TERMS & CONDITIONS

GENERAL CONDITIONS OF FUNXTION INTERNATIONAL B.V.

Article 1 - User of the general conditions

User: FunXtion International B.V., Chamber of Commerce no.: 57141762

Article 2 - Applicability, offers and the like

1. These conditions contain provisions of a general nature and provisions which are more specifically geared to the delivery of goods and the provision of services. Where necessary the specific nature of a provision will be emphasised, whereby if no such emphasise is made the relevant provision is deemed to relate to all relevant situations in which the conditions apply.
2. These general conditions form an addition to the (licence) agreement between the user and his customer. In the event of any conflict of the conditions with that agreement, the provisions of the agreement prevail.
3. These conditions also apply to future agreements which the user and his customer make.
4. These general conditions apply to all transactions which the user enters into with the customer who takes his goods and/or services.
5. Stipulations deviating from these conditions only apply if agreed in writing.
6. Applicability of general conditions of the customer is explicitly excluded.
7. Agreements between the user and his customer to which these general conditions relate are exclusively governed by Dutch law.
8. If any provision of these conditions turns out to be void or is made void, the other conditions will remain in full effect and the cancelled provisions will be replaced by a provision which is valid which is as similar as possible to the original provision.
9. The user cannot be bound by an offer/quote if the customer can reasonably understand that it contains an apparent error or typo.
10. Prices set out in offers/quotes are exclusive of VAT and other levies and costs, unless otherwise agreed.

Article 3 Execution

1. If a time period is agreed or specified for the completion of specific work or for the delivery of certain goods, time is never of the essence.
2. In the event the time period is exceeded the customer must give the user written notice of default before the user is in default. The user must be offered a reasonable time period to effect performance of the agreement.
3. If the user requires details of the customer for the performance of the agreement, the performance period starts no earlier than after the customer has made these details accurately and fully available to the user. The customer guarantees the accuracy of the information he provides to the user with regard to the services to be provided and/or the goods to be delivered by the user.
4. If the agreement is amended, including an addition, the user is entitled to first perform the agreement after agreement has been given therefore by the person authorised within the user's organisation and the customer has agreed to the price and other conditions specified for the performance, including the determination of the time when the agreement is to be performed. The failure to perform the amended agreement or the failure to perform the amended agreement immediately will not constitute default on the part of the user and will not constitute grounds for the customer to terminate the agreement. Without such constituting default, a user can refuse a request to amend the agreement if this could have the qualitative and/or quantitative consequence, for example, for the work to be carried out or the goods to be delivered in that respect.
5. If the user agrees a fixed price with the customer, the user is nevertheless at all times entitled to increase this price without the customer in such case being entitled to terminate the agreement for that reason, if the increase in the price ensues from a right or obligation under the law or regulations or finds its cause in an increase in the price of raw materials, salaries, etc. or on other grounds which were not reasonably foreseeable when entering into the agreement.
6. If the price increase, other than as a result of a change in the agreement, is more than 10% and takes place within three months after making the agreement, only the customer who is entitled to invoke Title 5 Section 3 of Book 6 Dutch Civil Code (DCC) can terminate the agreement by a written statement, unless the user would be prepared to perform the agreement on the basis of the originally agreed amount, or if the price increase ensues from a right or an obligation of the user under the law or if it is stipulated that the delivery will be effected longer than three months after the purchase.
7. The user will determine the way in which the customer's assignment is executed, unless otherwise agreed.
8. The user has the right with regard the effecting of the agreed provision of services and/or delivery of goods to make use of third parties, without requesting the prior consent of the customer therefore. This does not affect the fact that the user can be held liable for a correct performance of the agreements made.

Article 4 - Termination

1. The user has the right to suspend the performance of his obligations or terminate the agreement, if:
- the customer does not perform the obligations under the agreement, does not perform them in full or in time;
- circumstances which have come to the user's attention after the agreement is made give the user good grounds for fearing that the customer will not perform the obligations;
- when making the agreement the customer was asked to give security for the performance of his obligations under the agreement and such security is not given or is insufficient;
- due to delay on the part of the customer it can no longer be demanded of the user that he will perform the agreement on the originally agreed conditions.
2. The user furthermore has the right to terminate the agreement if circumstances arise which are of such nature that performance of the agreement is impossible or if other circumstances arise which are of such nature that unaltered maintaining of the agreement cannot reasonably be demanded of the user.
3. If the agreement is terminated the user's claims on the customer are immediately due. If the user suspends the performance of the obligations, he will retain his claims under the law and agreement.
4. If the user suspends or terminates the agreement, he is no way bound to compensate loss and costs arising in consequence thereof in any way.
5. If the customer does not perform his obligations ensuing from the agreement and such non-performance justifies termination, the user is entitled to immediately terminate the agreement with immediate effect without any obligation on his part to pay any compensation or indemnification, while the customer, under the heading of default, is obliged to pay compensation or an indemnity.
6. In the event of liquidation, of (application for) a moratorium on payment or bankruptcy, attachment – if and insofar as the attachment has not been lifted within three months – at the expense of the customer, of debt rescheduling or another circumstance in consequence of which the customer cannot freely dispose of his assets, the user is free to immediately terminate the agreement or cancel the order or agreement with immediate effect, without any obligation on his part to pay any compensation or indemnity. In such case the claims of the user on the customer are immediately due.
7. If the customer cancels an order which has been placed in whole or in part, the goods ordered or prepared therefore, increased by the transport, removal and delivery costs thereof and the labour time reserved for the agreement will be charged to the customer in full.

Article 5 - Delivery

Article 5.1 - General

- The specified delivery times only apply by way of information and approximation. If the user depends on other information to be provided by the customer, the delivery time will start to run after the user has received said information in full.
Exceeding of the specified delivery time does not give the customer the right to terminate the agreement, refuse payment, or otherwise not perform his/her obligations. Nor does exceeding of the delivery time oblige the user to compensate the loss howsoever called under any heading whatsoever.
- If the goods have not been sold delivery paid, the risk in the goods during the transport is at the customer's expense as of the time that the goods have left the user's warehouse. The risk in the goods is therefore at the customer's expense during the transport. The user is free in the choice of loading, transport means and forwarding agent/transporter, unless otherwise agreed.
- We may continue to view the specified address as the delivery address until we have been notified of a new address. All loss ensuing herefrom is at the expense of the other party.
- The customer must align a desired change in the agreed time when the ordered goods are installed/delivered with the user as timely as possible. Changes which are passed on less than 1 week prior to the planning are in principle too late so that in such case the user may act on the basis of the agreed time. Costs made by the user will be passed on to the customer.
- The customer is obliged to inspect the delivery immediately, within 24 hours, after delivery as to quantity, quality, specification and other deviations from what has been agreed. Noted defects, damage and/or deviations must be reported to the user by email with a photo at the email address service@funxtion.nl. In the event of notifications made by the customer later than 24 hours after delivery, the right to guarantee and/or damages lapses.
The user is entitled to deliver an order in full or in parts successively. In the latter case the user is entitled to invoice the customer for each part delivery individually and to demand payment therefore. If and as long as a part shipment is not paid by the customer, the user is not obliged to deliver the next part shipment, but the user is entitled, at his election, to suspend or dissolve the agreement insofar as it has not yet been performed, without judicial intervention and without giving any notice of default to the other party, without prejudice to his other rights, including his right to compensation.
- The user may continue to view the specified address as such, until the user has been informed of a new address. All loss ensuing herefrom is at the customer's expense.

Article 5.2 - Delivery of floor

If the user delivers a floor to the customer, specific account must be taken of the following provisions:
- the samples shown may differ slightly in colour from the floor to be laid;
- In the event of subsequent orders there may be slight colour variations compared to the previously ordered floor tiles because the delivery is from different production batches.
- If the surface below the floor is uneven this can visibly show through in the Pavigym floor.
- The quantities of material, thickness of the floor and slope specified by the user are based on a flat and tight underlying surface.
- The customer must ensure the room where the floor is to be laid is empty, clean and dust- and draught-free. The screed must be dry.
- The customer must ensure the presence of water and electricity at the time the floor is laid and an unimpeded access to the room in question.

Article 5.3 - Delivery of Queenax and/or Octagon

If the user delivers Queenax and/or Octagon to the customer, specific account must be taken of the following provisions:
- The customer confirms that the delivered Queenax or Octagon is approved for installation.
- Before the installation the customer must agree the correct position of placement of the Queenax or Octagon with the installation team.
- The Queenax/Octagon must be screwed down (to the ground and nailed down) at all times in the underlying surface. The floor must at all times be suitable for affixing the Queenax/Octagon and must be free of pipe works.
- Prior to delivery the customer must inform the user as to ducts and pipes in or under the floor on which the Queenax/Octagon will be installed.
- The customer confirms that he will fully indemnify FunXtion International BV against any injury and damage whatsoever (including without limitation, (I) damage to property, (II) personal injury (including death), (III) or economic loss (including lost profit or other occasional loss)) which can result from inaccuracies in the information provided by you as listed above.

Article 6 - Provision of training

1. The user will select the trainer to be engaged for the execution of a training component.
2. The customer is bound to fit out/maintain the rooms and materials in which/with which the training component is provided in such manner that the trainer is protected as good as is reasonably possible against harm to body, dignity and property. This includes the provision of careful instructions and the taking of (precautionary) measures.
3. If a participant in the training is unable to attend, the customer can designate a replacement, up to 1 week before the start of the training day.
4. If the customer wishes to have more than 10 participants participate in the training, separate (price) agreements will be made in consultation with the user.
5. The training encompasses an obligation of endeavours on the part of the user to provide the best possible training of the participant(s). However, the user gives no guarantee whatsoever regarding the result of the training experienced by the participant. The user is never liable for (incorrect) application in practice by the participant of the knowledge gained during the training, unless the customer can demonstrate that the techniques which were learned led to damage/loss.
6. The user will strive to replace a trainer as little as possible, but the user is permitted to replace a trainer at any time.
7. The user will do everything he can to allow the training to go ahead at all times, however, in the event of force majeure the user is permitted to move the training to a new date to be agreed with the customer.
8. A change in a date for the training to be followed will be made in proper consultation. In principle a change by the customer will be made at latest two weeks before the agreed date, whereby in the event of failure to make such change the user may assume the agreed time applies.
9. A participant in a training day of the user's is only entitled to receive a certificate in the event of participation and the successful completion of an exam taken by the user.

Article 7 - Intellectual property

1. The user reserves the rights and powers which he has under the Dutch Copyright Act and other intellectual property legislation and regulations (including rights to reports, analyses, plans, software, etc. produced by the user). The user has the right to use the knowledge which has come to his attention due to the performance of an agreement for other purposes, insofar as such will not disclose strictly confidential information of the customer to third parties.
2. Without the user's prior written consent the goods referred to in the preceding paragraph may not be reproduced and/or made public by the customer, other than for the customer's own use.
3. The customer indemnifies the user against infringements of its intellectual property rights by third parties, insofar as such infringement is the result of an action of the customer.

Article 8 - Force majeure

1. The user is not bound to perform any obligation with regard to the customer if he is prevented from doing so as a result of circumstances beyond his control and which are not deemed to be at the user's expense by law, a legal transaction or commonly accepted views.
2. In the general conditions force majeure means, in addition to what it is understood to mean in the law and jurisprudence, all external causes, foreseen or unforeseen, over which the user has no control, but in consequence of which the user is not able to perform his obligations. This includes work strikes in the business of the user or of third parties. The user also has the right to claim force majeure if the circumstance which prevents the (further) performance of the agreement arises after the user should have performed his obligation.
3. During the period that the force majeure continues the user can suspend the obligations under the agreement. If this period lasts longer than two months, each of the parties is entitled to the other party for loss.
4. Insofar as the user at the time the force majeure arises has performed or will be able to perform his obligations under the agreement in part, and the part which has been performed or will be performed has independent value, the user is entitled to separately invoice the part already performed or to be performed. The customer is bound to pay this invoice as if it were a separate agreement.

Article 9 - Payment

1. Payment is to be effected within the agreed term, in a manner specified by the user in the currency in which it is invoiced, unless otherwise agreed in writing.
2. The user is entitled to periodically invoice and/or charge a reasonable advance, or demand security from the customer for payment of the (partial) invoice.
3. If the customer defaults on the timely payment of an invoice, the customer will be legally in default without the need for notice of default. The customer will then owe interest of 1% per month as of the time of default, unless the statutory interest is higher, in which case the statutory interest is owed.
4. The user has the right to put the payments made by the customer in the first place toward the costs, then toward the outstanding interest and finally toward the principal and the accruing interest. The user can, without such constituting default, refuse an offer to pay if the customer designates a different sequence for awarding the payment. The user can refuse full repayment of the principal, if the outstanding and accruing interest and collection costs are not also paid.
5. The customer is never entitled to set off what he owes the user.
6. Objections to the amount of an invoice will not suspend the payment obligation. The customer is not entitled to invoke Section 6.5.3 (Articles 231 through 247 Book 6 DCC), nor is he entitled to suspend the payment of an invoice for another reason.
7. If the customer fails in or defaults on the (timely) performance of his obligations, all reasonable costs to effect extrajudicial payment are at the customer's expense. The extrajudicial costs will be calculated on the basis of what is common in Dutch debt collection practice. However, if the user has made higher collection costs which were reasonably necessary, the costs actually made are eligible for compensation. Any judicial and enforcement costs made will also be recovered from the customer. The customer will also owe interest over the collection costs owing.

Article 10 - Guarantees

1. The goods to be delivered by the user meet the usual requirements and standards which can reasonably be set therefore at the time of delivery and for which they are intended during normal use.
2. The goods and services provided by the user will, where relevant, be produced and/or delivered by a third party. The guarantee term is limited to that term which is given by the producer of the goods, unless otherwise stated. The guarantee terms are different for the various products and can be obtained from the user on request.
3. Any form of guarantee lapses if a defect has arisen as a result of or ensues from inexpert or inappropriate use thereof, incorrect storage or maintenance thereof by the customer and/or by third parties if, without the user's written consent, the customer or third parties have made or have attempted to make changes to the goods, other goods were attached thereto which should not have been attached thereto or if they were processed in a way other than that prescribed.
4. Nor is the customer entitled to base a claim on the guarantee if the defect arose due to or as a result of circumstances which are beyond the user's control (such as, but not exclusively, extreme temperatures, water nuisance, etc.).

Article 11 - Complaints

1. The customer is bound to inspect the delivery immediately at the time the goods are placed at his disposal or when the relevant work has been carried out. The customer must inspect in this respect whether the quality and/or quantity of the delivery corresponds with what was agreed and meets the requirements agreed by the parties in this respect. Any visible or invisible defects must be notified to the user within 24 hours after delivery by email at the email address service@funxtion.nl. The notification must contain the most detailed possible description + photo of the defect, so that the user is able to respond adequately. The customer must give the user the opportunity to inspect a complaint.
2. If the customer presents a complaint in time, this will not suspend his payment obligation. In that case too the customer remains bound to take and pay for the ordered goods.
3. Minor deviations in dimensions, colour, structure and other minor defects do not constitute ground for complaints.
4. If a defect is notified later, the customer is no longer entitled to repair, replacement of indemnification.
5. If it is established that goods are faulty and a complaint has been lodged in time in this respect, the user will, at the user's election, replace or repair the faulty goods or provide the customer with replacement compensation within a reasonable time after they have been returned, or if return is not reasonably possible, written notification relating to the defect by the customer.
6. In the event of replacement the customer is bound to return the replaced goods to the user (insofar as reasonably possible) and to provide the user with the ownership thereof, unless the user indicates otherwise.
7. If it is established that a complaint is unfounded, the costs arising in consequence thereof on the part of the user, including the investigation costs, will be fully at the customer's expense.
8. After expiry of the guarantee term, all costs of repair and replacement, including administration, shipping and call-out costs, will be charged to the customer.
9. In deviation from the statutory time limits, the time limit on all claims and defences with regard to the user and the third parties whom the user engages in the performance of an agreement, is one year unless otherwise agreed.

Article 12 - Liability

1. If the user were to be liable, this liability is limited to what is regulated in this provision.
2. The user is not liable for loss, of whatever nature, arising because the user acted on the basis of inaccurate and/or incomplete information furnished by or on behalf of the customer.
3. The user's liability is limited to the amount of the payout of his insurer where relevant.
4. If said insurer did not make a payout for any reason, the user's liability is limited to a maximum of two times the invoice value of the order, or to that part of the order to which the liability relates, or, if there is no order, a maximum of the amount that the user charged a customer in the preceding year.
5. The user is only liable for direct loss. Direct loss exclusively means the reasonable costs to determine the cause and the scope of the loss, insofar as the determination related to loss as referred to in these conditions, the reasonable costs to ensure the user's faulty performance correspond with the agreement, insofar as this can be attributed to the user and reasonable costs made to prevent or limit loss, insofar as the customer demonstrates that these costs have led to a limitation of direct loss as referred to in these general conditions.
6. The user is never liable for indirect loss, including consequential loss, lost profit, lost savings and loss due to business stagnation.
7. The limitations of liability included in this article do not apply if the loss is due to intent or gross negligence of the user or his managerial subordinates.

Article 13 - Retention of title

1. All goods delivered by the user in the framework of the agreement remain the user's property until the customer has properly performed all obligations under the agreement(s) made with the user.
2. Goods delivered by the user, which pursuant to paragraph 1 are covered by the retention of title, may not be resold, nor may they be used as means of payment. The customer does not have the right to grant a pledge on the goods subject to retention of title or to encumber them in any other way.
3. The customer must always do everything that can reasonably be expected of him to secure the user's ownership rights.
4. If third parties attach the goods delivered subject to retention of title or wish to grant or enforce rights in respect thereof, the customer is obliged to immediately inform the user thereof.
5. In the event the user wishes to exercise his ownership rights laid down in this article, the customer hereby gives unconditional and irrevocable consent to the user and third parties to be designated by the user to access all those places where the property of the user is located and to retrieve said goods.

Article 14 - Non-takeover of personnel

During the term of the agreement and one year after termination thereof, the customer will not, in any way, until after there has been proper consultation on the matter with the user, employ employees of the user or of businesses whom the user used in the performance of this agreement and who were involved in the performance of the agreement or otherwise have them work for him, directly or indirectly.