General terms and conditions of sale and delivery for the technology industry

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

Art. 1 General

1.  If these terms and conditions form part of offers and agreements for the provision of deliveries and/or services by a supplier for a customer, all provisions of these terms and conditions between these parties are in force, insofar as this has not been deviated from by an explicit written agreement between the parties . A reference by the buyer to its own purchase or other conditions is expressly rejected by the supplier.

2. In these terms and conditions , the following definitions apply:
   - product: the performance(s) that the supplier performs for the customer , such as delivery of goods, assembly of goods, whether or not delivered by the supplier, acceptance of work, maintenance, repair and services, such as advice and inspection;
   - item: a material object, including any software contained therein ;
   - software: software only included in the delivered item ;
   - in writing: by a letter, e-mail message and in any other manner agreed by the parties, other than orally;
   - additional work: any performance that is performed by the supplier in addition to the agreement in consultation with the customer, whether or not recorded in writing;
   -price: the according to art. 4 applicable price for the product.

Art. 2 Offer 

1. Any offer from the supplier is without obligation and can be revoked up to 3 working days after acceptance at the latest.
2. Each offer is based on the execution of the agreement by the supplier under normal circumstances and during normal working hours.

Art. 3 Agreement 

1. Without prejudice to art. 2 paragraph 1, the agreement is concluded if the acceptance is in accordance with the offer. If the acceptance deviates from the offer, the agreement will only be concluded after explicit acceptance of these deviations by the supplier.
2. Information contained in product documentation, images, drawings, size and weight statements, etc. is only binding if and insofar as it is expressly included in an offer or order confirmation from the supplier or in a contract signed by the parties.
3. Verbal promises/agreements only bind the supplier insofar as they have been made by a representative employee of the supplier or confirmed in writing by such an employee.

Art. 4 Price 

1. Unless otherwise agreed in writing, the agreed price is exclusive of turnover tax and other government charges on the sale and delivery and based on delivery Ex Works in accordance with the Incoterms applicable on the date of offer. "Factory" means the business premises of the supplier, as indicated by him .
2. If, after the date of conclusion of the agreement, one or more of the cost price factors undergo an increase - even if this is due to foreseeable circumstances - the supplier is entitled to increase the price accordingly.
3. The supplier may charge additional work separately as soon as the amount to be charged for this is known to him. For the purpose of calculating additional work, paragraphs 1 and 2 shall 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 assembly of the product by the supplier takes place, the price is calculated including assembly, with the exception of the costs stated in article 7 paragraph 3 and paragraph 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, etc. made for the design, production and use of the product are vested in the supplier or, as the case may be, in a third party licensed to the supplier to use these rights.   This also applies if this has been developed specifically for the customer, unless otherwise agreed in writing. The customer obtains a non-exclusive, time-unlimited, transferable right to use these intellectual property rights, but only for the delivered product and with due observance of any restrictions in underlying licenses granted by third parties. The supplier is not obliged to provide the customer with the source code or updates for software.
2. Technical, commercial and financial information and information marked as confidential or which by its nature is to be classified as confidential, disclosed by one party in writing or orally to the other party, shall be treated confidentially by the other party. The information will therefore not be used by the other party without the written consent of one party for a purpose other than that for which it was 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 on a certain period for delivery, this period starts as soon as the agreement has been entered into and all conditions that must be fulfilled by the buyer before the start of the performance by the supplier of his obligations by the buyer have also been met, such as providing the supplier with necessary documents and data,  obtaining permits, carrying out the necessary formalities and paying an amount due in advance. If a specific delivery date, week or month has been agreed  instead of a period, this will reasonably be postponed in time.
2. The product is considered to have been delivered for the delivery time when, if acceptance tests have been agreed in the supplier's company, it is ready for these tests and in other cases when the item is ready for shipment and the customer has been informed of this in writing and, in the case of services other than delivery of an item, if the performance has been delivered.
3. The delivery time is based on the working conditions applicable at the conclusion of the agreement and on timely delivery of the goods and/or services ordered by the supplier for the execution of the work . If, through no fault of the supplier, a delay occurs due to a change in the aforementioned working conditions or because goods and/or services ordered on time for the execution of the work are not delivered on time, the delivery time will be extended to the extent necessary.
4. If a delay occurs in the execution of the agreement due to an act or omission of the buyer or due to circumstances attributable to the buyer, the supplier may extend the delivery time by a period that, taking all circumstances into account, is necessary. This also applies if the cause of the delay only occurs after the agreed delivery time.
5. Exceeding the delivery time does not entitle the customer to full or partial dissolution of the agreement or However, if this exceedance is more than 16 weeks or, according to the supplier's notification, will amount to more than 16 weeks, the customer can dissolve the agreement by means of a written notification to the supplier. The customer is then entitled, insofar as applicable, to reimbursement of the part of the price already paid and to compensation for the damage suffered by him , up to a maximum of 15 percent of the price. If partial deliveries have already been made, the agreement can only be partially dissolved after 16 weeks, namely for the part not yet delivered , unless the already delivered part is not independently usable for the customer. In the event of partial dissolution, the customer is entitled, insofar as applicable, to reimbursement of the part of the price that relates to the part not delivered and to compensation. For this compensation, the aforementioned maximum of 15% will in that case be calculated on the part of the price that relates to the part not delivered. If exceeding the delivery time is the result of force majeure, art. 13.
6. If the buyer remains in default with the purchase of the product after notice of default, the supplier is entitled to charge the resulting costs and damage to the buyer, without prejudice to the rights of the supplier according to Art. 14. The customer is then also obliged to pay the price as if delivery had taken place according to the agreed delivery time .

Art. 7 Assembly 

1. If it has been agreed that the supplier takes care of the assembly of an item , the customer is responsible for the correct execution and timely availability of all devices, facilities and conditions that are necessary for the assembly of the item and the proper functioning of the item in assembled condition.
2. In any case, the customer shall ensure at his own expense and risk that:
   a) the supplier's personnel can carry out the work start according to the agreed timetable and can work during normal working hours. Insofar as the supplier deems this necessary, work can also be carried out outside normal working hours, provided that this has been reported to the customer in writing within a reasonable period of time;
   b) he informs the supplier in writing and in good time before the start of assembly of all safety regulations applicable at the place of assembly;
   c) assembly can be carried out in a healthy and safe environment;
   d) all necessary safety measures are taken before the start of assembly and maintained during assembly;
   e) the supplier's personnel can make use of good sanitary facilities;
   f) all necessary auxiliary persons, cranes, lifting and hoisting equipment, transport and tools, machines, business materials (such as fuels, oils, fats, gas, water, electricity, steam, compressed air, heating and lighting) and the measuring and testing equipment normal for the customer's operation are available in good time at the place of assembly;
   g) sufficient office space is available to the supplier at the place of assembly;
   h) sound and adequately secured digital infrastructure and internet facilities are available, where necessary;
   i) sufficient storage space is available to protect against theft, loss and damage to the tools and equipment intended for assembly and to the personal property of the supplier's personnel;
   j) the access routes to the place of assembly are suitable for the necessary transport of the item to be assembled and the supplier's assets.

3. Damage and costs that arise for the supplier and/or the customer as a result of not or not timely fulfilling one of the obligations referred to in this article are for the account of the customer.
4. If the supplier, without having the assembly on order, does provide help and assistance - of whatever nature - with the assembly, this is at the risk of the customer.
5. Costs incurred by the supplier due to unworkable weather are for the account of the buyer.

Art. 8 Inspection and acceptance tests 

1. The customer inspects the product no later than 7 days after delivery as referred to in article 6 paragraph 2. If assembly has been agreed, the customer inspects the proper execution thereof no later than 5 days after assembly . If the applicable time limit is not in writing and specified notification of well-founded complaints has expired , the product is deemed to have been accepted.
2. If acceptance tests have been agreed, the customer shall, after delivery as referred to in Article 6 paragraph 2, give the supplier the opportunity to make the necessary preparations and to make the changes that the supplier deems necessary. The acceptance tests shall be held in the presence of the buyer immediately after the supplier's request to that effect . The costs of acceptance tests are for the account of the customer. However, the supplier shall bear the costs of its own staff and of its other representatives. If the acceptance tests have been carried out without a well-founded complaint or if the customer does not meet his aforementioned obligations, the product is deemed to have been accepted.
3. For the acceptance tests and the preparations and modifications referred to in paragraph 2, the customer shall make available to the supplier the necessary facilities , support and materials, including those referred to in Article 7 paragraph 2 (f), and representative samples of any materials to be processed or processed to a sufficient extent, in a timely manner and free of charge at the place specified by the If the customer does not comply with this, the product is deemed to have been accepted.
4. The supplier shall draw up a report of the acceptance tests which shall be sent to the buyer. If the buyer, after being invited to do so in good time and in writing by the supplier, was not represented in the tests , the test report shall be considered by him to be a correct representation.
5. If the acceptance tests show that the product is not in conformity with the agreement, the supplier will remove the shortcomings as soon as possible. If the customer requests this in writing, new acceptance tests will subsequently be carried out with due observance of paragraphs 2-4.
6. In case of minor shortcomings that do not affect the proper functioning of the product, the product will be deemed to have been accepted regardless of these shortcomings. The supplier will remove these shortcomings as soon as possible.
7. The customer is not authorized to use the product or a part thereof before acceptance. If the buyer does so, without written permission from the supplier, the product is deemed to have been accepted.
8. Without prejudice to art. 11, the acceptance according to the preceding paragraphs excludes any claim by the buyer on the basis of a shortcoming in the supplier's delivery obligation.

Art. 9 Transfer of risk and retention of title 

1. As soon as the product is considered delivered within the meaning of art. Under Article 6(2), the customer bears the risk for all damage that may arise to or by this product , except insofar as the damage is due to intent or deliberate recklessness of the employees of the supplier belonging to the management.
2. The ownership of the delivered item passes to the buyer as soon as all the amount owed by the buyer to the supplier for deliveries and associated work, including interest and costs, has been paid in full to the supplier. In the event of late payment, the supplier can take back the delivered item.
3. When exercising the retention of title in accordance with paragraph 2, the supplier has unhindered access to the delivered item. The buyer then provides the supplier with all cooperation to take back the item, including disassembly.

Art. 10 Payment 

1. Unless otherwise agreed in writing, payment of the price will take place within 30 days of the invoice date. Invoicing takes place in the following 2 installments:
   - 1/3 of the price after the conclusion of the agreement
   - 2/3 of the price after delivery according to art. 6( 2).
2. Payment of additional work takes place no later than 7 days after this has been invoiced to the customer.
3. All payments shall be made without deduction, suspension or set-off in the manner to be determined by the supplier.
4. If the customer does not pay on time, he is in default by operation of law and the supplier has the right, without notice of default, to charge him interest from the due date at a percentage of 3 points above the statutory interest for commercial agreements applicable in the Netherlands, as referred to in Article 6:119a and Article 6:120 paragraph 2 of the Dutch Civil Code,  and all judicial and extrajudicial costs.

Art. 11 Defects in the product 

1. The product must comply with the agreement. The supplier is obliged to remove 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 remove the defect only applies to non-observable  defects in the product during inspection and (if agreed) acceptance tests, of which the customer proves that they have occurred within 6 months after delivery in accordance with Article 6 paragraph 2.
2. In the event of assembly of an item delivered by the supplier, the period of 6 months referred to in paragraph 1 for both the delivered item and for its assembly shall commence on the day that the assembly is completed by the supplier. This period ends in any case 12 months after delivery of the item in accordance with Article 6 paragraph 2.
3. Defects in a delivered item are removed by the supplier by repair or replacement of the defective part, whether or not in the supplier's company, or by sending a repaired part or a part for replacement, all this always at the discretion of the supplier. After the removal of the defect, the supplier is equally obliged for 6 months to remove defects in the repaired or replacement part. Any liability for defects in the delivered item shall in any case lapse 12 months after delivery thereof in accordance with Article 6 paragraph 2 or, in the event of applicability of paragraph 2, 18 months after that delivery.
4. Defects in the assembly of an item delivered by the supplier are removed by the supplier by carrying out repair work. After the removal of the defect, the supplier is equally liable for 6 months for defects in the repair work. Any liability for defects therein shall in any case lapse 18 months after the delivery of the item in accordance with Article 6 paragraph 2.
5. Defects in maintenance, repair (if not carried out on the basis of paragraph 3 or paragraph 4), assembly of an item delivered by a third party to the customer, overhaul, acceptance of work and similar work, are removed by the supplier by performing the work again, insofar as defective. After performing the work again, the supplier is liable for defects in the repair work for 6 months . Any liability shall in any case lapse 12 months after delivery in accordance with Article 6 paragraph 2.
6. Defects due to infringement of intellectual property rights shall, at the discretion of the supplier, be eliminated by the supplier by:
   - acquisition of the right of use for the customer;
   - such that the case is no longer an infringement, or
   - replacement of the item by another item that does not infringe intellectual property rights.
   The supplier shall be liable for any defects therein for a period of 6 months after the intended adjustment or replacement in accordance with the conditions referred to in this article . Any liability of the supplier for defects therein shall in any case lapse 12 months after the delivery of the item in accordance with Article 6 paragraph 2 or, in the case of applicability of paragraph 2, 18 months after that delivery.
7. Transport costs and additional costs of disassembly and reassembly, which are incurred by the supplier when removing defects, are for the account of 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 comply with operating and maintenance requirements or other than the normal use envisaged;
   b) normal wear and tear;
   c) (dis)assembly, repair or changes by the customer or by third parties;
   d) the application of a government regulation;
   e) materials and goods already used in consultation with the customer;
   f) materials and goods that, whether or not for processing, have been provided by or on behalf of the customer;
   g) materials, goods, design, construction or working method applied on the explicit instructions of the customer;
   h) parts (including software) purchased by the supplier from third parties, insofar as the third party is not liable to the supplier for this.
   Furthermore, the supplier is not liable for infringement of intellectual property rights resulting from the fact that:
   i) the product is used outside the Netherlands
   j) the product is used in a different way than agreed;
   k) the product is used in combination with equipment or software not supplied by the supplier.
10. If the buyer does not, not properly or not timely comply with an obligation arising for him from any agreement concluded with the supplier, the supplier is not obliged to remove defects. If the customer  proceeds or causes to be carried out disassembly, repair or other work on the product without the prior written approval of the supplier, any obligation on the part of the supplier to remove defects shall lapse.
11. Defects must be reported to the supplier in writing as soon as possible after their discovery, but no later than 14 days after the expiry of the applicable  liability period. If these periods are exceeded, any claim for those defects will lapse. Legal claims must be brought within 1 year after the aforementioned notification on pain of forfeiture of all rights.
12. If the buyer has made the said report and no defect is found for which the supplier is liable, the supplier is entitled to reimbursement of the costs he has incurred as a result of the report.
13. If the supplier replaces parts when removing defects , the replaced parts become the property of the supplier.
14. If the buyer claims that the supplier does not comply with an obligation referred to in this article, the buyer remains obliged to fulfil the obligations arising for him from any agreement concluded with the supplier.
15. If the supplier has not removed the defect within a reasonable period of time, the buyer may, by means of a written notification, set a final, reasonable period for this. If the supplier does not fulfil his obligations within this last period, the buyer may, on behalf of the supplier, have the defect removed himself or by a third party, provided that the buyer or third party has the necessary expertise for this purpose. If the defect has thus been successfully removed, the supplier is relieved of all liability for the defect by reimbursement of the reasonable costs incurred  by the buyer. 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 depreciation of the product.This discount shall not exceed 15 per cent of the price, orthe customer is entitled to a discount on the price, in proportion to the depreciation of the product.
    b) if the defect is so serious that it significantly deprives him of the interest in the agreement for the product or a substantial part of the product, the buyer has the right to dissolve the agreement for the product or the substantial part of the product by means of a written notification to the supplier. The customer is then entitled to a refund of the price paid for the part for which the agreement is dissolved. The customer is also entitled to compensation up to a maximum of 15% of the part of the price that relates 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 employees belonging to the management and subject to the applicability of art. 6 paragraph 5 and art. 11 all liability of the supplier, regardless of the legal basis, is The supplier is therefore not liable for damage caused by:
   - non-delivery
   - liability towards third parties
   - any unlawful act or omission of (employees and auxiliary persons of) the supplier;
   - infringement of intellectual property rights, licenses and other rights of third parties;
   - damage or loss, for whatever reason, of raw materials, semi-finished products, models, tools and other items made available by the customer;
   - loss or mutilation of data;
   - loss of production and reduction of usability;
   - loss of contracts and customers.
   Furthermore, the supplier is not liable for loss of profit and any consequential and indirect damage whatsoever.
2. The buyer is obliged to indemnify and indemnify the supplier against all claims by third parties for compensation of damage in connection with the execution of the agreement.

Art. 13 Force majeure 

1. In these general terms and conditions, force majeure is understood to mean any circumstance independent of the supplier's will - even if this was foreseeable at the time of the conclusion of the agreement - that permanently or temporarily prevents or unreasonably onerous compliance with the agreement by the supplier, and, insofar as this is not already included, war, danger of war, civil war,  riots, strikes, workers' exclusion, transport difficulties, import and export restrictions, government measures, fire, terrorism, epidemics and pandemics, natural disasters, extreme weather conditions, limited energy availability, electricity outage, internet outage, computer network and telecommunications facilities, cybercrime and defects and delays in delivery due to  subcontractors as a result of circumstances referred to in this paragraph.
2. If, due to force majeure, the supplier is temporarily unable to fulfil the agreement or can only fulfil it in an unreasonable onerous manner, he has the right to suspend the execution of the agreement. After 6 months, if the force majeure situation still persists, each party is authorized to dissolve the agreement in whole or in part. Each party is also entitled to dissolve the agreement in whole or in part if, after the occurrence of the force majeure situation, it is or becomes clear that compliance with the  agreement by the supplier will be impossible or unreasonably onerous for more than 6 months.
3. In the event of suspension and dissolution pursuant to paragraph 2, the supplier is not obliged to pay compensation. The supplier then has the right to demand payment of the costs he has incurred for the raw materials, materials, parts and other goods purchased, reserved, processed and manufactured by him for the execution of the agreement. In case of ndissolution on the basis of paragraph 2, the customer is obliged to take delivery of the said goods after payment of the aforementioned costs. If the buyer fails to do so, the supplier is entitled to store these goods at the expense and risk of the buyer or to sell or destroy them on his behalf.

Art. 14 Suspension and dissolution 

1. If there is good reason for fear that the buyer is or will not be able or willing to fulfil his obligations and in the event of bankruptcy, suspension of payment, shutdown, liquidation or total or partial transfer of the customer's business, the supplier has the right to demand appropriate security for all contractual obligations (whether due or not) of the buyer and, in the meantime, the performance of the suspend agreement. In the absence of this security within a reasonable period set by the supplier, the supplier has the right to dissolve the agreement in whole or in part . The supplier has these powers in addition to its other rights under the law, the agreement and these conditions .
2. If the buyer does not, not timely or not properly comply with an obligation under an agreement with the supplier, the supplier is entitled to suspend the execution of the agreement and / or to dissolve the agreement.
3. In the event of suspension and dissolution in accordance with paragraphs 1 and 2, the supplier has the right to store the raw materials, materials, parts and other items purchased, reserved, processed and manufactured by him for the execution of the agreement at the expense and risk of the buyer. The supplier may also opt for sale or destruction on behalf of the In the event of suspension and dissolution in accordance with paragraphs 1 and 2, the supplier is entitled to full compensation, but is not obliged to pay compensation himself.
4. If the buyer terminates the agreement without the prior written approval of the supplier, he is obliged to pay the full price without notice of default, with deduction of the costs saved by the supplier.

Art. 15 Disputes 

All disputes based on the agreement and further agreements arising from it will be settled by the competent Dutch court of the district of the supplier, unless mandatory law stipulates otherwise.

Art. 16 Applicable law 

All agreements to which these terms and conditions apply are governed by the law applicable in the Netherlands, to the exclusion of rules of reference and conflict of laws of private international law. The applicability of the Vienna Sales Convention is excluded.