Art. 1 General
1. If these terms form part of offers and agreements for the performance of deliveries and/or services by a supplier for a customer, all provisions of these terms apply between the parties, unless expressly deviated from by a written agreement between the parties. Any reference by the customer to its own purchasing or other terms and conditions is expressly rejected by the supplier.
2. In these terms, the following definitions apply:
– product: the performance(s) provided by the supplier for the customer, such as delivery of goods, installation/assembly of goods supplied by or not supplied by the supplier, contracting of work, maintenance, repair and services, such as advice and inspection;
– item: a tangible object, including any software incorporated therein;
– software: software incorporated exclusively in the delivered item;
– in writing: by letter, email message and in any other manner agreed between the parties, other than orally;
– additional work: any performance, agreed with the customer and whether or not recorded in writing, carried out by the supplier in addition to the agreement;
– price: the price for the product applicable under Art. 4.
Art. 2 Offer
1. Every offer made by the supplier is without obligation and may be withdrawn up to and including 3 business days after acceptance.
2. Every offer is based on performance of the agreement by the supplier under normal conditions and during normal working hours.
Art. 3 Agreement
1. Without prejudice to Art. 2(1), the agreement is concluded when the acceptance corresponds to the offer. If the acceptance deviates from the offer, the agreement is concluded only after the supplier has expressly accepted those deviations.
2. Data stated in product documentation, images, drawings, dimensions and weight specifications, etc. are binding only if and insofar as they are expressly included in an offer or order confirmation of the supplier or in a contract signed by the parties.
3. Oral promises/agreements bind the supplier only insofar as they have been made by an employee of the supplier who is authorised to represent the supplier and have been confirmed in writing by such an employee.
Art. 4 Price
1. Unless otherwise agreed in writing, the agreed price is exclusive of VAT and other government charges related to the sale and delivery and is based on delivery Ex Works in accordance with the Incoterms applicable on the date of the offer. “Works” means the supplier’s premises as designated by the supplier.
2. If, after the date the agreement is concluded, one or more cost price factors increase, the supplier is entitled to increase the price accordingly, even if this occurs as a result of foreseeable circumstances.
3. The supplier may charge additional work separately as soon as the amount to be charged becomes known to the supplier. For the calculation of additional work, paragraphs 1 and 2 apply mutatis mutandis.
4. Costs of loading, unloading and transport of raw materials, semi-finished products, models, tools and other items made available by the customer are not included in the price.
5. If it has been agreed that the supplier will assemble/install the product, the price is calculated including assembly/installation, excluding the costs referred to in Art. 7(3) and (5).
Art. 5 Intellectual property/confidentiality
1. All intellectual property rights to the product, its design and the drawings, calculations, descriptions, technical documents, models, tools and the like made for the design, production and use of the product vest in the supplier or, where applicable, in a third party that has granted the supplier a licence to use these rights. This also applies if the above has been developed specifically for the customer, unless otherwise agreed in writing. The customer acquires a non-exclusive, unlimited in time, transferable right to use these intellectual property rights, but only for the delivered product and subject to any restrictions in underlying licences granted by third parties. The supplier is not obliged to provide the customer with source code or updates for software.
2. Technical, commercial and financial information and information marked as confidential or which by its nature should be considered confidential, disclosed in writing or orally by one party to the other, will be treated confidentially by the other party. The information will therefore not be used by the other party, without the written consent of the disclosing party, for any purpose other than the purpose for which it was provided. The information may not be reproduced or transferred, communicated or disclosed to any third party.
Art. 6 Delivery time
1. If the parties have agreed a specific delivery period, that period starts as soon as the agreement has been concluded and the customer has also fulfilled all conditions that must be met by the customer before the supplier starts performing its obligations, such as providing the supplier with necessary documents and data, obtaining permits, completing necessary formalities and paying an amount due in advance. If, instead of a period, a specific delivery date, week or month has been agreed, it will be postponed in time as reasonably required.
2. For delivery time purposes, the product is deemed delivered when, if acceptance tests at the supplier’s premises have been agreed, it is ready for those tests, and in other cases when the item is ready for shipment and the customer has been notified of this in writing, and, for performances other than delivery of an item, when the performance has been delivered.
3. The delivery time is based on the working conditions applicable at the time the agreement is concluded and on timely delivery of the goods and/or services ordered by the supplier for the performance of the work. If, through no fault of the supplier, a delay arises due to changes in said working conditions or because goods and/or services ordered in time for the performance of the work are not delivered on time, the delivery time will be extended as necessary.
4. If a delay occurs in the performance of the agreement due to an act or omission of the customer or due to circumstances attributable to the customer, the supplier may extend the delivery time by a period that is necessary in view of all circumstances. This also applies if the cause of the delay arises only after the agreed delivery time.
5. Exceeding the delivery time does not entitle the customer to wholly or partially dissolve the agreement or to claim damages. However, if this exceedance is more than 16 weeks, or according to a notice from the supplier will be more than 16 weeks, the customer may dissolve the agreement by written notice to the supplier. In that case, where applicable, the customer is entitled to repayment of the part of the price already paid and compensation for the damage suffered by the customer, up to a maximum of 15 percent of the price. If partial delivery has already taken place, after 16 weeks the agreement can only be partially dissolved, namely for the part not yet delivered, unless the part already delivered cannot be used independently by the customer. In the event of partial dissolution, where applicable, the customer is entitled to repayment of the part of the price relating to the undelivered part and to compensation. For this compensation, the stated maximum of 15% is calculated over the part of the price relating to the undelivered part. If exceeding the delivery time is the result of force majeure, Art. 13 applies.
6. If, after notice of default, the customer remains in default in taking delivery of the product, the supplier is entitled to charge the customer the resulting costs and damage, without prejudice to the supplier’s rights under Art. 14. The customer is then also obliged to pay the price as if delivery had taken place in accordance with the agreed delivery time.
Art. 7 Assembly/installation
1. If it has been agreed that the supplier will carry out the assembly/installation of an item, the customer is responsible for the correct execution and timely availability of all arrangements, facilities and conditions necessary for the assembly/installation of the item and for the proper functioning of the item in assembled/installed condition.
2. In any case, the customer shall, at its own expense and risk, ensure that:
a) the supplier’s personnel can start the work according to the agreed schedule and can work during normal working hours. If the supplier considers this necessary, work can also be carried out outside normal working hours, provided this has been notified to the customer in writing within a reasonable time;
b) the customer informs the supplier in writing and in good time before the start of the assembly/installation about all safety regulations applicable at the place of assembly/installation;
c) assembly/installation can be carried out in a healthy and safe environment;
d) all necessary safety measures are taken before the start of the assembly/installation and are maintained during the assembly/installation;
e) the supplier’s personnel can make use of proper sanitary facilities;
f) at the assembly/installation site, all necessary assistants, cranes, lifting and hoisting equipment, transport and auxiliary equipment, machines, operating materials (such as fuels, oils, greases, gas, water, electricity, steam, compressed air, heating and lighting) and the measuring and testing equipment customary for the customer’s business are available in time;
g) sufficient office space at the assembly/installation site is available for the supplier;
h) sound and adequately secured digital infrastructure and internet facilities, where necessary, are available;
i) sufficient storage space is available to protect against theft, loss and damage of the tools and equipment intended for assembly/installation and the personal belongings of the supplier’s personnel;
j) the access routes to the assembly/installation site are suitable for the necessary transport of the item to be assembled/installed and the supplier’s equipment.
3. Damage and costs incurred by the supplier and/or the customer because one of the obligations referred to in this article has not been fulfilled, or has not been fulfilled in time, shall be borne by the customer.
4. If the supplier, without having been commissioned to assemble/install, nevertheless provides help and assistance during assembly/installation, of whatever nature, this is at the customer’s risk.
5. Costs incurred by the supplier due to unworkable weather conditions shall be borne by the customer.
Art. 8 Inspection and acceptance tests
1. The customer shall inspect the product no later than 7 days after delivery as referred to in Art. 6(2). If assembly/installation has been agreed, the customer shall inspect the proper execution thereof no later than 5 days after assembly/installation. If the applicable period has expired without written and specified notification of substantiated complaints, the product shall be deemed accepted.
2. If acceptance tests have been agreed, the customer shall, after delivery as referred to in Art. 6(2), give the supplier the opportunity to make the necessary preparations and to implement any changes that the supplier deems necessary. The acceptance tests shall be held without delay after the supplier’s request to do so, in the presence of the customer. The costs of acceptance tests shall be borne by the customer. However, the supplier shall bear the costs of its own personnel and its other representatives. If the acceptance tests have been carried out without substantiated complaint, or if the customer does not comply with its aforementioned obligations, the product shall be deemed accepted.
3. For the acceptance tests and the preparations and changes referred to in paragraph 2, the customer shall make available to the supplier, in sufficient quantity, in time and free of charge, at the place designated by the supplier, the necessary facilities, support and materials, including those referred to in Art. 7(2)(f), and representative samples of any materials to be processed. If the customer fails to do so, the product shall be deemed accepted.
4. The supplier shall draw up a report of the acceptance tests and send it to the customer. If the customer was not represented at the tests after having been invited in a timely manner and in writing by the supplier to do so, the test report shall be regarded by the customer as an accurate representation.
5. If the acceptance tests show that the product is not in conformity with the agreement, the supplier shall remedy the shortcomings as soon as possible. If the customer requests this in writing, new acceptance tests will subsequently be carried out in accordance with paragraphs 2-4.
6. In the case of minor shortcomings that do not affect the proper functioning of the product, the product shall be deemed accepted notwithstanding those shortcomings. The supplier shall remedy these shortcomings as soon as possible.
7. The customer is not authorised to use the product or any part thereof prior to acceptance. If the customer nevertheless does so without the supplier’s written consent, the product shall be deemed accepted.
8. Without prejudice to Art. 11, acceptance pursuant to the foregoing paragraphs excludes any claim by the customer based on a shortcoming in the supplier’s delivery obligation.
Art. 9 Transfer of risk and retention of title
1. As soon as the product is deemed delivered within the meaning of Art. 6(2), the customer bears the risk of all damage that may arise to or by means of this product, except insofar as the damage is attributable to intent or deliberate recklessness of the supplier’s management personnel.
2. Ownership of the delivered item transfers to the customer as soon as everything owed by the customer to the supplier for deliveries and related work, including interest and costs, has been paid in full to the supplier. In the event of late payment, the supplier may repossess the delivered item.
3. When exercising the retention of title pursuant to paragraph 2, the supplier has unhindered access to the delivered item. The customer shall then cooperate fully with the supplier to repossess the item, including dismantling.
Art. 10 Payment
1. Unless otherwise agreed in writing, payment of the price shall take place within 30 days after the invoice date. Invoicing takes place in the following two instalments:
– 1/3 of the price after the agreement has been concluded;
– 2/3 of the price after delivery pursuant to Art. 6(2).
2. Payment for additional work shall take place no later than 7 days after it has been invoiced to the customer.
3. All payments shall be made without deduction, suspension or set-off, in the manner determined by the supplier.
4. If the customer does not pay on time, it is in default by operation of law and, without any further notice of default, the supplier is entitled to charge interest from the due date at a rate of 3 percentage points above the statutory interest rate for commercial transactions applicable in the Netherlands, as referred to in Art. 6:119a and Art. 6:120(2) of the Dutch Civil Code, as well as all judicial and extrajudicial costs.
Art. 11 Defects in the product
1. The product must conform to the agreement. The supplier is obliged to remedy any deviation therefrom (hereinafter referred to as “defect(s)”)
resulting from incorrect or defective design or material or poor workmanship, in accordance with this Art. 11. Unless otherwise agreed, an infringement of intellectual property rights of a third party applicable in the Netherlands is also considered a defect. The obligation to remedy the defect applies exclusively to defects in the product that are not observable upon inspection and (if agreed) acceptance tests, and which the customer proves occurred within 6 months after delivery pursuant to Art. 6(2).
2. In the event of assembly/installation of an item supplied by the supplier, the period of 6 months referred to in paragraph 1 commences, for both the delivered item and the assembly/installation thereof, on the day the assembly/installation has been completed by the supplier. This period ends in any event 12 months after delivery of the item pursuant to Art. 6(2).
3. Defects in a delivered item will be remedied by the supplier by repair or replacement of the defective part, whether or not at the supplier’s premises, or by sending a repaired part or a replacement part, in each case at the supplier’s discretion. After remedying the defect, the supplier is obliged for a period of 6 months, in the same manner, to remedy defects in the repaired or replaced part. Any liability for defects in the delivered item lapses in any event 12 months after delivery thereof pursuant to Art. 6(2) or, if paragraph 2 applies, 18 months after such delivery.
4. Defects in the assembly/installation of an item supplied by the supplier will be remedied by the supplier by performing remedial work. After remedying the defect, the supplier is liable for defects in the remedial work for a period of 6 months in the same manner. Any liability for defects therein lapses in any event 18 months after delivery of the item pursuant to Art. 6(2).
5. Defects in maintenance, repair (if not carried out under paragraph 3 or paragraph 4), assembly/installation of an item supplied to the customer by a third party, overhaul, contracting of work and similar activities will be remedied by the supplier by re-performing the work insofar as defective. After re-performing the work, the supplier is liable for defects in the remedial work for a period of 6 months. Any liability lapses in any event 12 months after delivery pursuant to Art. 6(2).
6. Defects due to infringement of intellectual property rights
will, at the supplier’s option, be remedied by the supplier by:
– acquiring the right of use for the customer;
– adjusting the item in such a way that there is no longer any infringement; or
– replacing the item with another item that does not infringe intellectual property rights.
The supplier is liable for any defects therein for 6 months after the aforementioned adjustment or replacement, in accordance with the conditions stated in this article. Any liability of the supplier for defects therein lapses in any event 12 months after delivery of the item pursuant to Art. 6(2) or, if paragraph 2 applies, 18 months after such delivery.
7. Transport costs and additional costs of dismantling and reassembly incurred by the supplier when remedying defects shall be borne by the customer.
8. The supplier is not liable for defects in inspections, advice and similar services.
9. The supplier is not liable for defects that occur in, or are wholly or partly the result of:
a) failure to observe operating and maintenance instructions or use other than the intended normal use;
b) normal wear and tear;
c) (dis)assembly, repairs or modifications by the customer or by third parties;
d) the application of a government regulation;
e) materials and items used in consultation with the customer that were already used;
f) materials and items provided by or on behalf of the customer, whether or not for processing;
g) materials, items, design, construction or method applied on the express instruction of the customer;
h) parts sourced by the supplier from third parties (including software), insofar as the third party is not liable to the supplier for them.
The supplier is furthermore not liable for infringement of intellectual property rights resulting from the circumstance that:
i) the product is used outside the Netherlands;
j) the product is used in a manner other than agreed; or
k) the product is used in combination with equipment or software not supplied by the supplier.
10. If the customer fails to comply properly or in time with an obligation arising for it from any agreement concluded with the supplier, the supplier is not obliged to remedy defects. If the customer proceeds, or has a third party proceed, to dismantling, repair or other work on the product without the supplier’s prior written approval, any obligation of the supplier to remedy defects lapses.
11. Defects must be reported to the supplier in writing as soon as possible after discovery, but no later than 14 days after the expiry of the applicable liability period. If these time limits are exceeded, any claim for those defects lapses. Legal proceedings must be initiated within 1 year after said report, failing which all rights lapse.
12. If the customer has made the aforementioned report and no defect is found for which the supplier is liable, the supplier is entitled to reimbursement of the costs it has incurred as a result of the report.
13. If, when remedying defects, the supplier replaces parts, the replaced parts become the property of the supplier.
14. If the customer claims that the supplier does not comply with an obligation stated in this article, the customer remains obliged to comply with the obligations arising for it from any agreement concluded with the supplier.
15. If the supplier has not remedied the defect within a reasonable period, the customer may set a final, reasonable period for doing so by written notice. If the supplier does not comply with its obligations within this final period, the customer may, at the supplier’s expense, remedy the defect itself or have it remedied by a third party, provided that the customer or the third party has the required expertise. If the defect is thus successfully remedied, the supplier is released from all liability for the defect by reimbursement of the reasonable costs incurred by the customer. These costs amount to a maximum of 15 percent of the price of the product.
16. If the defect is not remedied in accordance with paragraph 15,
a) the customer is entitled to a discount on the price in proportion to the decrease in value of the product.
This discount amounts to a maximum of 15 percent of the price,
or
b) if the defect is so serious that it substantially deprives the customer of its interest in the agreement for the product or a material part of the product, the customer has the right to dissolve the agreement for the product or the material part thereof by written notice to the supplier. The customer is then entitled to repayment of the price paid for the part for which the agreement is dissolved. The customer is also entitled to damages up to a maximum of 15% of the part of the price relating to the part of the product for which the agreement is dissolved.
Art. 12 Liability
1. Unless there is intent or deliberate recklessness on the part of the supplier’s management personnel and subject to the applicability of Art. 6(5) and Art. 11, all liability of the supplier, regardless of the legal basis, is excluded. The supplier is therefore, inter alia, not liable for damage caused by:
– non-delivery;
– liability towards third parties;
– any unlawful act or omission of (employees and auxiliaries of) the supplier;
– infringement of intellectual property rights, licences and other rights of third parties;
– damage to or loss, for whatever reason, of raw materials, semi-finished products, models, tools and other items made available by the customer;
– loss or corruption of data;
– production loss and reduction of usability;
– loss of contracts and customers.
The supplier is furthermore not liable for lost profits or any consequential damage and indirect damage whatsoever.
2. The customer is obliged to indemnify and hold the supplier harmless against all claims by third parties for compensation of damage in connection with the performance of the agreement.
Art. 13 Force majeure
1. In these general terms and conditions, force majeure means any circumstance independent of the supplier’s will, even if it was foreseeable at the time
the agreement was concluded, which permanently or temporarily prevents performance of the agreement by the supplier or makes it unreasonably burdensome, and, insofar as not already included, war, threat of war, civil war, riots, strikes, lock-outs, transport difficulties, import and export restrictions, government measures, fire, terrorism, epidemics and pandemics, natural disasters, extreme weather conditions, limited availability of energy, power outage, internet outage, malfunction of computer network and telecommunications facilities, cybercrime and defects and delays in delivery by suppliers as a result of the circumstances mentioned in this paragraph.
2. If, due to force majeure, the supplier is temporarily unable to perform the agreement or can only perform it in a manner that is unreasonably burdensome for the supplier, it has the right to suspend performance of the agreement. After 6 months, if the force majeure situation continues, each party is entitled to wholly or partially dissolve the agreement. Each party is also entitled to wholly or partially dissolve the agreement if, after the occurrence of the force majeure situation, it becomes clear that performance of the agreement by the supplier will be impossible or unreasonably burdensome for longer than 6 months.
3. In the event of suspension and dissolution on the basis of paragraph 2, the supplier is not obliged to pay damages. The supplier then has the right to demand payment of the costs it has incurred for raw materials, materials, parts and other items purchased, reserved, put into production and manufactured by it for the performance of the agreement. In the event of dissolution pursuant to paragraph 2, the customer is obliged, after payment of said costs, to take delivery of those items. If the customer fails to do so, the supplier is authorised to store those items at the customer’s expense and risk or to sell or destroy them at the customer’s expense.
Art. 14 Suspension and dissolution
1. If there is good reason to fear that the customer is not able or willing, or will not be able or willing, to fulfil its obligations and in the event of bankruptcy, suspension of payments, shutdown, liquidation or full or partial transfer of the customer’s business, the supplier has the right to demand appropriate security for all contractual obligations of the customer (whether or not due) and, pending such security, to suspend performance of the agreement. In the absence of such security being provided within a reasonable period set by the supplier, the supplier has the right to
wholly or partially dissolve the agreement. The supplier has these powers in addition to its other rights under the law, the agreement and these terms.
2. If the customer fails to comply, fails to comply in time or fails to comply properly with an obligation under an agreement with the supplier, the supplier is entitled to suspend performance of the agreement and/or dissolve the agreement.
3. In the event of suspension and dissolution pursuant to paragraphs 1 and 2, the supplier has the right to store, at the customer’s expense and risk, the raw materials, materials, parts and other items purchased, reserved, put into production and manufactured by it for the performance of the agreement. The supplier may also choose to sell or destroy them at the customer’s expense. In the event of suspension and dissolution pursuant to paragraphs 1 and 2, the supplier is entitled to full compensation for its damage, but is itself not obliged to pay damages.
4. If the customer terminates the agreement without the supplier’s prior written consent, it is obliged, without notice of default, to pay the full price, less the costs saved by the supplier.
Art. 15 Disputes
All disputes based on the agreement and subsequent agreements arising therefrom will be settled by the competent Dutch court of the district of the supplier, unless mandatory law provides otherwise.
Art. 16 Applicable law
All agreements to which these terms apply are governed by the law of the Netherlands, excluding referral and conflict-of-law rules of private international law. The applicability of the Vienna Sales Convention is excluded.
