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

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

Article 1 General

If these terms and conditions form part of offers and agreements for the performance of supplies and/or services by a supplier to a buyer, all provisions of these terms and conditions shall apply between these parties, provided that no express written agreement to the contrary has been made between the parties. A reference by the buyer to its own purchasing or other terms and conditions is expressly rejected by the supplier.
In these terms and conditions, the following terms shall have the meanings ascribed to them:

The performance(s) provided by the supplier to the customer, such as the supply of goods, assembly of goods supplied by the supplier or otherwise, undertaking of works, maintenance, repair, and services, such as advice and inspection;
Item: a tangible object, including any software embedded therein;
software: software included solely in the delivered case;
in writing: by letter, by e-mail and by any other method agreed by the parties, other than orally;
extra work: any performance carried out by the supplier in addition to the agreement, whether or not recorded in writing, in consultation with the client;
Price: the prevailing price for the product.

Art. 2 Offer

Every offer from the supplier is non-binding and can be withdrawn up to a maximum of 3 working days after acceptance.
Every offer is based on execution of the agreement by the supplier under normal circumstances and during normal working hours.

Article 3 Agreement

Subject to Article 2, Paragraph 1, the agreement is concluded if the acceptance conforms to the offer. If the acceptance deviates from the offer, the agreement is only concluded after express acceptance of these deviations by the supplier.
In product documentation, images, drawings, dimension and weight specifications, etc., the data listed are only binding if and to the extent that they are expressly included in an offer or order confirmation from the supplier or in a contract signed by the parties.
Oral commitments/agreements only bind the supplier insofar as they have been made by an employee of the supplier authorised to represent them, or have been confirmed in writing by such an employee.

Art. 4 Price

Unless otherwise agreed in writing, the agreed price is exclusive of value added tax and other government duties applicable to the sale and delivery and is based on delivery Ex Works according to the Incoterms in effect on the date of the offer. “Works” means the supplier's business premises, as designated by them.
If, after the date of the formation of the agreement, one or more of the cost price factors are increased – even if this occurs as a result of foreseeable circumstances – the supplier is entitled to increase the price accordingly.
The supplier may charge for additional work separately as soon as the amount to be charged for it is known to them. For the calculation of additional work, part 1 and part 2 shall apply mutatis mutandis.
The costs of loading, unloading and transport of raw materials, semi-finished products, models, tools and other items supplied by the customer are not included in the price.
It has been agreed that assembly of the product will be carried out by the supplier, the price has been calculated to include assembly, with the exception of the costs stated in sections 7, paragraph 3 and paragraph 5.

Art. 5 Intellectual property/confidentiality

All intellectual property rights concerning the product, its design, and the drawings, calculations, descriptions, technical documents, models, tools, etc., made for the design, production, and use of the product, shall 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 one and another have been specifically developed for the purchaser, unless otherwise agreed in writing. The purchaser acquires a non-exclusive, perpetual, transferable right to use these intellectual property rights, but only for the delivered product and subject to any restrictions in underlying licences provided by third parties. The supplier is not obliged to provide the purchaser with source code or updates for software.
Technical, commercial and financial information, and information marked as confidential or which by its nature must be considered confidential, disclosed in writing or orally by one party to the other party, shall be treated as confidential by the other party. Consequently, without the written consent of the disclosing party, the receiving party shall not use the information for any purpose other than that for which it was disclosed. The information shall not be reproduced or transmitted, communicated or disclosed to any third party.

Article 6 Delivery Time

If the parties have agreed upon a specific delivery period, this period commences as soon as the agreement is concluded and the buyer has fulfilled all conditions that must be met by the buyer before the supplier commences the performance of its obligations, such as providing the supplier with necessary documents and data, obtaining permits, carrying out necessary formalities and paying an amount due in advance. If a specific delivery date, week or month has been agreed upon instead of a period, this will be reasonably postponed in time.
For the purpose of delivery time, the product is considered delivered when it is ready for acceptance tests at the supplier's premises, if such tests have been agreed upon. In all other cases, it is considered delivered when the item is ready for dispatch and the buyer has been notified of this in writing. For performances other than the delivery of an item, it is considered delivered when the performance has been rendered.
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 in good time for the execution of the work are not delivered in good time, the delivery time will be extended as far as necessary.
If the performance of the agreement is delayed due to an act or omission by the customer or due to circumstances attributable to the customer, the supplier may extend the delivery time by a period that is necessary, taking all circumstances into account. This also applies if the cause of the delay occurs after the agreed delivery time.
Exceeding the delivery time shall not entitle the buyer to rescind the agreement in whole or in part or to compensation. However, if this overrun exceeds or will exceed 16 weeks according to the supplier's notification, the buyer may dissolve the agreement by written notification to the supplier. Where applicable, the buyer is then entitled to reimbursement of the part of the price already paid and to compensation for damages suffered by him, up to a maximum of 15 per cent of the price. If partial deliveries have already been made, the contract can only be partially dissolved after 16 weeks, namely for the part not yet delivered, unless the part already delivered is not independently usable for the customer. In the event of partial rescission, the customer shall be entitled, where applicable, to reimbursement of the part of the price relating to the undelivered part and to damages. For such compensation, the aforementioned maximum of 15% shall in that case be calculated on the part of the price relating to the undelivered part. If exceeding the delivery time is due to force majeure, Art. 13 shall apply.
If the buyer remains in default with the acceptance of the product after being given notice of default, the supplier is entitled to charge the resulting costs and damages to the buyer, without prejudice to the supplier's rights under Article 14. The buyer shall furthermore be obliged to pay the price as if delivery had taken place within the agreed delivery period.

Art. 7 Assembly

If it has been agreed that the supplier will undertake the assembly of an item, the client is responsible for the correct execution and timely availability of all installations, facilities, and conditions that are necessary for the assembly of the item and the proper functioning of the item in its assembled state.
The buyer shall, at their own expense and risk, ensure that:
a) the supplier's personnel can begin the work according to the agreed schedule and can work during normal working hours. Insofar as the supplier deems it necessary, work can also be carried out outside of normal working hours, provided that this has been notified in writing to the customer within a reasonable period;
b) the supplier is informed in writing and in good time before the start of assembly of all safety regulations applicable at the assembly site;
c) assembly can be carried out in a healthy and safe environment;
d) before assembly begins, all necessary safety measures are taken and maintained during assembly;
e) the supplier's personnel have access to adequate sanitary facilities;
f) all necessary additional personnel, cranes, lifting and hoisting equipment, transport and auxiliary equipment, machinery, operating materials (such as fuels, oils, greases, gas, water, electricity, steam, compressed air, heating and lighting) and measuring and testing equipment normally used by the customer's business are available at the assembly location in good time;
g) sufficient office space is available at the assembly site for the supplier;
h) sound and adequately secured digital infrastructure and internet facilities are available, where necessary;
i) there is sufficient storage space available for protection against theft, loss and damage of tools and equipment intended for assembly and of the personal belongings of the supplier's personnel;
j) the access roads to the assembly site are suitable for the necessary transport of the item to be assembled and the supplier's equipment.
Damage and costs incurred by the supplier and/or the customer as a result of failure to comply with one of the obligations mentioned in this article, or delayed compliance, shall be borne by the customer.
If the supplier provides assistance or support of any kind with the assembly, without having been commissioned to do so, this is at the customer's risk.
Costs incurred by the supplier due to unworkable weather shall be borne by the customer.

Article 8 Inspection and acceptance tests

The purchaser inspects the product no later than 7 days after delivery as referred to in Art. 6(2). If assembly has been agreed, the purchaser inspects the product no later than 5 days after assembly.
implementation thereof. If the applicable period expires without written and specified notification of justified complaints, the product shall be deemed to have been accepted.
Once acceptance tests have been agreed upon, the purchaser shall, following delivery as referred to in Article 6(2), provide the supplier with the opportunity to make the necessary preparations and to implement any changes deemed necessary by the supplier. The acceptance tests shall be conducted without delay upon the supplier's request, in the presence of the purchaser. The costs of the acceptance tests shall be borne by the purchaser. However, the supplier shall bear the costs of its own personnel and its other representatives. If the acceptance tests are carried out without valid complaint, or if the purchaser fails to meet its aforementioned obligations, the product shall be deemed accepted.
The customer shall make available to the supplier, at the location specified by the supplier, sufficient, timely, and free-of-charge facilities, support, and materials, including those referred to in Article 7(2)(f), and representative samples of any materials to be processed or worked, for the acceptance tests and the preparations and modifications referred to in paragraph 2. If the customer fails to comply with this, the product shall be deemed to have been accepted.
The supplier shall prepare a report of the acceptance tests, which shall be sent to the customer. If the customer, after being invited to do so in writing by the supplier in a timely manner, was not represented at the tests, the test report shall be deemed by the customer to be a correct representation.
If the acceptance tests reveal that the product is not in compliance with the agreement, the supplier will rectify the defects as soon as possible. If the purchaser requests this in writing, new acceptance tests will subsequently be carried out, taking into account paragraphs 2-4.
In the case of minor defects that do not affect the proper functioning of the product, the product shall be deemed accepted notwithstanding these defects. The supplier shall rectify these defects as soon as possible.
The customer is not authorised to use the product or a part thereof before acceptance. If the customer does so, without written permission from the supplier, the product shall be deemed to have been accepted.
Without prejudice to Article 11, acceptance pursuant to the preceding paragraphs excludes any claim by the buyer on the grounds of a breach of the seller's delivery obligation.

Article 9 Risk transfer and retention of title

Once the product is considered delivered within the meaning of Article 6(2), the customer bears the risk for any damage that may occur to or through this product, except insofar as the damage is attributable to intent or conscious recklessness on the part of the supplier's employees belonging to management.
Ownership of the delivered goods shall pass to the buyer once all amounts owed by the buyer to the supplier for deliveries and associated work, including interest and costs, have been paid in full to the supplier. In the event of non-payment, the supplier may repossess the delivered goods.
The supplier shall have unimpeded access to the delivered item when exercising the retention of title in accordance with paragraph 2. The customer shall then provide the supplier with all cooperation to repossess the item, including disassembly.

Article 10 Payment

Unless otherwise agreed in writing, payment of the price shall be made within 30 days of the invoice date. Invoicing shall take place in the following 2 instalments:
– 1/3 of the price upon signing of the agreement;
– 2/3 of the price after delivery according to Article 6(2).
Payment for additional work shall be made no later than 7 days after it has been invoiced to the customer.
All payments shall be made to the supplier's specified account without deduction, suspension or set-off.
If the buyer does not pay on time, they are legally in default, and the supplier is entitled, without prior notice, to charge them interest from the due date at a rate of 3 percentage points above the statutory interest rate applicable in the Netherlands for commercial transactions, as referred to in Section 6:119a and Article 6:120(2) of the Dutch Civil Code, as well as all judicial and extrajudicial costs.

Article 11 Product defects

The product must conform to the agreement. The supplier is obliged to remedy any non-conformities thereof (hereinafter referred to as “defects”) arising from incorrect or improper 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 shall also be considered a defect. The obligation to remedy the defect exclusively applies to defects in the product that were not observable during inspection and (if agreed) acceptance tests, and of which the purchaser proves that they occurred within 6 months after delivery in accordance with Art. 6, paragraph 2.
In the case of the assembly of a product supplied by the vendor, the period of 6 months mentioned in paragraph 1 for both the supplied product and its assembly shall commence on the day the assembly has been completed by the vendor. This period shall in any event end 12 months after the delivery of the product, in accordance with Article 6, paragraph 2.
Defects in a delivered item shall be rectified by the supplier through repair or replacement of the defective part, whether at the supplier's premises or not, or by sending a repaired part or a replacement part, all at the supplier's discretion. After rectifying the defect, the supplier shall, for a period of 6 months, be similarly obligated to rectify defects in the repaired or replacement part. Any liability for defects in the delivered item shall in any event lapse 12 months after its delivery in accordance with Article 6(2) or, if paragraph 2 applies, 18 months after such delivery.
Defects in the assembly of goods supplied by the vendor shall be remedied by the vendor through the performance of repair work. After the defect has been remedied, the vendor shall be liable for defects in the repair work in the same way for 6 months. Any liability for defects therein shall in any event lapse 18 months after the delivery of the goods, in accordance with Article 6(2).
Defects in maintenance, repair (if not carried out under paragraph 3 or 4), assembly of a product supplied by a third party to the buyer, overhaul, execution of work and similar services will be rectified by the supplier by re-performing the work, insofar as it is defective. After re-performing the work, the supplier shall be liable for defects in the remedial work for 6 months. Any liability shall in any event become time-barred 12 months after delivery in accordance with Article 6(2).
Defects due to infringement of intellectual property rights shall, at the supplier's discretion, be remedied by the supplier by:
1. acquisition of the right of use for the customer;
2. any modification of the case such that there is no longer an infringement, or
3. replacement of the item with another item that does not infringe intellectual property rights.
The supplier shall be liable for any defects in the intended adjustment or replacement for a period of 6 months after the intended adjustment or replacement, subject to the conditions mentioned in this article. Any liability of the supplier for defects therein shall in any case expire 12 months after the delivery of the item in accordance with Article 6, paragraph 2, or, if paragraph 2 is applicable, 18 months after such delivery.
Transport costs and additional costs for dismantling and reassembly, incurred by the supplier when rectifying defects, shall be borne by the purchaser.
The supplier shall not be liable for defects in inspections, advice and similar services.
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) dismantling, repair or modifications by the customer or by third parties;
d) the application of a government regulation;
e) materials and items that have already been used and were applied in consultation with the customer;
f) materials and items supplied by or on behalf of the customer, whether for processing or otherwise;
g) materials, items, design, construction or method applied at the express instruction of the customer;
h) through the supplier of third-party components (including software), insofar as the third party is not liable for it to the supplier.
Furthermore, the supplier shall not be liable for infringement of intellectual property rights resulting from the circumstances that:
i) the product is used outside the Netherlands;
j) the product is used in a manner other than that agreed;
k) the product is used in conjunction with equipment or software that has not been supplied by the vendor.
If the buyer fails to fulfil an obligation arising from any agreement concluded with the supplier, or fails to do so properly or in a timely manner, the supplier shall not be obliged to remedy defects. If the buyer proceeds with or causes to be proceeded with disassembly, repair or other work on the product without the prior written approval of the supplier, any obligation of the supplier to remedy defects shall lapse.
Defects must be notified in writing to the supplier as soon as possible after discovery, but at the latest within 14 days after the expiry of the applicable warranty period. Exceeding these deadlines will forfeit any claim for those defects. Legal actions must be brought within 1 year of the aforementioned notification, on penalty of forfeiture of all rights.
If the buyer has made the aforementioned notification and no defect is found for which the supplier is liable, the supplier is entitled to compensation for the costs incurred as a result of the notification.
If the supplier replaces parts when rectifying defects, the replaced parts become the property of the supplier.
If the buyer states that the supplier is not meeting an obligation mentioned in this article, the buyer shall remain obliged to fulfil the obligations incumbent upon him arising from any agreement concluded with the supplier.
If the supplier has not remedied the defect within a reasonable period, the customer may, by written notice, set a final, reasonable period for this. If the supplier does not fulfil their obligations within this final period, the customer may, at the supplier's expense, have the defect remedied by themselves or by a third party, provided the customer or the third party possesses the necessary expertise. If the defect has thus been successfully remedied, the supplier is discharged from all liability for the defect by reimbursement of the reasonable costs incurred by the customer. These costs shall not exceed 15 per cent of the price of the product.
If the deficiency is not rectified in accordance with section 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 percent of the price, or
b) if the defect is so serious that it deprives the customer of a substantial part of the benefit they would otherwise derive from the product or a substantial part thereof, the customer is entitled to dissolve the agreement by written notification to the supplier concerning the product or a substantial part thereof. The customer shall then be entitled to reimbursement of the price paid for the part of the product in respect of which the agreement is dissolved. In addition, the customer is entitled to compensation for damages up to a maximum of 15% of the part of the price that relates to the part of the product in respect of which the agreement is dissolved.

Art. 12 Liability

Unless the supplier's employees belonging to the management act intentionally or with deliberate recklessness, and subject to the applicability of Article 6(5) and Article 11, all liability of the supplier, regardless of the legal basis, is excluded. The supplier is therefore, among other things, not liable for damage caused by:

non-delivery;
third-party liability;
any unlawful act or omission by the supplier (or its employees and persons it engages);
infringement of intellectual property rights, licences and other third-party rights;
damage to or loss of raw materials, semi-finished goods, models, tools and other items made available by the customer, for whatever reason;
loss or corruption of data;
loss of productivity and reduction in usability;
loss of contracts and customers.

The supplier shall not be liable for loss of profit, any consequential damage, or indirect damage whatsoever.

The purchaser shall indemnify the supplier against and hold the supplier harmless from all third-party claims for damages in connection with the performance of the agreement.

Article 13 Force Majeure

In these terms and conditions, force majeure means any circumstance beyond the supplier's control – even if it was foreseeable at the time the agreement was entered into – that permanently or temporarily prevents the supplier from fulfilling the agreement or makes performance unreasonably onerous, and, to the extent not already included, war, risk of war, civil war, riot, strike, exclusion of workers, transport difficulties, import and export restrictions, government measures, fire, terrorism, epidemics and pandemics, natural disasters, extreme weather conditions, limited energy availability, power failure, disruption of internet, computer network and telecommunication facilities, cybercrime, and defects and delays in delivery by suppliers as a result of circumstances mentioned in this clause.
If the supplier is temporarily unable to fulfil the agreement due to force majeure, or can only do so in a way that is unreasonably burdensome for them, they shall have the right to suspend the performance of the agreement. After 6 months, if the force majeure situation still persists, each party shall be entitled to dissolve the agreement in whole or in part. Furthermore, each party shall be entitled to dissolve the agreement in whole or in part if, after the force majeure situation has arisen, it is or becomes clear that fulfilment of the agreement by the supplier will be impossible or unreasonably burdensome for longer than 6 months.
In case of suspension and termination pursuant to paragraph 2, the supplier shall not be obliged to pay damages. The supplier shall then be entitled to claim payment for the costs incurred by him for raw materials, materials, parts and other items purchased, reserved, processed and manufactured by him for the execution of the agreement. In the event of termination pursuant to paragraph 2, the buyer shall be obliged to take delivery of the aforementioned items after payment of the aforementioned costs. If the buyer fails to do so, the supplier shall be entitled to store these items at the buyer's expense and risk, or to sell or destroy them at the buyer's expense.

Art. 14 Suspension and termination

If there are good grounds for fearing that the purchaser is unable or unwilling or will be unable to fulfil its obligations, and in the event of bankruptcy, suspension of payment, closure, liquidation or the whole or partial transfer of the purchaser's business, the supplier shall have the right to demand appropriate security for all contractual obligations of the purchaser (whether immediately due or not) and, pending such security, to suspend performance of the agreement. If such security is not provided within a reasonable period set by the supplier, the supplier shall have the right to dissolve the agreement in whole or in part. The supplier shall have these powers in addition to its other rights under the law, the agreement and these terms and conditions.

If the buyer fails to fulfil an obligation under an agreement with the supplier, or fails to do so on time or properly, the supplier is entitled to suspend the execution of the agreement and/or to dissolve the agreement.
Upon suspension and dissolution according to paragraphs 1 and 2, the supplier has the right to store, at the buyer's expense and risk, raw materials, materials, parts, and other items purchased, reserved, processed, and manufactured by him for the execution of the agreement. The supplier may also opt for sale or destruction at the buyer's expense. In the event of suspension and dissolution according to paragraphs 1 and 2, the supplier is entitled to full compensation for damages, but is not obliged to pay compensation himself.
If the buyer terminates the agreement without the prior written consent of the seller, they shall be obliged to pay the full price without prior notice, less any costs saved by the seller.

Article 15 Disputes

Any disputes arising from the agreement and any subsequent agreements shall be settled by the competent Dutch court in the supplier's district, unless mandatory law dictates otherwise.

Article 16 Applicable law

All agreements to which these terms and conditions apply shall be governed by the laws of the Netherlands, excluding the choice of law and conflict of laws rules of private international law. The applicability of the United Nations Convention on Contracts for the International Sale of Goods is excluded.