liability on the part of LCI, regardless of the legal basis, is limited to a maximum of the amount paid out by LCI’s insurer in the case in question. If, in any case, LCI’s insurer does not pay out, LCI’s liability is limited to twice the invoice amount of the relevant Supply.

d. LCI shall not be liable to the Customer for any indirect damage suffered or to be suffered by the Customer:

  • indirect damage, which in any event includes consequential damage (such as business and/or environmental damage), loss of profit, lost savings and damage resulting from business interruption;
  • damage which comes to light after twelve (12) months from the date of the event causing the damage for which LCI is legally liable;
  • damage arising from improper or negligent use;
  • damage arising from use for a purpose other than that for which the products are intended;
  • damage arising from failure to follow (or incorrect following of) LCI’s guidance and instructions, which explicitly includes guidance regarding the suitability of the substrate, instructions regarding the pre-treatment of that substrate, and instructions regarding the application of the products supplied by LCI;
  • damage arising from failure to follow (or incorrect following of) the advice provided by LCI;
  • damage arising from the Customer’s failure to comply with the applicable laws and regulations; damage arising from LCI having relied on incorrect information provided by the Customer.

e. Any claim the Customer may have against LCI shall lapse one year after the Customer becomes aware of such claim, unless the Customer has commenced legal proceedings against LCI within that period.

f. The Customer shall indemnify LCI against any claims for damages by third parties in connection with products supplied by LCI to the Customer, if and in so far as LCI would not have been liable to such third party or parties under the contract and these General Terms and Conditions had such third party or parties been the Customer itself.

g. The limitations of liability set out in these terms and conditions shall not apply if the damage is attributable to wilful misconduct or gross negligence on the part of LCI or its management.

14. Force majeure

a. Force majeure is defined as: circumstances that prevent the fulfilment of the obligation and for which LCI is not responsible. This shall also include (if and insofar as these circumstances render performance impossible or unreasonably difficult): strikes; a general shortage of necessary raw materials and other products or services required for the fulfilment of the agreed Supply; unforeseeable delays on the part of suppliers or other third parties on whom LCI depends; the circumstance that LCI does not receive, or does not receive in a timely or proper manner, a performance that is relevant to the Delivery; government measures, such as import or export restrictions, which prevent LCI from fulfilling its obligations in a timely and/or proper manner; excessive absenteeism due to illness; terrorist attacks; restriction or cessation of energy supplies, whether or not by public utility companies; fire; disruption caused by frost or other weather conditions; internet failures; computer failures; general transport problems; and, furthermore, all other causes arising through no fault of LCI or outside its sphere of risk.

b. LCI is also entitled to invoke force majeure if the circumstance preventing (further) performance arises after LCI should have fulfilled its obligation.

c. During a force majeure event, LCI’s delivery and other obligations shall be suspended. If the period during which LCI is unable to fulfil its obligations due to force majeure lasts longer than two months, both parties shall be entitled to terminate the agreement without any obligation to pay compensation in such a case.

d. If, at the time the force majeure occurs, LCI has already partially fulfilled its obligations or is only able to fulfil them partially, it shall be entitled to invoice the part already delivered or the deliverable part separately, and the Customer shall be obliged to pay this invoice as if it were a separate contract.

15. Intellectual property

a. LCI reserves all intellectual property rights, including, but not limited to, copyright, trade mark rights, patent rights, database rights, design rights and trade name rights. Unless otherwise agreed in writing, the intellectual property rights in the products shall vest in LCI. This also applies to recipes, designs, semi-finished products, packaging, labels, drawings and know-how.

b. All documents produced by LCI, such as recipes, reports, advice, designs, software, etc., remain the property of LCI and are intended solely for use by the Customer within the scope of the agreement; they may not be altered, reproduced, published, exploited or disclosed to third parties without LCI’s prior consent. Upon LCI’s first request, the Customer shall return these documents to LCI.

c. Insofar as the intellectual property rights have not yet vested in LCI by operation of law, the Customer hereby assigns them to LCI, to the extent possible, with effect from that time, and warrants that it is entitled to do so. Should this assignment not be legally valid, the Customer shall, upon LCI’s first request, assign the intellectual property rights to LCI in a legally valid manner.

d. The Customer shall cooperate fully with LCI, free of charge, in obtaining the intellectual property rights. The Customer is not entitled to assert any intellectual property rights over the products itself. The Customer shall not infringe LCI’s intellectual property rights and shall refrain from filing applications or registrations.

e. If the Customer requests LCI to manufacture products (or have them manufactured) in accordance with the Customer’s design, formula or other instructions, the Customer guarantees that the manufacture or supply of those products will not infringe any third-party intellectual property rights. The Customer shall indemnify LCI against any claims by third parties in this regard.

f. Upon request, the Customer shall cooperate fully with LCI, free of charge, in connection with any legal action to be taken against third parties.

16. Translations of the General Terms and Conditions

In the event of any conflict between the Dutch version of these General Terms and Conditions and any translation thereof, the Dutch version shall prevail.

17. Governing law, disputes

a. Agreements between LCI and the Customer shall be governed by Dutch law, to the exclusion of the Vienna Convention on Contracts for the International Sale of Goods (CISG).

b. Any disputes between LCI and the Customer shall be settled exclusively by the competent court of the District Court of Overijssel, at its Zwolle site.

18. Amendment

a. LCI is authorised to make amendments to these terms and conditions. These amendments shall take effect on the announced date of entry into force. LCI shall send the amended terms and conditions to the Customer in good time. If no date of entry into force has been specified, the amendments shall take effect in relation to the Customer as soon as the Customer has been notified of the amendment.