Terms of delivery

General Terms and Conditions of Sale and Delivery for the Technological Industry

Issued by Vereniging FME, filed with the Registry of the District Court of The Hague on May 13, 2022 under number 13/2022.
© Vereniging FME/FME Lawyers 2022 (www.fme.nl)

Art. 1 General

1.  If these terms and conditions form part of offers and agreements concerning the supply and/or provision of services by a supplier to a customer, all provisions of these conditions shall apply between these parties, unless expressly agreed otherwise in writing. Any reference by the customer to its own purchasing or other terms and conditions is expressly rejected by the supplier.
2. 2. In these terms and conditions, the following definitions apply:

• product: the performance(s) delivered by the supplier to the customer, such as delivery of goods, installation of items (whether or not supplied by the supplier), contract work, maintenance, repairs and services such as consulting and inspection;
• goods: a tangible object, including any software incorporated therein;
• software: only software embedded in the delivered good;
• in writing: by letter, email, or any other method agreed upon by the parties, excluding oral communication;
• additional work: any performance provided by the supplier in addition to the agreement, whether or not recorded in writing, in consultation with the customer;
• price: the applicable price for the product in accordance with Article 4.

Art. 2 Offer

1. Every offer from the supplier is non-binding and may be revoked up to 3 working days after acceptance.
2. Each offer is based on performance of the agreement by the supplier under normal conditions and during regular working hours.

Art. 3 Agreement

1. Without prejudice to Article 2(1), the agreement is concluded if the acceptance corresponds with the offer. If the acceptance deviates from the offer, the agreement is only established after explicit acceptance of those deviations by the supplier.
2. Data stated in product documentation, images, drawings, and specifications of dimensions and weights are only binding if and insofar as they are expressly included in an offer or order confirmation by the supplier, or in a contract signed by both parties.
3. Oral promises/agreements bind the supplier only if made by an authorized representative of the supplier or confirmed in writing by such a representative.

Art. 4 Price

1. Unless agreed otherwise in writing, the agreed price is exclusive of VAT and other government-imposed levies related to the sale and delivery, and is based on delivery Ex Works according to the Incoterms in force at the time of the offer. "Works" refers to the supplier’s business premises, as indicated by the supplier.
2. If one or more cost price factors increase after the agreement is concluded—even if foreseeable—the supplier is entitled to adjust the price accordingly.
3. The supplier may charge additional work separately as soon as the chargeable amount is known. Paragraphs 1 and 2 apply accordingly.
4. Costs for loading, unloading, and transportation of materials, semi-finished goods, models, tools and other items provided by the customer are not included in the price.
5. If installation of the product by the supplier has been agreed upon, the price includes installation, except for the costs mentioned in Article 7(3) and 7(5).

Art. 5 Intellectual Property / Confidentiality

1. All intellectual property rights on the product, its design, and all related drawings, calculations, descriptions, technical documents, models, tools, etc., belong to the supplier or, where applicable, to a third party who has licensed such rights to the supplier. This also applies if developed specifically for the customer, unless otherwise agreed in writing. The customer obtains a non-exclusive, unlimited, transferable right to use these rights solely for the delivered product, and subject to any limitations in third-party licenses. The supplier is not obligated to provide the source code or updates for software.
2. Technical, commercial, and financial information, and any information marked or inherently considered confidential, disclosed by one party to the other, must be treated confidentially. Such information may not be used for any purpose other than for which it was provided, nor reproduced, disclosed, or shared with third parties without written permission.

Art. 6 Delivery Time

1. If the parties have agreed on a specific delivery period, this period starts once the agreement is concluded and the customer has fulfilled all conditions required for the supplier to begin, such as providing necessary documents and data, obtaining permits, completing formalities, and making any advance payment. If a specific delivery date, week, or month is agreed instead of a term, this shall be reasonably adjusted.
2. The product is considered delivered on time if it is ready for agreed acceptance tests at the supplier’s premises, or if no such tests are agreed, when the item is ready for shipment and the customer is notified in writing. For services, delivery is deemed complete upon performance.
3. The delivery time is based on the working conditions at the time of agreement and on timely delivery of necessary goods/services. Delays caused by changed conditions or untimely supplies not due to the supplier result in an extension of the delivery period.
4. If delay occurs due to customer actions or omissions, or circumstances attributable to the customer, the supplier may extend the delivery period by a duration deemed necessary, even if the delay occurs after the initial deadline.
5. Exceeding the delivery time does not entitle the customer to cancel the contract or claim damages. However, if the delay exceeds or is expected to exceed 16 weeks, the customer may cancel the agreement with written notice. In such case, reimbursement is limited to any payments already made and damages up to 15% of the price. For partial deliveries, cancellation applies only to undelivered parts unless the delivered parts are unusable independently.
6. If the customer fails to take delivery after notice of default, the supplier may charge resulting costs and damages, while the customer remains liable for payment as if timely delivery occurred.

Art. 7 Installation

1. If installation by the supplier has been agreed, the customer is responsible for all facilities, conditions, and preparations necessary for proper installation and operation of the product.
2. The customer ensures at its own expense and risk:

a) supplier staff can begin and work according to the schedule, including outside regular hours if needed;

b) timely written communication of safety regulations at the installation site;

c) a healthy and safe working environment;

d) all safety measures are taken before and maintained during installation;

e) sanitary facilities for supplier staff;

f) timely availability of auxiliary staff, cranes, lifting gear, tools, fuels, utilities, and measurement devices;

g) adequate office space on-site;

h) secure digital infrastructure and internet facilities if required;

i) sufficient protected storage space for tools and staff belongings;

j) accessible routes for transport.

3. Any damage or costs due to non-fulfillment of these obligations are borne by the customer.

4. If the supplier provides assistance during installation without formal responsibility, this is at the customer’s risk.

5. Weather-related delays are charged to the customer.

Art. 8 Inspection and Acceptance Tests

1. The customer shall inspect the product within 7 days of delivery, or within 5 days after installation if applicable. Without written and specific complaints within these periods, the product is deemed accepted.
2. If acceptance tests are agreed, the customer must allow necessary preparations and modifications. Tests shall be conducted promptly upon the supplier’s request. Test costs are borne by the customer, except the supplier’s own personnel.
3. The customer shall timely provide facilities, support, materials, and samples required for tests. Failure to do so results in deemed acceptance.
4. The supplier documents the test results and sends them to the customer. If the customer was not present despite timely invitation, the report is deemed accurate.
5. If the product fails the test, the supplier corrects the defects and, upon written request, retests.
6. Minor defects not affecting function do not prevent acceptance.
7. The customer may not use the product or parts before acceptance. Unauthorized use implies acceptance.
8. Except as specified in Article 11, acceptance excludes all claims for non-performance.

Art. 9 Transfer of Risk and Retention of Title

1.  Risk transfers to the customer upon delivery as defined in Article 6(2), except for damage caused by supplier's gross negligence or intent.
2. Ownership transfers only after full payment of all amounts due including interest and costs. If payment is delayed, the supplier may reclaim the goods.
3. The supplier has the right to access and retrieve goods under retention of title. The customer shall fully cooperate, including with disassembly.

Art. 10 Payment

1. Unless otherwise agreed, payment is due within 30 days of the invoice date. Billing occurs in two installments:

• - 1/3 upon agreement;
• - 2/3 upon delivery per Article 6(2).

 Additional work must be paid within 7 days of invoicing.

3. All payments must be made without deductions, suspensions, or offsets.

4. If payment is late, the customer is automatically in default and owes interest at 3% above the statutory commercial rate, plus all costs.

Art. 11 Defects in the Product

1. The product must conform to the agreement. The supplier shall correct any deviation due to faulty design, materials, or workmanship. Infringements on Dutch IP rights also count as defects. This obligation applies only to hidden defects discovered within 6 months of delivery.
2. For installed products, the term starts from installation and ends no later than 12 months after delivery.
3. Defects will be remedied by repair or replacement, at supplier’s choice. A new 6-month term applies for repaired parts. Liability ends 12 months after delivery or 18 months for installed items.
4. Installation defects are corrected through repair. A new 6-month term applies. Liability ends 18 months after delivery.
5. Maintenance or similar work defects are remedied by redoing the work. A 6-month liability applies. All claims expire after 12 months.
6. IP rights-related defects are remedied by acquisition of rights, modification, or replacement of the product. A 6-month liability applies; maximum 12 or 18 months depending on delivery.
7. Transport and related costs are borne by the customer.
8. Supplier is not liable for defects in inspections, advice, or similar services.
9. Supplier is not liable for defects caused by:

• misuse or lack of maintenance;
• normal wear and tear;
• unauthorized repairs or modifications;
• legal regulations;
• reused or customer-supplied materials;
• instructions by the customer;
• third-party parts (if not liable to supplier).

Also not liable for IP infringements due to:

• use outside the Netherlands;
• different use than agreed;
• use with third-party equipment or software.

9. If the customer fails any contractual obligation, the supplier is not required to remedy defects. Unauthorized intervention nullifies obligations.
10. Defects must be reported within 14 days after discovery and within liability periods. Legal action must begin within 1 year of notice.
11. If no defect is found after a claim, the supplier may charge investigation costs.
12. Replaced parts become property of the supplier.
13. Claims do not excuse the customer from fulfilling its own obligations.
14. If not corrected timely, the customer may set a final deadline. If unmet, the customer may remedy the defect and charge the cost (up to 15% of the price).

If not remedied, the customer may:

• a) receive a price reduction (up to 15% of the price), or
• b) cancel the agreement for the product or relevant part and receive a refund and damages (up to 15%).

Art. 12 Liability

1. Except in cases of intent or gross negligence by senior staff and excluding Articles 6(5) and 11, the supplier is not liable for:

• non-delivery;
• third-party claims;
• unlawful acts by supplier or agents;
• IP infringements;
• damage or loss of customer-supplied materials;
• data loss or corruption;
• production loss or reduced usability;
• loss of contracts or customers;
• lost profits or indirect damages.

2. The customer shall indemnify the supplier against third-party claims arising from the contract.

Art. 13 Force Majeure

1. Force majeure includes all circumstances beyond the supplier’s control—foreseen or not—that hinder performance, such as war, riots, strikes, transport issues, import/export bans, government actions, fire, terrorism, epidemics, natural disasters, power/internet failures, cybercrime, and supplier delays due to such causes.
2. If temporary hindrance lasts beyond 6 months, either party may cancel the agreement. The same applies if it is clear that performance will be impossible or unreasonably difficult beyond 6 months.
3. In case of suspension or cancellation, the supplier owes no compensation but may charge for costs incurred and require the customer to take delivery of relevant items. If the customer refuses, the supplier may store, sell, or destroy the goods at the customer's expense.

Art. 14 Suspension and Termination

1. If there is reason to fear that the customer cannot or will not fulfill obligations, or in the event of bankruptcy, suspension of payments, liquidation, or business transfer, the supplier may demand security and suspend performance. If security is not provided, the supplier may terminate the agreement. These rights are in addition to statutory rights.
2. If the customer fails to meet any obligation, the supplier may suspend or terminate the agreement.
3. The supplier may store, sell, or destroy goods at the customer’s expense if the contract is suspended or terminated.
4. If the customer unilaterally cancels the agreement without written consent, full payment remains due, less saved costs.

Art. 15 Disputes

All disputes under or related to the agreement shall be settled by the competent Dutch court in the district of the supplier, unless mandatory law dictates otherwise.

Art. 16 Applicable Law

All agreements subject to these terms are governed by Dutch law, excluding international private law rules and the Vienna Sales Convention.