Terms of Use

ELZINGA MACHINEFABRIEK

MACHINEFABRIEK MARINGS

METAALUNIE CONDITIONS

General delivery and payment conditions of Koninklijke Metaalunie (the Dutch organisation for small and medium-sized enterprises in the metal industry), referred to as ‘the METAALUNIE CONDITIONS’, formerly referred to as ‘the SMECOMA CONDITIONS’,

filed with the Court Registry in Rotterdam on 1 January 2008.

Published by Koninklijke Metaalunie, PO Box 2600, 3430 GA Nieuwegein, the Netherlands.

©Koninklijke Metaalunie

Article 1: Applicability

These Terms & Conditions apply to all tenders issued by members of Koninklijke Metaalunie, to all agreements concluded by those members and to all agreements that may result therefrom.

The tendering party/supplier is the Metaalunie member applying these Terms & Conditions, and is referred to as ‘the Supplier’. The counterparty is referred to as ‘the Client’.

In the event of any conflicts between the substance of the agreement concluded between the Client and the Supplier on the one hand and these Terms & Conditions on the other, the provisions set out in the agreement have precedence.

These Terms & Conditions may only be used by members of Koninklijke Metaalunie.

Article 2: Tenders

2.1. No obligations are attached to any tenders.

2.2. If the Client supplies the Supplier with data, drawings etc., the Supplier may rely on their accuracy and shall base the tender on that information.

2.3. All prices specified in the tender are based on delivery ex works, in accordance with the Incoterms 2000. Prices are stated exclusive of VAT and packing materials.

2.4. If the tender is not accepted, the Supplier is entitled to charge the Client for all costs incurred in order to submit the tender.

Article 3: Intellectual property rights

3.1. Unless agreed otherwise in writing, the Supplier retains the copyrights and all industrial property rights to all tenders, designed submitted, illustrations, drawings, trial models, programs, etc.

3.2. The rights listed in Article 3.1 remain the property of the Supplier, regardless of whether costs have been charged to the Client for their production. The relevant information may not be copied, used or shown to third parties without the Supplier’s explicit prior consent. The Client will be liable to pay the Supplier a penalty for each instance of violation of this provision, to the amount of €25,000. This penalty may be demanded in addition to any compensation damages awarded by law.

3.3. The Client must return all data provided as meant in Article 3.1 on demand, within the period specified by the Supplier. If this provision is violated, the Client is liable to pay the Supplier a penalty of €1,000 per day. This penalty may be demanded in addition to any compensation damages awarded by law.

Article 4: Advice, designs and materials

4.1. The Client cannot derive any rights from advice or information provided by the Supplier that has no direct bearing on the engagement.

4.2. The Client is responsible for all drawings, calculations and designs made by or on behalf of the Client, and for the functional suitability of all materials prescribed by or on behalf of the Client.

4.3. The Client indemnifies the Supplier for any claims from third parties arising in connection with the use of the drawings, calculations, designs, materials, samples, models, etc. provided by or on behalf of the Client.

4.4. The Client may examine (or arrange for the examination of) the materials that the Supplier intends to use before they are processed, at the Client’s own expense. Any damages incurred by the Supplier as a result are for the Client’s expense.

Article 5: Delivery times

5.1. The delivery deadline and/or work period stated by the Supplier are estimates.

5.2. In determining delivery deadlines and/or work periods, the Supplier assumes that the engagement can be carried out under the circumstances as they are known to the Supplier at that moment.

5.3. Delivery deadlines and/or work periods do not commence until the Parties have agreed on all commercial and technical details, all necessary data, final and approved drawings, etc. are in the Supplier’s possession, the payment or instalment agreed has been received and the conditions necessary for the performance of the engagement have been met.

5.4. a. In the event of circumstances that are different to those known to the Supplier when the delivery deadline and/or work period were determined, the Supplier may extend the delivery deadline and/or work period by the time that is required in order to perform the engagement under those circumstances. If the work cannot be fitted into the Supplier’s work schedule, it will be carried out as soon as the Supplier’s schedule permits.

b. In the event of contract extras, the delivery deadline and/or work period will be extended by the time required to supply (or arrange for the supply of) the materials and parts necessary for those contract extras and to carry out the contract extras. If the contract extras cannot be fitted into the Supplier’s work schedule, they will be carried out as soon as the Supplier’s schedule permits.

c. In the event that the Supplier’s obligations are suspended, the delivery deadline and/or work period will be extended by the duration that the obligations are suspended. If resumption of the work cannot be fitted into the Supplier’s work schedule, the work will be carried out as soon as the Supplier’s schedule permits.

d. In the event of weather conditions that prevent work being carried out, the delivery deadline and/or work period will be extended by the resulting delay.

5.5. If the delivery deadline and/or work period agreed is exceeded, that circumstance does not in any instance entitle the Client to compensation for damages, unless agreed in writing.

Article 6: Transfer of risk

6.1. Deliveries are made ex works, in accordance with the Incoterms 2000; the risks attached to the object are transferred at the moment that the Supplier makes the object available to the Client.

6.2. The provisions of Article 6.1 notwithstanding, the Client and the Supplier may agree that the Supplier will arrange transport. The risks attached to the storage, loading, transport and unloading remain with the Client in such instances. The Client may take out insurance to cover those risks.

6.3. In the event that objects are to be exchanged and the Client continues to use the exchangeable object while awaiting delivery of the new object, the risks attached to the exchangeable object remain with the Client until the moment that possession of the object has been relinquished to the Supplier.

Article 7: Price changes

7.1. The Supplier may charge any increases in cost-determining factors that arise after the agreement is concluded to the Client if the performance of the agreement has not been completed at the moment of the increase.

7.2. The Client is obliged to pay the price increases as meant in Article 7.1 at the same time as the principal sum or the next instalment is paid.

7.3. If the Client provides goods and the Supplier is prepared to use those goods, the Supplier may charge up to 20% of the market price of the goods provided.

Article 8: Impracticability of the engagement

8.1. The Supplier is entitled to suspend the fulfilment of any obligations if any circumstances that could not be foreseen when the agreement was concluded and that are beyond the Supplier’s influence temporarily prevent the fulfilment of those obligations.

8.2. Circumstances that the Supplier could not foresee and that are beyond the Supplier’s influence are understood to include (but are not limited to) the circumstance that the Supplier’s own suppliers and/or subcontractors fail to meet their obligations, or fail to do so in time, the weather, earthquakes, fire, loss or theft of tools, the destruction of materials to be processed, road blocks, strikes or work stoppages and restrictions on import or trade.

8.3. The Supplier is no longer entitled to suspend the fulfilment of any obligations when the temporary impossibility of performance has lasted for more than six months. The agreement may not be dissolved until that term has lapsed, and only in respect of those obligations that have not been fulfilled. In that event, the Parties are not entitled to any compensation for damages incurred as a result of that dissolution.

Article 9: Scope of the work

9.1. The Client is responsible for ensuring that all licences, permits, dispensations and other administrative decisions that are needed to carry out the work are obtained in time.

9.2 The price for the work does not include the following:

a. the costs of earthwork, pile driving, demolition, foundation work, cementing, carpentry, plastering, painting, wallpapering, repairs or other construction work;

b. the costs of connecting gas, water, electricity or other infrastructural facilities;

c. the costs of preventing or limiting damages to any objects situated on or near the work site;

d. the costs of disposing of materials, building materials or waste products;

e. hotel and travelling expenses.

Article 10: Changes to the work

10.1. Any changes to the work will result in contract variations in at least the following instances:

a. if the design or the specifications change;

b. if the information provided by the Client does not match the actual situation;

c. in the event of deviation from estimated quantities by more than 10%.

10.2. Contract extras will be charged based on the value of the cost-determining factors as at the moment that the contract extra is performed.

Contract deductions will be settled based on the value of the cost-determining factors as at the moment that the agreement was concluded.

10.3. If the value of the contract deductions exceeds that of the contract extras, the Supplier is entitled to charge the Client for 10% of the difference upon final settlement. This provision does not apply to any contract deductions based on requests from the Supplier.

Article 11: Performance of the work

11.1. The Client is responsible for ensuring that the Supplier can carry out the activities without interruption and at the times agreed, and that the Supplier has access to the necessary facilities when carrying out the activities, such as:

- gas, water and electricity;

- heating;

- lockable and dry storage space;

- all facilities required by the laws and regulations governing working conditions.

11.2. The Client is liable for all damages, including those resulting from loss, theft, burning or harm, to objects belonging to the Supplier, the Client and/or any third parties, such as tools and materials intended for use in the work that are located on the site where the activities are carried out or at another agreed location.

11.3. If the Client fails to fulfil the obligations as set out in Article 11.1 and 11.2, and that failure causes delays in the performance of the activities, the activities will be carried out as soon as the Client as yet fulfils those obligations and when the Supplier’s schedule permits. The Client is liable for all damages that the Supplier incurs as a result of the delay.

Article 12: Completion of the work

12.1. The project will be deemed to have been completed when:

a. the Client has approved the work;

b. the Client has put the work into use. If the Client puts part of the work into use, that part will be deemed to have been completed;

c. the Supplier has notified the Client in writing that the work is finished and the Client has not communicated, within 14 days after than notification, whether or not the work has been approved;

d. the Client does not approve the work on grounds of minor defects or missing parts that can be repaired or provided within 30 days and that do not prevent the work from being put into use.

12.2. If the Client does not approve the work, the grounds on which the approval is withheld must be communicated to the Supplier in writing.

12.3. If the Client does not approve the work, the Supplier must be given another opportunity to complete the work. The provisions set out in this Article apply anew.

12.4. The Client indemnifies the Supplier against all claims from third parties for damages to parts of the work that have not yet been completed that are caused by use of parts of the work that have already been completed.

Article 13: Liability

13.1. The Supplier is liable for all damages that the Client incurs that stem directly and exclusively from a shortcoming attributable to the Supplier. However, only those damages for which the Supplier is insured, or should within reason have been insured, qualify for compensation.

13.2. If, when the agreement is concluded, it is impossible for the Supplier to take out insurance as meant in Article 13.1, or impossible to do so at reasonable conditions, or if it is subsequently impossible to renew the insurance policy at reasonable conditions, the maximum compensation payable for damages is the amount that the Supplier charged for the agreement in question (exclusive of VAT).

13.3. The following damages do not qualify for compensation:

a. trading losses, including losses caused by delays and loss of profits. The Client should take out insurance to cover such damages, if such is deemed desirable;

b. supervision damages, which are understood to include damages caused, during or as a result of the performance of the work, to objects on which work is being carried out to objects situated in the

vicinity of the work site. The Client should take out insurance to cover such damages, if such is deemed desirable;

c. damages caused by intent or gross negligence on the part of helpers or non-management employees of the Supplier.

13.4. The Supplier is not liable for damages to materials provided by or on behalf of the Client that result from improper processing. At the Client’s request, the Supplier will repeat the process, using materials provided by the Client, at the Client’s expense.

13.5 The Client indemnifies the Supplier against all claims from third parties for product liability stemming from defects in products provided by the Client to third parties that consisted of or included products and/or materials provided by the Supplier.

Article 14: Guarantees

14.1. The Supplier guarantees the proper performance of the product or service stipulated for a period of six months after delivery or completion.

14.2. If the product or service stipulated consists of contract work, the Supplier guarantees the soundness of the construction delivered and the materials used, if the Supplier was at liberty to choose those materials, for the period specified in Article 14.1.

If the construction delivered and/or the materials used prove to be unsound, the Supplier will make the necessary repairs or replacement. Those parts that are to be repaired at the Supplier’s place of business or are to be replaced by the Supplier must be sent to the Supplier carriage paid. Disassembly and assembly of those parts, plus any hotel and travelling expenses, are for the Client’s account.

14.3. If the product or service stipulated (partly) consists of the processing of materials provided by the Client, the Supplier guarantees proper processing for the period specified in Article 14.1.

If any processing proves to have been performed improperly, the Supplier will do one of the following, at the Supplier’s discretion:

- repeat the process, in which case the Client must provide new materials, at the Client’s own expense;

- repair the shortcoming, in which case the Client must return the materials to the Supplier carriage paid;

- credit the Client for a proportionate part of the invoice.

14.4. If the product or service stipulated consists of the delivery of an object, the Supplier guarantees the soundness of the object delivered for the period specified in Article 14.1.

If the delivery proves to have been defective, the object must be returned to the Supplier carriage paid. The Supplier will then elect either:

- to repair the object;

- to replace the object;

- to credit the Client for a proportionate part of the invoice.

14.5. If the product or service stipulated (partly) consists of the fitting and/or assembling of a delivered object, the Supplier guarantees the soundness of the fitting and/or assembly for the period specified in Article 14.1.

If the fitting and/or assembly prove to be defective, the Supplier will repair the fault. Any hotel and travelling expenses are for the Client’s account.

14.6. Factory guarantees apply to those parts for which the Client and the Supplier agree such explicitly and in writing. If the Client has had the opportunity to examine the substance of the factory guarantee, that factory guarantee will replace the guarantees specified in this Article.

14.7. In all situations, the Client must allow the Supplier the opportunity to repair any shortcomings and/or repeat the processing.

14.8. The Client may only invoke guarantees after all obligations in respect of the Supplier have been fulfilled.

14.9. a. No guarantee is given when defects are the result of:

- normal wear and tear;

- improper use;

- lack of proper maintenance;

- fitting, assembly, alterations or repairs by the Client or by third parties.

b. No guarantee is given for delivered objects that were not new when they were delivered of for objects whose use the Client prescribed or that were provided by or on behalf of the Client.

c. No guarantee is given on inspections of and/or repairs to objects belonging to the Client.

Article 15: Complaints

The Client may not invoke defects in the product or service unless a written complaint has been submitted to the Supplier within fourteen days after the defect was detected or should, within reason, have been detected.

Article 16: Failure to take delivery

In the event that the Client has not taken delivery of any object after the delivery deadline has passed, those objects will remain available to the Client. Any objects of which the Client has not taken delivery will be stored for the Client’s account and risk. The Supplier may at any time invoke the powers granted by Article 6:90 of the Dutch Civil Code.

Article 17: Payment

17.1. Payment must be made at the Supplier’s place of business or to an account specified by the Supplier.

17.2. Unless agreed otherwise, payment must be made using one of the following methods:

a. for counter sales: cash;

b. for payment in instalments:

- 40% of the total price when the engagement is granted;

- 50% of the total price when the materials have been delivered or, if the engagement does not include delivery of the materials, upon commencement of the activities;

- 10% of the total price upon completion;

c. in all other instances: within thirty days after the date on the invoice.

17.3. The payment conditions specified notwithstanding, the Client is obliged, at the Supplier’s request, to provide security for payment, to the Client’s satisfaction. Failure on the Client’s part to provide such security for payment within the period specified will immediately constitute default. In that event, the Supplier is entitled to dissolve the agreement and recover any damages from the Client.

17.4. The Client’s right to offset any claims on the Supplier is excluded, except in the event of the Supplier’s bankruptcy or if judicial debt rescheduling is applied in respect of the Supplier.

17.5. The full claim for payment is payable on demand in the following instances:

a. if any payment deadline has been exceeded;

b. if the Client has been declared bankrupt or requests suspension of payments;

c. if any of the Client’s assets or claims are seized;

d. if the Client (if a company) is dissolved or wound up;

e. if the Client (if a natural person) makes a request for judicial debt rescheduling, is placed under guardianship or dies.

17.6. If payment has not been made by the payment deadline specified, the Client is immediately liable to pay the Supplier interest. That interest is payable at a rate of 12% per year, or at the statutory rate if that is higher. For the purposes of calculating the interest, partial months are counted as full months.

17.7. If payment has not been made by the payment deadline specified, the Client is immediately liable to pay the Supplier all extrajudicial costs, to a minimum of €75.

The costs are calculated in accordance with the following table:

over the first €3,000 15%

over the excess up to €6,000 10%

over the excess up to €15,000 8%

over the excess up to €60,000 5%

over the excess from €60,000 3%

If the actual extrajudicial costs exceed those based on this formula, the Client is liable to pay the actual costs.

17.8. If judicial proceedings are decided in the Supplier’s favour, all costs incurred by the Supplier in connection with those proceedings are for the Client’s account.

Article 18: Retention of ownership and pledging

18.1. After delivery, the Supplier remains the owner of the objects delivered for as long as:

a. the Client fails or will fail in the fulfilment of the obligations stemming from this agreement or any similar agreements;

b. the Client fails or will fail to pay for any work performed or to be performed under such agreements;

c. the Client has not paid any claims arising from non-fulfilment of those agreements, such as compensation for damages, penalties, interest and costs.

18.2. As long as any objects are subject to retention of ownership, the Client may not encumber those objects in any way that exceeds the scope of the Client’s ordinary activities.

18.3. Having invoked retention of ownership, the Supplier may retrieve the objects delivered. The Client must allow the Supplier to enter the place where those objects are located.

18.4. If the Supplier cannot invoke retention of ownership because the objects delivered have been subject to confusion, deformation or accession, the Client is obliged to give the newly formed objects in pledge to the Supplier.

Article 19: Termination

If the Client wishes to dissolve the agreement without the Supplier having failed in the performance thereof and if the Supplier so agrees, the agreement will be terminated by mutual consent. In that event, the Supplier is entitled to reimbursement for all financial losses incurred, such as damages, loss of profits and costs.

Article 20: Applicable law and competent court

20.1. These Terms & Conditions are governed by the laws of the Netherlands.

20.2. The Vienna Sales Convention (C.I.S.G.) does not apply to these Terms & Conditions, nor do any other international regulations whose exclusion is permitted.

20.3. Only the Dutch civil court within whose jurisdiction the Supplier’s place of business is situated is competent to pass judgment on disputes, unless such is at odds with any mandatory rules of law. The Supplier is entitled to deviate from this jurisdiction clause and apply the statutory rules for jurisdiction.

20.4. The Parties may agree on another form of dispute settlement, such as arbitration or mediation.

These conditions are a full translation of the Dutch version of the ‘METAALUNIEVOORWAARDEN’ as deposited with the Registry of the District Court in Rotterdam on 1 January 2008. Explanation and interpretation of the text of these Conditions shall be based on the Dutch text.

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ELZINGA LOON- EN GRONDVERZETBEDRIJF

ELZINGA CARGO FACILITIES

CUMELA-conditions Registered with the Utrecht District Court under number 63/2004 Chapter 1 General Definitions and applications.1.1 These terms and conditions apply to all offers and all agreements the user of these general terms andconditions, hereinafter to be referred to as commissionee, makes or concludes with third parties, hereinafterto be referred to as principal.1.2 These general terms and conditions can only be deviated from in an agreement entered into in writing.1.3 The terms and conditions are referred to by means of Terms and Conditions relating to Land Developmentand Earthmoving Activities, Fertiliser Distribution andContracting in the Agricultural sector, shortened to: CUMELA-Terms and Conditions.Offers2.1 All quotations are free from engagement.2.2 Delivery times quoted shall never be considered deadlines, unless explicitly agreed upon otherwise.Rights to industrial and intellectual property3. All drawings and other documents provided by commissionee shall remain commissionee’s property; in thesame way commissionee’s copyright shall apply in full.Methodology4.1 These terms and conditions, in addition to a general chapter, including land development and earthmovingactivities, consist of three chapters with provisions for specific operations:- Agricultural contracting- Fertiliser distribution- Non-operated machine hire4.2 In the event of contrariety between the proviso in chapters 2 up to and including 4 and the proviso in chapter1, the chapters 2 up to and including 4 shall prevail.Payment and prices5.1 All prices agreed upon, except when explicitly stated otherwise, shall be exclusive of Turnover Tax.5.2 When normal working hours on working days are exceeded, or work has to be carried out on Saturdaysor on Sundays and Seasonal holidays, all this at principal’s request, commissionee will add a surcharge to theprices agreed upon, proportional to the ensuing extra cost.5.3 In the absence of a fixed price agreed upon, the price of a completed assignment shall be established whenthe work is carried out and the materials supplied or used, on the basis of rates agreed upon by the partiesbefore commencement of the work / operations or, lacking such an agreement, on the basis of rates locally inforce at the time of completion.5.4 When there are several principals, they shall all be jointly and severally liable for the fulfilment of theircontractual obligations.5.5 The proviso in the preceding paragraph shall equally apply to partially completed assignments.5.6 Commissionee shall be authorized to charge principal for pre-operational cost.5.7 Commissionee shall be authorized, prior to the execution of the agreement, to require security fromprincipal for the fulfilment of his liability to pay.5.8 Commissionee shall be authorized to on-charge to principal price increases of cost-determining factorsthat have come into existence after the agreement was concluded, but before completion or delivery. Whencommissionee does this within 3 months after the conclusion of the agreement, principal shall be authorizedto cancel the agreement, a right he shall exercise within 8 days after the price increase notification. Such acancellation of the agreement shall not entitle any of the parties to compensation.Term of execution6.1 The assignment shall be carried out within a term to be agreed upon by the parties to the agreement.6.2 Commissionee shall carry out the assignment both in a way and during a period of time within the term ofexecution agreed upon, which commissionee, whilst taking into account principal’s interests and – as much aspossible principal’s relevant wishes -, deems most suitable. The date of the execution of the assignment shallbe communicated by commissionee to principal in due time.6.3 Terms agreed upon shall never be considered deadlines and shall never constitutean entitlement to compensation, unless agreed upon in writing.Force majeur7.1 Commissionee shall be entitled to postpone the fulfilment of his obligationsfor the time of the duration of the force majeure situation.7.2 A situation of force majeure shall be deemed to include a situation which, at the time of the agreement’sconclusion, could not in all reasonableness be expected and is outside commissionee’s sphere of influence.This shall be considered to include: government measures, extraordinary weather conditions, strikes, transporthold-ups, illness, civil commotion and/or wars, and an attributable breach of contract and/or a case of forcemajeure on the part of persons on whom commissionee depends for the manufacture and/or supply ofproducts.Extent of the operations8.1 Principal shall see to it that all the permissions, exemptions and other rulings which are required to executethe work/operations, have been issued in time and with the appropriate contents.8.2 Principal and commissionee may mutually agree otherwise, provided it is laid down in writing.Alterations in operations and circumstances9.1 Alterations in the operations will in any case result in additions or reductions:a. when there are alterations in the design or specifications;b. when the information provided by the principal is not in conformity with reality;c. when amounts estimated are deviated from by more than 10%;d. when normal working hours are exceeded by more than 10% as a result ofcircumstances affecting efficiency;9.2 Additions shall be calculated based on the value of the price-determining factors, current at the momentwhen the additions are carried out. Reductions shall be calculated on the basis of the value of the factorsdetermining the price when the agreement was entered into.9.3 If the balance of reductions exceeds that of the additions, commissionee shall be entitled, in the finalsettlement, to charge 10% of the difference of the balances to principal. This provision does not apply toreductions resulting from a request of commissionee.Obligations principal10.1 If principal supplies data to commissionee, commissionee may take them to be correct and will basehis offer on this assumption. Loss resulting from the incorrectness or incompleteness of these data is forprincipal’s account.10.2 Principal is responsible for the provision of the correct data with respect to the location of cables andpipelines and shall enable commissionee to trace these.10.3 Principal shall investigate into and inform commissionee in writing about all circumstances referring to thelocation and existence of obstacles, cables, pipelinesand other existing obstructions and risks such as the state of the soil, water and groundwater levels,information on the pollution of the soil resulting from building materials and objects in situ and and markthese clearly visible.10.4 Principal shall, for operations in which subsurface obstacles can be hit,inform, at least 5 working days prior to the commencement of the operations, theKabels en Leidingen Informatie Centrum (KLIC) [ Cable and Pipeline Information Centre (KLIC) ]. Principalhimself shall see to it that all the cable and pipeline overseeing authorities respond.10.5 If principal has not complied with or should be unable to comply with theproviso in articles 10.1 and 10.2, he shall, immediately but at the utmost five working days prior to thecommencement of the agreement, inform commissionee in writing. Commissionee will, in that case and at theexpense of principal, make the necessary investigations himself.10.6 If principal has not provided the information referred to in the previous paragraphsor has not met the obligation referred to in paragraph 10.3 principal warrants that at this site there are nocables, pipelines or other obstacles. With this warrant he indemnifiescommissionee against damage to cables, pipelines or other obstacles as well as the resulting loss.10.7 As soon as commissionee considers that weather and/or working conditions may affect the quality ofthe operations, he shall inform principal. After receipt of this notification principal shall notify commissioneewithin 2 x 24 hours after the day of receipt, whether or not he shares commissionee’s opinion.10.8 If principal does not share commissionee’s opinion he can, in his relevant notification to commissionee,either demand the operations to be executed within the term agreed upon, or hold commissionee liable forany loss resulting from the agreement should this not have been executed in time.10.9 Principal shall remove all obstructions as well as inform commissionee about any circumstances thatresult or may result in commissionee failing to carry out the assignment as quickly and correctly and alsowithout damage as referred to in paragraph 6.1.10.10 Principal shall compensate the loss or damage resulting from the non-complianceof the obligations referred to in the previous paragraph caused by principal to commissionee. Theoperations shall begin again when commissionee’s planning allows this.10.11 If materials provided by principal prove in any way to be polluted, causing commissionee to incurextra cost, this cost shall be for principal’s account.10.12 Matters contributed by principal or to be taken away at principal’s instructionshall remain principal’s property and are subsequently for account and risk of principal.10.13 Principal indemnifies commissionee against all claims for compensation of (consequential) loss ordamage caused to invisible property such as cables and pipelines, unless their location was brought tocommissionee’s attention correctly and timely as described in paragraphs 10.1 up to and including 10.4,or the necessary instructions to avoid damage had been issued.10.14 Principal is responsible for the provision of data regarding the quality or environmental quality of thesoil to be excavated, or the materials to be transported by commissionee.10.15 Commissionee shall not be liable for the consequences of the lack of the required permissionsreferred to in paragraph 8 or the required data referred to in 10.14.10.16 The expenses of samples and analyses of the matters to be excavated, transported or depositedare for principal’s account, unless otherwise agreed upon in writing.10.17 Principal shall check out before 15.00 hours the equipment hired by him and report to commissioneeif this equipment is not required for hire the next day. If principal fails to do so, commissionee will chargeprincipal with an extra day’s rental of the hired equipment.Completion and delivery of the work11.1 The work shall be considered complete and delivered whena. principal has approved the work;b. the work has been put into use by principal. When principal puts into use part of the work that partis considered delivered;c. commissionee has notified principal in writing of the completion of the work and principal has not,within 14 days after being notified declared whether the work has been approved or not;d. principal has not approved the work because of small defects or the lack of parts which can berepaired or delivered within 30 days and which do not make it impossible for the work to be put into use.11.2 If principal does not approve the work he shall make this known to commissionee in writing, statingreasons.11.3 If principal does not approve the work he will grant commissionee the opportunity to havethe work completed again. He shall grant commissionee a reasonable term to do this. The provisions ofthis paragraph again apply.Liability12.1 Commissionee restricts his liability for loss or damagesustained by principal as a result of deliberateintention or gross negligence on commissionee’s part, and otherwise with due observance of thefollowing.12.2 Loss or damage for which liability is explicitly been excluded:a. consequential loss, including trading loss, loss resulting from standstill and loss of profit;b. damage to property held in trust;c. damage caused by auxiliary personnel, engaged by principal or by third parties, also in the case ofdeliberate intention or gross negligence;d. loss or damage principal sustains by claims of third partiese. soil structure deterioration.If so required, principal shall take out insurance against such loss or damage himself.12.3 Furthermore, liability is limited to the invoice amount that refers to the activities concerned.12.4 Contrary to the foregoing it shall be understood that, if commissionee is insured against the loss ordamage concerned, liability shall be limited to the amount to be awarded on the basis of that insurance.12.5 If so requested, further information on the contents of the policy terms of theinsurance policies concluded will be provided.Complaints13.1 Visible defects shall be reported to commissionee within 24 hours after the actual transfer of thearticle or the completion of the work.13.2 Other defects shall be reported in writing within due time after having been detected or should, in allreasonableness, have been detected.13.3 After expiration of these terms the right to say that defects are the cause of the incompletion of thework ceases to be applicable.13.4 Lodging a complaint does not remove the obligation to pay.Payment14.1 Principal shall be liable to pay the invoice within the term stated on the invoice.14.2 Principal and commissionee shall never be entitled to cancel out unacknowledged debts againsteach other.14.3 The entire claim shall be due and payable without notice if:a. a term of payment has been exceeded;b. principal has gone into involuntary liquidation, files a petition for suspension of payment, or hasbeen granted a legal debt rescheduling arrangement;c. property or debts owned by principal have been seized;d. principal (as a company) is dissolved;e. principal (as a natural person) is placed under tutelage or dies.Public road15.1 Principal shall see to the public road being cleaned and kept clean before, during and after operationsthat involve the use of the public road to carry out the operations.In instances that he does not perform this task, he shall inform commissionee in writing prior tocommencement of the operations.15.2 Commissionee shall at all times be authorized to undertake the task of cleaningthe public road and keeping it clean himself. The expenses he thus incurs shall be charged to principal,unless principal agrees with commissionee that principal sees to these activities to be carried out.15.3 Commissionee shall take care that danger-notices are put up and he is entitled to charge theseexpenses to principal.Delivery of goods16.1 The location of delivery is the location determined by principal. From the moment of delivery thegoods shall be for risk of principal. This proviso can only be deviated from in a written agreement.16.2 Subject to a written agreement to the contrary, the cost of transport and insurance shall be forprincipal’s account.Reservation of title and lien hold back17.1 Commissionee shall have reservation of title as referred to in section 3.92 Civil Code for all propertysupplied by him with respect to the claims to the consideration for property supplied or to be supplied bycommissionee to principal pursuant to this agreement or in accordance with such an agreement whichincludes operations carried out or to be carried out for principal as well as with respect to claims forshortcomings in the fulfilment of such agreements, unless explicitly agreed upon otherwise. Principal shallrefrain from any action that affects the aforementioned reservation of title, such as the establishment of aright of pledge, transfer to a third party, sale or assembly.17.2 Commissionee shall have a lien hold back to articles, presented to him forprocessing, repair or custody. If commissionee pleads this right it will not fail as a result of principalconcluding a contract of guarantee.Warranty18 Warranty only applies if this has explicitly been agreed upon and a warranty certificate has been issuedfor that purpose. If a warranty is not issued by commissionee but by the manufacturer or another supplier,commissionee shall not be party to this agreement and will only act as intermediary in the completion ofthe warranty claim.Designated courts of law19.1 All agreements are governed by Dutch law.19.2 For claims not exceeding € 5,000 the Cantonal section of the District Court in thedistrict where commissionee has its seat has jurisdiction.19.3 Claims exceeding € 5,000 are settled by arbitration. The Instituut voor Agrarisch recht te Wageningen[ Institute for Agricultural Law ] (P.O Box, 6700 AE Wageningen, the Netherlands) has exclusivejurisdiction.19.4 Parties can agree in writing to choose a different form of dispute settlement such as arbitration ormediation. Chapter 2: Agricultural Contracting Scope of application20 The provisions in this chapter apply in addition to the provisions in paragraphs 1 up to and including 19to all agricultural contracting carried out by commissionee.Duty to disclose information21 Principal shall provide commissionee with all relevant information required for commissionee to carryout the assignment properly such as:a. correct location and size of the plot on which the operations are to be carried out;b. status of the plot (water catchment area, nature conservation area, etc.;c. boundaries of the plot, including a statement of the crops on the adjoining plots and, if any,cultivation-free zones,d. weeds, fungi, insects etc. harmful to the particular crop, or other harmful elements against whichspraying is advisable or when spraying is mandatory against late fruit drop or otherwise;e. circumstances which can affect the operations to be carried out such as soil type(s) of the plotconcerned, crop variety, fore fruit, crop destination, previous applications of sprays, fertiliser andsimilar products.f. information on (soil) contaminations that may affect food safety or otherwise constitute a risk for thirdparties.Spraying22.1 Commissionee carries out the spray treatment with the plant protector or plant protectors hedeems most efficacious, in a way and at a point in time within the period of time agreed he deems mostappropriate, without prejudice to principal’s authority to decide otherwise for his risk and account.22.2 When principal determines at what time spraying is carried out, principal shallbear the loss or damage that may occur as a result.22.3 Principal shall bear the loss or damage that results from the fact that he:a. has provided incomplete or incorrect information to commissionee;b. fails to notify commissionee, prior to spraying, of treatments the crop was submitted to less than14 days before spraying is to take place, such as rolling, fertilising, previous sprayings and similartreatments, which cause the crop to be temporarily more vulnerable;c. against commissionee’s written advice persists in having the treatment carried out;d. himself indicates the kind of plant protector and/or amount of spraying liquid, or what concentrationis to be used and requires use accordingly.e. provides the plant protector himself;f. wishes to apply the product for an inadmissible use.22.4 Damage brought about by contaminated water shall be charged to him who selects or providesthe water.22.5 Both principal and commissionee are bound to carefully observe the legal stipulations and thegovernment provisions based thereon with regard to the field of plant protection products.22.6 Loss or damage as a result of the non-observance of one or more of thesestipulations and provisions are for the party who has been negligent in their observance. Chapter 3 Fertiliser distribution Definitions / terminology23.1 The provisions in this chapter apply in addition to the provisions in paragraphs 1 up to and including19 referring to fertiliser distribution carried out by commissionee.23.2 Fertilisers are understood to be: Fertilisers as stated in the Fertiliser Act.23.3 Fertiliser distribution: the execution of assignments relating to fertilisers, among other things: offtake,transport, delivery, application.Operations24.1 An agreement with commissionee is brought about after the latter has confirmed an assignment fromprincipal in writing or orally or if commissionee has started to executethe assignment. The agreement is deemed to have been entered into on the day that bears the date of theconfirmation or the day when the execution of the assignment was started.24.2 If after the conclusion of the agreement commissionee turns out to be unable to meet or is not obligedto meet all relevant legal rules and regulations, commissionee shall be entitled to terminate the agreementwithout any liability to compensation and commissionee shall not have to deliver / accept the business orprovide the service concerned.24.3 Additional arrangements or amendments, if any, made later shall only be binding on commissionee ifthey have been confirmed by him in writing.24.4 Transactions for which by their nature or size no offer or order confirmation is dispatched are deemedto be correctly and completely agreed upon by the invoice, unless appealed against within three workingdays.Offtake / delivery / terms25.1 From the point in time of the actual acceptance, the delivery is for account and risk of commissionee.From the point in time of delivery at the location agreed upon the delivery is for principal’s risk. Legaltransport documents constitute part and parcel of the agreement.25.2 Delivery and offtake terms or terms relating to the performance of processing operations areapproximated by commissionee and shall never be considered deadlines. Commisionee shall, as far as isreasonably possible, commit himself to effect delivery/offtake/performance on the point in time or within the term agreed upon.25.3 Delivery, offtake and performance terms take effect as soon as and after commissionee has acceptedthe assignment and received full data and all aspects of the business commissionee shall observe.25.4 Commissionee shall at all times be authorized to make deliveries in part or offtake in part.Prices26. Contrary to paragraph 5.8 commissionee shall be entitled to increase the rates stated or agreed upon,based on the offer or conclusion of the agreement if cost- increasing circumstances make this necessary.Warranty / Quality27.1 Parties can, between themselves, stipulate in writing which specifications the fertilisers delivered oraccepted and/or the performance of the operations shall comply with.27.2 Commissionee shall, as far as is reasonably possible, do his utmost to concretize what is stipulatedin paragraph 1.27.3 The fertilisers to be accepted by commissionee shall not contain any impurities, whatever theirnature.27.4 Any cost resulting from the fact that the fertilisers do not meet the quality requirements referred to inparagraph 3 shall be for the account of the party supplying the fertilisers. Chapter 4 Non-operated machine hire 28. The provisions in this chapter apply in addition to the provisions in paragraphs 1 up to and including19 referring to non-operated machine hire.Content hire agreement29.1 Commissionee (lessor) undertakes to provide the equipment or machine agreed upon, includingaccessories and in good order, for the period agreed upon, whereasprincipal (lessee) shall accept the equipment and materials from the contractor, observing the term agreedupon and the term of notice, if any, agreed upon.When accepting the hired item, lessee shall carefully inspect the hired item for soundness, undamagedcondition and completeness. If lessee finds any defects or shortcomings lessee shall immediately informlessor in writing.29.2 Additional hours shall be on-charged, fewer hours shall not be subtracted, unless agreed uponotherwise.Obligations lessee30.1 Lessee shall use the hired item solely within the framework for which the hired item, by its nature, issuitable and exclusively for the purpose for which it is hired.30.2 Lessee shall use the hired item observing the directions which lessor, by means of manuals andsimilar documents or otherwise provides. Lessee declares to be sufficiently experienced with and havethe expertise for the hired item.30.3 Lessee shall inspect the hired item on an ongoing basis for correct operation and, insofar notagreed upon otherwise, timely carry out the required daily maintenance for its correct operation, all this inaccordance with the manufacturer’s specifications.30.4 The expenses of maintenance and repair, all this insofar as a result of normal wear and tear whenproperly used in accordance with its purpose, shall be for lessor’s account.30.5 Lessee shall take all reasonable measures to prevent damage to and/or loss of the hired item.30.6 Lessee shall take the customary measures to prevent theft of the hired item. Lessee shall be liablefor theft and fraudulent appropriation of the hired item.30.7 Lessee himself shall be responsible for the expertise of the operator in charge of operating theequipment and lessee shall be responsible for the instructions to the operator.30.8 Lessee shall be liable for all damage, of whatever nature and in whatever way inflicted or causedduring the hire period. After detection of any defect, shortcoming or damage to the hired item, lessee shallnot continue its use unless after consultationwith lessor. If lessee fails to (timely) consult with lessor, the cost of damage as a result of the continueduse shall fall to and remain with lessee.30.9 Lessee shall be liable for all damage, of whatever nature and in whatever way inflicted or causedto visible and invisible, moveable and immoveable goods/properties belonging to third parties (e.g.subsurface cables and pipelines).30.10 Lessee or machine operator, whoever collects the hired item from lessor, shall identify himself bymeans of a legal identity document.Transport31 Lessee shall be liable for all damage to or caused by the hired item during transport, so also out ofhours, carried out by or by the instructions of lessee, in whatever way or by whoever caused.Work order slips32 Lessor or lessor’s representative registers the kind and number of hours of rent covered on work orderslips. The work order slips are processed weekly and signed for approval by both parties. If lessee orlessee’s representative does not use the opportunity to sign for their approval, lessee shall be deemed toagree with the data of the work order slips.Hire period, re-rent and return33.1 Lessee shall not re-rent or sub-rent the hired item or make it available to third parties or otherwisewithout prior written permission from lessor.33.2 In the event he fails to timely return the (hired) equipment upon expiration of the hire period, principalshall pay the loss resulting from this excess to commissionee.33.3 The hire period shall be determined in one or more whole days beginning on the day the hired itemis made available and expiring on the day the hired item is accepted for return by lessor, nothing beingmissing from the hired item.Prices34 If not agreed upon otherwise, the rental shall be exclusive of fuel and transport to site.Insurance35.1 Lessee shall verify that the machine is adequately insured with respect to the activities to beperformed by the machine.35.2 When lessee insures the equipment use by him the liability insurance for the equipment in hire shallinclude lessor in his capacity of lessee/owner of the equipment. Lessee explicitly and irrevocably grantslessor permission to derive rights from this insurance. If the proviso of this paragraph is not compliedwith or lessee has failed to observe any other obligation in this clause and lessor is called upon to paydamages in any way, lessee shall indemnify lessor completely and compensate lessor for what lessormust pay to this third party.35.3 Lessee shall pay the entire excess risk and any resulting loss sustained in any event in which thehired item is involved, and in which an appeal is made on lessor’s insurance.