Conditions of Use

COM CONDITIONS

Standard conditions of delivery and payment issued by the Organisation of Mechanisation Companies (COM)

[Stichting Centraal Orgaan Mechanisatiebedrijven (COM)], filed at the Registry of the District Court in Utrecht

on 1 June 2004.

Publication of COM, P.O. Box 2600, 3430 GA Nieuwegein.

COM

Article 1: Applicability

1.1. These conditions apply to all offers made by members of the COM and to all agreements they

conclude and to all agreements that may be the result thereof. The offeror/supplier is the

mechanisation company who uses these conditions. Such member is designated in these conditions

as the mechanisation company or seller. The other party is designated as the customer or buyer.

1.2. These conditions may be used only by members of the COM.

1.3. The standard conditions of the customer shall not apply and are expressly rejected.

Article 2: Offers

2.1. All offers are made without engagement.

2.2. If the customer supplies data, drawings etc. to the mechanisation company, the mechanisation

company may assume them to be correct and may base his offer upon them.

2.3. The prices referred to in the offer are based on delivery ex works in accordance with Incoterms 2000.

The prices are exclusive of turnover tax and packaging.

2.4. If his offer is not accepted, the mechanisation company has the right to charge the customer for all

the costs which he has had to incur in order to make his offer.

Article 3: Intellectual property rights

3.1. Unless agreed otherwise, the mechanisation company retains the copyright and all industrial

property rights in the offers made by him and in designs, illustrations, drawings, models, test

models, software etc. supplied by him.

3.2. The rights to the data referred to in paragraph 1 shall remain the property of the mechanisation

company irrespective of whether costs are charged to the customer for their production. Such data

may not be copied, used or shown to third parties without the express consent of the mechanisation

company. If this provision is infringed, the customer shall owe the mechanisation company a penalty

of EUR 25,000. This penalty may be claimed in addition to any compensation owed by law.

3.3. The customer must return the data supplied to him as referred to in paragraph 1 at the first request

of the mechanisation company within the period specified by the mechanisation company. In the

event of an infringement of this provision the customer shall owe the mechanisation company a

penalty of EUR 1,000 per day. This penalty may be claimed in addition to any compensation owed by

law.

Article 4: Advice and materials

4.1. The customer cannot derive any rights from advice and information obtained from the mechanisation

company if they do not relate directly to the order.

4.2. The customer is responsible for the drawings and calculations made by him or on his behalf and for

the functional suitability of the materials prescribed by him or on his behalf.

4.3. The customer shall determine and be responsible for the extent and appropriate nature of the

repair(s) and/or other work to be carried out. The customer shall decide on the (technical)

specifications on the basis of which repairs and/or other work will ultimately be carried out.

4.4. The customer shall indemnify the mechanisation company against any claim by its third parties

relating to the use of drawings, calculations, samples, models and so forth supplied by or on behalf

of the customer.

4.5. The customer may, at his own expense, examine (or arrange for the examination of) the materials

which the mechanisation company wishes to use before they are processed. If the mechanisation

company suffers damage as a result, this shall be borne by the customer.

Article 5: Delivery period

5.1. The delivery period quoted by the mechanisation company is approximate.

5.2. In fixing the delivery period the mechanisation company assumes that he can execute the order in

the circumstances known to him at that time.

5.3. The delivery period starts when agreement has been reached on all technical details, all necessary

data, final drawings etc. are in the possession of the mechanisation company, the agreed payment

or instalment has been received and the necessary conditions for execution of the order have been

fulfilled.

5.4. (a) If circumstances occur other than those known to the mechanisation company when he fixed

the delivery period, the mechanisation company may extend the delivery period by the time

necessary to execute the order in the circumstances. If the work cannot be fitted into the

planning schedule of the mechanisation company, it shall be completed as soon as his

planning schedule permits this.

(b) If there is extra work, the delivery period shall be extended by the time that is necessary to

supply (or arrange for the supply of) the materials and parts for this purpose and to carry out

the additional work. If the extra work cannot be fitted into the planning schedule of the

mechanisation company it shall be completed as soon as his planning schedule permits this.

(c) If there is a suspension of obligations by the mechanisation company, the delivery period

shall be extended for the duration of the suspension. If continuation of the work cannot be

fitted into the planning schedule of the mechanisation company, the work shall be completed

as soon as his planning schedule permits this.

(d) If work is impossible owing to weather conditions, the delivery period shall be extended for

the term of the delay that has occurred as a result.

5.5 If the agreed delivery period is exceeded, this shall not under any circumstances confer entitlement

to compensation unless this has been agreed in writing.

Article 6: Transmission of risk

6.1 In the case of delivery ex works, in accordance with Incoterms 2000, the risk in relation to the goods

shall pass at the moment when the seller makes them available to the buyer.

6.2. Irrespective of the provisions of the previous paragraph, the customer and the mechanisation

company agree that the mechanisation company shall arrange for the carriage. The risk of storage,

loading, carriage and unloading shall be borne by the customer in this case too. The customer may

insure himself against these risks.

6.3. Even if the seller installs and/or assembles the goods sold, the risk in relation to the goods shall pass

at the moment when the seller makes them available to the buyer at the business premises of the

seller or at another agreed place.

6.4. If a purchase involves a trade-in and the buyer continues to use the goods to be traded in pending

delivery of the new goods, the risk in relation to the goods to be traded in shall continue to be borne

by the buyer until the moment at which he transfers them to the possession of the seller. This shall

include the cost of maintenance and any damage or loss, regardless of the cause of said damage or

loss.

Article 7: Price changes

7.1. If price increases occur after the date on which the agreement is entered into, and the

mechanisation company has not yet performed the obligations arising for it from the agreement, the

mechanisation company may pass on any increase in the pricing factors to the customer.

7.2. Payment of the price increase as referred to in paragraph 1 shall take place together with payment

of the principal or the last instalment.

7.3. If the customer is a consumer, i.e. a natural person who is not acting in the course of his profession

or business, and the price increase referred to in paragraph 1 occurs within three months of the date

on which the agreement was entered into, the customer shall be entitled to dissolve the agreement.

7.4. If goods are supplied by the customer and the mechanisation company is prepared to use them, the

mechanisation company may then charge a maximum of 20 percent of the market price of the

delivered goods.

Article 8: Impossibility of performance

8.1. The mechanisation company shall be entitled to suspend performance of his obligations if he is

temporarily prevented from performing them by circumstances that could not be foreseen at the

time of the conclusion of the agreement and which are beyond his control.

8.2. Circumstances which could not be foreseen by the mechanisation company and which are beyond

his control are deemed to include failure of his suppliers and/or submechanisation companys to fulfil

their obligations or to do so in good time, weather conditions, earthquakes, fire, loss or theft of tools,

loss of processed materials, road blockades, strikes or work stoppages and import or trade

restrictions.

8.3 The mechanisation company shall not be entitled to suspend performance if performance is

permanently impossible or if a temporary impossibility has lasted for longer than six months. The

agreement may then be terminated in respect of such part of the obligations as have not yet been

performed. In that case the parties shall not be entitled to compensation for damage suffered or yet

to be suffered as a result of the termination.

Article 9: Scope of the work

9.1. The mechanisation company shall ensure that all licences, exemptions and other decisions that are

necessary in order to carry out the work are obtained in good time.

9.2. The price of the work does not include:

(a) the costs of groundwork, pile-driving, cutting, breaking, foundation work, bricklaying,

woodwork, plastering, painting, wallpapering, repairs or other construction work;

(b) the costs of gas, water or electricity connections and other infrastructure facilities;

(c) the costs of preventing or mitigating damage to goods present at or near the work;

(d) the costs of removing materials, building materials or refuse;

(e) travelling and accommodation expenses.

Article 10: Alterations to the work

10.1. Alterations to the work shall result in any event in extra work or reduced work if:

(a) there is an alteration to the design or the specifications;

(b) the information provided by the customer does not correspond with the reality;

(c) the quantities diverge by more than 10% from the estimates.

10.2. Extra work shall be calculated on the basis of the value of the price determinants applicable at the

time when the extra work is carried out. Reduced work shall be calculated on the basis of the value

of the price determinants applicable at the time when the agreement was concluded.

10.3. If the increase and decrease in the work results on balance in a decrease the mechanisation

company may charge the customer in the final invoice 10% of the difference in the balances. This

provision does not apply in the case of a reduction in the work that is a result of a request of the

mechanisation company.

Article 11: Execution of the work

11.1. The customer shall ensure that the mechanisation company can carry out his activities without

interruption and at the agreed time and that in the execution of the work he has access to the

requisite facilities such as:

- gas, water and electricity;

- heating;

- a lockable and dry storage room;

- facilities prescribed under the Working Conditions Act and other health and safety regulations

under that Act.

11.2. When circumstances arise that make it necessary to perform work at a time other than the working

hours normal for the mechanisation company, as referred to in paragraph 1, the mechanisation

company shall be entitled to charge the resulting additional costs to the customer.

11.3. When the mechanisation company has been instructed to perform an inspection and/or repair, and

this activity is to take place on the customerís premises, the mechanisation company shall not be

obliged to announce a visit by itself or its staff, nor to inform the customer of the exact time of its

arrival.

11.4. The customer shall ensure that the object to be inspected and/or repaired is clean when made

available to the mechanisation company, to the extent that the mechanisation company is able to

perform the work arising from the agreement.

11.5. The customer shall be liable for all damage as a result of the loss, theft or burning of or damage to

tools, materials and other property of the mechanisation company located at the place where the

work is performed.

11.6. If the customer fails to discharge his obligations as referred to in the previous paragraphs and the

work is delayed as a result, the work shall be executed as soon as the mechanisation companyís

planning schedule permits this. In addition, the customer shall be liable for all loss or damage

suffered by the mechanisation company as a result.

Article 12: Completion of the work

12.1. The work shall be deemed to have been completed when:

(a) the customer has approved the work;

(b) the work has been used by the customer; if the customer uses only part of the work, such part

shall be deemed to have been completed;

(c) the mechanisation company gives written notice to the customer that the work has been

completed and the customer does not indicate in writing within 14 days of the notice whether

or not the work has been approved;

(d) the customer does not approve the work on account of minor defects or missing parts which

can be repaired or supplied within 30 days and which do not prevent the use of the work.

12.2. If the customer does not approve the work, he shall be obliged to give written notice of this to the

mechanisation company specifying the reasons.

12.3. If the customer does not approve the work he shall give the mechanisation company the opportunity

to complete the work anew. The provisions of this article shall then apply once again.

Article 13: Liability

13.1. The mechanisation company is liable for damage which the customer suffers and which is the direct

and sole result of a failure attributable to the mechanisation company. However, only loss or

damage for which the mechanisation company is insured or for which he should reasonably have

been insured will be eligible for compensation.

13.2. The following are not eligible for compensation:

(a) consequential loss or damage, including for example loss or damage due to business

standstills and loss of profit;

(b) damage to goods which are being worked on or to goods which are in the vicinity of the place

where the work is being carried out;

(c) damage caused by the intent or deliberate recklessness of auxiliaries.

13.3. The customer indemnifies the mechanisation company against all claims of third parties on account

of product liability due to a defect in a product which has been supplied by the customer to a third

party and consisted wholly or partly in products and/or materials supplied by the mechanisation

company.

Article 14: Warranty

14.1. Except where agreed otherwise in writing, the mechanisation company shall warrant the proper

performance of the work agreed upon for a period of six months after delivery. No warranty shall

be given where the performance in question consists of the inspection and/or repair of an object

belonging to the customer.

14.2. No warranty is given for delivered items of goods that were not new at the moment of delivery.

14.3. If the agreed performance consists in the carrying out of contracted work, the mechanisation

company warrants the soundness of the delivered construction and the materials used in the

construction for the period referred to in paragraph 1, provided that he was free to choose such

materials.

If it transpires that the delivered construction or the materials used are unsound, the mechanisation

company shall repair or replace them. The parts which the mechanisation company is to repair or

replace must be sent to him free of charge. The dismantling and assembly of these parts and any

travelling and accommodation expenses incurred shall be borne by the customer.

14.4. If the agreed performance consists in the delivery of an item of goods, the mechanisation company

shall warrant the soundness of the delivered item during the period referred to in paragraph 1.

If it transpires that the delivery has not been sound, the item of goods must be returned free of

charge to the mechanisation company. Thereafter the mechanisation company shall choose whether:

- to repair the item of goods;

- to replace the item of goods;

- to provide the customer with a credit note for a proportionate part of the invoiced amount.

14.5 If the agreed performance consists in part or in whole of the installation and/or assembly of a

delivered item of goods, the mechanisation company warrants the soundness of the installation

and/or assembly for the period referred to in paragraph 1.

If it transpires that the installation and/or assembly has not been carried out in a sound manner, the

mechanisation company shall repair it. Any travelling and accommodation expenses shall be borne

by the customer.

14.6. The factory warranty shall apply to parts in respect of which this has been expressly agreed in

writing by the customer and the mechanisation company. If the customer has had the opportunity to

take cognizance of the content of the factory warranty, this shall take the place of the warranty

under this article.

14.7. The customer must in all cases offer the mechanisation company the opportunity to repair the defect

or to carry out the processing anew.

14.8. The customer may invoke the warranty only after he has complied with all his obligations to the

mechanisation company.

14.9. No warranty is given for defects that are a result of:

- normal wear and tear;

- injudicious use;

- non-maintenance or defective maintenance;

- installation, assembly, modification or repair by the customer or by third parties.

Article 15: Claims

The customer may no longer invoke an instance of non-performance if he does not lodge a written claim

with the mechanisation company within 14 days of the date on which he discovers the defect or could

reasonably be expected to discover it.

Article 16: Uncollected goods

If goods have not been collected by the time the delivery period expires, they shall continue to be held

available for the customer. Uncollected goods shall be stored at the expense and risk of the customer. The

mechanisation company may always make exercise the power referred to in article 6:90 Civil Code.

Article 17: Payment

17.1. Payment shall be made at the place of business of the mechanisation company or by remittance to

an account designated by the mechanisation company.

17.2. Unless agreed otherwise, payment shall be made as follows:

(a) cash in the case of an over-the-counter sale;

(b) if payment in instalments has been agreed:

- 50% of the total price at the time the order is placed;

- 50% of the total price upon completion;

(c) in all other cases: within 8 days of the date of the invoice.

17.3. Regardless of the agreed terms of payment, the customer shall be obliged, at the request of the

mechanisation company, to provide such security for the payment as the mechanisation company

deems sufficient for the payment. If the customer fails to do so within the specified period, he shall

be deemed to be immediately in default. The mechanisation company shall in that case have the

right to terminate the agreement and recover his loss or damage from the customer.

17.4. The customer does not have the right to set off claims against the mechanisation company, unless

the mechanisation company has been declared bankrupt.

17.5. The full claim for payment shall be immediately due and exigible if:

(a) a payment period has been exceeded;

(b) the customer has been declared bankrupt or has applied for a suspension of payments;

(c) the property or accounts receivable of the customer are seized;

(d) the customer (being a legal entity) is wound up or liquidated;

(e) the customer (being a natural person) is made the subject of a guardianship order or dies.

17.6. If payment has not been made within the agreed period for payment, the customer shall

immediately owe interest to the mechanisation company. The interest shall be 10% per year or the

statutory rate of interest, whichever is the higher. For the purpose of calculating the interest, part of

a month shall be treated as a full month.

17.7. If payment has not been made within the agreed period for payment, the customer shall owe the

mechanisation company all extrajudicial costs of recovery, subject to a minimum of EUR 50.

The costs shall be calculated on the basis of the following table:

on the first EUR 3,000 15%

on any additional amount up to EUR 6,000 10%

on any additional amount up to EUR 15,000 8%

on any additional amount up to EUR 60,000 5%

on any additional amount over EUR 60,000 3%

If the extrajudicial costs actually incurred are higher than those in the above-mentioned table, the

costs actually incurred shall be owed.

17.8. If the mechanisation company is held to be in the right in legal proceedings, all costs which he has

incurred in connection with the proceedings shall be borne by the customer.

Article 18: Reservation of title and right of lien

18.1. After delivery of the goods the mechanisation company shall retain title to them as long as the

customer:

(a) fails or will fail to perform his obligations under this agreement or other similar agreements;

(b) fails or will fail to pay for activities performed or yet to be performed under such agreements;

(c) Has not paid claims that result from the non-observance of the above-mentioned agreements

such as damage, penalties, interest and costs.

18.2. As long as title to delivered goods is retained by the mechanisation company, the customer may not

encumber them other than in the normal course of his business.

18.3. After the mechanisation company has invoked his reservation of title, he may retake possession of

the delivered goods. The customer shall allow the mechanisation company to enter the place where

the goods are situated.

18.4. If the mechanisation company is unable to invoke his reservation of title because the delivered

goods have been mingled, distorted or changed by way of accession (accessio), the customer shall

be obliged to grant the mechanisation company a lien on the newly created goods.

Article 19: Termination

If the customer wishes to terminate the agreement in circumstances where the mechanisation company is

not in default and the mechanisation company agrees to this, the agreement shall be terminated by mutual

consent. The mechanisation company shall in that case be entitled to compensation of all pecuniary

damage, such as any loss suffered, loss of profit and costs incurred.

Article 20: Applicable law and choice of forum

20.1. The law of the Netherlands is applicable.

20.2. The Vienna Convention on Contracts for the International Sale of Goods (CISG) is not applicable, nor is

any other international regulation the exclusion of which is permissible.

20.3. Only the civil court that has jurisdiction in the place of establishment of the mechanisation company may

take cognizance of disputes, unless this would be contrary to peremptory law. The mechanisation

company may deviate from this rule of jurisdiction and apply the statutory rules governing jurisdiction.

20.4. The parties shall be able to agree upon a different form of dispute resolution, such as arbitration.

Arbitration shall occur according to the arbitration regulations formulated by the Federatie

Agrotechniek.

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