General Terms and Conditions (GTC)

General Terms and Conditions of Sale of Netherlands Car Trading, with registered office in (3543 AA) Utrecht at Meijewetering 19, registered in the commercial register of the Utrecht Chamber of Commerce under number 30004070

Article 1 – General

1.1. These general terms and conditions (GTC) of sale, supply and payment (hereinafter referred to as the: ‘GTC’) are part of each agreement entered into between Netherlands Car Trading (hereinafter: ‘Emil Frey Car Trading Netherlands’) on the one hand and any third party (hereinafter: ‘Buyer’) on the other and of all quotations issued by Emil Frey Car Trading Netherlands that relate to the supplying of new and used cars. Emil Frey Car Trading Netherlands and Buyer are hereinafter referred to together as the ‘Parties’.

1.2. There are two ways in which Emil Frey Car Trading Netherlands is involved in the supplying of new and used cars. Emil Frey Car Trading Netherlands can act as an intermediary and place an order with the supplier on Buyer’s behalf. In this case, Emil Frey Car Trading Netherlands will not itself be a party to the purchase agreement. In addition, Emil Frey Car Trading Netherlands can act as the seller. In that case, Emil Frey Car Trading Netherlands receives the order from the supplier and resells the new or used car to Buyer. In principle, Emil Frey Car Trading Netherlands will state clearly for each agreement that it enters into with a Buyer whether it is an intermediary agreement (also referred to as a ‘commission’ by Emil Frey Car Trading Netherlands) or a purchase agreement. If the type of agreement is not stated then Buyer must assume that it is an intermediary agreement.

1.3. Upon request, the Buyer will have to sign a separate intermediary agreement (also referred to as a ‘mandate’ or ‘letter of attorney’ by Emil Frey Car Trading Netherlands). Irrespective of whether Emil Frey Car Trading Netherlands is acting as intermediary or seller, Buyer may be asked to declare that he (or she) is buying the car for his/her personal use and does not intend to resell it again in new condition.

1.4. Emil Frey Car Trading Netherlands will also consider the Buyer to be the client should Buyer approach Emil Frey Car Trading Netherlands via a middleman. Buyer must provide Emil Frey Car Trading Netherlands with an authenticated copy of the relevant middleman’s registration with the CoC. Buyer must inform Emil Frey Car Trading Netherlands without delay of any changes to the middleman’s relevant details, such as to the latter’s activities or address.

1.5. Derogations from the GTC only apply when the Parties have expressly agreed them in writing. The derogations solely apply to that quotation or agreement that is being derogated from.

1.6. The new cars that can be purchased from or via Emil Frey Car Trading Netherlands are produced for the Dutch market, unless it is expressly stated that this is not the case. Buyer cannot invoke any deviations in respect of cars that are manufactured for other markets.

1.7. The full or partial invalidity or voidability of any provision from the GTC does not affect the validity of the other provisions of the GTC. Emil Frey Car Trading Netherlands and Buyer will then consult with each other in order to agree new provisions to replace the invalid or nullified provisions, whereby the purpose and scope of the original provisions will be taken into account as far as possible.

Article 2 – Quotations and formation of agreements

2.1. Unless a quotation is expressly determined in writing to be irrevocable, any quotation issued by Emil Frey Car Trading Netherlands is subject to contract and by operation of law ceases to be applicable once a period of thirty (30) calendar days has elapsed, which period starts from the date of the quotation unless expressly determined otherwise in writing. Quotations issued by Emil Frey Car Trading Netherlands can only be accepted in writing.

2.2. Agreements between the Parties (whether intermediary or purchase agreements) are not formed until Buyer has signed the quotation from Emil Frey Car Trading Netherlands or the order form from Emil Frey Car Trading Netherlands ‘signed for approval’ and has returned it, together with a copy of a valid identity document (passport or driving licence), by e-mail, post or fax to Emil Frey Car Trading Netherlands and the latter, once it has placed the order with - and received a confirmation from - the supplier has sent Buyer an order confirmation. The order confirmation states the file number and an indicative delivery date/time.

2.3. Emil Frey Car Trading Netherlands (Emil Frey Car Trading Netherlands) does not order the new or used car from the supplier until it has received the down payment (at least 10% of the order amount) that it has stipulated.

2.4. Amendments or supplements to an agreement that has already been formed are only binding if the supplier approves these amendments and Emil Frey Car Trading Netherlands has confirmed these amendments to Buyer in writing.

2.5. The supplier can change the price, equipment level or delivery date/time after the agreement has been formed. The full price change will be charged on to Buyer. Emil Frey Car Trading Netherlands is not liable for changes to the equipment level or delivery date/time.

Article 3 – Prices

3.1. All prices stated by Emil Frey Car Trading Netherlands in its quotations are not binding unless it has been expressly agreed in writing that these particular prices are.

3.2. Buyer is responsible for the payment of local taxes that are levied on the car. A CVO (certificate of conformity) issued by the supplier is in principle a guarantee that the car would also be licensed for driving in other countries.

3.3. All prices are exclusive of turnover tax (BTW/VAT).

Article 4 – Supplying and delivery date/time

4.1. When Emil Frey Car Trading Netherlands displays or provides a drawing, photo, model, design, calculation or other information then they are only indicative in nature. The items ultimately supplied may differ from those shown.

4.2. Emil Frey Car Trading Netherlands is responsible for the transportation of the car from the supplier to the delivery location desired by Buyer. Unless otherwise agreed, delivery takes place ‘ex works’ (Incoterms 2010) and following full payment, namely from one of the following delivery locations: either the premises of Emil Frey Car Trading Netherlands in Utrecht or from one of the premises of a company in the Emil Frey Nederland group or from the premises of car distribution centre Autodistributiecentrum Gefco Benelux in Oosterhout (NL) or from the premises of Fleetpoint B.V. in Schijndel (NL). The moment of delivery is deemed to be the moment in time when the car leaves the chosen delivery location. The car is for Buyer’s risk from delivery onwards, even if ownership has not yet been transferred.

4.3. The Buyer signs a transit declaration if the car is being transported to a foreign country by road. If the car is being transported by a carrier then no later than 7 working days after the car leaves Emil Frey Car Trading Netherlands, Buyer will provide Emil Frey Car Trading Netherlands with the signed CMR road waybill as proof of arrival in a member state outside the Netherlands. Emil Frey Car Trading Netherlands asks for 21% of the purchase price to be paid as a security deposit/collateral for the fulfilment of the above. This security deposit must have already been paid by Buyer when the car is paid for. The security deposit will be refunded to a bank account to be designated by Buyer. If the documents have not been provided to Emil Frey Car Trading Netherlands within the aforementioned period of 7 working days after the car leaves Emil Frey Car Trading Netherlands then the security deposit reverts to Emil Frey Car Trading Netherlands. If Buyer wishes Emil Frey Car Trading Netherlands to organise this transportation then this will be done for Buyer’s account and risk, unless agreed otherwise in writing.

4.4. Buyer is obliged to take delivery of the car no later than 14 calendar days after Emil Frey Car Trading Netherlands has informed Buyer that the car is now at the latter’s disposal. If Buyer refuses to take delivery or fails to provide the information or instructions needed for the delivery then the goods will be stored at Buyer’s risk. In that case, Buyer must pay the storage costs, this without prejudice to Emil Frey Car Trading Netherlands’s right to claim performance and/or full compensation after all and to proceed to terminate the agreement.

4.5. The car will be delivered with the necessary documents, such as (if agreed for an additional fee) an export registration number, insurance papers and a CVO (certificate of conformity).

4.6. If Buyer has the car picked up from the chosen delivery location by a carrier then the carrier must provide the chassis number of the car in question.

4.7. When the car has been provided with a definitive numberplate either upon or after delivery to Buyer then a copy of the vehicle registration certificate must be posted to Emil Frey Car Trading Netherlands immediately. If this is not done within a period of thirty (30) calendar days then Buyer will owe a penalty of 15% of the purchase price, this without prejudice to Emil Frey Car Trading Netherlands’s right to claim performance and/or full compensation after all.

4.8. No later than seven (7) calendar days after the delivery referred to in Article 4.2, Buyer is obliged to check the delivered item for technical and optical defects, for the presence of components and/or accessories and for other deficiencies or damage or else to carry out these checks (or to have them done) after being notified by Emil Frey Car Trading Netherlands that the car is now at his (Buyer’s) disposal.

4.9 Any delivery date/time stated is an estimate and is not a strict deadline, unless expressly agreed otherwise in writing.

Article 5 – Force majeure

5.1. In addition to the provisions in Article 6:75 BW (Dutch Civil Code), force majeure is considered to mean: work strikes (both organised and unorganised) in the operational activities of Emil Frey Car Trading Netherlands or supplier, a general lack of items or services needed for the agreed performance, general transportation impediments, non-performance by Emil Frey Car Trading Netherlands’s supplier (whether attributable or not) and a lack of personnel.

5.2. During a period of force majeure, Emil Frey Car Trading Netherlands’s delivery-related and other obligations are suspended. If the period during which Emil Frey Car Trading Netherlands cannot fulfil its obligations due to force majeure lasts longer than 6 months then both Parties are authorised to terminate the agreement in whole or part, without there being an obligation in that case to pay compensation or to undo it.

5.3. Emil Frey Car Trading Netherlands is authorised to claim payment for that which had already been performed for the execution of the agreement in question before the circumstance that caused the force majeure occurred.

5.4. Emil Frey Car Trading Netherlands also has the right to invoke force majeure if the circumstance that gives rise to force majeure occurs after Emil Frey Car Trading Netherlands should have delivered the performance.

Article 6 – Warranty

6.1. A manufacturer’s warranty applies to all new cars, which Buyer can utilise at any dealer for the make in question within the EEA (European Economic Area).

6.2. Depending on the make and age and the damage & maintenance history, the residual European manufacturer’s warranty applies for used cars, unless expressly stated otherwise in writing.

6.3. The fact that Buyer is claiming under the warranty does not release him from his obligations, including those of making payment and taking delivery under the agreement(s) entered into with Emil Frey Car Trading Netherlands.

Article 7 – Complaints procedure

7.1. In the case of a purchase agreement, complaints must be submitted in writing as soon as possible but at the latest no later than eight (8) calendar days after the delivery referred to in Article 4.2 or - in the case of non-visible defects - no later than eight (8) calendar days after the defect could reasonably have been established, stating precise details of the nature of and reason for the complaint(s) and the supposed basis for the liability of Emil Frey Car Trading Netherlands for replacement, rectification or compensation. Emil Frey Car Trading Netherlands will not accept for processing any complaints that are not reasoned (or that are inadequately reasoned).

7.2. After the expiry of the above deadline, Buyer will be deemed to have approved the delivered item. In that case, Emil Frey Car Trading Netherlands will no longer accept complaints for processing.

7.3. Returning the delivered item can only take place once Emil Frey Car Trading Netherlands’s written consent has been obtained for this and then only under the conditions to be laid down by Emil Frey Car Trading Netherlands.

Article 8 – Liability

8.1. Emil Frey Car Trading Netherlands’s liability for the wrongful acts it commits is excluded, apart from in so far as they are the result of intent or deliberate recklessness on the part of managing employees of Emil Frey Car Trading Netherlands. Likewise excluded is the liability of Emil Frey Car Trading Netherlands for indirect loss and consequential loss that is suffered by Buyer as the result of an attributable shortcoming on the part of Emil Frey Car Trading Netherlands in the fulfilment of its obligations under any agreement, including but expressly not limited to: lost profits, lost revenues, intangible loss, missed opportunities and defamation of character, unless this loss is the result of intent or deliberate recklessness on the part of managing employees of Emil Frey Car Trading Netherlands.

8.2. The liability of Emil Frey Car Trading Netherlands for direct loss suffered by Buyer that is the result of or is related to an attributable shortcoming on the part of Emil Frey Car Trading Netherlands in the fulfilment of its obligations in respect of Buyer under an agreement entered into with Buyer is limited to those cases where Buyer demonstrates that the loss is the direct result of an attributable shortcoming and is furthermore limited per event or series of related events that have a common cause to the value (excluding VAT) agreed between the Parties of the commitment(s) in respect of the fulfilment of which Emil Frey Car Trading Netherlands has accordingly attributably failed and is then also limited per delivered item to a maximum of € 2,500.00 per event or series of related events that have a common cause, apart from in so far as this is the result of intent or deliberate recklessness on the part of managing employees of Emil Frey Car Trading Netherlands and unless a more far-reaching limitation arises from one of the following paragraphs.

8.3. Each claim made against Emil Frey Car Trading Netherlands on the basis of an agreement entered into with Emil Frey Car Trading Netherlands lapses by the mere passage of time of a single year, unless a writ is issued in a legally valid way by then. The expiry period commences on the day following the day in which Buyer learned of both the loss and the liable party.

8.4. All defences that Emil Frey Car Trading Netherlands may derive from the agreement entered into with the Buyer to ward off its liability can also be invoked against Buyer by its personnel and by third parties that it brought in for the execution of the agreement, as if its personnel and the aforementioned third parties were themselves party to the agreement.

8.5. Conditions that limit, exclude or establish liability that third parties can invoke against Emil Frey Car Trading Netherlands can also be invoked by the latter against Buyer.

Article 9 – Indemnification

Buyer indemnifies Emil Frey Car Trading Netherlands, its personnel and any third parties brought in by Emil Frey Car Trading Netherlands for the execution of its obligations under the agreement against all claims by other third parties for the reimbursement of any actual or alleged loss suffered by the latter that was caused by or was otherwise related to performances delivered by Emil Frey Car Trading Netherlands under the agreement.

Article 10 – Payment terms

10.1. Unless expressly agreed otherwise in writing, payment of each invoiced amount must take place at the latest no later than thirty (30) calendar days after the invoice date (NB. For administrative reasons, Emil Frey Car Trading Netherlands calls this invoice the ‘pro forma’ invoice but this does not detract from Buyer’s obligation to pay the stated amount in respect of this invoice) and in the way stated in that invoice. The payment must be made in the agreed currency and without any setoff, deduction and/or suspension. Emil Frey Car Trading Netherlands will not deliver the car until Buyer has made the full payment for it. If Buyer pays cash then he must pay a € 45.00 administrative charge. Upon or after delivery, Buyer will receive a definitive invoice for his records (Note: In the case of an intermediary agreement, the Buyer receives this invoice directly from the supplier).

10.2. For the sale of a used car - whereby Emil Frey Car Trading Netherlands arranges the repayment of the BPM (Dutch private motor vehicle tax) with the Dutch tax authorities (Belastingdienst) - Emil Frey Car Trading Netherlands receives from Buyer 50% of the amount to be reclaimed, with a minimum of € 2,500.00. The amount to be received by Buyer will be paid directly by Emil Frey Car Trading Netherlands following receipt of the Belastingdienst’s payment notice. All cars exported by Emil Frey Car Trading Netherlands are exported permanently. This means that it is not permitted to subsequently export the car from the relevant EU member state or EEA state to a country outside the EU or EEA. This also means that for the period of one year following its exporting, a car cannot be registered in the Netherlands.

10.3. In the case of late payment of the invoice, Buyer is in default without any notice of default and all payment obligations of the Buyer become due and payable immediately. This is likewise the case if Buyer is declared insolvent or applies for a payment moratorium.

10.4. In the case of late payment of the invoice, Buyer owes the statutory (commercial or other) interest (see Article 6:119(a) BW) - plus 2 percentage points - on the invoice amount.

10.5. In addition, if Buyer is not a consumer then he will pay all reasonable judicial and extrajudicial costs (including but not limited to: bailiff’s costs and the costs of legal assistance) incurred by Emil Frey Car Trading Netherlands in connection with Buyer’s non-fulfilment of his obligations, this with a minimum of 10% of the principal (incl. VAT) owed or an amount of € 250.00 if that is higher, which minimum fee must be viewed (or also viewed) as an incentive for Buyer to properly fulfil his (payment and other) obligations (penalty clause). If Buyer is a consumer then the extrajudicial costs will be calculated based on the Dutch payment collection costs decree (the ‘Besluit Incassokosten’).

10.6. Payments made by Buyer will in all cases first be applied to settle all interest and costs owed and secondly to settle the invoices that are outstanding the longest, even if Buyer states that the payment relates to a later invoice.

10.7. Without prejudice to the above, Emil Frey Car Trading Netherlands is at all times entitled to demand cash payment or - before proceeding to the further execution of the work - to require Buyer to provide sufficient security for timely payment. The security is provided through the issuing of an irrevocable bank guarantee by a Dutch banking institution with a good reputation or by providing other security that can be reasonably considered to be equivalent to it.

Article 11 – Retention of title

11.1. In the case of a purchase agreement, all items delivered to Buyer remain the property of Emil Frey Car Trading Netherlands until Buyer has paid all that he owes Emil Frey Car Trading Netherlands for whatever reason, including interest and costs.

11.2. Buyer is not authorised to sell the items covered by retention of title, unless the sale takes place as part of Buyer’s normal business operations. In other respects, Buyer is not authorised to pledge the items or to establish any other right on them.

11.3. Without prejudice to the other rights that Emil Frey Car Trading Netherlands is entitled to, if Buyer fails to fulfil his obligations promptly or at all in respect of Emil Frey Car Trading Netherlands then the latter is irrevocably authorised by Buyer to take possession of the items that Emil Frey Car Trading Netherlands has delivered and to do so without any notice of default or judicial intervention and to this end to enter the place where these goods are located. During the period of time when the delivered item is still the property of Emil Frey Car Trading Netherlands, Buyer will insure the item properly against the usual risks.

Article 12 – Termination and cancellation

12.1. Without prejudice to the provisions in Article 6:265 BW, Emil Frey Car Trading Netherlands has the right to terminate the agreement entered into with Buyer, without being obliged to pay compensation and without any obligation to undo arising on the part of Emil Frey Car Trading Netherlands, if:

a) Buyer is declared insolvent or if he or another party applies for his insolvency;

b) Buyer applies for a temporary or permanent payment moratorium or proceeds to be wound up;

c) all or part of Buyer’s assets is seized;

d) the car has still not been picked up from Emil Frey Car Trading Netherlands by Buyer 6 (six) weeks after it arrived (Note: in this case, Buyer is obliged to compensate Emil Frey Car Trading Netherlands for all losses suffered by the latter).

12.2. Unless the supplier consents in writing to full or partial cancellation, it is not possible to cancel an intermediary agreement or purchase agreement once it has been formed. If the supplier consents to full or partial cancellation then Buyer is entitled to cancel (or terminate) the agreement in whole or part by means of a written declaration addressed to Emil Frey Car Trading Netherlands, this against payment to Emil Frey Car Trading Netherlands of 15 % of the agreed order amount that corresponds to that part of the agreement that has been cancelled. The termination does not take effect until Emil Frey Car Trading Netherlands has received the aforementioned payment.

Article 13 – Applicable law and disputes

13.1. All quotations issued by and agreements with Emil Frey Car Trading Netherlands are solely governed by Dutch law, with the exception of the Vienna Sales Convention.

13.2. Any and all disputes, including those that are only viewed as such by one of the Parties, that arise from or are connected with the agreement to which the GTC apply or regarding the GTC themselves and their interpretation or execution, whether factual or juridical in nature, will be solely settled by the competent court in the Central Netherlands court district, unless Emil Frey Car Trading Netherlands states that it prefers to submit the dispute to the competent court in Buyer’s place of residence or place of business. If Buyer is a consumer and is not resident in the Central Netherlands court district then no later than 1 month after Emil Frey Car Trading Netherlands has stated in writing that it wishes to institute proceedings at the competent court in the Central Netherlands court district, Buyer is authorised to inform Emil Frey Car Trading Netherlands that he (Buyer) wishes to institute proceedings at the court that is competent according to the law.

Article 14 – Inconsistency between Dutch text and translation

In the event of any inconsistency between the text of the GTC in the Dutch language and in another language (if applicable) then the Dutch version will be binding.