BRAKEL ATMOS B.V. AND BRAKEL ALUMINIUM B.V. TERMS OF SUPPLY AND CONTRACT

Article 1 Definitions

Article 2 Applicability

Article 3 Offers and agreement

Article 4 Scope of work

Article 5 Contract variations

Article 6 Delivery

Article 7 Delivery on demand

Article 8 Completion

Article 9 Packaging

Article 10 Prices

Article 11 Payment

Article 12 Inspection and complaint

Article 13 Warranty

Article 14 Attributable breach and termination

Article 15 Nonattributable breach (force majeure)

Article 16 Liability and indemnification

Article 17 Retention of title

Article 18 Right of retention

Article 19 Intellectual property

Article 20 Confidentiality

Article 21 Contractor’s strict liability

Article 22 Transfer of rights and obligations

Article 23 Applicable law and disputes

Article 24 Other conditions

In these terms of supply and terms of contract (hereafter “Conditions”) the following terms have the following meanings:

- Brakel: the private company with limited liability Brakel Atmos B.V., Brakel Aluminium B.V. and all companies associated with them;

- Contractor: each person or enterprise with whom or which Brakel enters an agreement, or with whom or which Brakel is in negotiations over an agreement;

- Delivery period: the period agreed in the agreement within which products or services are delivered.

top

2.1 These Conditions apply to all offers, agreements, notifications and all Brakel’s commitments with Brakel from these.

2.2 Brakel specifically rejects the applicability of any general or specific conditions or stipulations of Contractor or third parties.

2.3 Deviations from these Conditions and/or any offer or agreement can be effected solely in writing by the persons so authorized, and apply only with respect to the specific agreement to which the deviation refers.

top

3.1 Any offers made by Brakel must be deemed to be complete and valid for a period of 30 days after the date of the offer, or as much longer or shorter as stated therein, but are always made without any obligation. Brakel can revoke any offers within 5 business days after their receipt and acceptance by Contractor.

3.2 All information and data included in any offers, letters, catalogues, drawings, and the like distributed by Brakel, such as dimensions, colours, designs, weights, capacity, quantities and finished thicknesses, are as exact as possible and bind Brakel only to the extent explicitly stated. Brakel cannot be held liable for any variances.

3.3 Offers are based on information provided by Contractor. Contractor is liable for any additional costs, price increases, delay in delivery and any other consequences of changes, deviations and/or errors in such information.

3.4 An agreement between Brakel and Contractor comes about by Brakel sending Contractor a written confirmation of the order in the agreement or as the case may be as soon as Brakel commences execution of the agreement on behalf of the Contractor, whichever event first occurs.

top

4.1 The agreement includes the execution of the work and/or delivery of products as described and/or accepted by Brakel in the confirmation of order, or, in its absence, in the offer. The agreement is executed, to the extent applicable, on the basis of shop drawings and/or other drawings approved by Contractor, including any dimensions included therein. The delivery of record drawings is not part of the agreement unless otherwise agreed in writing.

4.2 If explicitly so stated in the agreement, it also includes the training or instruction to operate the equipment, to be provided by Brakel to Contractor or its personnel to be charged with operating it. Brakel determines the scope and duration of the education or instruction.

4.3 Contractor is responsible for ensuring:

a. roof tiling and slating and/or other construction activities;

b. assistance with moving, removing or installing any item that reasonably cannot be handled by two people;

c. the horizontal and vertical transport of people and materials to a site to be designated by Brakel;

d. making available, assembly, and its removal after completion of work, scaffolding, frameworks and ladders;

e. the application for, timely receipt and maintenance of electricity, water, gas, lighting and all licenses and permits required for the execution of the work activities;

f. that waste containers are available;

g. safety and security provisions, such as roof edge protection, safety nets or scaffolds and the like are provided if required by any law and/or regulation, and/or in Brakel’s opinion are necessary;

h. making available for the duration of the work, and close by the work to be performed, a dry, heated, lighted, and separately enclosed space of sufficient size to shelter Brakel’s personnel as well as to store any materials and products it brings along. Contractor is also required to ensure proper insurance for the aforesaid items;

i. those decisions that are its responsibility for the continued execution of the agreement are taken at such a time that unhindered progress in the execution of the agreement is guaranteed;

j. the timely, complete, and correct provision to Brakel of all information that is relevant for, or can be of influence upon, the execution of the agreement by Brakel. Contractor is liable for the accuracy and completeness of information and specifications already furnished by or on behalf of Contractor.

4.4 In aid of Brakel’s execution and construction Contractor ensures:

- the availability of completed watertight connections to the fixed and level uprights, and

- the presence of catwalks or similar provisions on the exterior surface of the roof.

4.5 Assembly and fitting will be performed on the basis of drawings approved by Contractor. Contractor bears the risk for any changes made after its approval.

4.6 Contractor ensures that Brakel may carry out its work activities unhindered at the times Brakel desires and/or designates. Contractor ensures that no work activities, whether or not by third parties, are performed at the locations where and at the times during which Brakel or third parties it designates will perform its work activities in the framework of the agreement.

4.7 Contractor will in general provide all assistance so that Brakel is enabled to perform the agreement in accordance with the conditions set forth in the agreement or in these Conditions. If Contractor does not comply with the provisions in these Conditions or those in the agreement or otherwise fails to provide assistance, there can be additional expenses that will be charged separately to Contractor.

top

5.1 Contractor can request changes prior to or during the execution of the work. Only those changes accepted by Brakel will be eligible for execution.

5.2 Brakel is authorized to charge Contractor for contract variations if by reason of, or in the framework of executing the agreement, Brakel must perform additional work, whether or not foreseen by Brakel. By additional work is understood all that Brakel delivered, provided and/or completed in the framework of the agreement that exceeds the quantities and/or work activities explicitly stated in the agreement.

5.3 Changes and additional work and/or requests to that end within the meaning of the previous paragraphs of this Article can lead to the extension of the period agreed and/or overrunning schedules.

5.4 Brakel will notify Contractor as quickly as possible of any additional work performed by Brakel. Any additional or reduced charges resulting from the preceding paragraphs of this Article will be charged to Contractor as soon as Brakel knows these.

5.5 If in the final settlement for this work it appears that the total of the postings named in this Article results in a reduction of the contract price, Brakel is entitled to receive an amount equal to 30% of this reduction, exclusive of VAT.

top

6.1 The delivery period stated by Brakel is only indicative and is based on the circumstances prevailing for Brakel at the time of the agreement and, to the extent dependent on third-party performance, on the information provided to Brakel by third parties. Upon exceeding the stated delivery period, Brakel will first be in breach after written notice of default by Contractor.

6.2 The delivery period commences after the agreement has been entered into, after all information and/or materials necessary for the execution of the work has been provided to Brakel, after the Contractor has obtained and or fulfilled all permits/formalities necessary for such performance (including the Contractor’s VAT/tax number) or so notified Brakel in writing, after drawings including dimensions have received Contractor’s approval, and after payment, if and to the extent it must be made for the agreement to be entered into, has been received by Brakel.

6.3 The delivery period is extended for the period of time during which Brakel has suspended its obligations under these Conditions and/or the law, or during which Brakel is impeded from performance due to force majeure pursuant to Article 15.

6.4 In case of sale the products are deemed to have been delivered and risk transfers to Contractor if the products are in transport, regardless of the means and who provides transport. In the case of the contracting of work, Contractor bears the risk for all materials, equipment, and products at the work site from the moment they are delivered to the work site as well as for all materials and products assembled by the work activity from the moment of their being assembled.

6.5 Brakel has to right to make partial deliveries. Brakel also has the right to invoice for partial deliveries.

6.6 Contractor is required to provide any assistance needed for the execution of the agreement. Such assistance is deemed to have been refused:

- if Contractor provides for transport and the products have not been collected by or on behalf of it on the agreed date;

- when Brakel provides for transport and the products are offered to Contractor for delivery but such delivery appears to be impossible;

- if Contractor refuses Brakel access to the work and otherwise hinders and/or impedes Brakel’s execution of the agreement.

6.7 Contractor is in immediate breach without further notice of default in those cases stated in paragraph 6 of this Article . The day on which refusal occurred is the delivery date of the products. In such a case, everything that Brakel can claim from Contractor by reason of the agreement is immediately due and payable in full. Contractor is liable for any additional costs and other losses suffered by Brakel. Upon Contractor’s refusal to take possession of products, Brakel is entitled to sell the products at Contractor’s account and risk to a third party or otherwise to dispose of them.

top

7.1 In case of delivery on demand, Brakel will deliver the products within 30 business days following the day on which these are demanded. If terms for such demands for delivery are agreed, should the demand not be made in a timely manner, the aforesaid term is extended by 10 business days.

7.2 Contractor is required to demand delivery, in absence of which Brakel is entitled to store the products or have them stored, or as the case may be, to sell them at the Contractor’s account and risk, without prejudice to any other of Brakel’s rights. Upon such storage, the products are deemed to have been delivered. Contractor is liable for any additional expenses and other losses suffered by Brakel.

top

top

9.1 Any packaging that in Brakel’s opinion is necessary, including metal frames, horses and the like, remain Brakel’s property.

9.2 Brakel is entitled to charge Contractor for any costs or deposits with respect to packaging, without prejudice to its right to compensation for any damage to the packaging.

top

10.1 All prices are exclusive of costs for any packaging, shipping, transport, travel and subsistence and accommodations, expenses related to crossing borders, to the loading and unloading of materials, VAT, and also exclusive of any expenses for assembling, testing and commissioning. In case of delivery within The Netherlands, Contractor will not owe any transport costs in excess of an invoiced amount of 1,500.00 Euro excluding VAT. If Contractor itself provides transport, Brakel will not provide any discount or compensation for this. A 15.00 Euro administrative fee will be charged upon any invoiced amounts of less than 500.00 Euro.

10.2 The prices stated by Brakel are based on price-determinant factors applying at the time of the offer, including the wage bills calculated against Brakel’s normal working hours. Brakel is authorized to increase the agreed prices on the ground of any subsequent rise in the aforesaid price-determinant factors and charge them immediately to Contractor, even if such a rise was foreseeable.

top

11.1 Payment by Contractor must be made within 30 days of the date of the invoice without any discount, suspension or setoffs. Payment must be made in Brakel’s name to a bank account in The Netherlands designated by Brakel, and/or in some other manner indicated by Brakel.

11.2 Upon failure to make timely payment, Contractor is in breach and all of Brakel’s claims on Contractor are immediately due and payable. Brakel is then entitled to suspend execution of the agreement without need for giving notice of default.

11.3 For all payments not made on their due date, Contractor will owe, without need for service of notice of default, statutory default interest at 1.5% per month on the overdue amount including VAT, unless the statutory rate of interest is higher, in which case the statutory rate of interest applies. For the purposes of calculating the interest, a portion of a month is deemed to be a whole month.

11.4 If Contractor is in breach towards Brakel, it is required to reimburse Brakel for all extra-judicial expenses in full. The extra-judicial expenses to be reimbursed by the Contractor amount to at least 15% of the unpaid amount including VAT and increased by the aforesaid interest, increased by at least 250.00 Euro and the VAT payable.

11.5 In case of court or arbitration proceedings, if Contractor is found to be wholly or partly in the wrong, in addition to costs set by the court Contractor will pay the actual costs of the proceedings and costs for legal assistance, to the extent that such actual costs exceed the amount of costs set by the court.

11.6 Brakel is entitled at any time to deduct any of its debts to Contractor from its claims on Contractor, even if the counterclaim has transferred to a third party For the application of this Article, by Contractor is also understood the companies associated with it.

11.7 Payments made by Contractor first are applied to the satisfaction of any interest and costs owed, and then to any claims due and payable on property for which no valid claim for retention of title can be stipulated, and then to the oldest unpaid invoiced claims even if Contractor states that payment applies to another or later invoiced claim.

11.8 Brakel is entitled to require Contractor to furnish security. This security must be such that everything Contractor owes Brakel for any reason is covered. If Contractor refuses to furnish what in Brakel’s opinion constitutes proper security, Brakel is entitled to suspend its obligations towards Contractor.

11.9 Any objections to invoices must be communicated to Brakel in writing within 7 business days after the date of the invoice, in absence of which the invoices are deemed to be correct and their being due and payable established.

top

12.1 Contractor is required to inspect deliveries immediately upon receipt. Should Contractor not submit a complaint about a delivery within 24 hours of its receipt, then the quantities stated on the consignment notes, delivery notes, invoices, and similar documents, are deemed to be accurate.

12.2 Any defect in the delivery that is immediately evident upon receipt of the products must be written by Contractor on the delivery note immediately and in detail with a clear description of the complaint. Other complaints must be submitted by Contractor in writing and received by Brakel no later than two business days after receipt of the products and/or after the defect could reasonably have been detected. In the absence of timely complaint, and/or if goods are wholly and/or partially used or processed, the products are deemed approved and complaint is no longer possible, unless the defect can first be detected through use of the products, without prejudice to Contractor’s obligation to make timely complaint in such a case.

12.3 Contractor will provide Brakel with all assistance requested in its investigation of the complaint, including providing samples and enabling Brakel to conduct an investigation on-site into the circumstances of the processing or use.

12.4 After Contractor has complained properly and Brakel has accepted the complaint, Brakel has the right at its choosing to repair the products, to re-deliver, and/or to dissolve the agreement in whole or in part without Contractor having right to any compensation for damages.

12.5 Contractor has no right to complain if the situation referred to in Article 6 paragraph 6 occurs or as long as Contractor has not satisfied all its due and payable obligations towards Brakel.

top

13.1 Brakel warrantees the absence of construction and/or material errors during the warranty period for the product concerned or as the case may be of the work performed. Brakel will at its choosing repair, improve or replace the products and/or the work performed which Contractor has satisfactorily shown have become defective during the warranty period as the result of such an error. All this will be done at Brakel’s choosing at Contractor’s site and/or at some other site designated by Brakel.

13.2 Unless otherwise agreed, Brakel’s warranty does not cover:

- travel, subsistence and transport costs;

- costs for the assembly and/or disassembly, unless the assembly and/or disassembly occurs within the first warranty year;

- and more generally, all other costs for the work activities performed by Brakel that exceed the sole obligation for repair, improvement or replacement pursuant to paragraph 1 of this Article, such as but not limited to the costs for scaffolding and other provisions necessary for the assembly and/or disassembly.

13.3 Contractor has no claim on the warranty if:

a) Brakel has communicated that it does not agree with Contractor’s prescribed choice of materials and/or working procedure;

b) work has been performed by Contractor or third parties on the product or the work performed without regard to whether it has led to changes;

c) defects of or to the product are due to normal wear and tear or its improper or careless use;

d) the product was not used in accordance with its agreed purpose;

e) Contractor does not fully or partially fulfil any of its obligations under these Conditions or an agreement, these including its financial obligations;

f) the defects to the product are the result of the unsuitability of materials or parts provided by or on behalf of Contractor, and/or if such defects are the result of a construction prescribed by Contractor;

g) the product information or other information applied in or upon the product has been removed or become illegible;

h) the defect concerned was not reported in writing by Contractor to Brakel within eight days after the defect was discovered or could have been discovered;

i) there are defects attributable to other circumstances that are not for Brakel’s account and risk.

13.4 Brakel is not required to accept a longer warranty period or more far-reaching liability with respect to materials, apparatus, installations, etc. of third parties than their manufacturer or supplier is prepared to accept with respect to Brakel, such without prejudice to other provisions of this Article.

top

14.1 If Contractor does not fulfil properly or on time any of its obligations that may derive from any agreement with Brakel, Contractor is in breach without notice of default, and Brakel is entitled, without prejudice to its right to compensation, consequential loss being expressly included, and without notice of default or judicial intervention, to:

- suspend execution of the agreement and directly related agreements and/or obligations, until Contractor has made the satisfaction of its obligations sufficiently certain; and/or,

- terminate in whole or in part the agreement and any directly related agreements. Upon termination by Brakel, Contractor has no right to any compensation, however called.

14.2 In case of provisional or final moratorium, bankruptcy, halting or termination of Contractor’s business or attachment of Contractor’s assets, all agreements with Contractor are terminated by operation of law, unless Brakel notifies Contractor within a reasonable period of time that it wishes to have all or part of the agreement or agreements concerned to be carried out. In the latter case, Brakel is entitled to suspend execution of the agreement without notice of default until Contractor has made satisfaction of its obligations sufficiently certain.

14.3 In case of such an event as referred to in Article 14.1 or 14.2, all of Brakel’s claims on Contractor or as the case may be all such claims pursuant to the agreement or agreements concerned, are immediately due and payable and Brakel is authorized to store at Contractor’s account and risk all raw materials ready for processing and/or being fabricated, materials, parts, and other property reserved for the execution of the agreement.

14.4 A termination as referred to here will leave intact and unimpaired all of Brakel’s rights as set forth in any article of these Conditions.

top

15.1 If because of a nonattributable breach (force majeure) Brakel cannot fulfil any of its obligations, including, for example, any warranty obligations, towards Contractor, fulfilment of such obligations is suspended for the duration of the circumstance of force majeure.

15.2 If the circumstance of force majeure lasts for 6 months or if it is clear that it will last for 6 months, both parties are entitled to terminate in writing the agreement in whole or in part, to the extent justified by the circumstance of force majeure.

15.3 In case of force majeure, Contractor has no right to any compensation, even if Brakel should have any advantage from the force majeure.

15.4 By force majeure is understood each circumstance beyond Brakel’s control by which the fulfilment of its obligations toward Contractor is wholly or partially prevented or because of which Brakel cannot reasonably be expected to fulfil its obligations, regardless of whether these circumstances could be foreseen at the time the agreement was entered. These circumstances include: strikes and lock-outs, stagnation or other problems with the production or performance of work activities by Brakel or its suppliers and/or with its own or third-party transport, or measures of any governmental body, as well as the lack of any statutory permit or license.

15.5 Brakel will notify Contractor as quickly as possible of any possible or actual circumstance of force majeure.

top

16.1 Any liability of Brakel is limited to the amount that would be paid in the case in question by any insurance taken out by Brakel. If and to the extent no payment should be made under insurance, any liability of Brakel is limited to the value of the invoice for that portion of the products delivered and paid for, or as the case may be, the work activities performed and paid for, that have caused the damage, up to the amount of 25,000,000 Euro.

16.2 All further liability of Brakel is excluded. Brakel explicitly accepts no liability for indirect and/or consequential loss, which also includes any immaterial damage, loss of profits or environmental damages. Brakel accepts no liability for losses resulting from unsuitability of materials or parts provided by of on behalf of Contractor, loss resulting from a construction prescribed by Contractor and/or any object not provided by Brakel and/or drawing, or as the case may be, loss consequent to drifting snow, winds of a speed greater than 14 meters/second or sharply changing atmospheric conditions.

Contractor will indemnify Brakel from third-party claims in this matter.

16.3 Brakel could also enforce against Contractor and/or relations of Contractor any conditions limiting or excluding liability that can be enforced against Brakel by Brakel’s suppliers or subcontractors in connection with goods or services delivered.

16.4 Brakel’s employees or third-parties involved by Brakel for the execution of the agreement can invoke all means of defence available in the agreement against Contractor and/or relations of Contractor as if they were themselves party to the agreement.

16.5 Each claim against Brakel, other than any claim acknowledged by Brakel and a claim within the meaning of Article 8 paragraph 4, expires with the passage of twelve months after the claim arises unless otherwise provided by a provision of law which has obligatory force.

16.6 Parties have adequately insured themselves and will maintain adequate insurance for the risks for which the parties could be liable under the agreement. In case of the contracting of work, Contractor is required to take out proper contractors’ all risk (CAR) insurance, under which Brakel, without any exclusion or policy excess for Brakel, is co-insured, unless Brakel is deemed prime contractor. Any obligation, without respect towards whom, resulting from the applicability of a policy excess for any insurance, is entirely at Contractor’s account and risk.

top

17.1 Notwithstanding any factual delivery, title to products transfers to Contractor only after it has satisfied all that it owes or will owe to Brakel by virtue of the agreement. Until the moment of full payment, Contractor is not authorized to pledge or transfer ownership of the products to third parties. In the framework of its normal business operations, Contractor is entitled to sell and deliver the products in accordance with their purpose to third parties.

17.2 If Contractor does not fulfil its obligations or if there is well-founded fear that it will not do so, Brakel is entitled, without giving advance notice of default, immediately to recover the delivered products or have them recovered. Contractor is required to provide all assistance in this on penalty of a fine in the amount of 30% of the invoiced sums, including VAT, for the products concerned.

17.3 Contractor is required to keep the products referred to in this Article sufficiently separated from other products, as well as to insure them adequately at least against theft, damage, and loss. Contractor is not permitted to pledge or transfer to third parties the ownership of any claims on its insurer pursuant to the insurance referred to in this Article. Any payments made for damage and loss of the products referred to in this Article take the place of the products in question. Contractor is further required to retain any marks and/or signs applied to the products.

17.4 Upon attachment, provisional and/or final moratorium, or bankruptcy, Contractor will immediately point out Brakel’s ownership and other rights to the bailiff levying the attachment, the administrator, or the receiver, on penalty of an immediately due and payable fine of 5,000.00 Euro, or, if greater, of the original invoiced amount for the products of which Brakel is losing ownership.

top

18.1 Brakel is authorized to retain control of all properties that it holds of or on behalf of Contractor until Contractor has fulfilled all its obligations with respect to Brakel to which the property in question has a direct or sufficient relationship to justify a refusal to surrender. Brakel is not liable for damages to such property over which it retains control, except for when it is attributably in breach of providing the care that may be expected of it.

top

19.1 Brakel grants Contractor a non-exclusive and non-transferable right of use of the goods and results of works made available to Contractor in the framework of this agreement, including all documents, technical and/or other information, working procedures, processes, drawings, plans, models, calculations, designs, and all programming. The intellectual property rights as stated to the goods and results of works made available to Contractor in the framework of this agreement are retained by Brakel or the third party Brakel has authorized to make these goods and results of works available to Contractor.

19.2 Brakel warrants that any rights of third parties do not prevent Contractor from making use of these goods and results of works in accordance with the provisions of the agreement. Unless otherwise agreed, Contractor is not permitted to change, copy, or make available in any form to third parties or to give for inspection these goods and results of works made available for its use.

The right of use is valid for an indefinite period of time but can be ended by Brakel, without notice of default and with immediate effect, if Contractor does not comply with any obligation under these Conditions or an agreement or acts in some other unlawful way.

19.3 Contractor indemnifies Brakel against third party claims for damages based on violation of intellectual property rights of such third parties by the use of drawings, information, materials, or parties, and/or caused by the application of the working procedure that was provided and/or prescribed to Brakel by or on behalf of Contractor for the execution of the agreement.

top

20.1 Contractor guarantees that it will maintain secrecy with respect to third parties for all information, working procedures and other matters deemed confidential by Brakel that should become known to its personnel or to third parties it involves in bringing about and/or the execution of an agreement. Secrecy must also be maintained for information, working procedures and other matters the confidentiality of which Contractor can reasonably understand without such confidentiality being explicitly stated.

20.2 Contractor is in any case held to maintain secrecy with respect to the goods and works referred to in paragraph 1 of Article 19.

top

21.1 If Brakel discovers that goods and/or results of works that it made available to Contractor are used by a third party without Brakel’s advance written permission, regardless of the manner in which such use occurs, Contractor is then deemed to have violated the provisions of Article 19 and/or Article 20, unless Contractor demonstrates the opposite to Brakel’s satisfaction.

21.2 If Contractor violates the provisions of Article 19 and/or Article 20, Contractor forfeits to Brakel a penalty of 100,000.00 Euro per violation, without prejudice to other rights accruing to Brakel.

21.3 Contractor is required to impose its obligations under Articles 19 and 20 upon its own client or third parties involved by its client, and failing to do so Contractor will pay on behalf of Brakel a penalty of 100,000.00 Euro per violation, without prejudice to other rights accruing to Brakel.

top

22.1 Brakel is permitted to transfer to third parties any rights and obligations described in any agreement with Contractor. Contractor is not entitled to transfer to third parties its rights and/or obligations under an agreement without the advance written permission of Brakel.

top

top

top