2019 Fedecom Conditions
General Terms and Conditions issued by Fedecom (trade association for mechanisation technology), filed at the Registry of the Rotterdam District Court on 5 March 2019, deed no. 23/2019. Issued by Fedecom, P.O. Box 2600, 3430 GA Nieuwegein, the Netherlands. ©Fedecom
Article 1: Applicability
1.1. These Terms and Conditions shall apply to all offers made by a Fedecom member, to all agreements that the member enters into and to all agreements arising from this, all of which insofar as the Fedecom member is a supplier or contractor.
1.2. The Fedecom member applying these Terms and Conditions shall be referred to as the Contractor. The other party shall be referred to as the Client.
1.3. In the event of conflict between the contents of the agreement concluded between the Client and the Contractor and these Terms and Conditions, the provisions of the agreement shall prevail.
1.4. These Terms and Conditions may only be applied by Fedecom members.
Article 2: Offers
2.1. All offers are non-binding. The Contractor shall have the right to revoke his offer up to two business days after having received the acceptance by the Client.
2.2. If the Client provides information to the Contractor, the Contractor shall be entitled to assume its accuracy and completeness and shall base his offer on it.
2.3. The prices stated in the offer shall be expressed in euros and shall be exclusive of VAT and other government levies or taxes. Furthermore, the prices shall be exclusive of travel, accommodation, packaging, storage and transport costs as well as costs for loading, unloading and cooperation with customs formalities.
Article 3: Confidentiality
3.1. All information (such as offers, designs, pictures, drawings and know-how) of whatever nature and in whatever form provided by or on behalf of the Contractor to the Client shall be confidential and shall not be used by the Client for any purpose other than for the performance of the Agreement.
3.2. The information referred to in paragraph 1 of this article shall not be disclosed or reproduced by the Client.
3.3. If the Client breaches any of the obligations referred to in paragraphs 1 and 2 of this article, they shall owe an immediately payable penalty of €25,000 for each breach. This penalty may be claimed in addition to damages by virtue of the law.
3.4. Upon first request, the Client must – at the Contractor's discretion – return or destroy the information referred to in paragraph 1 of this article within a period set by the Contractor. In the event of violation of this provision, the Client shall owe the Contractor an immediately payable penalty of €1,000 per day. This penalty may be claimed in addition to damages by virtue of the law.
Article 4: Recommendations and information provided
4.1. The Client shall not be entitled to derive any rights from recommendations and information provided by the Contractor that are not directly related to the order.
4.2. If the Client provides information to the Contractor, the Contractor shall be entitled to assume its accuracy and completeness in the performance of the agreement.
4.3. The Client shall determine and be responsible for the scope and efficiency of the repair(s) and/or activities to be carried out. The Client shall decide on the (technical) specifications according to which the repair(s) and/or other activities are eventually carried out.
4.4. The Client shall indemnify the Contractor against any claims by third parties relating to the use of recommendations, drawings, calculations, designs, materials, brands, samples, models and the like provided by or on behalf of the Client. The Client shall compensate all damage to be suffered by the Contractor, including all costs incurred for the defence against such claims.
Article 5: Delivery time/execution period
5.1. Any stated delivery time or execution period shall be understood to be indicative.
5.2. The delivery time or execution period shall not commence until all commercial and technical details have been agreed upon, all information, including final and approved drawings and the like are in the possession of the Contractor, the agreed (instalment) payment has been received, and the other conditions for the performance of the order have been met.
5.3. In the event that:
- circumstances should occur that are different than those of which the Supplier was informed when he specified the delivery period or execution period, the delivery period or execution period shall be extended by the time required by the Contractor to execute the order under those circumstances, taking into account his schedule;
- additional work is required, the delivery time or execution period shall be extended by the time required by the Contractor to supply (or arrange for the supply of) the materials and parts for this purpose and to carry out the additional work, taking into account his schedule;
- there is a suspension of obligations on the part of the Contractor, the delivery time or execution period shall be extended by the time required by the Contractor to execute the order after the reason for the suspension has lapsed, taking into account his schedule.
Unless the Client provides evidence to the contrary, the duration of the extension of the delivery time or execution period shall be presumed to be necessary and the result of a situation as referred to above under a to c.
5.4. The Client shall be bound to pay all costs incurred or damage suffered by the Contractor as a result of a delay in the delivery time or execution period, as mentioned in paragraph 3 of this article.
5.5. Exceeding the delivery time or execution period shall under no circumstances entitle the Client to compensation or dissolution. The Client shall indemnify the Contractor against any claims by third parties resulting from the delivery time or execution period being exceeded.
Article 6: Delivery and transfer of risk
6.1. Delivery shall be understood to take place at the moment when the Contractor makes the good available to the Client at the Client's business location and has notified the Client that the good is at the Client's disposal. From that time, the Client shall bear the risks associated with, inter alia, the storage, loading, transport and unloading of the good.
6.2. The Client and the Contractor may agree that the Contractor will arrange for transport. The risks associated with, inter alia, the storage, loading, transport and unloading shall in that case also rest with the Client. The Client may take out insurance against these risks.
6.3. If the Client wishes to exchange a good and is keeping the good to be exchanged in their possession pending delivery of the new good, the risks associated with the good to be exchanged shall remain with the Client and all costs shall be borne by the Client until such time as the good has come into the Contractor's possession. The costs mentioned in the previous sentence shall also include the costs of maintenance and any damage, whatever the cause. If the Client cannot deliver the good to be exchanged in the condition it was in when the agreement was concluded, the Contractor shall be entitled to dissolve the agreement.
Article 7: Price changes
7.1. The Contractor shall be entitled to charge the Client for any increase in cost-determining factors that occurred after the agreement was concluded. The Client shall be obliged to pay the price increase upon the Contractor's first request.
7.2. If the Client is a consumer – being a natural person not acting in the exercise of their profession or business – and the price increase referred to in paragraph 1 occurs within three months from the date on which the agreement was concluded, the Client shall have the right to dissolve the agreement.
Article 8: Force majeure
8.1. Any failure to fulfil obligations resulting from force majeure shall not be for the account of the Contractor.
8.2. Force majeure shall include, inter alia, the circumstance in which third parties engaged by the Contractor – such as suppliers, subcontractors and transporters – or other parties upon which the Contractor depends, fail to fulfil their obligations or fail to fulfil them on time; weather conditions, natural disasters, terrorism, cybercrime, disruption of digital infrastructure, fire, power failure, loss, theft or loss of tools, materials or information, road blocks, strikes or work stoppages and import or trade restrictions.
8.3. The Contractor shall be entitled to suspend the performance of his obligations if he is temporarily prevented from fulfilling his obligations to the Client due to force majeure. Once the force majeure situation has ceased, the Contractor shall fulfil his obligations as soon as his schedule permits.
8.4. If there is a case of force majeure and fulfilment is or becomes permanently impossible, or if the temporary situation of force majeure has lasted for more than six months, the Contractor shall be entitled to dissolve all or part of the agreement with immediate effect. In such cases, the Client shall also be entitled to dissolve the agreement with immediate effect, but only for those obligations that have not yet been fulfilled by the Contractor.
8.5. The parties shall not be entitled to compensation for damages suffered as a result of the force majeure, suspension or dissolution within the meaning of this article.
Article 9: Scope of the work
9.1. The Client shall be obliged to ensure that all permits, exemptions and other authorisations necessary to perform the work have been obtained in time. The Client shall be obliged to send a copy of the aforementioned documents to the Contractor upon first request.
9.2. Unless otherwise agreed in writing, the work shall not include:
- groundwork, pile-driving, chopping, demolition, foundation, masonry, carpentry, plastering, painting, wallpapering, repairs or other structural work;
- the installation of gas, water, electricity, internet or other infrastructural connections;
- measures to prevent or limit damage to, theft or loss of goods present at or near the work site;
- the removal of materials, building materials or waste;
- vertical and horizontal transport.
Article 10: Additional work
10.1. In any event, any changes in the work shall result in additional work if:
- there is a change in the design, specifications or contract documents;
- the information provided by the Client does not correspond with the reality;
- estimated quantities deviate by more than 5%.
10.2. Additional work shall be invoiced according to the pricing factors applicable at the time when the additional work is performed. The Client shall be obliged to pay the price of the additional work at the Contractor's first request.
Article 11: Performance of the work
11.1. The Client shall ensure that the Contractor can carry out his work without interruption and at the agreed time, and that in the execution of the work he has access to the requisite facilities such as:
- gas, water, electricity and internet;
- a lockable, dry storage space;
- facilities required by the laws and regulations governing working conditions.
11.2. The Client shall bear the risk and be liable for damage to and theft or loss of property of the Contractor, the Client and third parties, such as tools, materials intended for the work or equipment used in the work, located at or near the site where the work is performed or at any other agreed location.
11.3. Without prejudice to the provisions in paragraph 2 of this article, the Client shall be obliged to take out adequate insurance against the risks mentioned in that paragraph. In addition, the Client must take out insurance against the risk of work-related damage with regard to the equipment to be used. The Client shall send the Contractor a copy of the relevant insurance policy or policies and proof of payment of the premium upon first request. If there is any damage, the Client shall be obliged to report it immediately to their insurer for further handling and settlement.
11.4. If circumstances arise which make it necessary to perform the work at a time other than the Contractor’s usual business hours, the Contractor shall be entitled to charge the Client for the resulting additional costs.
11.5. If the Client has ordered inspections and/or repairs, and such work is to take place at a premises of the Client, the Contractor shall not be obliged to announce his arrival, that of his staff or any third parties engaged by him for the purpose of the work, nor to inform the Client of the exact time of arrival.
11.6. The Client shall ensure that the object to be inspected and/or repaired is made available to the Contractor in a cleaned condition, such that the work arising from the agreement can be performed.
Article 12: Completion of the work
12.1. The work shall be considered to be completed if:
- the Client has approved the work;
- the Client has taken the object into use. If the Client takes a part of the object into use, that part shall be considered completed;
- the Contractor has notified the Client in writing that the work has been completed and the Client has not notified the Contractor in writing that the work has not been approved within 14 days of the date of notification;
- the Client disapproves the work on account of minor defects or missing parts that can be repaired or redelivered within 30 days and which do not prevent the object from being put into use.
12.2. If the Client does not approve the work, they shall be obliged to inform the Contractor of this in writing, stating reasons. The Client shall be obliged to give the Contractor the opportunity to remedy the defects or concerns raised.
12.3. The Client shall indemnify the Contractor against any third-party claims for damage to uncompleted parts of the work caused by the use of parts of the work already completed.
Article 13: Liability
13.1. In the event of an attributable breach, the Contractor shall still be obliged to fulfil his contractual obligations, in compliance with article 14.
13.2. The obligation of the Contractor to compensate damage on any basis whatsoever shall be limited to that damage for which the Contractor is insured under an insurance policy taken out by or on behalf of the Contractor. However, the scope of this obligation shall never exceed the amount paid out under this insurance in the relevant case.
13.3. If, for whatever reason, the Contractor cannot invoke paragraph 2 of this article, the obligation to compensate damage shall be limited to a maximum of 15% of the total order price (excluding VAT). If the agreement consists of parts or partial deliveries, this obligation shall be limited to a maximum of 15% (excluding VAT) of the order price of that part or partial delivery. In the case of continuing performance contracts, the obligation to pay damages shall be limited to a maximum of 15% (exclusive of VAT) of the order price due over the last twelve months prior to the event causing the damage.
13.4. Not eligible for compensation are:
- consequential damage. Consequential damage shall include stagnation damage, loss of production, loss of profit, fines, transport costs and travel and accommodation costs;
- damage to goods in custody. Damage to goods in custody shall be understood as damage to goods which are being worked on or to goods which are in the vicinity of the place where the work is being carried out;
- damage caused by the intent or deliberate recklessness of auxiliaries or non-managerial subordinates of the Contractor.
If possible, the Client may take out insurance against these damages.
13.5. The Contractor shall not be obliged to compensate any damage to material supplied by or on behalf of the Client as a result of improper use.
13.6. The Client shall indemnify the Contractor against all third-party claims for product liability resulting from a defect in a product supplied by the Client to a third party and of which the products or materials supplied by the Contractor form part. The Client shall be obliged to compensate all damage suffered by the Contractor in this respect, including the (full) costs of legal defence.
Article 14: Warranty and other claims
14.1. Unless agreed to otherwise in writing, the Contractor shall guarantee the proper performance of the agreed service for a period of six months after delivery or completion, as detailed in the following paragraphs.
14.2. If the parties have agreed on deviating warranty terms, the provisions of this article shall apply without prejudice, unless this is contrary to those deviating warranty terms.
14.3. No warranty shall be given for delivered goods that were not new at the time of delivery.
14.4. If the agreed service has not been properly performed, the Contractor shall, within a reasonable time, choose whether to still perform it properly or credit the Client for a proportionate part of the contract price.
14.5. If the Contractor chooses to perform the service properly, the Contractor shall determine the manner and time of performance. The Client shall in all cases give the Contractor the opportunity to do so. If the agreed performance consisted (entirely or partially) of the processing of material provided by the Client, the Client shall be obliged to provide new material at their own risk and expense.
14.6. Parts or materials repaired or replaced by the Contractor shall be returned to the Contractor by the Client.
14.7. The Client shall bear:
- all transport or shipping costs;
- costs for disassembly and assembly;
- travel and accommodation costs and travelling hours.
14.8. The Contractor shall only be obliged to implement the warranty if the Client has fulfilled all their obligations.
- Warranty shall not apply to defects resulting from:
- normal wear and tear;
- injudicious use;
- non- or incorrectly performed maintenance;
- installation, assembly, modification or repair by the Client or by third parties;
- defects to or unsuitability of goods originating from, or prescribed by the Client;
- defects to or unsuitability of materials or tools used by the Client.
- No warranty shall apply to:
- the inspection and repair of goods belonging to the Client;
- parts covered by the manufacturer's warranty.
14.10. The provisions of paragraphs 3 to 9 of this article shall apply mutatis mutandis to any claims made by the Client on the grounds of non-performance, non-conformity or any other basis whatsoever.
Article 15: Obligation to complain
15.1. The Client shall no longer be entitled to invoke a defective performance if they have not complained about it in writing to the Contractor within fourteen days after they discovered or reasonably should have discovered the defect.
15.2. On pain of forfeiture of all rights, the Client must have submitted complaints about the invoice to the Contractor in writing within the payment period. If the payment term exceeds 30 days, the Client must have complained in writing no later than 30 days after the invoice date.
Article 16: Failure to take delivery of goods
16.1. Upon expiry of the delivery time and/or execution period, the Client shall be obliged to take delivery of the good or goods forming the subject of the agreement at the agreed location.
16.2. The Client shall be obliged to lend all cooperation that can be reasonably expected from them, free of charge, to enable the Contractor to make the delivery.
16.3. Uncollected goods shall be stored at the Client's expense and risk.
16.4. Upon breach of the provisions of paragraphs 1 and/or 2 of this article, and after the Contractor has given notice of default, the Client shall owe the Contractor a penalty of €250 per day, up to a maximum of €25,000. This penalty may be claimed in addition to damages by virtue of the law.
Article 17: Payment
17.1. Payment shall be made at the place of business of the Contractor or to an account specified by the Contractor.
17.2. Unless otherwise agreed, payment shall be made as follows:
- cash in case of an over-the-counter sale;
- if payment in instalments has been agreed upon:
- 50% of the total price at the time the order is placed;
- 50% of the total price upon completion;
- in all other cases: within 30 days of the invoice date.
17.3. If the Client fails to fulfil their payment obligation, they shall be obliged, instead of paying the agreed sum of money, to comply with a request from the Contractor for payment in instalments.
17.4. The Client's right to offset their claims against the Contractor or to suspend the fulfilment of their obligations shall be excluded, except in the event of suspension of payments or bankruptcy of the Contractor or if statutory debt restructuring applies to the Contractor.
17.5. Regardless of whether the Contractor has fully performed the agreed service, everything that the Client owes or will owe under the agreement shall be immediately due and payable if:
- a payment term has been exceeded;
- the Client fails to fulfil their obligations under Article 16;
- the Client has filed for bankruptcy or suspension of payments;
- the Client's goods or claims are seized;
- the Client (being a company) is dissolved or liquidated;
- the Client (being a natural person) applies for admission to statutory debt rescheduling, is placed under guardianship or dies.
17.6. In the event of delay in the payment of a sum of money, the Client shall owe the Contractor interest on that sum of money, with effect from the day after the day agreed as the final day for payment, up to and including the day on which the Client has settled the sum of money. If the parties have not agreed on a final day for payment, interest shall be due from 30 days after due date. The interest rate shall be 12% per annum, but shall be equal to the statutory interest rate if the latter is higher. In calculating interest, any part of a month shall be considered a full month. At the end of each year, the amount on which interest is calculated shall be increased by the interest due for that year.
17.7. The Contractor shall be authorised to offset his debts to the Client with claims against companies affiliated with the Client. In addition, the Contractor shall be authorised to offset his claims against the Client against debts owed to the Client by companies affiliated to the Contractor. Furthermore, the Contractor shall be authorised to offset his debts to the Client against claims against companies affiliated to the Client. Affiliated companies shall be understood to mean: all companies belonging to the same group, within the meaning of article 2:24b of the Dutch Civil Code or which have a participating interest within the meaning of article 2:24c of the Dutch Civil Code.
17.8. If the Client has not paid on time, they shall owe the Contractor all extrajudicial costs, with a minimum of €75.
These costs shall be calculated according to the following table (principal sum incl. interest):
over the first €3,000 - 15%
over the remainder up to €6,000 - 10%
over the remainder up to €15,000 - 8%
over the remainder up to €60,000 - 5%
over the remainder above €60,000 - 3%
If higher than the amounts calculated according to the above table, the actually incurred extrajudicial costs shall be due.
17.9. If the Contractor is wholly or largely held to be in the right in legal proceedings, all costs incurred in connection with such proceedings shall be borne by the Client.
Article 18: Securities
18.1. Irrespective of the agreed payment conditions, the Client shall be obliged to provide sufficient security for payment at the Contractor's first request, at the Contractor's discretion. If the Client fails to do so within the specified period, they shall immediately be in default. In that case, the Contractor shall be entitled to terminate the agreement and recover his losses from the Client.
18.2. The Contractor shall remain the owner of delivered goods as long as the Client:
- has not fulfilled their obligations under any agreement with the Contractor;
- has not paid any claims arising from non-fulfilment of the aforementioned agreements, such as damages, penalties, interest and costs.
18.3. As long as goods delivered are subject to retention of title, the Client may not encumber or dispose of them outside the scope of their normal business operations. This clause has effect under property law.
18.4. After the Contractor has invoked his retention of title, he may retrieve the delivered goods. The Client shall render all assistance in this respect. The cost of collection, as well as for any defect parts or damage to the delivered goods, shall be borne by the Client.
18.5. If, after the goods have been delivered to the Contractor in accordance with the agreement, the Client has fulfilled their obligations, the retention of title in respect of these goods shall revive if the Client fails to fulfil their obligations under a subsequent agreement.
18.6. The Contractor shall have a right of pledge and a right of retention in respect of all goods which he has or will have in his possession, for whatever reason, and in respect of all claims which he has or may have against the Client.
Article 19: Intellectual property rights
19.1. The Contractor shall be regarded as creator, designer or inventor, respectively, of the works, models or inventions created under the agreement. The Contractor shall therefore have the exclusive right to apply for a patent, trademark or model.
19.2. The Contractor shall not transfer any intellectual property rights to the Client in the performance of the agreement.
19.3. If the service to be provided by the Contractor consists of or includes the supply of computer software, the source code shall not be transferred to the Client. The Client shall be granted a non-exclusive, worldwide and perpetual user’s licence to the computer software, solely for the purposes of normal use and proper operation of the good. The Client shall not be permitted to transfer the licence or to issue a sublicense. If the Client sells the good to a third party, the licence shall pass to the acquirer of the good by operation of law.
19.4. The Contractor shall not be liable for any damage suffered by the Client as a result of an infringement of intellectual property rights of third parties. The Client shall indemnify the Contractor against any third-party claim regarding an infringement of intellectual property rights.
Article 20: Transfer of rights or obligationsThe Client shall not be entitled to transfer or pledge any rights or obligations under any article of these General Terms and Conditions or the underlying agreement(s), except with the prior written consent of the Contractor. This clause has effect under property law.
Article 21: Termination or cancellation of the agreement
21.1. The Client shall not be authorised to terminate or cancel the agreement unless the Contractor consents. In the event that the Contractor consents, the Client shall owe the Contractor an immediately due compensation in the amount of the agreed price, minus the savings for the Contractor resulting from the termination. The compensation shall amount to at least 20% of the agreed price.
21.2. Where the price has been made dependent on the actual costs to be incurred by the Contractor (cost-plus basis), the compensation referred to in the first paragraph of this article shall be estimated at the sum of the costs, working hours and profit, which the Contractor would be expected to have incurred for the entire order.
Article 22: Applicable law and competent court
22.1. This agreement shall be governed by Dutch law.
22.2. The Vienna Convention on Contracts for the International Sale of Goods (CISG) shall not apply, nor shall any other international regulation the exclusion of which is permitted.
22.3. The Dutch civil court having jurisdiction in the place of business of the Contractor shall take cognisance of disputes. The Contractor shall be allowed to deviate from this rule of jurisdiction and apply the statutory rules of jurisdiction.