GENERAL TERMS AND CONDITIONS OF SALE AND DELIVERY OF BERKELBIKE BV

Filed with the Chamber of Commerce in ‘s-Hertogenbosch under number 17153524

1 General

1.1 These general terms and conditions of sale and delivery shall apply to all offers, quotations and contracts made by BerkelBike, in which BerkelBike undertakes to deliver products to buyer.
1.2 The applicability of general conditions of the buyer or any other general conditions is expressly rejected.
1.3 Departures from these general terms and conditions will only be valid if expressly agreed to in writing by BerkelBike.
1.4 Insofar as these general terms and conditions are also drawn up in a language other than English, in the event of any conflict the English text shall always prevail.

2 Offers and conclusion of agreement

2.1 All offers made by BerkelBike shall be free of obligation. An offer is valid for a period of 60 days as a maximum, after which period the offer will be considered null and void, unless otherwise stated in writing.
2.2 An agreement shall come into effect once BerkelBike has confirmed the order in writing or as soon as BerkelBike has commenced with the execution of the order.
2.3 Any offer made or undertaking given by a representative of BerkelBike shall only be binding insofar as the latter confirms this in writing.

3 Prices

3.1 Unless otherwise agreed in writing, prices shall be stated in Euro, exclusive of VAT and are based on ex  works, 's-Hertogenbosch, the Netherlands (EXW, Incoterms 2000). 
3.2 Any price cited by BerkelBike shall be based on the existing monetary conditions, 
labour costs, procurement prices, duties, taxes and other levies, subsidies and the like prevailing at the time the agreement concerned is concluded. In the event that one or more of these cost price components increase after conclusion of the agreement but before the relevant products have been delivered, BerkelBike shall be entitled to pass  on any reasonable price increase to the buyer. If the buyer is a natural person not operating in the exercising of his profession or business, the buyer shall be entitled to dissolve the agreement if the price increase occurs within three months after conclusion of the agreement.
3.3 Where BerkelBike and the buyer agree to a price in a currency other than Euro, the euro exchange rate ruling on the date of invoice shall apply.

4 Delivery

4.1 Unless otherwise agreed in writing, delivery will take place 'carriage paid to', place of destination (CPT, Incoterms 2000).
4.2 Delivery times shall be determined per transaction. The delivery time shall commence at such time as the relevant agreement is concluded in accordance with the provisions of Article 2 and BerkelBike has also accepted any security for payment which may have been agreed or have received any prepayment. Unless otherwise agreed, a specified delivery time shall under no circumstances be deemed to constitute a fatal date. BerkelBike shall not be in default in respect of such delivery time until the buyer notifies it in writing that it is in default, in doing so stipulates a reasonable period of time within which BerkelBike has the opportunity to effect delivery, and the latter still fails to do so.
4.3 The delivery time shall be based on the circumstances prevailing when the relevant agreement is concluded. In the event that a delay occurs as a result of a change in the aforementioned circumstances, BerkelBike shall inform the buyer within three days, and indicate the expected duration of the delay. The parties shall then determine a new delivery date.
4.4  The buyer’s failure to comply with his duty to effect payment (or to do so on time), shall  have the effect of suspending BerkelBike’s duty to effect a delivery.

5 Payment

5.1 Where BerkelBike requests payment prior to delivery, payment must be made at least 5 working days prior to the delivery date. As to all other sales, payment must be made by the buyer within 14 days after the relevant invoice date, unless otherwise agreed in writing.
5.2 In the event that payment is not effected on time, the buyer shall be deemed to be in default without the need for any notice of default or judicial intervention, and he shall be charged overdue payment interest at 1% over the amount due per month or part of one, as well as all of the expenses involved in collecting his debt, both judicial and extrajudicial. The extrajudicial costs owed will never be less than 15% of the sum to be collected subject to a minimum of 250,- euro.
5.3 Furthermore, subject to any other rights BerkelBike may have pursuant to the law or the agreement, in the absence of timely payment it shall be entitled either to suspend further delivery or to terminate all or part of the relevant agreement without the need for a notice of default or judicial intervention, such at its own discretion and subject to BerkelBike’s right to seek compensation for any harm it has suffered.
5.4 At any rate, the entire purchase price shall fall due with immediate effect in the event that the buyer fails to effect timely payment or if he goes bankrupt, is granted a suspension of payments, is placed in the care of a guardian, his possessions are attached, he dies insofar as he is a natural person, or in the event that the buyer’s business is liquidated or dissolved.
5.5 Upon or after entering into the agreement and before its implementation, BerkelBike will be entitled to demand a guarantee from the buyer that both the payment obligations and any other obligations arising from this agreement will be fulfilled. Refusal by the buyer to provide the required security gives BerkelBike the right to suspend its obligations and ultimately, without any notice of default or legal intervention, the right to dissolve the contract wholly or partially, without prejudice to his right to compensation for any damages suffered by him.

6 Retention of title

6.1 Where delivery occurs before payment of the entire amount owed pursuant to the agreement, the products supplied shall remain the property of BerkelBike until all that is owed for the supply of those products, including any collection costs and interest, as well as any amount payable due to the buyer’s failure to comply with his obligations pursuant to this agreement or any other, is paid in full.
6.2 Until title to the products passes to the buyer, he shall not be entitled to transfer title to them to a third party, to tender them by way of security, to encumber or to pledge them, or to place them at the disposal of a third party in any other way. Nevertheless, the buyer shall be entitled to sell these products in the normal conduct of his business. The buyer shall at all times help BerkelBike exercise its right of ownership. As long as retention of title applies, the buyer shall have a duty to grant BerkelBike access to his buildings and premises.
6.3 When first so requested by BerkelBike, the buyer shall be obliged to pledge to BerkelBike any accounts receivable he acquires in respect of goods supplied by BerkelBike which are subject to retention of title and have been sold to his buyers.

7 Complaints

7.1 The buyer shall be required to file a complaint with BerkelBike in writing within 7 days following delivery, in the absence of which the buyer shall be deemed to have accepted the relevant product unconditionally. Any complaint concerning a hidden defect must be filed immediately after it is discovered but not later than 1 year after delivery.
7.2 The product can only be returned for the account and risk of the buyer and only after prior written permission has been obtained from BerkelBike.
7.3 Unless otherwise agreed in writing, a complaint shall not suspend the buyer’s payment obligation, not even if BerkelBike approves a return.
7.4 The complaint must contain a description of the defect and BerkelBike must upon first request be given the opportunity to investigate the complaint. The buyer shall allow BerkelBike to have the concerned products examined by an expert or an 
independent inspection service. If the complaint turns out to be well-founded, all the costs of any investigation will be for BerkelBike's account. If a complaint is groundless, all the costs will be for the buyer’s account.

8 Warranty

8.1 BerkelBike warrants the products for a maximum period of 1 year from the date of delivery of the products, unless specifically agreed otherwise in writing. All BerkelBike frames are warranted to be free from any defects in material and workmanship for the duration of 5 years.
8.2 If and insofar as any products or any part do not comply with the agreed quality requirements, BerkelBike shall, acting at its own discretion, either repair or replace them or shall take back the defective products according to the extent of the faulty delivery and credit the buyer for the purchase price, assuming that the buyer has lodged a complaint in accordance with the provisions of Article 7 and BerkelBike has acknowledged this complaint. After reparation or replacement the initial warranty period continues; no new warranty period shall commence unless otherwise agreed in writing.
8.3 Any parts that become available as a result of a replacement, shall remain/become BerkelBike's property.
8.4 No warranty shall apply in the event that:
 - the product is not properly maintained or is not used in accordance with its operation manuals and instructions;
 - the product has been subjected to faulty repair or modifications by the buyer or third parties;
 - the defect is caused by a circumstance primarily located or originating outside the product;
 - the alleged defect is the result of normal wear and tear; or
 - buyer has continued to use the product after the discovery of the defect, unless prior written permission of BerkelBike for continuous use has been obtained.

9 Liability

9.1 Except in the case of legal liability pursuant to provisions of mandatory law and a deliberate act or omission, or gross negligence on the part of BerkelBike, any liability of BerkelBike for any damage, among which any direct or indirect damage, consequential damage or lost profits, is excluded.
9.2 The aggregate liability of BerkelBike to buyer under any theory or ground shall at all times be confined to the net invoice value of the product concerned or to that part of the net invoice value to which a claim for compensation is directly or indirectly related. Total compensation for damage payable by BerkelBike shall in no event exceed EUR 500.000,- per event, whereby a series of related events will be considered as a single event.
9.3 The buyer shall indemnify BerkelBike against any claim made by a third party in respect of which BerkelBike is not liable under these terms and conditions.

10 Force majeure

10.1 In the event of war, civil unrest, rioting, fire, other disasters and any other circumstances beyond BerkelBike’s control irrespective of whether or not this occurs on its premises, those of its suppliers or the transport company it engages, or in the event of any change in circumstances of such a nature that BerkelBike cannot reasonably be required to fulfil its obligations, BerkelBike shall be entitled to withdraw its quotations, suspend deliveries or terminate any relevant agreement without judicial intervention, and it shall not be required to provide any compensation.
10.2 In the event that BerkelBike relies on force majeure, it shall immediately notify the buyer thereof in writing, and also of the cessation thereof.
10.3 Where BerkelBike has already executed part of an agreement, the buyer shall pay the purchase price for any products that have been delivered.

11 Suspension and termination

11.1 In the event that the buyer fails to comply with his obligations pursuant to an agreement into which he has entered, or fails to do so properly or on time, if there are grounds to fear that this will occur, or in the event that the buyer applies for a suspension of payments, files for bankruptcy or liquidates his business, BerkelBike shall be entitled to suspend or terminate the agreement concerned without the need to give notice of default or for judicial intervention, and it shall not have a duty to provide any form of compensation.
11.2 Any claim on the part of BerkelBike pertaining to a part of the agreement which has already been executed, or harm suffered as a result of its suspension or termination, which shall be deemed to include loss of profit, shall fall due with immediate effect.

12 Intellectual property rights

12.1 BerkelBike reserves all of its intellectual property rights in connection with the products which it supplies.
12.2 The buyer shall not be permitted to modify all or part of any product supplied, or to affix any other trademark to it, to use the relevant mark in any other way, or to register it in his own name.

13 Governing law and forum

13.1 These general terms and conditions and any agreements entered into by BerkelBike shall be solely governed by and construed in accordance with the law of the Netherlands.
13.2 In case of any dispute the competent court in 's-Hertogenbosch, the Netherlands, will be entitled to deal with the dispute unless BerkelBike would elect to submit the dispute to competent courts elsewhere.
13.3 The provisions of Clause 13.2 leave intact the right of BerkelBike to obtain a settlement by means of arbitration of the International Chamber of Commerce under the Rules of Conciliation and Arbitration of the International Chamber of Commerce by one or more arbitrator(s). The place of arbitration will be Amsterdam, the Netherlands. The arbitral procedure shall be conducted in the English language.