GENERAL TERMS OF DELIVERY 2020 (based on © FHI, Federation of Technology Industries 2020)
1. Defintions
1.1 Offer: Any offer made by the Contractor to the Client.
1.2 Consultancy: The provision of advice in the general sense of the word including in any includes in any case advising in the field of automation and/or organisation performing applicability research, performing system analysis advising with regard to equipment and/or software to be applied by the Principal, providing support in the development of software giving and/or organising instruction, courses or workshops and instructing and supervising employees.
1.3 ALV2020: These general terms of delivery, consisting of:
– Part A with general provisions;
– Part B with additional provisions relating to the provision of services, including RD, Consulting, Service and Training and further including contracting except for the development of Software;
– Part C containing additional provisions relating to the development and/or supply of Software.
1.4 Documentation: Brochures, product information, factory drawings, instructions, test certificates, catalogues, price lists provided by the Contractor, leaflets and all information provided in or with an Offer or during the performance of the Agreement such as , for example but not limited to: designs, drawings/pictures, plans, descriptions, explanations, ideas, models, samples, tables diagrams, databases, software, calculations and any other information which by its nature is confidential.
1.5 Defect: A defect exists if the Delivered by the Contractor to the Client under the Agreement is not complete and/or does not meet the specifications and/or does not possess the characteristic(s) which the Contractor has explicitly and in writing specified .
have been confirmed to the Customer before or after the Agreement.
1.6 Delivered: That delivered by the Contractor under the Agreement, including the (part of) the Work and/or the
Work which the Contractor has provided to the Client under the Agreement or for the Client respectively
performed.
1.7 Immediate: As soon as reasonably practicable.
1.8 Assignment: The agreed Work as well as the agreed Work and any other work performed by the Contractor pursuant to
of the Agreement to be delivered.
1.9 Order Confirmation: The Written communication from Contractor to Customer in which the contents of the Agreement are
summary. The Order Confirmation will usually describe the scope of the agreed delivery and the agreed prices and conditions.
1.10 Principal: The party to whom the Offer made by the Contractor is addressed, to whom the Contractor has delivered and/or with
whom the Contractor has entered into an agreement.
1.11 Contractor: A member of one of the Association ‘ s member trade associations (defined below) that uses the ALV2020, refers to it or by or on behalf of whom the ALV2020 have been declared applicable, its representative(s), agent(s) and legal successor(s) and any other (legal) person using the ALV2020 with the Association ‘ s demonstrable consent.
1.12 Agreement: The Agreement between Client and Contractor including any amendment(s) agreed after its conclusion and the agreed additional work and less work.
1.13 Parties: Client and Contractor.
1.14 Party: One of the Parties.
1.15 In writing: correspondence by registered letter, bailiff’s writ, regular mail or fax. It also includes correspondence by electronic medium (such as e-mail or web-form) provided that neither Party has demonstrably objected to the use of the relevant electronic medium.
1.16 Supplier: The party from which Contractor procures the goods offered by it.
1.17 Association: FHI, federation of technology branches, registered in the trade register of the Chamber of Commerce under number 40507574.
1.18 Work: The item of material nature or parts thereof to be created by the Contractor for the Principal in fulfilment of the the Agreement for the Client, such as , for example, an appliance, machine, semi-finished product, building, installation or other item.
1.19 Work: The work performed by the Contractor for the Client in performance of the Agreement concerning
the supply of services insofar as they do not relate to the creation of a Work for the Customer. This may include
be to , for example, doing research and development (RD), doing feasibility studies, Consulting, developing,
design, construction and supply and/or modification of software, systems or operating systems, design of mechanical engineering and
electrical installations, performing service and maintenance, assembly, dismantling, installation, de-installation, connection and
disconnection, installation, erection, dismantling, demolition, adjustment, calibration, validation, configuration, adjustment and setting work,
commissioning, testing, measuring, calibration, inspection, inventory, training, workshops, supervision, etc. Services are provided in his
generally often charged by the hour on an hourly basis when it is a pure effort obligation.
These general terms of delivery have been drawn up by FHI, federation of technology branches, for the benefit of members of a company registered with the
Association (defined below) affiliated trade association. Parties other than those referred to above are not at liberty to
use these general terms and conditions.
Neither FHI, federation of technology industries, nor its board is responsible or liable for acting or not acting
of members.
No part of these general terms and conditions of delivery may be modified, reproduced, stored in a computerised database, or
disclosed in any form or by any means, whether electronic, mechanical, photocopying, recording or any other manner, without the prior written consent of FHI, Federation of Technology Branches.
Applicability of the ALV2020, titles and language
2.1 Applicability
These Conditions apply to every Offer, to every delivery by the Contractor to any Agreement between the Contractor and the Client and to all other legal relationships between the Client and the Contractor. Deviations from this ALV2020
are only effective insofar as they have been expressly confirmed in Writing by the Contractor to the Client.
2.2 Authorised persons
Only employees employed by the Contractor, who are authorised to do so according to the trade register of the Chamber of Commerce are authorised to perform legal acts on behalf of the Contractor. Legal acts performed by parties other than those referred to in the
commercial register authorised persons cannot be invoked against the party on whose behalf the legal acts were performed unless
The Contractor has ratified these legal acts In Writing. Legal acts include , inter alia, the doing of a
Offering, guaranteeing certain features of a product, making commitments on delivery dates, changing previously made arrangements, entering into an agreement, etc.
2.3 Digital communication requirements
The Contractor may , during the existence of the legal relationship , impose requirements for communication between the Parties or the performance of
legal acts via digital media.
2.4 Title condition
The titles and articles of the ALV2020 serve solely to facilitate their reading and clarity and have no
other meaning. In particular, the titles will not be able to be used to interpret ALV2020.
2.5 References
Where the ALV2020 refers to article numbers, those article numbers refer to the relevant articles from the
ALV2020 unless the text shows that the reference is to articles from another document or source.
2.6 Proof of receipt
If the recipient disputes that certain Written correspondence has reached him, the sender has the burden of proving that the recipient ‘s
received this correspondence. In the case of correspondence by electronic medium , subject to convincing evidence to the contrary
data concerning dispatch and receipt as recorded on the Contractor’s server(s) shall serve as sole evidence.
2.7 Mutual priority clauses
To the extent that a clause in Parts B or C of the ALV2020 applies to the relevant Agreement or part thereof and a
clause from Part B or C conflicts with a clause from Part A, the term from Part B or C prevails over the relevant term from Part A
With which it conflicts.
2.8 Language
ALV2020 drafted in the Dutch language shall prevail over ALV202020 translated into English or any other language.
2.9 Coulance
If at any time the Contractor – knowingly or unknowingly – does not invoke, reject or incorporate any provision of this ALV2020
he thereby does not have the right to invoke it at a later stage.
The Offer and the conclusion of the Agreement
3.1 Casual
Every Offer is without obligation unless a period for acceptance is specified in the Offer. An offer without obligation may be withdrawn without delay after acceptance. In that case , no agreement is concluded.
3.2 Offer and acceptance
The Agreement is established by a Written Offer and its acceptance subject to Articles 3.4 to 3.6.
3.3 Sales via webshop
Notwithstanding the other provisions of this article, in the event an order is given via a webshop, the Contract only comes
is established at the moment it is confirmed in writing by the Contractor to the Client by means of an Assignment Confirmation.
3.4 Modified acceptance
To the extent that the Client’ s acceptance of an Offer made by the Contractor deviates from the Offer on any point the Agreement will only be established at the time that the Contractor accepts the deviation in writing and confirms the establishment and content of the Agreement by means of an Assignment Confirmation. and thereby confirms the establishment and content of the Agreement by means of an Assignment Confirmation.
3.5 Non-written acceptance
If the Offer or the acceptance or both the Offer and the acceptance were not made in writing the Agreement will only be concluded at such time as the Contractor confirms the formation and content of the Agreement by means of an Assignment Agreement by means of an Assignment Confirmation and the Client does not object to it In Writing without delay.
3.6 Agreement by commencement of work
If for any reason the course of action described in article 3.2, 3.4, or 3.5 , the Agreement will nevertheless be concluded but with due observance of the following. The Agreement is then established at the time that the Contractor actually starts the performance of the Agreement or instructs third parties to do so. In such a situation , subject to evidence to the contrary to be provided by Principal, the invoice is deemed to fully and correctly reflect the contents of the Agreement.
3.7 Attached information
Documentation provided by or on behalf of the Contractor only bind the Contractor insofar as explicit reference is made in the Offer explicitly refers to data from this Documentation.
3.8 Documentation in singular
The Contractor shall provide Documentation to the extent agreed or, in the opinion of the Contractor , relevant, in single copies free of charge. Client shall owe a reasonable fee to Contractor for additional copies of such Documentation.
3.9 Providing security
Client shall, at Contractor’ s first request, provide adequate collateral to Contractor at its own expense in respect of
of the timely fulfilment of its obligations under the Agreement.
3.10 Engaging third parties
The Contractor is authorised to engage third parties for the performance of the Agreement concluded between the Parties and to Agreement concluded between the Parties and to charge the costs thereof to the Principal in accordance with that Agreement.
4. Confidentiality
4.1 Prohibition
Without the written consent of the Contractor, the Client is prohibited from copying or reproducing Documentation or copying or reproducing Documentation or parts thereof in any way whatsoever, disclose it or allow it to be disclosed to third parties or allow it to be used by third parties, sell to or make available to third parties.
4.2 Right of use Documentation
The Customer is only permitted to use Documentation insofar as this is necessary for the establishment or the performance of the Agreement. At the first request of the Contractor, as well as if the Agreement is not concluded, ends prematurely or
is cancelled, the Client shall, at its own expense , immediately return to the Contractor all Documentation provided to it.
4.3 Limited circle of readers
The Client shall , within its own organisation , only share the Documentation with its own employees and insofar as this is necessary for the conclusion or the performance of the Agreement. By taking receipt of the Documentation , the
Customer that it has taken and will take adequate measures in good time taken to prevent the Documentation or parts thereof from being
leakage to anyone other than the persons/third parties who are entitled to have knowledge of the Documentation under this article.
5. Amendment of the Agreement
5.1 Written only
An amendment to the Agreement can only be agreed In Writing. If the Parties have agreed on
a particular amendment to the Agreement, the Contractor will confirm the amendment to the Customer In Writing. From this confirmation
will in any case reveal the substantive, financial and time implications of the change.
5.2 Or modified implementation
If the Parties agree in substance on the desired amendment of the Agreement but the In Writing requirements stipulated in Art. 5.1 is met, and the Contractor, with the knowledge of the Customer, fulfils the Agreement in amended form, subject to evidence to the contrary to be provided by the Client, the invoice or invoices received by Principal from Contractor will be deemed to reflect the reflect the correct content and scope of the amended Agreement.
5.3 Costs already delivered
If an amendment to the Agreement has been agreed, the Principal is in any case obliged to reimburse the Contractor for the agreed price for the Supplies already delivered by the Contractor up to the time of amendment and/or the work performed up to that time.
5.4 Cost of amending
If an amendment to the Agreement has been agreed , the Principal must reimburse the Principal for the associated costs, which will be reasonably reasonably determined by the Contractor as a result of the amendment. These may include the cost price of materials or manpower already purchased, price changes of suppliers, or cancellation costs resulting from the cancellation of
supplies initially required for the performance of the unamended Agreement.
5.5 Delivery times change with
If an amendment to the Agreement is agreed, the Contractor has the right to deviate from previously agreed delivery times and lead times to the extent that , in his opinion, this is necessary to be able to fulfilthe Agreement in the amended form.
6. Interim termination
6.1 Mutual consent
The parties can only mutually agree that the Agreement will terminate prematurely will terminate and under what conditions such termination will take place.
7. Prices
7.1 Euros
Unless otherwise stated in the Offer , all prices are in euros and exclusive of VAT, import duties and other duties, taxes
or excise duties, excluding costs of packaging, excluding costs of insurance and excluding disposal contribution(s).
7.2 Transport and insurance costs Netherlands
Unless otherwise agreed, in the event of delivery within the Netherlands , the costs of transport and insurance shall be borne by Principal.
7.3 Transport and insurance costs abroad
In the event of delivery outside the Netherlands , unless otherwise agreed, delivery takes place ex-works manufacturer in accordance with the most current version of the Incoterms at the time the offer is made.
7.4 Other costs
The costs of assembly, installation, mounting or removal, connection or disconnection, construction, connection, adjustment, adjustment, calibration, validation, calibration, instruction, testing control and commissioning are only included in the price or at least part of the delivery, insofar as the Parties have agreed this In Writing.
7.5 Exchange rate changes > +/- 2%
In the case of a non-binding Offer and also if this reservation is included in a non-binding Offer is included, the Contractor is entitled to adjust prices if the official currency parity at the time of purchase of the required goods and/or the time of delivery differs by more than 2% from the currency parity on the date the Offer was made, the latter parity being set at 100.
8. Risk
8.1 Risk transport Netherlands
For shipments within the Netherlands , the risk of theft, damage, destruction or deterioration shall pass to Customer on the
moment of delivery of the relevant goods in compliance with the other provisions of this article.
8.2 Risk transport Abroad
In the event of delivery outside the Netherlands , the risk in connection with transport shall be arranged in accordance with the Incoterms provisions agreed by the Parties (see Article 7.3).
8.3 Transport risk within the gates
The risk during transport on the Client ‘ s premises shall at all times be borne by the Client unless Client can prove that the damage was caused by intent or gross negligence of Contractor’ s management.
8.4 Risk after transport abroad
In the event of delivery outside the Netherlands , the risk of theft damage or deterioration shall in any case pass to the Client at the moment the Contractor has has fulfilledall its obligations in accordance with the agreed provisions of the Incoterms.
8.5 Risk operations
Except in cases of intent or gross negligence by the Contractor’ s management and when not otherwise agreed ,, without prejudice to the provisions of Article 18, the following risk shall be borne by the Principal: The risk of loss, theft, damage, destruction or deterioration of the Delivered by Contractor, the property of Principal and that of third parties, in connection with the performance by the Contracted Party of activities relating , among other things, but not exclusively, to assembly, installation, installation, connection or removal.
removal, connection or disconnection, construction, connection, adjustment, adjustment, calibration, validation, calibration, instruction, testing, verification and commissioning.
8.6 Risk matters under Contractor
If the Contractor has segregated items for the Client from its other stock items but has not yet delivered them for whatever reason or if the Contractor keeps items in his custody for the benefit of the Client, e.g. for repair, inspection calibration, validation, training, testing or for whatever , the risk of loss, theft, damage destruction or deterioration shall be borne by Principal unless the conscious risk has materialised as a result of intent or gross negligence on the part of the Contractor’ s management.
8.7 Risk of return of goods Client
In the event that the Contractor has goods of the Client in his possession for e.g. repair, inspection, etc. and these goods have to be shipped or transported for whatever reason, the risk of loss theft, damage, destruction or deterioration during such transportation shall be borne by Customer.
9. Delivery
9.1 Administration costs
The Contractor may, for assignments that do not exceed an amount not exceeding a fee to be determined by him
as a contribution to administrative and logistical costs.
9.2 Moment of delivery
The moment of delivery is, in the case of delivery within the Netherlands, the moment when the goods to be delivered are unloaded or unloaded
at the place agreed for that purpose. The time of delivery is, in the case of delivery outside the Netherlands, the time at which
all obligations have been fulfilled by the Contractor in accordance with the Incoterms provisions agreed by the Parties (see article 7.3). For the time at which risk passes see Article 8, for the time at which ownership passes see Article 16.
9.3 Notification of transport damage etc.
Customer must notify any shortages, defects and damages In Writing directly to
Contractor , failing which the goods shall be deemed to have reached Principal in good order complete and without damage or harm.
9.4 Deliveries in parts
Contractor is entitled to deliver the goods to be delivered in parts and to invoice these parts separately.
9.5 Acceptatie
To the extent that a test, trial or inspection (hereinafter: ‘Acceptance Test’) has been agreed in respect of a delivery and a Defect is thereby found
is established, then notification of that Defect must be made without delay in accordance with the provisions of Article 17.4.
If Immediately after the Acceptance Test no Defect has been reported subject to the provisions of article 17.4 , the delivery has
be deemed to be in accordance with the Client’ s legitimate expectations.
9.6 Returns
Return to Contractor of goods delivered by Contractor or any part thereof, for whatever reason, can only be
take place after prior Written consent and only in accordance with any shipping instructions from the Contractor to the Customer.
9.7 Non-acquisition of goods
In the event that Principal does not accept a delivery offered by Provider accepts or has indicated that it will not accept it, Contractor is nevertheless entitled to charge Principal for the goods in question and Contractor is furthermore entitled to store these goods at his own discretion and for the account and risk of Principal (or have them stored) for as long as he deems expedient, without prejudice to all other rights granted to him by law in connection with the Customer ‘s non-performance.
9.8 Licences
The Client must take care of obtaining permits concessions, licences, consents e.d. necessary for the Contractor to properly fulfil all its obligations under the Agreement.
10. Call-off orders
10.1 Definition
The parties may agree that Customer will purchase a certain quantity of purchase within a certain period of time and that Customer will purchase this
quantity will purchase in more than one separate delivery, according to a concrete call-off schedule. This arrangement is hereinafter referred to as
‘Call-off order’. In that case, the Contractor shall be entitled to invoice the separate deliveries referred to above separately.
10.2 Deliveries according to on-call schedule
If a Call-off Order has been agreed , the Contractor shall offer the individual partial deliveries on the agreed delivery dates without the need for any action by Principal.
10.3 Deviation from on-call schedule
After a Call-off Order has been agreed , the Parties may agree that a particular delivery time of the Call-off Schedule will be deviated from subject to the following paragraphs of this article.
10.4 Written confirmation
A change to the call-off schedule will not take effect until the changed delivery dates of the relevant partial deliveries have been confirmed In Writing by the Contractor to the Customer.
10.5 Holding stock for longer
If, as a result of an agreed change to the call-off schedule , the Contractor has to keep goods in stock for longer has to keep goods in stock longer than would have been the case if the original call-off schedule had been followed then the Contractor will hold them for the account and risk of the Principal.
10.6 Change call schedule and end date
If the Parties agree on a new delivery date for a specific partial delivery of a Call-off Order the other agreed delivery dates of partial deliveries remain unchanged, i.e. they do not shift automatically. A newly agreed delivery date of a partial delivery cannot be later than the originally agreed delivery date of the last partial delivery of the Call-off Order. If the Customer wishes to change the delivery date of the last installment of the Call-off Order , the to do so, the Agreement must be amended as described in Article 5.
10.7 Interrupting call-off order
A Call-off Order can only be terminated early with the consent of both Parties subject to the provisions of Article 6. If the agreed price was based on the purchase of a certain volume and if the final purchase of a lower volume a higher price would have been charged, then, without prejudice to the provisions of Article 6, Customer shall in any case be obliged to pay the difference.
11. Spare parts
11.1 After warranty period
The Contractor cannot be obliged after the expiry of the agreed warranty period to provide spare parts for delivered goods
deliver.
11.2 Warranty on spare parts
If spare parts are supplied or installed by the Contractor to repair a Defect, the guarantee period will not start running again for these spare parts. The warranty period of the original delivery remains unchanged.
11.3 Parts no longer available
To the extent that the Contractor is under an obligation by law or Agreement to supply spare parts to supply spare parts for goods or parts thereof previously supplied to Principal, this obligation shall lapse at such time as Contractor no longer has these spare parts in stock nor are they available on the market through regular channels at reasonable conditions.
11.4 Comparable goods/parts
In the event that Contractor is obliged to replace goods or parts thereof delivered to Principal, he is free to supply a comparable good or part insofar as , in his judgement is suitable for the same normal use for which the good or part to be replaced was suitable.
11.5 Consumables
Insofar as the Parties have not made any Written arrangements regarding the deliverability of consumables, the Contractor is no longer obliged to be able to supply consumables after the expiry of the agreed warranty period.
12. Delivery times
12.1 Foreign Supplies
It is possible that the goods offered by the Contractor such as parts, semi-finished products or raw materials required for the
production there of, here in after: ‘Foreign Supplies’, are supplied directly or indirectly from various continents and countries and/or
are sourcedfrom different Suppliers. The Contractor cannot exclude that these Foreign Suppliers in exceptional
cases only with difficulty or even for some time at all are obtainable due to e.g. scarcity of raw materials
on the global market, environmental disasters and significant supply-side fluctuations. As a result , it is not always possible for the Contractor to
possible to predict exactly when delivery can be made as early as when the order is placed. Nevertheless, in order to
inform as accurately as possible , the Contractor uses the method as described in the following paragraphs of this article.
12.2 No fatal deadlines
The Contractor will state the estimated delivery times in his Offer. After the Agreement has been concluded , the Contractor may verify these estimated delivery times and confirm them to the Client. The verified delivery times may differ from the estimated delivery times from the Offer. Neither the estimated delivery times nor the verified delivery times are deadlines.
12.3 Extension of delivery times
Because in the procurement, production, assembly and transportation of the goods ordered and of the materials incorporated therein, raw materials n semi-finished products unexpected situations may arise over which Contractor cannot, in all reasonableness in his judgment , influence, Contractor shall be entitled to extend the verified delivery times by a maximum of four weeks at a time. To this end, the Contractor shall send a confirmation before the expiry of the verified delivery period, containing the new verified delivery period(s).
12.4 Termination after four renewals
Client is entitled, if the expected delivery time has been extended more than four times, terminate all or part of the Agreement. Where the Customer terminates the Agreement pursuant to this provision, shall not result in any obligation of either Party to pay any compensation for damages suffered by the other Party as a result of such termination.
12.5 Notice of default required for default on agreed delivery date
If, at the request of the Customer , the Parties have agreed that deliveries should take place on a specific day and that for
or at the conclusion of the Agreement has been notified In Writing that later delivery is not acceptable, the Contractor shall notbe in default with respect to the exceeding of such agreed delivery times until he has be in default until after he has been given notice of default In Writing
and he has been given a reasonable time to deliver. In determining the reasonable time , at least but not exclusively
account must be taken of the currently applicable delivery and production lead times, the duration of any transport(s) and the
availability of raw and building materials.
13. Force majeure ( Non-attributable failure)
13.1 In the event of force majeure , no obligation
Neither Party is obliged to fulfil any obligation, including any guarantee obligation agreed between the Parties, if prevented from doing so as a result of force majeure.
13.2 Scope
Force majeure includes: (I) force majeure of Suppliers of the Contractor, (II) failure to properly fulfil obligations of Suppliers prescribed by Principal to Contractor, (III) defectiveness of goods, equipment software or materials of third parties , the use of which has been prescribed to Contractor by Principal, (IV) government measures, (V) power failure, (VI) failure of internet, service providers, computer network or telecommunication facilities,
(VII) war, (VIII) labour occupation, (IX) strike, (X) general transport problems and (XI) unavailability of one or more personnel whose personal effort is necessary in connection with the performance, (XII) terrorist attacks or occupations, (XIII), epidemics and pandemics, (XIV) financial crisis, (XV) failure of the payment network of the relevant banks to function.
13.3 (Partial) Dissolution
If a force majeure situation lasts longer than ninety days, either Party has the right to dissolve the Agreement in writing, or, if work has already been done under the Agreement, to partly dissolve it. In the event of a partial dissolution
or the impossibility of undoing the performance, the Parties will be liable for partial payment or value compensation , respectively.
The parties will make payments to be made in connection with such settlement without delay.
13.4 Notice of force majeure
If the Contractor wishes to invoke force majeure he shall inform the Client inform Principal as soon as practically possible. The effects of force majeure take effect from the moment the circumstance, cause or event s leading to it have occurred.
13.5 Suspension
If the Contractor is prevented by force majeure from fulfilling any due and payable obligation towards the Client and, in the opinion of the Contractor , the force majeure situation will be of a temporary or transitory nature the Contractor is entitled to suspend the performance of the Agreement.
suspend until the circumstance causing the force majeure situation (s) no longer occurs.
13.6 Priority
If, as a result of force majeure, the Contractor is prevented from fulfilling its commitments towards of one or some of its clients or Customers but not commitments to all customers and Clients, the Contractor is entitled to decide at its own discretion which of the obligations and towards which customers and Clients he will perform as well as the order in which this will be done.
14. Warranty
14.1 Product warranty
Subject to the other provisions of these general terms and conditions, the Contractor only guarantees that the Delivered, with the exception of consumables, complies with the product specifications at the time of delivery and that it possesses the properties that were have been confirmed by the Contractor to the Client before or at the conclusion of the Agreement.
14.2 Further warranty/operational guarantee
The parties may agree that the Contractor provides a warranty that goes beyond the product warranty referred to in Art. 14.1 subject to the provisions of this paragraph. Contractor only guarantees that the Delivered will function in a certain way and/or perform in combination with items delivered by third parties and/or in combination with items of Customer (e.g. in a process in a machine or in an installation of Customer), hereinafter: “Performance Guarantee”, if and to the extent that this has been explicitly confirmed explicitly confirmed In Writing by the Contractor to the Client with due observance of Article 2.2. The conditions for the creation of an obligation of result concerning a Work, as contained in Art. 28.4 also apply to the creation of a Performance Guarantee. A Performance Guarantee will lapse at such time as it becomes apparent after delivery that there are circumstances that , in the opinion of the Contractor , adversely affect the performance of the Delivered Product and which had not already been reported by the Customer to the Contractor before or at the time the Agreement was concluded and had been reported to the Contractor and confirmed In Writing by the Contractor to the Client.
Unless otherwise agreed , a Performance Guarantee expires after twelve (12) months from delivery.
14.3 Terms
Unless other warranty periods are stated in the Offer , the warranty mentioned in 14.1 for new goods is twelve (12) months from
the moment of delivery. Unless otherwise stated in the Offer , no warranty is given on used items delivered by the Contractor.
14.4 Reporting Defect during warranty
If the Customer has become aware of a Defect and wishes to make a claim under the guarantee regarding the defective delivery, the Customer must
Customer to report this Defect in accordance with the provisions of Article 17.4 on pain of forfeiture of the right to do so.
14.5 Repair or replacement
If , in the opinion of the Contractor , there is indeed a Defect attributable to the attributable and if Principal is entitled to the right to warranty as referred to in Art. 14.1, Contractor shall at its discretion either arrange for remedy this Defect or replace the defective item unless such repair or replacement cannot reasonably be required of it.
14.6 Mode of recovery
The Contractor is free to perform the repair of a Defect itself or to contract this out or to engage third parties for this purpose.
14.7 Transmission to Contractor
Goods eligible for warranty must be delivered to Contractor by Principal at his own expense.
All costs incurred as a result such as , for example but not exclusively, costs related to assembly and disassembly, installation, calibration, verification,
start-up, production loss, waiting time, production downtime, packaging, insurance and transport shall be borne by the Customer.
14.8 Reimbursement of costs
If the goods sent to Contractor under warranty, in the opinion of the Contractor , after inspection , do not appear to show any Defects, or if Principal is not entitled to warranty, Principal shall be obliged to reimburse Contractor for all inspection, safekeeping and shipping costs.
14.9 What falls outside the warranty
Without prejudice to the other provisions of this article, Client shall in no case be entitled to any warranty:
– if the Delivered has not been used for the purpose and under the circumstances for which it was delivered;
– if the Delivered is used contrary to the instructions and regulations etc;
– in respect of items made available by Customer for processing;
– if the alleged Defect is due to wear and tear resulting from normal use;
– on Work provided which is in the nature of a best-efforts obligation;
– on items prescribed by the Client or procured by the Contractor from items designated by the Client
third parties.
14.10 Expiry of warranty
All warranty claims lapse immediately at the time that without the Contractor’s Written consent:
– changes, adjustments and/or repairs have been made to the Delivered;
– the Delivered is or has not been used or treated accurately in accordance with the supplied and/or applicable (manufacturer’s) instructions or directions for use;
– the Delivered is or has otherwise been improperly used or handled;
– a software modification or upgrade has taken place in or regarding the Delivered Product which has not been done by the Contractor itself or by a third party appointed by the Contractor;- the Delivered is or has been used or applied for purposes other than those for which it is intended;
– the Delivered Product is or has been used in a manner that could not reasonably have been foreseen by the Contractor on the basis of the information provided by the Customer to the Contractor when the Agreement was concluded.
14.11 Waiver of warranty obligations
As long as the Principal fails to fulfil one or more of its obligations to the Contractor under any Agreement, or fails to do so in full, the Contractor is relieved of its warranty obligations from the moment the Principal fails to fulfil its obligations duly fulfil its obligations until Principal has again properly fulfilled all its obligations towards Contractor.
During the period that the Contractor is relieved of its warranty obligations , the warranty period continues.
14.12 Damage during warranty period
To the extent that the Contractor is obliged during the warranty period to compensate any damage or costs incurred by the Client as
consequence of a Defect, the fulfilment of the warranty obligation by the Contractor shall be deemed to constitute sole and full compensation.
15. Security rights
15.1 Right of lien
All goods in the possession of the Contractor by or on behalf of the Principal, regardless of the cause or reason thereof, shall be the property of the Contractor .
Contractor a right of retention as long as Client fails to meet all its
obligations to the Contractor.
15.2 Case formation
If Principal forms a new item (partly) from items delivered by Contractor, Principal shall form the newly formed
thing for the Contractor until the Principal has fulfilled all its obligations under the Agreement towards the Contractor
fulfilled. The Contractor shall in that case have all rights as the owner of
that formed. By entering into the Agreement with the Contractor , the Client grants it permission to use its
enter land and buildings to take possession of its property.
15.3 Pledge
At the Contractor’ s first request and for the Principal ‘ s account , the Principal shall cooperate to the establishment of a non-possessory pledge on newly formed goods as referred to in article 15.2, into which items delivered by Contractor have been incorporated, as long as Principal has not yet fulfilled all his obligations towards Contractor.
16. Retention of title
16.1 Extended reservation
Without prejudice to the provisions of Article 8 regarding the risk and the transfer thereof, all deliveries made by or on behalf of the Contractor shall remain
goods property of Contractor until Client has fulfilled all his due and payable obligations towards Contractor.
16.2 Good care
Principal is obliged – as long as pursuant to the provisions in Art. 16.1 , the ownership of goods delivered by or on behalf of the Contractor still belongs to the Contractor. keep these goods separated from other goods in such a way that they are easily and clearly identifiable as the Contractor ‘s goods.
16.3 Recovery
In the event of non-payment of any amount due and payable by Principal to Contractor, and furthermore in the event that the Agreement ends other than by completion, Contractor is entitled to reclaim the goods in respect of which the retention of title applies as property and to take the measures relating thereto (or have them taken), subject to settlement of any amounts already paid in respect of those goods, without prejudice to Contractor’s right to demand compensation for any loss or damage. In the event of such non-payment or termination of the Agreement, any claim which Octrooibureau Novopatent may have on Principal shall become immediately due and payable.
16.4 Recovery of goods
Client shall, at the Contractor’ s first request , provide a power of attorney for the immediate repossession of goods not yet fully paid for wherever they may be located. The Principal undertakes to cooperate at the Contractor’ s first request in order to give the Contractor enable Contractor to exercise its retention of title including any dismantling removal, closure, disconnection, etc.
16.5 Consequences of sales
Principal is entitled to sell or use goods which are subject to retention of title in favour of Contractor in the Contractor in the normal course of business; however, no security right may be established on these goods, while the Customer may not perform or cause to be performed any acts with regard to these goods which would make them part or element of the goods.
of one or more other goods. In case goods are redelivered in respect of which there is still a retention of title
in favour of the Contractor, Principal is obliged to reserve ownership thereof himself and at the first request of
Contractor to assign to Contractor all claims against Principal’ s debtor, up to the amount due.
17. Prevention of Damage, notification of Defect
17.1 Care Contractor
In fulfilling the Agreement , the Contractor shall exercise such care as may reasonably be expected of him.
Nevertheless, the possibility cannot be ruled out that the goods delivered by the Contractor delivered by the Contractor does not arrive at the Client without any Defects as
due to events during transport or unforeseen circumstances or Defects start to show as a result of the manner of
use by Client.
17.2 Preventing damage
The Delivered by Contractor may possibly be used in processes or installations of Client. The manner in which the
delivered will be installed or used, under which conditions the delivered product will be used and what specific requirements the delivered product must meet.
Deliverables are usually not fully known to the Contractor. In the unlikely event that the Delivered is going to have a Defect
show , this may cause damage to Principal. The amount of such damage depends to a large extent on how the
processes and installations of the Client are set up and what those processes and installations are for. Of importance are , for example, the manner and
speed of monitoring, redundant or non-redundant implementations, frequency and depth of inspections, types and method of alerts in the event of
faults, permanent or non-permanent supervision, fault handling routines and related business processes, quality of maintenance, etc.
As all the above parameters are within the domain of the Client, the Client is responsible to
take adequate measures to prevent unnecessary or unnecessarily high damage in case a good delivered by the Contractor is
breaks down.
17.3 Warning
The use of improperly functioning items can have serious consequences for the functioning of processes or installations
of which the Delivered is part or for the persons involved therein. This is therefore strongly discouraged by the Contractor.
17.4 Notification of Defect
The Client must report a Defect In Writing to Contractor Immediately after becoming aware of it or
reasonably could or should have obtained if it had taken adequate measures as referred to in Article 17.2. The
notification of the Defect must be so specific that it is clear to Contractor is clear without further enquiry what the nature of
the Defect and what actions can reasonably be expected from it. When notifying the Defect , all relevant
circumstances that are or could be relevant to an assessment of the facts of the Defect should be described.
Liability
18.1 Conditions of compensation
Except inthe event of intent or gross negligence by the Contractor’s management and of the Contractor and subject to the other provisions
of the ALV2020 and in particular the other paragraphs of this article, the Contractor is only obliged to compensate the Principal for to
compensate the damage suffered by the Client as a result of a Defect. The obligation to compensate damages does not arise until the
moment that each of the following conditions is met:
– the Defect must have been reported by Principal to Contractor in the manner described in Article 17.4;
– there must be default as described in article 18.2 and article 18.3;
– the damage must be attributable to the Contractor;
– Principal has made it sufficiently plausible that he has taken adequate precautionary measures to prevent taken adequate precautions to prevent or limit
the damage as mentioned , inter alia, in articles 17.2 and 17.3.
18.2 Period of default
Contractor is in default during the time that the performance remains outstanding after it has become due and the requirements of article 18.3
have been met, except to the extent that the delay cannot be imputed to him or performance is already permanently impossible.
18.3 Notice of default
The default referred to in Article 18.2 does not take effect until when the Contractor is declared to be in default by the Client by means of a
Written demand for reminder in which he is given a reasonable period for compliance and failure to perform within that period.
In determining the reasonable period of time , account should be taken at least , but not exclusively, of the delivery and production lead times account must be taken of the delivery and production lead times applicable at the time of
notice of default, the duration of any transport(s) and the availability of
raw and building materials.
18.4 Liability insurance
The Contractor may, but is not required to take out insurance against damage that may arise as a result of any shortcoming attributable to him
in the fulfilment of his obligations towards Principal. By entering into an Agreement , the Principal accepts that it is the duty of
him to check in advance whether the cover offered by the liability insurance taken out by the Contractor in his
opinion is adequate for the Assignment in question. At the Client ‘ s first request, the Contractor shall send the Client a copy of the relevant
insurance policy sheet.
18.5 Limitation of liability
If, with due observance of the above , the Contractor is is liable towards Principal and is obliged tocompensate his damage
, the obligation to pay compensation is limited to compensation of direct damage and to a maximum damage and up to a maximum of the amount involved in the
Agreement (excl. VAT). If it is mainly a continuing performance agreement with a term of more than one year the year
the amount involved in the Agreementis set at the total of the fees (excl. VAT) stipulated for one year. In any event, in all cases the obligation to pay damages is limited to a maximum of €500,000 (five hundred thousand euros).
Direct damage means only: (I) repair, restoration or replacement costs, (II) the reasonable costs to determine the
cause and extent of the damage, (III) reasonable costs incurred to prevent or limit damage, to the extent that the other party
demonstrates that these costs have led to limitation of direct damage as referred to in these general terms and conditions.
In the event that the insurer pays an amount in connection with the Contractor ‘s liability as referred to above, the
obligation to pay damages is furthermore limited to the amount paid out by the insurer pays out for the case in question or
to the amount covered by the insurance.
18.6 Exclusion of liability for indirect damage
Contractor’ s liability is excluded for indirect damage or consequential damage, which in any case includes:
– damages other than damages to the Contractor to remedy the direct consequences of the non-performance;
– damages for loss of profit, production stoppage, destruction or deterioration of goods due to production stoppage, missed
savings, business interruption or due to reduced goodwill;
– damages resulting from claims by third parties, including customers of Client;
– damage relating to the use of items prescribed by the Principal to the Contractor such as but not limited to:
installations, tools, machinery, materials or data, information or software of third parties;
– damage relating to the engagement of suppliers, programmers,
consultants or controllers prescribed by Principal to Contractor;
– damage resulting from mutilation, destruction or loss of data, settings of digital equipment, software, information, data or
documents.
18.7 Other exclusions
Contractor ‘s liability is further excluded for:
– the direct and indirect consequences of the Client ‘s failure to strictly comply with the user or operating instructions;
– normal wear and tear, and damage and/or wear caused by improper use and as a result of overloading or any other
form of non-normal use.
– abnormal or unforeseen circumstances , or at least circumstances which the Contractor could not reasonably have taken into account on the basis of the information submitted to him at the time of concluding the Contract
the Agreement could not reasonably have taken into account;
– damage against which Principal could have insured himself.
18.8 Cumulation
The exclusions and limitations of the Contractor’ s liability as described in Article 18 are without prejudice to the other limitations and exclusions set out in the ALV2020.
18.9 Limitation period
Any claim the Client has against the Contractor shall lapse by the mere expiry of twelve (12) months after the arising of
that claim and in any case after the lapse of three years after delivery by Contractor regardless of the legal basis of the claim.
18.10 Indemnification
Client shall indemnify and hold harmless Contractor regarding all third-party claims for compensation for damage suffered by these
third parties, including claims for product liability and infringement of intellectual property rights
, as a result of a product supplied to these third parties by Principal good that also consisted of
goods supplied by the Contractor.
18.11 Reliance on ALV2020 by others
The provisions of this article as well as all other limitations and exclusions of and exclusions of liability mentioned in the ALV2020 also apply
in favour of employees employed by the Contractor and all (legal) persons whose services the Contractor makes use of in the performance of the of the
Agreement and for the benefit of the group of which it forms part.
18.12 General terms and conditions of third parties
With regard to goods and services which the Contracted Party has procured from a third party, the provisions relating to guarantee, spare parts and liability applicable to the relevant Agreement
will also apply to the Agreement between
the Contracted Party and the Client, if and insofar as the Contracted Party invokes these. By entering into an Agreement at
, Principal authorises Contractor to accept a limitation of liability of such third party.
19. Intellectual property rights
19.1 Ownership
All intellectual property rights, hereinafter referred to as ‘IP’, in respect of the items supplied to the Client by the Contractor, developed or made available – including Documentation, inventions, ideas, software, ICs, data files, diagrams, equipment, samples,
circuits, methods, set-ups, installations, solutions, analyses, designs, reports, quotations – belong exclusively to Contractor
or its licensor(s) or its Supplier(s).
19.2 Right of use deliveries
Unless otherwise agreed in Writing, the Customer acquires in connection with the agreed deliveries, to the extent applicable,
only the perpetual, non-exclusive and non-transferable rights of use for the specific application for which the delivery was
intended and exclusively for use in the country where the delivery was to take place according to Agreement.
19.3 Moment of transfer of right of use
The rights of use mentioned in article 19.1 only pass to the Client at the moment that the relevant deliveriesare complete
and have been properly have taken place properly and Client hasfulfilled all its obligations under the Agreement towards Contractor
.
19.4 Registration IP rights
To the extent that, in respect of the rights mentioned in 19.1 requires a registration before the relevant right arises,
the Client is prohibited from carrying out or having carried out the relevant registration acts , except with the written consent of the Contractor.
19.5 Infringement
In the unlikelyevent that a good sold by Contractor to Client infringes a third party ‘ s intellectual property in the Netherlands infringes a right
of intellectual property of a third party and Principal is sued in that respect, Principal is obliged to immediately inform Contractor
thereof in writing. In that case, Contractor is entitled, at its own discretion, to terminate this breach.
mend by:
– provide the Client with the right to use that good, either
– modify the good so that it no longer infringes, or
– to supply a replacement good which is not infringing, or
– refund the purchase price to the Customer after the goods have been received back from him , after deduction of reasonable compensation for the period that the reasonable compensation for
the period that Principal had the good at his disposal.
In respect of infringement of a right of IP outside the Netherlands , the Client will not be able to enforce any claim against the Contractor and will have no not be able to assert any claim and have no claim.
19.6 Exclusion of liability IE
The Contractor is not liable for the infringement of any right of intellectual property or any other exclusive right which the
consequence of:
– any alteration in or to any property sold or supplied by or on behalf of the Contractor;
– any use or application of such property other than that prescribed by the Contractor prescribed or which the Contractor was entitled to assume on
thebasis of the Agreement;
– integration, use or application with goods not sold and supplied by or on behalf of the Contractor, including(parts of) systems and networks;
– a software modification not made by or on behalf of the Contractor.
20. Payment
20.1 Payment terms
Customer shall pay invoices in accordance with the payment terms stated on the invoice. If no specific conditions are stated on the
invoice , Client shall pay paywithin thirty (30) days after the invoice date stated on the invoice. Principal is not
entitled to set off or suspend a payment. The value date indicated on the Contractor’ s bank statements on which a
payment is received is received is deemed to be the day on which the payment was made.
20.2 Order of payment
Every payment made by Principal serves – if applicable – first of all to pay the interest owed by him and the payment of theinterest owed by him
and of the collection and administration costs owed to the Contractor, and then in settlement of the outstanding
claims in order of age.
20.3 Late payment
If Principal does not pay amounts owed by him to Contractor on time, Principal will owe statutory interest for commercial transactions on the outstanding amount, to be calculated cumulatively per month
or notice of default, without a reminder or notice of default being required. If, following a payment reminder, demand for payment or notice of default, Principal also fails to fulfil his payment obligations
within a reasonable term, he shall be in default by operation of law. From that moment on, in addition to the costs determined in court
, Principal is also obliged to reimburse Contractor for the judicial costs actually incurred by Contractor and the
extrajudicial costs actually incurred, including the costs charged by party and/or legal experts.
20.4 Complaints invoice
Complaints relating to an invoice must be submitted to Contractor in writing within eight (8) days of the date of that invoice
.
20.5 Payment obligation remains
Reporting a Defect as described in article 14.4 and/or article 17.4 does not release Client from its payment obligations to
Contractor.
21. Termination of agreement
21.1 Dissolution
In the event that either Party is in default, this gives the other Party the power to dissolve the Agreement in whole or in part.
21.2 Compensation of damage
In the event of dissolution by the Client,the Contractor is not obliged to pay damages to Client.
21.3 Immediate termination in specific cases
The Contractor may terminate the Agreement with immediate effect without notice of default in immediate effect if the other Party is declared bankrupt, proceeds to the cession of estate, is granted (temporary or definitive) suspension of payment, in the event that
attachment is levied on all or part of the assets of the other Party is seized or in the event that the other Party ‘ s business is liquidated or terminated.
21.4 Consequences of dissolution
If a Party dissolves an Agreement pursuant to the provisions of this article, the amounts owed by the Customer to the Contractor at the time of dissolution will remain payable in full and Principal will owe interest and costs regarding these amounts in accordance with the provisions of the ALV2020, without prejudice to the Contractor’s right to claim damages, to exercise its rights arising from retention of title, to take other (legal) measures and other rights to which the Contractor is entitled.
22. Cancellation at the request of the Client
22.1 Mutual consent
The Client may request the Contractor to consent to the cancelling (cancelling) an Agreement already placed but not yet
executed. Cancellation of an Agreement cannot take place until after The Partieshave agreed in Writing
on the cancellation conditions including the amount of the cancellation charges, and after all agreed
cancellation conditions have been met in full in the opinion of the Contractor.
22.2 Time of cancellation
As long as the Parties have not agreed on the cancellation conditions or as long as the cancellation conditions have not , in the opinion of the Contractor , been fully met, the Agreement shall continue and the Parties shall remain obliged to perform their mutual obligations under that Agreement to be performed in full.
22.3 Amount of cancellation costs
The amount of the cancellation costs will be determined by the Contractor on a case-by-case basis. Important factors in determining the amount of the cancellation costs include the following:
– the amount involved in the Agreement;
– the extent to which performance of the Agreement has already progressed;
– The type of Agreement (delivery of goods, development order, delivery of a work, service agreement, training/education, etc.);
– the costs already incurred by the Contractor up to the time of cancellation, the obligations already incurred by the Contractor in connection with the performance of the Agreement;
– the actions to be taken by the Contractor in connection with the cancellation;
– the profit lost by the Contractor as a result of the cancellation.
22.4 Damages due to cancellation
In the event of cancellation of an Agreement , the Contractor will in no event be obliged to compensate any damage that the Principal suffers or might suffer as a result of such cancellation.
23. Applicable law and disputes
23.1 Dutch law / Belgium Law
Any Offer made by the Contractor, to any Agreement entered into by or on behalf of the Contractor and to any other legal relationship between the Parties. Dutch law for the BV and Belgian law for the NV shall apply. The applicability of the Vienna Sales Convention 1980 is excluded.
23.2 Choice of forum
Disputes arising from an Agreement concluded between the Contractor and the Principal will be submitted to the to
the competent court in the district where the Contractor has its registered office as court of first instance, on the understanding that if
a particular judge is mandatorily designated as the competent judge, the dispute will be settled by the
court thus designated as the court of first instance, all this without prejudice to Contractor ‘ s right to seizure and other provisional
measures. take or cause to be taken at such place or places before such judicial authorities as the Contractor deems desirable.
23.3 Other
The provisions of Article 23.2 is without prejudice to the Contractor ‘ s right to submit a dispute to the normal
competent court or to be settled by arbitration or a binding opinion
24. Validity
In case any provision of this ALV2020 should be wholly or partly invalid and/or unenforceable, as a result of any statutory regulation, court order, or any directive, decision, recommendation or measure of any local, regional, national or supranational authority or body, or otherwise, then this will have no effect on the validity of all other provisions of this ALV2020. If any provision of this ALV2020 should not be valid for a reason referred to in the previous sentence, but valid would be if it had a narrower scope or purport, of shall automatically apply with the most far-reaching or most extensive limited extent or scope to which or in which it does apply.
25. Filing
These general terms and conditions have been filed with the Chamber of Commerce under number 40507574.
26. Applicability
26.1 Work activities and Work
The provisions in Part B of the ALV2020 shall apply to all legal relationships between the Client and the Contractor
concerning the performance of the performance of Work and the acceptance of Work without prejudice to the applicability of the provisions of Part A of
the ALV2020 which, to the extent applicable, also apply to the supply of Work and the contracting of Work.
26.2 Part B > Part A
The provisions of Part B of the ALV2020 constitute therefore supplement the provisions of Part A of the ALV2020. Where a provision of Part B of the ALV2020 applies in part and wholly or partly conflicts with a provision of Part A of the ALV2020, the provision of Part B of the ALV2020 prevails to the extent of the conflict.
27. Definitions
27.1 Acceptance of Work: The realisation (making, building, delivery) of an item of material nature by order of the Client. This may include , for example, the making of an installation, test setup, system, machine, device, circuit board, switch box, etc. The Parties will generally agree on a guide price for producing the Work, lay down specifications and agree on additional and less work and the manner of acceptance and testing.
27.2 Design data: All data and circumstances, including information, dates, specifications, requirements, manner of use and environmental conditions, on the basis of whichon the basis of which the Contractor should perform Work or and Work Work or which he must otherwise take into account in the during the performance of the Agreement, to the extent that these have been provided by the Principal before or during the establishment of the Agreement and have been confirmed by the Contractor to the Principal. have been provided by the Client and confirmed to the Client by the Contractor.
To the extent that any additional relevant data and/or circumstances become known to the Contractor during the performance of the Agreement, they will only become part of thewill only become part of the Design Data when this has been explicitly confirmed in Writing by the Contractor toClient is confirmed.
27.3 Opdracht: De opdracht tot het uitvoeren van Werkzaamheden en/of het everen van een Werk zoals is gespecificeerd in de Overeenkomst en de ALV2020 en Ontwerpdata.
28. The assignment
28.1 Realisation
The Agreement concerning the provision of Work and/or a Work can only be concluded In Writing with due observance
of Article 3. The effect of Article 3.7 is excluded for the delivery of Work and of a Work.
28.2 Scope
The scope of the Assignment and the specifications to be met by the Deliverable shall be determined solely by what the Parties have agreed In Writing with regard thereto. are exclusively determined by what the Parties have agreed in Writing in that respect.
28.3 Effort obligation
The Work to be performed by the Contractor is in the nature of effort obligations, unless it has been explicitly agreed that they are in the nature of result obligations and the intended result has been described with sufficient certainty with due observance of the provisions of the following paragraph.
28.4 Result obligations
Parties may agree In Writing that the Contractor must achieve a specific result with the performance of the Assignment to achieve a specific result. In
in which case there is an obligation of result only if the following conditions are also met:
– all Design Data required by the Contractor which are important for achieving the agreed result
must have been reported by the Client to the Contractor before or during the conclusion of the Agreement and must have been reported by
Contractor have been confirmed to Principal;
– after the conclusion of the Agreement , in the opinion of the Contractor has not adversely changed anything in the previous
point mentioned information, data and circumstances;
– the criteria by which and the circumstances in which it is assessed whether the agreed result has been achieved should
be crystal clear and objectively measurable in the agreed manner;
– the manner in which the Parties determine whether the agreed result has been achieved must be confirmed In Writing by the Contractor to the Client before or at the time of the conclusion of the Agreement
be confirmed in writing by the Contractor to the Client.
28.5 Partial result obligation
To the extent that the Parties have agreed an obligation to achieve a result agreed but the conditions for this have not been fully met, the
Agreement is in the nature of a best-efforts obligation insofar as , in the Contractor ‘s judgment , the guaranteed guaranteed resultcould not
be achieved as a result of failure to meet the conditions referred to above.
29. Scope
29.1 Basis for the Activities and Work
Contractor will perform the agreed Activities and create the agreed Work on the basis of the Design Data.
29.2 Format of Design Data
Client will supply the Design Data digitally as much as possible in the agreed format. If nothing has been agreed
the Design Data will be delivered digitally in the format specified by Supplier.
Necessary adjustments,
arrangement, conversions and sorting of the Design Data will be carried out by Principal at the Contractor’s first request.
29.3 Access to systems
Insofar as, in the opinion of the Contractor, the performance of the Work requires access to installations,
networks or systems of the Principal, the Principal will lend its cooperation without delay. Contractor is
not liable for any damage or costs resulting from the use of the Client’s networks, systems or installations unless
Client proves that the damage or costs are the result of intent or gross negligence for Contractor’s management.
29.4 Correctness of Design Data
Client guarantees the correctness and completeness of the Design Data. If in Contractor’s opinion there are any imperfections in the Design Data, he is entitled to suspend his Work until the imperfections have been removed by Principal. In such a case, the Principal will, without prejudice to the Contractor’s right to compensation for damage, in any case owe the Contractor the applicable fee for what has already been done in the execution of the Agreement, while the Contractor will then also be entitled to charge additional costs in accordance with its usual rates. The Principal cannot derive any right to compensation from the suspension by the Contractor, irrespective of its legal basis.
29.5 Information obligation of the Principal
The Principal has the obligation to inform the Contractor in good time of all relevant data and circumstances that are within its domain and could be important for the performance
of the Agreement.
30. Delivery period
30.1 Start of delivery period
If a specific delivery period has been agreed by the Parties, this period commences on the day following the day on which, insofar as the
application, each of the following conditions is met:
– the Agreement concerning the Assignment has been concluded;
– all Design Data required in connection with the execution of the Assignment in the opinion of the Contractor in the correct format by
Client have been made available;
– where an advance payment has been agreed, it has been received by the Contractor;
– the day on which , in the opinion of the Contractor , all – in connection with the execution of the Order – necessary
formalities have been fulfilled, including obtaining permits;
– insofar as, in connection with the performance of the Assignment on a site to be designated by the Client or on a site to be designated by the Client or on an installation to be designated by the Client
, network or system to be designated by the Client, this/these is/have been made ready for this purpose in the opinion of the Contractor
and the Contractor has/have been given unimpeded access to it or made available to it.
30.2 Delivery date instead of delivery period
If no delivery period but a delivery date has been agreed, the delivery period is equal to the number of days between the moment when
the Agreement is concluded and the agreed delivery date. This term shall not commence earlier than the moment when
all conditions mentioned in article 30.1 have been met. The moment of delivery shall in that case be the moment at which the aforementioned aforementioned
delivery period has expired with due observance of the other provisions of Article 30.
30.3 Delay
If, during the performance of the Order , any delay occurs which is not entirely attributable to the Contractor the
delivery period shall be extended by the duration of such delay.
30.4 Extension of delivery period
If , during the performance of the Order , the conditions for commencement of the the conditions for commencement of the delivery period as described in
article 30.1 and the progress of the agreed Work and/or the Work isimpeded as a result , in the Contractor ‘s opinion
, the delivery period will be extended by the number of days by which those conditions are no longer met.
30.5 No fatal delivery date
The agreed delivery date is an estimated delivery date, based on delivery times of Suppliers, information and circumstancesknown to Contractor – at the time the Offer was made – at
. Ifcircumstances arise during the delivery period through no fault of the Contractor
occur as a result of which the agreed delivery period is no longer feasible, the delivery period will be extended to the extent
as necessary in the opinion of the Contractor.
30.6 Delay > 16 weeks
In the event that the total delay referred to in article 30.5 exceeds sixteen (16) weeks, the Principal shall be entitled to terminate
the Agreement. In that case, the Contractor is not obliged to compensate any damage or costs compensation incurred by Client
due to the later delivery and/or termination.
31. Facilitation by Principal
31.1 Principal’ s obligations
Except if and to the extent expressly agreed otherwise, the Client itself shall – in the Contractor ‘ s opinion – sufficiently and
timely – take care of: – ground, paving, pile-driving, demolition, foundation, concrete, carpentry and upholstery work or other ancillary works of any kind;
– good and constant accessibility to the place(s) and guidance to/at the place(s) where the Contractor is in connection with
must have access to the performance of the Assignment;
– drawings, Documentation, plans, diagrams and explanations required by the Contractor concerning the site and the
items thereon from Client;
– the assistance required to place or move pieces that cannot reasonably be handled by two people, as well as the
operate hoisting and/or lifting equipment and similar devices;
– provision, erection, and removal of scaffolding after completion of the Contractor ‘ s Work,
scaffolding and ladders;
– the supply of fuels, energy and auxiliary materials such as compressed air, gas, water, electricity, gas oil and petrol, supply and
drains, and the required connection points, necessary for the execution of the Order and any testing and
commissioning;
– provision of switchgear and protection equipment n conduits for the electric motors to be supplied or used
and/or other electrical equipment, excluding starting and control resistors that are part of the electrical equipment;
– making it available during the term of performance of the Assignment, in the immediate vicinity of the place(s) where the Assignment
should be carried out, from a dry, heated, lit in separately lockable room of sufficient size, as
accommodation for the workmen concerned and for storing the materials and tools to be processed or used
and of personal property of the workmen as well as the provision of a WC;
– work required to replace parts that have become dirty, damaged, dislocated or which no longer function,
restored to a good and usable condition, unless the contamination or damage was caused by the Contractor’ s subordinates
arbitrated;
– the start-up and/or operation and/or discontinuation of installations under the management of the Principal to the extent that this is necessary for the
performance of the Order is desirable or necessary;
– adequate lighting and, if applicable, bringing and maintaining the required temperature and humidity of the
place(s) where the Assignment is to be executed, such that the Activities or the Workcan proceed without difficulty
;
– applications for and the timely payment of the amounts due in respect of power supplies, connections, dues, nuisance permits, etc, permits under the Environmental Management Act and other legislation relating to the environment, building and renovation permits and other legal requirements.
31.2 Excess materials
Replaced, derived or removed materials become the property of the Contractor unless he does not exercise that right.
32. More/less work
32.1 Changes/additions/curtailment
Parties may agree on a change or more or reduction of the agreed Work or the Work.
If a fixed price has been agreed in the Agreement, the Contractor will inform the Principal of the financial, time and other consequences of the desired change.
32.2 More/less work is an amendment to the Agreement
If the Parties agree on an amendment or more or less work, this applies as an amendment to the Agreement as
as referred to in Article 5.
32.3 Delivery times shifted In the event that the Parties agree on an amendment to the Agreement, the agreed delivery period or delivery date will be extended or shifted by the number of number of days necessary for the fulfilment of the amendment to the Agreement.
32.4 Necessary change
If, in connection with the performance of the Work or the Work, the Contractor is of the opinion that a change and/or extension is necessary or reasonably desirable, it will inform the Client accordingly. In that case, if the Client has not agreed to the proposed change(s) and/or extension(s) and the related price change in writing within fourteen (14) days, the Contractor will be entitled to suspend the fulfilment of its obligations towards the Client. In that case, the Principal will be obliged to pay the Contractor compensation for the Work already performed and the Delivered Work on the basis of the Contractor’s applicable rates, all this without prejudice to the Contractor’s right to compensation for the damage it has suffered.
32.5 Payment for additional work
Unless otherwise agreed, additional work may be invoiced separately by the Contractor after such additional work has been completed in the Contractor’s opinion.
33. Delivery and offtake
33.1 Milestones
If it has been agreed that the Assignment will be executed in phases, the Contractor is entitled to postpone the Work and deliveries with
regard to a following step or phase or any part of that Work or phase. next step or phase or any part of that Work or those deliveries until the or suspend them until the Client has approved the results of the previous preceding step(s) or phase(s) have been approved In Writing in accordance with the agreed test criteria.
33.2 Test period
If not otherwise agreed, Customer shall test the Delivered within the test period of eight (8) working days against the agreed test criteria test criteria counting from the moment the Contractor has made it known that the that the Deliverable is ready to take
.
33.3 Extension of test period
If , during the performance of the test(s) , it becomes apparent that the progress of the test(s) is impeded by a Defect in the Deliverable ,
Principal will inform Contractor of this in writing and in as much detail as possible; In such a case, the test period shall beinterrupted until
until the Delivery is again presented for testing.
33.4 Reporting Defects to Delivered during tests
Customer shall report any Defect that uncovered during the tests or during the guarantee period will be reported to the Contractor without delay, Notify the Contractor in writing and properly
substantiated and documented.
Contractor shall not be obliged to remedy a Defect until after it has received all available and required to remedy the Defect from the Client’ s
data.
33.5 Cost of remedying Defects
The remedying of a Defect identified during the tests Defect will take place free of charge if a fixed price has been agreed. If
no fixed price had been agreed , the Contractor is entitled to reasonable compensation in accordance with the agreed prices and
rates for the efforts involved in connection with the repair of the Defect.
33.6 Test criteria
The test criteria should preferably be agreed In Writing by the Parties before or at the conclusion of the Agreement in Writing by the Parties.
Subjective criteria do not form part of the test criteria. Subsequently agreed criteria shall only apply to the extent that they
have been confirmed In Writing to the Customer by the Contractor.
The Client cannot invoke the fact that the Deliverable does not meet certain requirements when these requirements are not part
of the agreed test criteria. Failure to meet the test criteria shall constitute a there is a Defect as referred to in
article 1.5.
33.7 Time of deliver Delivered
The Delivered has been duly delivered and taken delivery of at the first of the following times:
– the moment at which Customer , after testing in accordance with the agreed test criteria , has has inspected it and in doing so has not identified an essential Defect as referred to in Article 33.9;
– the moment at which the test period has expired , counting from the day following the day on which the Contractor sent the Client Written
has notified the Customer that the Delivery is ready to be purchased, and the Customer has failed to take delivery of the Deliverable within the test period.
testing;
– the moment at which the test period has expired , counting from the day following the day on which the Contractor sent the Client Written
has notified the Contractor that the Delivered Product is ready for acceptance and the Customer has not has not informed
In Writing of an essential Defect (as defined in article 33.9) to the Deliverable;
– the moment that the Customer has actually taken into use the Delivered or the installation of which it forms part or or, after installation, has actually taken into use
;
– the moment when Customer has paid the invoices relating to the Delivery.
33.8 Work after delivery
To the extent that the delivery of a Work has been agreed and the Contractor still needs to perform Work in connection with that Work must still perform Work
(for example, calibration or giving instructions), the Work will nevertheless be deemed to have been delivered and accepted and taken delivery of
when the Work itselfshall , pursuant to Article 33.7 shall be deemed to have been delivered and taken delivery of.
33.9 Essential Defect
An essential Defect is to be understood as a shortcoming that , in the opinion of the normal use of the Deliverable in the Contractor’ s
judgement in a significant way.
33.10 Remedy of non-essential Defect
If in the context of tests in connection with acceptance only one or more non-essential Defects are established , the Delivered
shall be deemed to have been delivered. The Contractor is obliged to remedy this/these non-essential Defect(s) as soon as possible. A non-essential
Defect does not give the Client the right not to take delivery of the Delivered Product, to dissolvethe Agreement in whole or in part
or to suspend payments.
33.11 Advices
Advices, information provided, data and/or suggestions by the 0pdrachtnemer regarding the use, placement, commissioning, installation,
expansion etc. of the Delivered shall only have the character of a guarantee of, for example, performance. of the Delivered Services shall only have the character of a guarantee of , for example, performance, accuracy, compatibility
with other items, operation in a particular environment or installation, etc.,when explicitly agreed subject to the
provisions of Article 14.2.
34. Guarantee
34.1 Switch provision
The warranty provisions of Article 14 of ALV2020 shall also apply to the delivery of a Work and of Work, for
insofar as they may apply to it in view of the specific nature of the Delivered.
34.2 In accordance with agreed specifications
Contractor guarantees to perform the Work and the Work Work in accordance with the Design Dates and perform them in such a way that they
that they meet the agreed specifications and the reasonable requirements to be made of them with due observance of article
28.2.
34.3 Warranty period for normal use
Unless otherwise agreed , the guarantee period applies to use during working days of eight (8) hours a day. If the Delivered is
used during working days of more than eight (8) hours per day, the actual warranty period shall be correspondingly shorter.
34.4 Exclusion
Contractor gives no warranty on items which although assembled by or on behalf of Contractor, installed, adjusted,
calibrated, validated, tested, inspected, adjusted and/or commissioned etc., but not supplied by or on behalf of the Contractor himself
.
35. Liability
The Contractor shall not be liable for any damage or costs incurred as a result of:
– performing Work on or in connection with goods supplied by third parties;
– incorrect, late or incomplete Design Data submitted by Client;
– the performance of Work for the use, testing, commissioning or decommissioning of a Work
of which goods supplied by third parties form part or in which such goods are assembled or installed;
– the performance of Work on a Work that has become part of a Client ‘s property (e.g. by
incorporatingit ) in the period prior to the time that the Delivered Work has been properly completed and accepted;
– items used at the request, advice or instruction of the Customer in the performance of Work;
– Work performed by persons recommended or designated by the Client.
35.2 Exclusions related to Work
The Contractor is further not liable for damages or costs resulting from:
– the design or parts of the design of the Work insofar as this design/these parts of the design are not entirely by the Contractor
is/are self-made;
– the dysfunction of the Customer ‘ s machinery, plant or processes of which the Deliverable has become a part
in the period prior to the time when the Delivered is duly delivered and taken delivery of; – the use of certain parts in the Work insofar as those parts were applied on the request advice or direction of the Client or which have been obtained from a Supplier designated or recommended by the Client.
36. Applicability
36.1 Supply of Software
The provisions in Part C of the ALV2020 apply to all legal relationships between Client and Contractor
concerning the development and/or supply of Software or modifications thereto, without prejudice to the applicability of the provisions of Part A
and Part B of the ALV2020.
36.2 Part C prevails
The provisions of Part C of the ALV2020 are supplement the provisions of Part A and Part B of the ALV2020. Where a
provision of Part C of theALV2020 also applies and is in full or partly conflicts with a provision of Part A or Part B of the
ALV2020, the provision of Part C of theALV2020 prevails to the extent of the conflict.
36.3 Explanation regarding Software
Designing making or writing of Software and related work has to be considered the provision of services. Within the ALV2020 , the creation of Software falls under Work ( see , inter alia, Article 1.19).
37. Definitions
37.1 Custom Software: Software, websites, protocols or operating systems developed by Contractor on behalf of Client, or
modifications of pre-existing software, websites, protocols or operating systems developed on the instructions of the Client.
37.2 Standard package: The software that is or was offered on the market by the Contractor as standard software in the general sense of the word, whether or not adapted, set up, configured, modified or extended for the benefit of the Client.
37.3 Software: Standard Package and/or Customised Software.
38. General
38.1 Licence Agreement
If Software is supplied by the Contractor and the modalities of use thereof are not provided for in a separate licence agreement, the provisions of Part C of the ALV2020 shall apply to the supply and use of such Software to the extent applicable. If use is governed by a separate licence agreement relating to Software supplied by the Contractor, then the provisions in that licence agreement shall prevail over those in Part C of the ALV2020.
38.2 Service/maintenance agreement
If a service or maintenance agreement has been concluded by the Parties in respect of Software supplied by the Contractor, the provisions therein regarding reporting and remedying Defects, maintenance of old releases and costs shall prevail over the relevant provisions contained in Part C of the ALV2020.
38.3 Extent of right of use
Upon delivery of Software, the Client acquires with respect to that Software the non-transferable, non-exclusive right of use for his own use, for the application for which Software was sold, for the location for which the Software was sold. Unless otherwise
agreed, the right of use referred to in the above shall commence at the moment the Principal has fulfilled all his obligations towards the Contractor. The right of use does not include the right
to modify or adapt the Software and is not transferable.
38.4 Further rights
Parties may make additional agreements on further rights.
38.5 Duration
If no duration of the right to use a Standard Package has been agreed, the right provided for in Art. 38.3 is of unlimited duration.
38.6 Own use and further development
The Contractor is at all times entitled to use, apply, further develop and sell to third parties the software developed by, to use, apply, further develop and sell to third parties the software developed by, on behalf of or on the instructions of the contractor himself.
38.7 Warranty
Unless otherwise agreed , in deviation from the term mentioned in Art. 14.3 the warranty period in respect of Software is 3 (three) months from delivery. If not explicitly agreed otherwise subject to the provisions of Article 2.2
and Article 28.4, the Contractor does not guarantee that the Software supplied by him is suitable for the intended and/or actual use by the Client.
38.8 Reporting Defect
Principal shall report a Defect Immediately after report a Defect to the Contractor immediately after it becomes aware of it. With regard to reporting a Defect, Article 33.4 shall further apply.
38.9 Repair of Defect
Insofar as the Contractor is obliged to take care of the repair of a Defect , he shall do so to the best of his ability.
38.10 Cost of repair following injudicious use
If , in the opinion of the Contractor a Defect is caused in whole or in part by or relates to improper use or any other causes or circumstances not attributable to the use or by othercauses not attributable to the Contractor
or if the Defect could already have been established during the performance of the tests referred to in Art. 33.2 could have been detected, all costs of repair shall be borne by the Customer.
38.11 Limitations of warranty after modification
The Contractor is relieved of its warranty obligations if the Software has been adapted or modified by others than the Contractor.
38.12 Software is not error-free
The Contractor does not warrant that the Software will be error-free, will function without interruption or without Defects or that all Defects will be repaired or corrected.
38.13 New Releases
Where a maintenance agreement has been entered into in respect of a Standard Package developed by the Contractor, the Contractor will , when an improved version of the Standard Package becomes available for market becomes available this version will be made available to the Client.
38.14 Old releases
The Contractor shall not be bound to remedy any Defects in an older version of a Standard Package is no longer obliged to make any rectification of Defects in
an older version thereof. If a new version of the Standard Package offers new features and/or functions compared to older versions, the Contractor is entitled to charge a fee for making the new version available, to charge a fee for making that new version available.
38.15 Third Party Package
Where the Contractor does not make available a Standard Package developed in-house, but grants the right to use a Standard Package in accordance with the provisions of a use or licensing agreement of or with a third party or if maintenance in respect of a Standard Package is performed on the basis of or in accordance with the provisions of an agreement
of the Contractor with a third party, the provisions of articles 38.1 to 38.14 of the ALV2020, but only the provisions of the Contractor’ s relevant agreement(s) with such third party/parties. By entering into the Agreement , the Principal authorises the Contractor to purchase the software required for the performance of the Assignment necessary software
and to agree to the associated licence conditions.
The Contractor will inform the Client of the relevant applicable provisions upon request.
38.16 General Data Protection Regulation
Client shall indemnify Contractor against claims of third parties whose personal data have been registered or are being processed insofar as those claims relate to data and Software supplied by the Contractor to the Client or data processed by the Contractor for the Client.
38.17 Licences Client
By entering into the Agreement ,the Client guarantees that , insofar as so far as the performance of the Work requires the Contractor to use software systems, platforms, data and accounts owned by the Client, Client has adequate rights to that effect such as licences, access rights and authorisations. Client indemnifies Contractor against all claims of third parties in so far as Client does not have the aforementioned rights. insofar as Principal would not have the rights referred to above.
39. Custom software
39.1 Cost of repair during warranty
Only if a fixed price has been agreed for the development of Custom Software, the Contractor will not charge any costs for repairing the Defect. If no fixed price has beenagreed
Contractor is authorised to charge the costs involved in the repair to Principal.
39.2 Source code customisation
Unless otherwise agreed, the source code does not form part of the Custom Software to be delivered. If Parties
have agreed that the source codeforms part of the delivery
, the right of use as referred to in article 38.3 also includes the
right to adapt or
modify the Software supplied by the Contractor. If the Contractor is legally obliged to provide the source code
to the Client, Principal should pay a
reasonable fee for this.
40. Standard package
40.1 Right of use includes one installation
The Standard Package may only be used by the Client on one processing unit, assuming the software of the Standard Package may, in the event of an any malfunction, may be used temporarily on a second processing unit but only until the malfunction is removed.
40.2 Copies
If and to the extent that no other conditions have been imposed by the Contractor, the Client will be entitled to make a maximum of two back-up copies of the Standard Package for security purposes; these copies will only be allowed to be used to replace original material that has become unusable. The copies must be provided with the same labels and the same indications as the original material.
40.3 Source code Standard Package
The source code of a Standard Package will not be made available to the Client.
40.4 Ownership
The ownership of the Standard Package and the rights of IP respecting the Standard Package are not delivered by the Contractor to the Client. The Client will fully respect the property and IP rights regarding the Standard Software. Client shall not remove indications concerning intellectual property rights such as copyright indications and not make them illegible or unrecognisable.
40.5 Confidentiality
By entering into an agreement which relates to or co or partly relating to a Standard Package developed by the Contractor declares that the Client is aware that the Standard Package contains confidential information and trade secrets of the Contractor. The Client is obliged to keep the Standard Package secret and not to disclose it or cause it to be disclosed to third parties.