Bohyme B.V. | Ligno Ferox – General Terms and Conditions of Sales. 

1. GENERAL

1.1 These General Terms and Conditions of Sale (“Conditions”) govern the offering, sale and delivery of all goods and/or services (the goods and services herein both separately and jointly referred to as: the “Goods”) from or on behalf of LignoFerox, a brand of Bohyme B.V. to customer (“Customer”) and apply to all similar dealings between Seller and Customer.

1.2 These Conditions supersede any and all prior oral and written quotations, communications, agreements and understandings of the parties in respect of the sale and delivery of the Goods and shall apply in preference to and supersede any and all terms and conditions of any order placed by Customerand any other terms and conditions submitted by Customer. Failure of Seller to object to terms and conditions set by Customer shall in no event be construed as an acceptance of any terms and conditions of Customer. Neither Seller’s commencement of performance nor Seller’s delivery shall be deemed or constituted as acceptance of any of Customer’s terms and conditions. If these Conditions differ from any terms and conditions of Customer, these Conditions and any subsequent communication or conduct by or on behalf of Seller, including, without limitation, confirmation of an order and delivery of Goods,constitutes a counteroffer and not acceptance of such terms and conditions submitted by Customer. Any communication or conduct of Customer which confirms an agreement for the delivery of Goods by Seller, as well as acceptance by Customer of any delivery of Goods from Seller shall constitute anunqualified acceptance by Customer of these Conditions.

1.3 These Conditions may only be varied or waived by a duly executed written agreement between Seller and Customer.

1.4 By contracting on the basis of these Conditions, Customer agrees to the applicability thereof in respect of future dealings as described in paragraph 1.1, even if this is not expressly stated. Seller shall be entitled to update and/ or amend these Conditions regularly and by and as of the moment of notifying Customer of such update or amendment or by sending Customer the updated or amended Conditions, these revised Conditions shall apply to all dealingsbetween Seller and Customer.

1.5 Seller and Customer agree that valid, enforceable and binding obligations may result from electronic means of communication. Any electronic communication between Seller and Customer shall be considered to be a “writing” and/or “in writing”.

2. QUOTATIONS, ORDERS AND CONFIRMATION

2.1 Quotations, made by Seller in whatever form, are not binding upon Seller and,merely constitute an invitation to Customer to place an order. All quotationsissued by Seller are revocable and subject to change without notice. Ordersmare not binding until accepted by Seller in writing (“Seller’s Confirmation”)., Seller is always entitled to refuse an order without indication of its reasons. 

2.2 Price quotations based on estimated or projected quantities are subject to increase in the event that actual quantities purchased during the specified period are less than the estimated or projected quantities. 

2.3 Oral statements and agreements made by Seller’s employees, officers,representatives and/or agents are not binding upon Seller unless and only to the extent that such oral statements are confirmed or made in writing by duly authorized representative(s) of Seller.

2.4 Except as provided for in paragraph 7.3, any samples supplied to Customer are supplied solely for information purposes and in no way imply any express or implied conditions or warranties of any kind, including as to quality, description, merchantability, suitability or fitness for any purpose and Customer shall be deemed to have satisfied itself as to such matters prior to ordering the Goods.

2.5 Each delivery shall stand as a separate transaction and any failure to deliver shall have no consequences for other deliveries.

3. PRICES

3.1 Prices and currencies of Seller’s Goods are as set out in Seller’s Confirmation.Unless agreed otherwise, Seller’s prices include standard packaging but do not include Value Added Tax or any other similar applicable taxes, duties, levies or charges in any jurisdiction levied in relation to the Goods or the delivery thereof (“Taxes”). The amount of any Taxes levied in connection with the sale of the Goods to Customer shall be for Customer’s account and shall be added to each invoice or separately invoiced by Seller to Customer. If Seller grants a discount, this discount only relates to the delivery specifically mentioned in Seller’s Confirmation.

3.2 Unless the prices have been indicated as firm by Seller in Seller’s Confirmation, Seller is entitled to increase the price of the Goods still to be delivered, if the cost price determining factors, have been subject of an increase. These factors include but are not limited to: raw and auxiliary materials, energy, products obtained by Seller from third parties, wages, salaries, social security contributions, governmental charges, freight costs and insurance premiums. Seller shall notify Customer of such increase.

4. PAYMENT AND CUSTOMER’S CREDIT

4.1 Unless expressly stated otherwise in Seller’s Confirmation, payment shall be made on the basis of net cash, to be received by Seller within thirty (30) days following the date of Seller’s invoice for the Goods by means of transfer into the bank account mentioned on the invoice. All payments shall be made without any deduction on account of any Taxes and free of set-off or counterclaim.

4.2 With regard to payment of the price for Goods, time is of the essence. Seller may, without prejudice to any other rights of Seller, charge interest on any overdue payment at the higher rate of either twelve percent (12%) per annum or one and a half times the prevailing rate under applicable law per annum,but not to exceed the maximum interest rate permitted under applicable law, from the due date computed on a daily basis until all amounts outstanding are paid in full. All costs and expenses incurred by Seller with respect to collection of overdue payments (including, without limitation, reasonable attorney’s fees, expert fees, court costs and other expenses of litigation) shall be for Customer’s account.

4.3 Every payment by Customer shall in the first place serve to pay the judicial and extra-judicial costs and the interest owed by it and afterwards shall be deducted from the eldest outstanding claim regardless of contrary advice from Customer.

4.4 Any complaint with respect to the invoice must be notified to Seller within eight (8) days after the date of invoice. Thereafter Customer shall be deemed to have approved the invoice.

5. DELIVERY AND ACCEPTANCE

5.1 Unless expressly stated otherwise in Seller’s Confirmation, all deliveries of goods shall be Ex Works Seller’s production facility, as the term Ex Works shall have the meaning assigned to same in the latest version of INCOTERMS published by the International Chamber of Commerce at Paris, France, at the time of Seller’s Confirmation. 

5.2 Unless expressly stated otherwise in Seller’s Confirmation, any times or datesfor delivery by Seller are estimates and shall not be of the essence. Seller is entitled to deliver the Goods as stated in Seller’s Confirmation in parts and to invoice separately. In no event shall Seller be liable for any kind of indirect or consequential damages caused by any delay in delivery. Delay in delivery of any Goods shall not relieve Customer of its obligation to accept delivery thereof. Deviations in quantity of Goods delivered from that stated in Seller’s Confirmation shall not give Customer the right not to accept the Goods. Customer shall be obliged to pay the rate specified in Seller’s Confirmation for the quantity of Goods delivered.

6. CANCELLATION

6.1 Customer’s wrongful non-acceptance or rejection of Goods or cancellation orrepudiation of Seller’s Confirmation shall entitle Seller to recover, in additionto any other damages caused by such action:(i) in the case of Goods which reasonably cannot be resold by Seller to a thirdparty, the price of such Goods; or(ii) in the case of Goods which can be resold by Seller or where an action forthe price is not otherwise permitted by law, damages equal to fifty percent(50%) of the price for the Goods as liquidated damages.

7. EXAMINATION AND CONFORMITY TO SPECIFICATIONS

7.1 On delivery and during the handling, use, processing, transportation, storageand sale of the Goods (the “Use”), Customer shall examine the Goods andsatisfy itself that the Goods delivered meet all contractual requirements.

7.2 Complaints about the Goods shall be made in writing and must reach Sellernot later than seven (7) days from the date of delivery in respect of any defect,default or shortage which would be apparent from a reasonable inspectionon delivery, and seven (7) days from the date on which any other claim was orought to have been apparent, but in no event later than six (6) months fromthe date of delivery of the Goods. Use or processing of the Goods shall bedeemed to be an unconditional acceptance of the Goods and a waiver of allclaims in respect of the Goods.

7.3 A determination of whether or not delivered Goods conform to the agreed spe-cifications for the Goods as stated in Seller’s Confirmation or, in the absenceof agreed specifications, to the most recent specifications held by Seller at thetime of delivery of the Goods (the “Specifications”), shall be done solely byanalysing the samples or records retained by Seller and taken from thebatches or production runs in which the Goods were produced in accordancewith the methods of analysis used by Seller. Goods that Seller consentsor directs in writing to be returned shall be returned to Seller at the risk ofCustomer, to the destination directed by Seller.

7.4 Defects in parts of the Goods stated in Seller’s Confirmation do not entitleCustomer to reject the entire delivery of the Goods. Complaints, if any, do notaffect Customer’s obligation to pay as defined in paragraph 4. Upon receipt ofa notice of defect, Seller is entitled to suspend all further deliveries until thecomplaints are established to be unfounded and/or refuted or until the defecthas been totally cured.

8. TRANSFER OF RISK AND PROPERTY

8.1 The risk of the Goods shall pass to Customer on delivery.

8.2 Goods for which delivery is suspended pending payment by Customer , as wellas Goods of which delivery is wrongfully rejected or not accepted by Customer,shall be held and stored by Seller at the risk and expense of Customer.

8.3 The ownership of the Goods shall not pass to Customer and full legal andbeneficial ownership of the Goods shall remain with Seller unless and untilSeller has received payment in full for the Goods, including all secondarycosts such as interest, charges, expenses etcetera.

8.4 In the event of termination on the basis of paragraph 16 of these Conditions,Seller shall, without prejudice to any other rights of Seller, be entitled torequire immediate re-delivery of the Goods for which it may invoke a retentionof title.

8.5 As long as title to the Goods remains with Seller pursuant to this paragraph8, Customer is entitled to use the Goods solely to the extent required in itsordinary course of business, and, to the extent possible, shall:(i) keep the Goods separate and in a clearly identifiable manner;(ii) notify Seller immediately of any claims by third parties which may affectthe Goods; and (iii) adequately insure the Goods.

9. LIMITED WARRANTY

9.1 Seller solely warrants that on the date of delivery the Goods shall conformto the Specifications. If and to the extent Goods fail to meet such warranty,as shall be determined in accordance with the provisions of paragraph 7 ofthese Conditions, Seller may at its own option within a reasonable time eitherrepair or replace the Goods at no charge to Customer, or issue a credit for anysuch Goods in the amount of the original invoice price. Accordingly, Seller’sobligation shall be limited solely to repair or replacement of the Goods or forcredit of the Goods.

9.2 However, Seller’s obligation to repair, replace, or credit shall be contingentupon receipt by Seller of timely notice of any alleged non-conformanceof Goods and, if applicable, the return of the Goods, in accordance withparagraph 7 of these Conditions. The foregoing warranty is exclusive andin lieu of all other warranties, representations, conditions or other terms,express, implied, statutory, contractually or otherwise, including, withoutlimitation, any warranty of merchantability, suitability or fitness for anypurpose, or absence of infringement of any claim in any intellectual propertyright covering the Goods.

10. LIMITATION OF LIABILITY

10.1 Under no circumstances shall Seller be liable to Customer or any otherperson for any kind of special, incidental, indirect, consequential or punitivedamage or loss, cost or expense, including without limitation, damage basedupon lost goodwill, lost sales or profits, work stoppage, production failure,impairment of other goods or otherwise, and whether arising out of or inconnection with breach of warranty, breach of contract, misrepresentation,negligence or otherwise. Notwithstanding anything herein contained tothe contrary, the liability of Seller for any and all claims for direct damagesarising out of or in connection with the Goods and the Use thereof shall underno circumstances exceed the sum of Customer’s payments for the Goods thatare the subject of the claim.

11. FORCE MAJEURE

11.1 Neither party shall be liable in any way for any damage, loss, cost or expensearising out of or in connection with any delay, restriction, interference orfailure in performing any obligation towards the other party caused by anycircumstance beyond its reasonable control, including, without limitation,acts of God, laws, statutes, ordinances, regulations, legislative measures,acts of governments or other administrative measures, orders or decrees ofany court, earthquake, flood, fire, explosion, war, terrorism, riot, sabotage,accident, epidemic, strike, lockout, slowdown, labour disturbances, difficultyin obtaining necessary labour or raw materials, lack of or failure oftransportation, breakdown of plant or essential machinery, emergency repairor maintenance, breakdown or shortage of utilities, delay in delivery ordefects in goods supplied by suppliers or subcontractors (“Force Majeure”).

11.2 Upon the occurrence of any event of Force Majeure, the party suffering there-by shall promptly inform the other party by written notice thereof specifyingthe cause of the event and how it will affect its performance of its obligationsunder Seller’s Confirmation. In the event of any delay, the obligation to deli-ver shall be suspended for a period equal to the time loss by reason of ForceMajeure. However, should a Force Majeure event continue or be expected tocontinue for a period extending to more than two (2) months after the agreeddelivery date, either Party is entitled to cancel the affected part of Seller’sConfirmation without any liability to the other Party.

12. MODIFICATIONS AND INFORMATION, INDEMNITY

12.1 Unless the Specifications have been agreed to be firm for a certain periodor quantity of Goods, Seller reserves the right to change or modify theSpecifications, construction and/or manufacture of Goods and to substitutematerials used in the production and/or manufacture of Goods from time totime. Customer acknowledges that data in Seller’s catalogues, specificationsheets and other descriptive publications distributed or published on itswebsites by Seller, may accordingly be varied from time to time without notice. Any statement, representation, recommendation, advice, sample or otherinformation of Seller in relation to the Specifications, the Goods and the Usethereof shall be furnished for the accommodation of Customer only.

12.2 Customer must utilise and solely rely on its own expertise, know-how andjudgement in relation to the Goods and Customer’s Use thereof and inCustomer’s application of any information obtained from the part of Sellerfor the purposes intended by Customer. Consultation provided by Seller shallnot give rise to any additional obligations. Details and information providedwith regard to the suitability and Use of the Goods shall not be binding andSeller does not assume any liability based on such consultations. Customershall indemnify and hold Seller harmless from and against any and alldamage, losses, costs, expenses, claims, demands and liabilities arisingout of or in connection with the Goods, Customer’s Use thereof and/orCustomer’s use or application of any information disclosed or provided by oron behalf of Seller.

13. COMPLIANCE WITH LAWS AND STANDARDS

13.1 Seller makes no promise or representation that the Goods shall conformto any law, statute ordinance, regulation, code or standard (“Laws andStandards”), unless expressly stated in Seller’s Confirmation or in theSpecifications. Customer acknowledges that the Use of the Goods may besubject to requirements or limitations under Laws and Standards. Customershall be exclusively responsible for (i) ensuring compliance with all Laws andStandards associated with its intended Use of the Goods; and (ii) obtainingall necessary approvals, permits or clearances for such Use.

14. INDEPENDENT CONTRACTORS

4.1 Seller and Customer are independent contractors, and the relationshipcreated hereby shall not be deemed to be that of principal or agent. No saleto or obligation of either party towards a third party shall in any way bindthe other party.

15. NON-ASSIGNMENT

15.1 Neither party may assign any of the rights or obligations under Seller’sConfirmation without the prior written consent of the other party, providedhowever, that Seller may assign such rights and obligations, wholly or partlyor to any of its parent companies, subsidiaries or affiliates, to a third partyacquiring all or a substantial part of Seller’s assets or business relating tothe Goods. Furthermore, Seller may assign its rights against Customer to athird party in connection with financing provided to the Company or any of itssubsidiaries or affiliates.

16. SUSPENSION AND TERMINATION

16.1 If (a) Customer is in default of performance of its obligations towards Seller,or (b) if Seller has reasonable doubts with respect to Customer’s performanceof its obligations to Seller and Customer fails to provide to Seller adequateassurance (such as by means of ongoing credit approval) of Customer’s per-formance before the date of scheduled delivery and in any case within thirty(30) days of Seller’s demand for such assurance; or if Customer becomesinsolvent or unable to pay its debts as they mature, or goes into liquidation(otherwise than for the purposes of a reconstruction or amalgamation) orany bankruptcy proceeding shall be instituted by or against Customer or if atrustee or receiver or administrator is appointed for all or a substantial partof the assets of Customer or if Customer enters into a deed of arrangement ormakes any assignment for the benefit of its creditors, then, without prejudiceto any other rights of Seller, Seller may by notice in writing forthwith(i) demand re-delivery and take repossession of any delivered Goods whichhave not been paid for, for which purpose Customer hereby grants anirrevocable right and licence to Seller to enter upon all or any of the premiseswhere the Goods are or may be located and all costs relating to the recoveryof the Goods shall be for the account of Customer; and/or(ii) suspend its performance or terminate Seller’s Confirmation for outstan-ding delivery of Goods unless Customer makes such payment for Goods ona cash in advance basis or provides adequate assurance of such paymentfor Goods to Seller; without any intervention of courts being required andwithout liability for Seller of whatsoever kind arising out of or in connectionwith such suspension or termination.

16.2 In any such event of (i) and/or (ii), all outstanding claims of Seller shallbecome due and payable instantly in proportion to the quantity of Goodsdelivered to Customer and not re-possessed by Seller.

17. WAIVER

17.1 Failure by Seller to enforce at any time any provision of these Conditionsshall not be construed as a waiver of Seller’s right to act or to enforce anysuch term or condition and Seller’s rights shall not be affected by any delay,failure or omission to enforce any such provision. No waiver by Seller of anybreach of Customer’s obligations shall constitute a waiver of any other prioror subsequent breach.

18. SEVERABILITY AND CONVERSION

18.1 In the event that any provision of these Conditions shall be held to be invalidor unenforceable, the same shall not affect in any respect whatsoever, thevalidity or enforceability of the remaining provisions between the parties andshall be severed therefrom. The pertaining provisions held to be invalid orunenforceable shall be reformed to provisions satisfying the legal and econo-mic intent of the original provisions to the maximum extent permitted by law.

19. LIMITATION OF ACTION

19.1 No action by Customer shall be brought unless Customer first provideswritten notice to Seller of any claim alleged to exist against Seller within thirty(30) days after the event complained of first becomes known to Customerand an action is commenced by Customer within twelve (12) months aftersuch notice.

20. GOVERNING LAW AND JURISDICTION

20.1 The parties’ rights and obligations arising out of or in connection withSeller’s Confirmation and/or these Conditions shall be governed, construed,interpreted and enforced according to the laws of The Netherlands, excludingprinciples of conflict of laws. The applicability of the United Nations Conven-tion on Contracts for the International Sale of Goods (CISG) is excluded.

20.2 The parties agree that any suits, actions or proceedings that may be institu-ted by any party shall be initiated exclusively before the competent courtsof The Netherlands without prejudice to Seller’s right to submit the relevantcase to the court which would have jurisdiction if this provision has not beenincorporated in the Conditions, and the parties do hereby consent to thejurisdiction of those courts and waive any objection which they may have,now or hereafter, to venue of those suits, actions or proceedings.

21. SURVIVAL OF RIGHTS

21.1 The parties’ rights and obligations shall be binding upon and inure to thebenefit of the parties and their respective successors, permitted assigns,directors, officers, employees, agents and legal representatives. Terminationof one or more of the rights and obligations of the parties, for whatsoeverreason, shall not affect the provisions of these Conditions which are intendedto continue to have effect after such termination.

22. HEADINGS

22.1 The headings contained in these Conditions are included for mere conveni-ence of reference and shall not affect their construction or interpretation.

23. INTELLECTUAL PROPERTY

23.1 Seller has not verified the possible existence of third party intellectualproperty rights which might be infringed as a consequence of the sale and/delivery of the Goods and cannot be held liable for any loss or damages inthat respect.

23.2 The sale of Goods shall not, by implication or otherwise, convey any licenseunder any intellectual property right relating to the compositions and/orapplications of the Goods, and Customer expressly assumes all risks ofany intellectual property infringement by reason of its importation, Use ofthe Goods, whether singly or in combination with other materials or in anyprocessing operation.Only the English version of these Conditions shall be authentic and shall prevail,in case of inconsistency, over any translation of these Conditions in anotherlanguage.

GENERAL TERMS AND CONDITIONS OF SALE OF

Ligno Ferox, a brand of Bohyme B.V.Seller (as defined below) hereby expressly rejects the applicability of any general conditions of the Customer (as defined below). These General Terms and Conditions of Sale contain conditions limiting or excluding liability.

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