Terms and conditions of delivery

FHI General Terms and Conditions of Supply 2020

© FHI, Federation of Technology Sectors 2020 – version 04-2020

These General Terms and Conditions of Supply have been drawn up by FHI, Federation of Technology Sectors, for the benefit of members of a trade association affiliated to the Association (as defined below). Parties other than those referred to above are not authorised to use these General Terms and Conditions.

Neither FHI, the Federation of Technology Sectors, nor its board is responsible or liable for the actions or omissions of its members.

No part of these general terms and conditions of supply may be altered, reproduced, stored in a computerised database, or made public in any form or by any means, whether electronically, mechanically, by photocopying, recording, or by any other means, without the prior written consent of FHI, the Federation of Technology Sectors.

Part A: General Provisions

1 Definitions

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, which in any event includes advising in the field of automation and/or organisation, carrying out feasibility studies, performing system analysis, advising on equipment and/or software to be used by the Client, providing support in the development of software, delivering and/or organising training, courses or workshops, and instructing and supervising staff.

1.3 ALV2020: These general terms and conditions of supply, comprising:

• Part A containing general provisions;
• Part B containing supplementary provisions concerning the provision of services, including R&D, consultancy, maintenance and training, and further including the contracting of work with the exception of the development of Software;
• Part C containing supplementary provisions concerning the development and/or supply of Software.

1.4 Documentation: Brochures, product information, factory drawings, instructions, test certificates, catalogues, price lists, leaflets and all information provided in or with a Quotation or during the performance of the Agreement, such as, but not limited to: designs, drawings/illustrations, plans, descriptions, explanations, ideas, models, samples, tables, diagrams, databases, software, calculations and all other information which, by its nature, is confidential.

1.5 Defect: A defect exists if the Goods delivered by the Contractor to the Client under the Agreement are incomplete and/or do not comply with the specifications and/or do not possess the characteristic(s) that were explicitly confirmed in writing by the Contractor to the Client prior to or at the time of the conclusion of the Agreement.

1.6 Delivered: That which has been delivered by the Contractor under the Agreement, including (part of) the Work and/or the Services which the Contractor has delivered to the Client or carried out for the Client under the Agreement.

1.7 Without delay: As soon as is reasonably practicable.

1.8 Assignment: The agreed Services as well as the agreed Work and the other items to be supplied by the Contractor under the Agreement.

1.9 Order Confirmation: The written notification from the Contractor to the Client summarising the content of the Agreement. The Order Confirmation will generally describe the scope of the agreed delivery and the agreed prices and terms.

1.10 Client: The party to whom the Offer made by the Contractor is addressed, to whom the Contractor has supplied goods and/or with whom the Contractor has entered into an agreement.

1.11 Contractor: A member of one of the trade associations affiliated to the Association (defined below) that uses the ALV2020, refers to it, or by or on behalf of whom the ALV2020 has been declared applicable, its representative(s), authorised representative(s) and legal successor(s), and any other natural or legal person who, with the demonstrable consent of the Association, makes use of the ALV2020.

1.12 Agreement: The Agreement between the Client and the Contractor, including any amendment(s) agreed upon after its conclusion, and the agreed additional and reduced scope of work.

1.13 Parties: The Client and the Contractor.

1.14 Party: One of the Parties.

1.15 In writing: Correspondence by registered letter, bailiff’s writ, ordinary post or fax. This also includes correspondence via electronic means (such as by email or web form), provided that neither Party has demonstrably objected to the use of the electronic means in question.

1.16 Supplier: The party from whom the Contractor sources the goods it offers.

1.17 Association: FHI, federation of technology sectors, registered in the Commercial Register of the Chamber of Commerce under number 40507574.

1.18 Work: The item of a material nature, or parts thereof, which the Contractor is required to produce for the Client in fulfilment of the Agreement, such as, for example, a device, machine, semi-finished product, structure, installation or any other item.

1.19 Work: The work carried out by the Contractor for the Client in performance of the Agreement concerning the provision of services, insofar as this does not relate to the creation of a Work for the Client. This may include, for example, carrying out research and development (R&D), conducting feasibility studies, providing consultancy, developing, designing, building and supplying and/or adapting software, systems or operating systems, designing mechanical and electrical installations, and carrying out servicing and maintenance, assembly, disassembly, installation, de-installation, connection and disconnection, built-in, surface-mounted, finishing, demolition, adjustment, calibration, validation, configuration, fine-tuning and setting work, commissioning, testing, measuring, calibration, inspection, inventory, training, workshops, supervision, etc. Services provided are generally charged on an hourly basis following a post-project calculation where the obligation is purely one of best efforts.

2 Applicability of the ALV2020, headings and language

2.1 Applicability

These Terms and Conditions apply to every Quotation, every delivery by the Contractor, every Agreement between the Contractor and the Client, and to all other legal relationships between the Client and the Contractor. Deviations from these ALV2020 are only valid insofar as they have been expressly confirmed in writing by the Contractor to the Client.

2.2 Authorised persons

Only employees of 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 persons other than those authorised to do so in accordance with the commercial register 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, amongst other things, making an Offer, guaranteeing certain characteristics of a product, making commitments regarding delivery dates, amending previously made agreements, entering into a contract, etc.

2.3 Requirements for digital communication

Throughout the duration of the legal relationship, the Contractor may impose requirements regarding communication between the Parties or the performance of legal acts via digital media.

2.4 Titles of clauses

The headings and articles of the ALV2020 serve solely to facilitate reading and clarity and have no other significance. In particular, the headings may not be used for the interpretation of the ALV2020.

2.5 References

Where the ALV2020 refers to article numbers, those article numbers refer to the relevant articles in the ALV2020 unless the text indicates that the reference relates to articles from another document or source.

2.6 Proof of receipt

If the recipient disputes that certain Written correspondence has reached them, the burden of proof that the recipient has received this correspondence rests with the sender. In the case of correspondence sent by electronic means, unless there is convincing evidence to the contrary, the dates of dispatch and receipt as recorded on the Contractor’s server(s) shall serve as sole proof.

2.7 Priority of clauses

Insofar as a provision in Parts B or C of the ALV2020 applies to the relevant Agreement or to a part thereof, and a provision from Part B or C conflicts with a provision from Part A, the provision from Parts B or C shall prevail over the relevant provision from Part A with which it conflicts.

2.8 Language

The ALV2020 drawn up in the Dutch language shall take precedence over the ALV2020 translated into English or any other language.

2.9 Goodwill

If the Contractor – whether intentionally or unintentionally – fails at any time to invoke any provision of these ALV2020, this does not constitute a waiver or relinquishment of the right to invoke that provision at a later stage.

3 The Offer and the Formation of the Agreement

3.1 Non-binding

Every Offer is non-binding unless a time limit for acceptance is specified in the Offer. A non-binding Offer may still be withdrawn immediately after acceptance. In that case, no Contract is formed.

3.2 Offer and acceptance

The Contract is formed by a Written Offer and its acceptance, subject to Articles 3.4 to 3.6.

3.3 Sales via the online shop

Notwithstanding the other provisions of this clause, where an order is placed via a webshop, the Contract shall only be formed once the Contractor has confirmed this in writing to the Client by means of an Order Confirmation.

3.4 Modified acceptance

Insofar as the Client’s acceptance of an Offer made by the Contractor deviates in any respect from the Offer, the Agreement shall only come into effect once the Contractor has accepted the deviation in writing and thereby confirmed the formation and content of the Agreement by means of an Order 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 shall only come into effect when the Contractor confirms the formation and the content of the Agreement by means of a Confirmation of Order and the Client does not raise an objection to this in writing without delay.

3.6 Formation of the Agreement upon commencement of work

If, for whatever reason, there is a deviation from the procedure described in Articles 3.2, 3.4 or 3.5, the Agreement shall nevertheless be concluded, subject to the following. The Agreement shall then be concluded at the moment the Contractor actually commences performance of the Agreement or instructs third parties to do so. In such a situation, unless the Client provides evidence to the contrary, the invoice shall be deemed to reflect the content of the Agreement fully and correctly.

3.7 Attached information

Documentation provided by or on behalf of the Contractor shall be binding on the Contractor only to the extent that the Offer explicitly refers to information contained in such Documentation.

3.8 Documentation in a single copy

The Contractor shall provide Documentation in a single copy free of charge, in so far as this has been agreed or is deemed relevant by the Contractor. The Client shall pay the Contractor reasonable compensation for additional copies of such Documentation.

3.9 Provision of security

Upon the Contractor’s first request, the Client shall, at its own expense, provide the Contractor with adequate security in respect of the timely fulfilment of its obligations under the Agreement.

3.10 Engagement of third parties

The Contractor is authorised to engage third parties for the purpose of performing the Agreement concluded between the Parties and to charge the costs thereof to the Client in accordance with that Agreement.

4 Confidentiality

4.1 Prohibition

Without the Contractor’s written consent, the Client is prohibited from copying or reproducing the Documentation or any part thereof in any manner whatsoever, disclosing it to third parties (or causing it to be disclosed), allowing third parties to use it, selling it to third parties or making it available to third parties.

4.2 Right to Use Documentation

The Client is only permitted to use the Documentation to the extent necessary for the conclusion or performance of the Agreement. Upon the Contractor’s first request, as well as if the Agreement is not concluded, is terminated prematurely or is cancelled, the Client must immediately return all Documentation provided to it to the Contractor at its own expense.

4.3 Restricted readership

The Client shall, within its own organisation, share the Documentation exclusively with its own employees and only to the extent necessary for the conclusion or performance of the Agreement. By accepting the Documentation, the Client warrants that it has taken, and will take in a timely manner, adequate measures to prevent the Documentation or parts thereof from being disclosed to anyone other than the persons or third parties who, pursuant to this clause, are authorised to access the Documentation.

5 Amendment of the Agreement

5.1 In Writing Only

An amendment to the Agreement may only be agreed in writing. If the Parties have reached agreement on a specific amendment to the Agreement, the Contractor shall confirm the amendment to the Client in writing. This confirmation shall in any event set out the substantive, financial and temporal consequences of the amendment.

5.2 Modified performance

If the Parties agree in substance on the desired amendment to the Agreement but the written form requirements as set out in clause 5.1 have not been met, and the Contractor performs the Agreement in its amended form with the Client’s knowledge, the invoice or invoices received by the Client from the Contractor shall, subject to evidence to the contrary being provided by the Client, be deemed to reflect the correct content and scope of the amended Agreement.

5.3 Costs of Work Already Performed

If an amendment to the Agreement has been agreed, the Client is in any event obliged to reimburse the Contractor the agreed price for the work already performed by the Contractor and/or the services already rendered up to the time of the amendment.

5.4 Costs of amendments

If an amendment to the Agreement has been agreed, the Client must reimburse the Contractor for the associated costs, to be determined by the Contractor in all reasonableness, arising from the amendment. These may include, amongst other things, the cost price of materials or labour already procured, price changes for supplies, or cancellation costs resulting from the cancellation of supplies that were initially required for the performance of the unamended Agreement.

5.5 Delivery times are subject to change

If an amendment to the Agreement has been agreed, the Contractor shall be entitled to deviate from previously agreed delivery times and lead times to the extent that it deems necessary in order to be able to perform the Agreement in its amended form.

6 Early termination

6.1 Mutual consent

The Parties may only jointly agree that the Agreement shall be terminated prematurely and under what conditions such termination shall take place.

7 Prices

7.1 Euros

Unless otherwise stated in the Quotation, all prices are in euros and exclude VAT, import duties and other levies, taxes or excise duties, packaging costs, insurance costs and disposal charges.

7.2 Transport and insurance costs within the Netherlands

Unless otherwise agreed, the costs of transport and insurance for deliveries within the Netherlands shall be borne by the Client.

7.3 Transport and insurance costs abroad

For deliveries outside the Netherlands, unless otherwise agreed, delivery shall take place ex-works manufacturer in accordance with the most current version of the Incoterms in force at the time the offer is made.

7.4 Other costs

The costs of assembly, installation, fitting, extension or removal, connection or disconnection, construction, connection, adjustment, commissioning, calibration, validation, verification, instruction, testing, inspection and start-up are only included in the price or form part of the supply to the extent that the Parties have agreed this in writing.

7.5 Exchange rate fluctuations > +/- 2%

In the case of a non-binding Offer, and also where this proviso is included in a binding Offer, the Contractor is entitled to adjust prices if the official exchange rate at the time of purchase of the required goods and/or at the time of delivery deviates by more than 2 per cent from the exchange rate on the date on which the Offer was made, with the latter rate being set at 100.

8 Risk

8.1 Risk during transport within the Netherlands

In the case of dispatch within the Netherlands, the risk of theft, damage, loss or deterioration shall pass to the Client at the time of delivery of the goods in question, subject to the other provisions of this article.

8.2 Risk during transport abroad

In the case of delivery outside the Netherlands, the risk associated with transport is governed by the provisions of the Incoterms agreed by the Parties (see Article 7.3).

8.3 Transport risk within the premises

The risk during transport on the Client’s premises shall at all times be borne by the Client, unless the Client can prove that the damage was caused by wilful misconduct or gross negligence on the part of the Contractor’s management.

8.4 Risk following international transport

In the case of delivery outside the Netherlands, the risk of theft, damage or deterioration shall in any event pass to the Client at the moment the Contractor has fulfilled all its obligations in accordance with the agreed provisions of the Incoterms.

8.5 Risk arising from acts

Except in cases of wilful misconduct or gross negligence on the part of the Contractor’s management, and unless otherwise agreed, and without prejudice to the provisions of Article 18, the following risk shall be borne by the Client:

The risk of loss, theft, damage, destruction or deterioration of the goods supplied by the Contractor, the Client’s property and that of third parties, arising from the Contractor’s performance of work relating to, amongst other things but not limited to, assembly, installation, fitting, extension or removal, connection or disconnection, construction, connection, adjustment, set-up, calibration, validation, verification, instruction, testing, inspection and commissioning.

8.6 Risk relating to goods held by the Contractor

If the Contractor has set aside goods for the Client’s benefit from its other stock items but has not yet delivered them for whatever reason, or if the Contractor holds goods belonging to the Client in its possession, for example for repair, inspection, calibration, validation, training, testing or for any other purpose, the risk of loss, theft, damage, destruction or deterioration shall be borne by the Client, unless the risk in question has materialised as a result of wilful misconduct or gross negligence on the part of the Contractor’s management.

8.7 Risk relating to the return of the Client’s goods

In the event that the Contractor has the Client’s goods in its possession for, for example, repair, inspection, etc., and these goods need to be dispatched or transported for whatever reason, the risk of loss, theft, damage, destruction or deterioration during such transport shall be borne by the Client.

9 Delivery

9.1 Administrative costs

For orders not exceeding an amount to be determined by the Contractor, the Contractor may charge a fee, to be determined by the Contractor, as a contribution towards administrative and logistical costs.

9.2 Time of delivery

In the case of delivery within the Netherlands, the time of delivery is the time at which the goods to be delivered are unloaded or discharged at the agreed location. In the case of delivery outside the Netherlands, the time of delivery is the time at which the Contractor has fulfilled all its obligations in accordance with the provisions of the Incoterms agreed by the Parties (see Article 7.3). For the time at which risk passes, see Article 8; for the time at which title passes, see Article 16.

9.3 Notification of transport damage, etc.

The Client must report any shortages, missing items and damage within 24 hours of delivery in writing directly to the Contractor; failing which, the goods shall be deemed to have reached the Client in good order, complete and without damage or defects.

9.4 Partial deliveries

The Contractor is entitled to deliver the goods in instalments and to invoice these instalments separately.

9.5 Acceptance

Insofar as a test, trial or inspection (hereinafter: ‘Acceptance Test’) has been agreed in respect of a delivery and a Defect is identified during this, notification of that Defect must be given without delay, subject to the provisions of Article 17.4. If no Defect is reported without delay following the Acceptance Test, in accordance with the provisions of Article 17.4, the delivery shall be deemed to comply with the Client’s reasonable expectations.

9.6 Returns

The return to the Contractor of goods delivered by the Contractor, or any part thereof, for whatever reason, may only take place with the Contractor’s prior written consent and only in accordance with any dispatch instructions provided by the Contractor to the Client.

9.7 Non-acceptance of goods

In the event that the Client does not accept a delivery offered by the Contractor or has indicated that it will not accept it, the Contractor is nevertheless entitled to charge the Client for the goods in question and is furthermore entitled to store these goods at its own discretion and at the Client’s expense and risk (or have them) stored for as long as it deems reasonable, without prejudice to all other rights granted to it by law in connection with the Client’s failure to perform.

9.8 Permits

The Client shall, at its own expense, be responsible for obtaining any permits, concessions, licences, authorisations and the like that are necessary to enable the Contractor to properly fulfil all its obligations arising from the Agreement.

10 Call-off orders

10.1 Definition

The Parties may agree that the Client will purchase a specific quantity within a specified period and that the Client will take delivery of this quantity in more than one separate consignment, in accordance with a specific call-off schedule. This agreement is hereinafter referred to as a ‘Call-off Order’. In that case, the Contractor is entitled to invoice the separate deliveries referred to above individually.

10.2 Deliveries in accordance with the call-off schedule

If a Call-off Order has been agreed, the Contractor shall make the separate partial deliveries on the agreed delivery dates without any action being required on the part of the Client.

10.3 Deviations from the call-off schedule

Once a call-off order has been agreed, the Parties may agree to deviate from a specific delivery time in the call-off schedule, subject to the following paragraphs of this article.

10.4 Written confirmation

Any amendment to the call-off schedule shall only take effect once the amended delivery dates for the relevant partial deliveries have been confirmed in writing by the Contractor to the Client.

10.5 Keeping stock for a longer period

If, as a result of an agreed amendment to the call-off schedule, the Contractor is required to keep goods in stock for longer than would have been the case had the original call-off schedule been followed, the Contractor shall retain these goods at the Client’s expense and risk.

10.6 Amendment of the call-off schedule and end date

If the Parties agree on a new delivery date for a specific partial delivery under a Call-off Order, the other agreed delivery dates for partial deliveries shall remain unchanged; they shall therefore not automatically be adjusted accordingly. A newly agreed delivery date for a partial delivery may not be later than the originally agreed delivery date of the final partial delivery under the Call-off Order. If the Client wishes to change the delivery date of the final instalment of the call-off order, the Agreement must be amended as described in Article 5.

10.7 Suspension of a call-off order

A Call-off Order may only be terminated prematurely with the consent of both Parties, subject to the provisions of Article 6. If the agreed price was based on the purchase of a specific volume and if, in the event of the final purchase of a lower volume, a higher price would have been charged, the Client shall, without prejudice to the provisions of Article 6, in any event be obliged to pay the difference.

11 Spare parts

11.1 After the warranty period

Once the agreed warranty period has expired, the Contractor cannot be obliged to supply spare parts for goods already delivered.

11.2 Warranty on spare parts

If the Contractor supplies or fits spare parts to remedy a Defect, the warranty period shall not recommence for these spare parts. The warranty period for the original delivery remains unchanged.

11.3 Parts no longer available

Insofar as the Contractor is obliged, by law or under the Contract, to supply spare parts for goods or parts thereof previously supplied to the Client, this obligation shall cease to apply once the Contractor no longer has these spare parts in stock and they are also unavailable on the market through regular channels on reasonable terms.

11.4 Comparable goods/parts

In the event that the Contractor is obliged to replace goods or parts thereof delivered to the Client, the Contractor is free to supply a comparable good or part, in so far as this is, in the Contractor’s opinion, 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 agreements regarding the availability of consumables, the Contractor shall no longer be obliged to supply consumables after the expiry of the agreed warranty period.

12 Delivery times

12.1 Foreign supplies

It may happen that the goods offered by the Contractor, such as parts, semi-finished products or raw materials required for their production, hereinafter referred to as ‘Foreign Supplies’, are supplied directly or indirectly from various continents and countries and/or sourced from different Suppliers. The Contractor cannot rule out the possibility that, in exceptional cases, these Foreign Supplies may be difficult to obtain or even unavailable for some time due to, for example, a shortage of raw materials on the world market, environmental disasters and significant fluctuations on the supply side. Consequently, it is not always possible for the Contractor to predict, at the time the order is placed, exactly when delivery can be made. In order to inform the Client as accurately as possible nonetheless, the Contractor shall follow the procedure described in the following paragraphs of this article.

12.2 No strict deadlines

The Contractor shall state the estimated delivery times in its Quotation. Once the Contract 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 set out in the Quotation. Neither the estimated delivery times nor the verified delivery times are strict deadlines.

12.3 Extension of delivery times

As unexpected circumstances may arise during the procurement, production, assembly and transport of the ordered goods and of the materials, raw materials and semi-finished products incorporated therein, over which the Contractor, in its reasonable judgement, has no influence, the Contractor is entitled to extend the verified delivery times by a maximum of four weeks on each occasion. To this end, the Contractor shall send a confirmation before the expiry of the verified delivery period, stating the new verified delivery time(s).

12.4 Termination following four extensions

The Client is entitled to terminate the Agreement in whole or in part if the expected delivery time has been extended more than four times. Should the Client terminate the Agreement pursuant to this provision, this shall not give rise to any obligation on the part of either Party to compensate the other Party for any loss suffered as a result of such termination.

12.5 Notice of default required for default to arise on the agreed delivery date

Where the Parties have agreed, at the Client’s request, that deliveries are to take place on a specific day and it has been made clear in Writing, prior to or at the time of the conclusion of the Agreement, that a later delivery is not acceptable, the Contractor shall not be deemed to be in default in respect of exceeding those agreed delivery times until it has been given notice of default in writing and has been granted a reasonable period of time to make the delivery. In determining the reasonable period, account must in any event, though not exclusively, be taken of the currently applicable delivery times and production lead times, the duration of any transport operations and the availability of raw materials and building materials.

13 Force Majeure (Non-Attributable Failure)

13.1 No obligation in the event of force majeure

Neither Party shall be obliged to fulfil any obligation, including any warranty obligation agreed between the Parties, if it is prevented from doing so as a result of force majeure.

13.2 Scope

Force majeure shall also be understood to include: (I) force majeure on the part of the Contractor’s Suppliers, (II) the failure of Suppliers to properly fulfil obligations prescribed to the Contractor by the Client, (III) defects in goods, equipment, software or materials from third parties, the use of which has been prescribed to the Contractor by the Client, (IV) government measures, (V) power cuts, (VI) disruption to the internet, service providers, computer network or telecommunications facilities, (VII) war, (VIII) work stoppages, (IX) strikes, (X) general transport problems and (XI) the unavailability of one or more members of staff whose personal efforts are necessary for the performance of the contract, (XII) terrorist attacks or occupations, (XIII) epidemics and pandemics, (XIV) financial crisis, (XV) the failure of the payment network of the relevant banks.

13.3 (Partial) Termination

If a force majeure event lasts for more than ninety days, either Party shall be entitled to terminate the Agreement in writing, or, if performance has already taken place under the Agreement, to terminate it in part. In the event of a partial termination or the impossibility of reversing the performance, the Parties shall be obliged to make a partial payment or provide compensation for the value, as the case may be. The Parties shall make any payments required in connection with this settlement without delay.

13.4 Notification of force majeure

If the Contractor wishes to invoke force majeure, it shall notify the Client thereof as soon as practically possible. The consequences of force majeure shall take effect from the moment the circumstance, cause or event leading thereto has 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 Contractor’s opinion, the force majeure situation is of a temporary or transitory nature, the Contractor is entitled to suspend the performance of the Agreement until the circumstance causing the force majeure situation no longer exists.

13.6 Priority

If, as a result of force majeure, the Contractor is prevented from fulfilling its obligations towards one or more of its customers or Clients, but not the obligations towards all clients and Principals, the Contractor shall be entitled, at its own discretion, to decide which of the obligations and towards which clients and Principals it will fulfil, as well as the order in which this will take place.

14 Warranty

14.1 Product warranty

Subject to the other provisions of these general terms and conditions, the Contractor guarantees only that the Goods Supplied, with the exception of consumables, comply with the product specifications at the time of delivery and that they possess the characteristics confirmed in writing by the Contractor to the Client prior to or at the time of the conclusion of the Agreement.

14.2 Extended warranty/Performance warranty

The Parties may agree that the Contractor shall provide a warranty that goes beyond the product warranty as referred to in clause 14.1, subject to the provisions of this paragraph. The Contractor guarantees exclusively that the Delivered Goods will function and/or perform in a specific manner in combination with goods supplied by third parties and/or in combination with the Client’s goods (for example, in a process, in a machine or in one of the Client’s installations), hereinafter referred to as: “ Performance Guarantee”, where and insofar as this has been explicitly confirmed in writing by the Contractor to the Client prior to or at the time of the conclusion of the Agreement, subject to Article 2.2. Furthermore, the conditions for the creation of an obligation to achieve a specific result in respect of a Work, as set out in Article 28.4, also apply to the creation of a Performance Guarantee. A Performance Guarantee shall lapse if, following delivery, it transpires that there are circumstances which, in the Contractor’s opinion, adversely affect the functioning of the Delivered Work and which had not already been reported by the Client to the Contractor prior to or at the time of the conclusion of the Agreement and confirmed in writing by the Contractor to the Client. Unless otherwise agreed, a Performance Guarantee shall lapse twelve (12) months after delivery.

14.3 Term

Unless other warranty periods are specified in the Quotation, the warranty referred to in 14.1 for new goods shall be twelve (12) months from the date of delivery. Unless otherwise stated in the Quotation, no warranty is given on second-hand goods supplied by the Contractor.

14.4 Reporting Defects during the warranty period

If the Client becomes aware of a Defect and wishes to make a claim under the warranty in respect of the defective delivery, the Client must report this Defect in accordance with the provisions of Article 17.4, failing which the right to do so shall lapse.

14.5 Repair or replacement

If, in the Contractor’s opinion, there is indeed a defect attributable to him and if the Client is entitled to the warranty referred to in Article 14.1 in respect of this defect, the Contractor shall, at its discretion, either ensure the repair of this Defect or the replacement of the defective item, unless such repair or replacement cannot reasonably be expected of it.

14.6 Method of repair

The Contractor is free to carry out the repair of a Defect itself or to subcontract this work or engage third parties for this purpose.

14.7 Delivery to the Contractor

Goods eligible for warranty must be delivered to the Contractor by the Client at the Client’s own expense. All costs arising from this, such as, but not limited to, costs relating to fitting and removal, installation, calibration, verification, commissioning, loss of production, waiting time, production downtime, packaging, insurance and transport, shall be borne by the Client.

14.8 Reimbursement of costs

If, in the Contractor’s opinion following inspection, the goods sent to the Contractor under warranty are found not to exhibit any defects, or if the Client is not entitled to a warranty, the Client is obliged to reimburse the Contractor for all costs incurred for inspection, storage and dispatch.

14.9 What is excluded from the warranty

Without prejudice to the other provisions of this article, the Client shall under no circumstances be entitled to a warranty:

• if the Goods have not been used for the purpose and under the circumstances for which they were supplied;
• if the Delivered Goods are used contrary to the instructions and regulations, etc.;
• in respect of items made available by the Client for processing;
• if the alleged Defect is the result of wear and tear arising from normal use;
• in respect of Work supplied which is of a best-efforts nature;
• in respect of items specified by the Client or procured by the Contractor from third parties designated by the Client.

14.10 Lapse of warranty

All warranty claims shall lapse immediately if, without the Contractor’s written consent:

• alterations, modifications and/or repairs have been carried out on the Goods Supplied;
• the Goods are not, or have not been, used or handled in strict accordance with the accompanying and/or applicable (manufacturer’s) instructions or user manuals;
• the Goods are, or have been, used or handled in any other improper manner;
• a software modification or upgrade has been carried out on or in relation to the Delivered Goods which was not performed by the Contractor itself or by a third party designated by the Contractor;
• the Delivered Goods are or have been used or applied for purposes other than those for which they are intended;
• the Goods are or have been used in a manner which the Contractor could not reasonably have foreseen on the basis of the information provided to the Contractor by the Client prior to or at the time of the conclusion of the Agreement.

14.11 Exemption from warranty obligations

For as long as the Client fails to fulfil, or fails to fulfil in full, one or more of its obligations towards the Contractor under any Agreement, the Contractor shall be exempt from its warranty obligations from the moment the Client fails to fulfil its obligations properly until the moment the Client has again duly fulfilled all its obligations towards the Contractor. The warranty period shall continue to run during the period in which the Contractor is relieved of its warranty obligations.

14.12 Damage during the warranty period

To the extent that the Contractor is obliged, during the warranty period, to compensate the Client for damage or costs suffered as a result of a Defect, the Contractor’s fulfilment of its warranty obligation shall be deemed to constitute the sole and full compensation.

15 Security Interests

15.1 Right of Retention

The Contractor shall have a right of retention over all goods held by the Contractor on behalf of or for the Client, irrespective of the cause or reason therefor, for as long as the Client has not fulfilled all its obligations towards the Contractor.

15.2 Formation of a new item

If the Client forms a new item (in part) from goods supplied by the Contractor, the Client shall hold the newly formed item on behalf of the Contractor until the Client has fulfilled all its obligations arising from the Agreement towards the Contractor. In that case, the Contractor shall retain all rights as owner of the newly formed item until the Client has paid in full. By entering into the Agreement with the Contractor, the Client grants the Contractor permission to enter its premises and buildings to take possession of its property.

15.3 Security interest

At the Contractor’s first request and at the Client’s expense, the Client shall cooperate in the creation of a non-possessory charge on newly formed items as referred to in Article 15.2, into which items supplied by the Contractor have been incorporated, for as long as the Client has not yet fulfilled all its obligations towards the Contractor.

16 Retention of title

16.1 Extended retention of title

Without prejudice to the provisions of Article 8 concerning risk and the transfer thereof, all goods delivered by or on behalf of the Contractor shall remain the property of the Contractor until such time as the Client has fulfilled all its due and payable obligations towards the Contractor.

16.2 Due care

The Client is obliged – for as long as, pursuant to the provisions of Article 16.1, ownership of goods delivered by or on behalf of the Contractor remains with the Contractor – to keep these goods separate from other goods in such a way that they can be easily and clearly identified as the Contractor’s goods.

16.3 Recovery

In the event of non-payment of any amount owed and due by the Client to the Contractor, and furthermore in the event that the Agreement terminates other than by completion, the Contractor shall be entitled to reclaim ownership of the goods subject to retention of title and to take (or arrange for the taking of) the necessary measures in this regard, offset against any sums already paid in respect of those goods, without prejudice to the Contractor’s right to claim compensation for any loss or damage. In the event of such non-payment or termination of the Agreement, any claim that the Contractor has against the Client shall become due and payable immediately and in full.

16.4 Repossession of goods

Upon the Contractor’s first request, the Client must provide a power of attorney for the immediate repossession of the goods that have not yet been paid for in full, wherever they may be located. The Client undertakes, at the Contractor’s first request, to cooperate in order to enable the Contractor to exercise its retention of title, including any dismantling, removal, sealing, disconnection, etc.

16.5 Consequences of sale

The Client is entitled to sell or use goods subject to a retention of title in favour of the Contractor in the ordinary course of business; however, no security interest may be created in these goods, nor may the Client carry out (or cause to be carried out) any acts in respect of these goods that would result in them becoming part or a component of one or more other goods. In the event that goods are resold to which a retention of title in favour of the Contractor still applies, the Client is obliged to retain title to them itself and, at the Contractor’s first request, to assign to the Contractor all claims against the Client’s debtor, up to the amount due.

17 Prevention of damage, reporting of defects

17.1 Contractor’s duty of care

In performing the Contract, the Contractor shall exercise the care that may reasonably be expected of it. Nevertheless, it cannot be ruled out that the Goods supplied by the Contractor may arrive at the Client’s premises with defects as a result of events occurring during transport or unforeseen circumstances, or that they may develop defects as a result of the manner in which they are used by the Client.

17.2 Prevention of damage

The Goods supplied by the Contractor may be used in the Client’s processes or installations. The manner in which the Goods are incorporated or used, the circumstances under which they are used, and the specific requirements placed on them are generally not fully known to the Contractor. Should the Delivered Goods unexpectedly develop a Defect, this may cause damage to the Client. The extent of such damage depends to a significant extent on the way in which the Client’s processes and installations are configured and the purpose for which those processes and installations are intended. Factors of importance include, for example, the method and speed of monitoring, whether or not redundant systems are in place, the frequency and thoroughness of inspections, the types and methods of alerting in the event of faults, whether or not there is permanent supervision, fault-handling procedures and related operational processes, the quality of maintenance, etc. As all the parameters mentioned above fall within the Client’s sphere of responsibility, the Client is responsible for taking adequate measures to prevent unnecessary or unduly high damage in the event that a good supplied by the Contractor becomes defective.

17.3 Warning

The use of goods that are not functioning properly may have serious consequences for the operation of processes or installations of which the Delivered Goods form part, or for the persons involved. The Contractor therefore strongly advises against this.

17.4 Notification of Defects

The Client must report a Defect in Writing to the Contractor without delay after becoming aware of it or after it could reasonably have become aware of it had it taken adequate measures as referred to in clause 17.2. The notification of the Defect must be sufficiently specific to enable the Contractor to ascertain, without further enquiry, the nature of the Defect and the actions that may reasonably be expected of them. When notifying the Defect, all relevant circumstances that are or may be of significance for an assessment of the circumstances surrounding the Defect must be described.

18 Liability

18.1 Conditions for compensation for damage

Except in the event of wilful misconduct or gross negligence on the part of the Contractor’s management, and subject to the other provisions of the ALV2020 and, in particular, the other paragraphs of this article, the Contractor shall be obliged to compensate the Client solely for the damage suffered by the Client as a result of a Defect. The obligation to compensate for damage shall not arise until each of the following conditions has been met:

• the Defect must have been reported by the Client to the Contractor in the manner described in Article 17.4;
• there must be a failure to comply as described in Articles 18.2 and 18.3;
• the damage must be attributable to the Contractor;
• the Client has demonstrated to a reasonable standard that it has taken adequate precautions to prevent or limit the damage, as referred to, inter alia, in Articles 17.2 and 17.3.

18.2 Duration of default

The Contractor shall be in default for as long as performance has not been provided after it has become due and payable and the requirements of Article 18.3 have been met, except insofar as the delay cannot be attributed to the Contractor or performance has already become permanently impossible.

18.3 Notice of default

The default referred to in Article 18.2 shall only take effect once the Contractor has been given notice of default by the Client in the form of a written reminder setting a reasonable period for performance, and performance has not taken place within that period. In determining the reasonable period, account must in any event, though not exclusively, be taken of the delivery times and production lead times applicable at the time of the notice of default, the duration of any transport(s) and the availability of raw materials and building materials.

18.4 Liability insurance

The Contractor may, but is not obliged to, take out insurance against damage that may arise as a result of a failure attributable to it in the performance of its obligations towards the Client. By entering into an Agreement, the Client accepts that it is incumbent upon it to check in advance whether the cover provided by the liability insurance taken out by the Contractor is, in its opinion, sufficient for the Assignment in question. The Contractor shall, at the Client’s first request, send the Client a copy of the relevant insurance policy schedule.

18.5 Limitation of liability

If, subject to the provisions set out above, the Contractor is liable to the Client and is obliged to compensate the Client for any loss or damage, the obligation to compensate for such loss or damage shall be limited to compensation for direct loss or damage and to a maximum of the amount involved in the Agreement (excluding VAT). If the Agreement is primarily a continuing contract with a term of more than one year, the amount involved in the Agreement shall be set at the total of the fees (excluding VAT) stipulated for one year. In any event, the obligation to pay compensation is limited in all cases to a maximum of € 500,000 (five hundred thousand euros).

Direct damage is understood to mean exclusively: (I) repair, restoration or replacement costs; (II) reasonable costs incurred in determining the cause and extent of the damage; (III) reasonable costs incurred in preventing or limiting damage, in so far as the other party demonstrates that these costs have led to a limitation of direct damage as referred to in these general terms and conditions.

In the event that the insurer pays out a sum in connection with the Contractor’s liability as referred to above, the obligation to compensate for damage is furthermore limited to the amount paid out by the insurer for the case in question or to the amount covered by the insurance.

18.6 Exclusion of liability for indirect damage

The Contractor shall not be liable for indirect or consequential damage, which shall in any event include:

• damage other than that incurred by the Contractor in remedying the direct consequences of the breach;
• damage resulting from loss of profit, production stoppages, the destruction or deterioration of goods as a result of production stoppages, lost savings, business disruption or reduced goodwill;
• damage resulting from claims by third parties, including the Client’s customers;
• damage relating to the use of items prescribed by the Client to the Contractor, including but not limited to: installations, tools, machinery, materials or data, information or software from third parties;
• damage relating to the engagement of suppliers, programmers, advisers or auditors specified by the Client to the Contractor;
• damage resulting from the corruption, destruction or loss of data, digital equipment settings, software, information, records or documents.

18.7 Other exclusions

The Contractor’s liability is further excluded for:

• the direct and indirect consequences of the Client’s failure to strictly comply with the instructions for use or operation;
• normal wear and tear, and damage and/or wear and tear caused by improper use and as a result of overloading or any other form of abnormal use;
• abnormal or unforeseen circumstances, or at least circumstances which the Contractor could not reasonably have been expected to take into account on the basis of the information provided to it at the time the Agreement was concluded;
• damage against which the Client could have insured itself.

18.8 Cumulative effect

The exclusions and limitations of the Contractor’s liability as set out in Article 18 do not affect the other limitations and exclusions contained in the ALV2020.

18.9 Limitation period

Any claim that the Client has against the Contractor shall lapse by the mere expiry of twelve (12) months following the arising of that claim and, in any event, after the expiry of three years following delivery by the Contractor, irrespective of the legal basis of the claim.

18.10 Indemnity

The Client shall indemnify and hold the Contractor harmless against all claims by third parties for compensation for damage suffered by such third parties, including claims arising from product liability and infringement of intellectual property rights, as a result of goods supplied by the Client to such third parties which also comprised goods supplied by the Contractor.

18.11 Invocation of ALV2020 by third parties

The provisions of this article, as well as all other limitations and exclusions of liability set out in the ALV2020, shall also apply for the benefit of employees in the Contractor’s service and of all natural and legal persons of whom the Contractor makes use in the performance of the Agreement, and for the benefit of the group of which it forms part.

18.12 Third-party terms and conditions

With regard to goods and services which the Contractor has procured from a third party, the provisions applicable to the relevant agreement concerning warranty, spare parts and liability shall also apply to the Agreement between the Contractor and the Client, if and in so far as the Contractor invokes them. By entering into an Agreement, the Client authorises the Contractor to accept a limitation of liability on the part of that third party.

19 Intellectual Property Rights

19.1 Ownership

All intellectual property rights, hereinafter referred to as ‘IP’, in the items delivered, developed or made available by the Contractor to the Client – including Documentation, inventions, ideas, software, ICs, data files, diagrams, equipment, samples, circuits, methods, set-ups, installations, solutions, analyses, designs, reports and quotations – shall vest exclusively in the Contractor or in its licensor(s) or its Supplier(s).

19.2 Right of use of deliveries

Unless otherwise agreed in writing, in respect of the agreed deliveries, the Client shall, where applicable, acquire 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, according to the Agreement, the delivery was to take place.

19.3 Time of transfer of right of use

The rights of use referred to in clause 19.1 shall only pass to the Client once the relevant deliveries have been completed and have taken place in due course, and the Client has fulfilled all its obligations under the Agreement towards the Contractor.

19.4 Registration of IP rights

Insofar as registration is required in respect of the rights referred to in 19.1 before the relevant right comes into existence, the Client is prohibited, unless the Contractor has given its written consent, from carrying out (or arranging for the carrying out of) the relevant registration procedures.

19.5 Infringement

In the unlikely event that goods sold by the Contractor to the Client are found to infringe a third party’s intellectual property right in the Netherlands, and the Client is held liable in this regard, the Client is obliged to notify the Contractor of this immediately in writing. In that event, the Contractor shall be entitled, at its discretion, to remedy this infringement by:

• granting the Client the right to use that goods, or
• modifying the goods in such a way that it no longer infringes, or
• supplying a replacement product that does not infringe the right, or
• reimbursing the Client the purchase price, after the product has been returned, less a reasonable fee for the period during which the Client had the product at its disposal.

With regard to any infringement of an IP right outside the Netherlands, the Client shall not be entitled to assert any claim against the Contractor nor shall it have any cause of action.

19.6 Exclusion of liability for intellectual property

The Contractor shall not be liable for any infringement of any intellectual property right or any other exclusive right resulting from:

• any alteration to or modification of goods sold or supplied by or on behalf of the Contractor;
• any use or application of such goods other than that prescribed by the Contractor or which the Contractor was entitled to assume under the Agreement;
• integration, use or application with goods, (parts of) systems and networks not sold and supplied by or on behalf of the Contractor;
• a software modification not carried out by or on behalf of the Contractor.

20 Payment

20.1 Terms of payment

The Client shall pay the invoices in accordance with the terms of payment stated on the invoice. If no specific terms are stated on the invoice, the Client shall pay within thirty (30) days of the invoice date stated on the invoice. The Client is not entitled to set off any amounts or to suspend payment. The value date indicated on the Contractor’s bank statements on which a payment is received shall be deemed to be the date on which the payment was made.

20.2 Order of payment

Any payment made by the Client shall – where applicable – first be applied towards the interest owed by the Client and the collection and administration costs owed to the Contractor, and subsequently towards the outstanding claims in order of age.

20.3 Late payment

If the Client fails to pay the amounts owed to the Contractor on time, the Client shall, without the need for a reminder or notice of default, owe statutory interest on commercial transactions on the outstanding amount, calculated cumulatively on a monthly basis. If, following a payment reminder, demand for payment or notice of default, the Client still fails to fulfil its payment obligations within a reasonable period, it shall be in default by operation of law. From that moment onwards, in addition to the costs determined by the court, the Client shall also be obliged to reimburse the Contractor for the legal costs actually incurred by the Contractor and the extrajudicial costs actually incurred, including the costs charged by party and/or court-appointed experts.

20.4 Invoice complaints

Complaints regarding an invoice must be submitted in writing within eight (8) days of the date of that invoice to the Contractor.

20.5 Payment obligation remains

Reporting a Defect as described in clause 14.4 and/or clause 17.4 does not release the Client from its payment obligations towards the Contractor.

21 Termination of the Agreement

21.1 Termination

In the event that either Party is in default, this shall entitle the other Party to terminate the Agreement in whole or in part.

21.2 Compensation for damages

In the event of termination by the Client, the Contractor shall not be obliged to pay compensation to the Client.

21.3 Immediate termination in specific cases

The Contractor may terminate the Agreement with immediate effect without notice of default in the event that the other Party is declared bankrupt, proceeds to surrender its assets, is granted a (provisional or definitive) moratorium on payments, in the event that the other Party’s entire assets or part thereof are seized, or in the event that the other Party’s business is wound up or terminated.

21.4 Consequences of termination

If a Party terminates an Agreement pursuant to the provisions of this article, the sums owed by the Client to the Contractor at the time of termination shall remain due in full, and the Client shall be liable for interest and costs in respect of these sums in accordance with the provisions of the ALV2020, without prejudice to the Contractor’s right to claim damages, to exercise the rights arising from retention of title, to take other (legal) measures and to exercise any other rights to which the Contractor is entitled.

22 Cancellation at the Client’s request

22.1 Mutual consent

The Client may request the Contractor to agree to the cancellation of an Agreement that has already been entered into but not yet performed. A Contract may not be cancelled until the Parties have reached agreement in writing on the terms of cancellation, including the amount of the cancellation fees, and until, in the Contractor’s opinion, all agreed terms of cancellation have been fully met.

22.2 Time of cancellation

As long as the Parties have not reached agreement on the cancellation conditions, or as long as the cancellation conditions have not, in the Contractor’s opinion, been fully met, the Agreement shall continue and the Parties shall remain obliged to fulfil their mutual obligations under that Agreement in full.

22.3 Amount of cancellation fees

The amount of the cancellation fees shall be determined by the Contractor on a case-by-case basis. Factors relevant to determining the amount of the cancellation fees include, amongst others, the following:

• the amount involved in the Agreement;
• the extent to which performance of the Agreement has already progressed;
• the type of Agreement (supply of goods, development contract, delivery of a work, service agreement, training/education, etc.);
• the costs already incurred by the Contractor up to the time of cancellation, and the obligations the Contractor has already entered into in connection with the performance of the Agreement;
• the actions the Contractor is required to take in connection with the cancellation;
• the profit the Contractor forfeits as a result of the cancellation.

22.4 Losses arising from cancellation

In the event of the cancellation of an Agreement, the Contractor shall under no circumstances be obliged to compensate the Client for any loss that the Client suffers or may suffer as a result of that cancellation.

23 Governing law and disputes

23.1 Dutch law

Dutch law shall apply to 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. The applicability of the 1980 Vienna Convention on Contracts for the International Sale of Goods is excluded.

23.2 Choice of forum

Disputes arising from an Agreement concluded between the Contractor and the Client shall be submitted to the competent court in the judicial district in which the Contractor is established as the court of first instance, on the understanding that if a specific court is designated as the competent court by mandatory law, the dispute shall be settled by the court so designated as the court of first instance, without prejudice to the Contractor’s right to attach assets and to take or arrange for other provisional measures at such place(s) and before such courts as the Contractor deems appropriate.

23.3 Miscellaneous

The provisions of Article 23.2 do not affect the Contractor’s right to submit a dispute to the court having jurisdiction under the normal rules of jurisdiction, or to have it settled by arbitration or binding advice.

24 Validity

Should any provision of these GTC2020 be wholly or partly invalid and/or unenforceable, whether as a result of any statutory provision, court ruling, or any directive, decision, recommendation or measure issued by any local, regional, national or supranational authority or body, or otherwise, this shall not affect the validity of all other provisions of these GTC2020. If a provision of these ALV2020 should be invalid for a reason as referred to in the previous sentence, but would be valid if it had a more limited scope or effect, then this provision shall automatically apply with the most far-reaching or most extensive limited scope or effect with which or within which it is valid.

25 Filing

These general terms and conditions have been filed with the Chamber of Commerce under number 40507574.

Part B: Agreements for the Performance of Work and the Contracting of Work

26 Applicability

26.1 Services and Works

The provisions in Part B of the ALV2020 apply to all legal relationships between the Client and the Contractor concerning the performance of Services and the undertaking of Works, without prejudice to the applicability of the provisions in Part A of the ALV2020 which, insofar as applicable, also apply to the provision of Services and the acceptance of Work.

26.2 Part B > Part A

The provisions of Part B of the ALV2020 therefore supplement the provisions of Part A of the ALV2020. Where a provision in Part B of the ALV2020 is also applicable and conflicts, in whole or in part, with a provision in Part A of the ALV2020, the provision in Part B of the ALV2020 shall prevail to the extent of the conflict.

27 Definitions

27.1 Acceptance of the Work: The creation (manufacture, construction, supply) of a tangible item on behalf of the Client. Examples include the manufacture of an installation, test rig, system, machine, device, printed circuit board, switch cabinet, etc. For the creation of the Work, the Parties will generally agree on a guide price, set out specifications and make arrangements regarding additional and reduced work, as well as the method of acceptance and testing.

27.2 Design data: All data and circumstances, including information, data, specifications, requirements, methods of use and environmental conditions, on the basis of which the Contractor is required to carry out Work or deliver a Work, or which it must otherwise take into account when performing the Agreement, in so far as these were provided by the Client before or during the conclusion of the Agreement and confirmed by the Contractor to the Client. Insofar as additional relevant information and/or circumstances come to the Contractor’s attention during the performance of the Agreement, these shall only form part of the Design Data if this has been explicitly confirmed in writing by the Contractor to the Client.

27.3 Assignment: The assignment to carry out Works and/or to deliver a Work as specified in the Agreement, the ALV2020 and the Design Data.

28 The Assignment

28.1 Formation

The Agreement concerning the provision of Services and/or a Work may only be formed in Writing, subject to Article 3. The provisions of Article 3.7 shall not apply to the provision of Services and a Work.

28.2 Scope

The scope of the Assignment and the specifications with which the Deliverables must comply are determined exclusively by what the Parties have agreed in Writing in this regard.

28.3 Best-Efforts Obligation

The Works to be carried out by the Contractor are of a best-efforts nature, unless it has been explicitly agreed that they are of a result-based nature and the intended result has been described with sufficient precision, subject to the provisions of the following paragraph.

28.4 Result-based obligations

The Parties may agree in writing that the Contractor must achieve a specific result in carrying out the Assignment. In that case, an obligation to achieve a specific result shall only apply if the following conditions are also met:

• all Design Data required by the Contractor that is relevant to achieving the agreed result must have been notified by the Client to the Contractor before or during the conclusion of the Agreement and confirmed by the Contractor to the Client;
• in the Contractor’s opinion, no adverse changes have occurred to the information, data and circumstances referred to in the previous point since the conclusion of the Agreement;
• the criteria and circumstances used to assess whether the agreed result has been achieved must 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 prior to or at the time of the conclusion of the Agreement.

28.5 Partial obligation to achieve a specific result

Insofar as the Parties have agreed on an obligation to achieve a specific result but the conditions for this have not been fully met, the Agreement shall be deemed to be an obligation to use best endeavours to the extent that, in the Contractor’s opinion, the guaranteed result could not be achieved as a result of failure to meet the conditions referred to above.

29 Scope

29.1 Basis for the Work and the Work Product

The Contractor shall carry out the agreed Work and produce the agreed Work Product on the basis of the Design Data.

29.2 Format of Design Data

The Client shall supply the Design Data digitally, as far as possible, in the agreed format. If no agreement has been reached on this, the Design Data shall be supplied digitally in the format specified by the Contractor. Any necessary adjustments, organisation, conversions and sorting of the Design Data shall be carried out by the Client at the Contractor’s first request.

29.3 Access to systems

Insofar as, in the Contractor’s opinion, access to the Client’s installations, networks or systems is necessary for the performance of the Works, the Client shall cooperate with this without delay. The Contractor shall not be liable for any damage or costs arising from the use of the Client’s networks, systems or installations, unless the Client proves that the damage or costs result from wilful misconduct or gross negligence on the part of the Contractor’s management.

29.4 Accuracy of Design Data

The Client guarantees the accuracy and completeness of the Design Data. If, in the Contractor’s opinion, there are any inaccuracies in the Design Data, the Contractor is entitled to suspend its Work until such time as the Client has rectified the inaccuracies. In such a case, without prejudice to the Contractor’s right to compensation for damages, the Client shall in any event owe the Contractor the applicable remuneration for the work already carried out in performance of the Agreement, whilst the Contractor shall also be entitled to charge additional costs in accordance with its usual rates. The Client may not derive any right to compensation from the Contractor’s suspension, regardless of the legal basis therefor.

29.5 Client’s duty to provide information

The Client is obliged to disclose to the Contractor, in good time, all relevant information and circumstances falling within its sphere of influence that may be of significance to the performance of the Agreement.

30 Delivery Period

30.1 Commencement of the delivery period

If the Parties have agreed on a specific delivery period, this period shall commence on the day following the day on which, where applicable, each of the following conditions has been met:

• the Agreement relating to the Assignment has been concluded;
• all Design Data deemed necessary by the Contractor for the performance of the Assignment has been made available by the Client in the correct format;
• insofar as an advance payment has been agreed, this has been received by the Contractor;
• the day on which, in the Contractor’s opinion, all formalities necessary in connection with the performance of the Assignment have been completed, including the obtaining of permits;
• insofar as, in connection with the performance of the Assignment, work is to be carried out on a site or at an installation, network or system to be designated by the Client, this/these has/have, in the Contractor’s opinion, been made ready for this purpose and the Contractor has unimpeded access to it/them or it/they has/have been made available to him.

30.2 Delivery date instead of delivery period

If a delivery date rather than a delivery period has been agreed, the delivery period shall be equal to the number of days between the time the Agreement is concluded and the agreed delivery date. This period shall not commence until all the conditions set out in Article 30.1 have been met. In that case, the time of delivery shall be the time at which the aforementioned delivery period has expired, subject to the other provisions of Article 30.

30.3 Delay

If, during the performance of the Assignment, a delay occurs that is not entirely attributable to the Contractor, the delivery period shall be extended by the duration of that delay.

30.4 Extension of the delivery period

If, during the performance of the Assignment, the conditions for the commencement of the delivery period as set out in Article 30.1 are no longer met and, in the Contractor’s opinion, this hinders the progress of the agreed Works and/or the Work, the delivery period shall be extended by the number of days during which those conditions were not met.

30.5 No strict delivery deadline

The agreed delivery period is an estimated delivery period, based on the delivery times of Suppliers, information and circumstances known to the Contractor at the time the Offer was made. If, during the delivery period, circumstances arise through no fault of the Contractor which render the agreed delivery period no longer feasible, the delivery period shall be extended to the extent deemed necessary by the Contractor.

30.6 Delay > 16 weeks

In the event that the total delay as referred to in clause 30.5 exceeds sixteen (16) weeks, the Client shall be entitled to terminate the Agreement. In that event, the Contractor shall not be obliged to compensate the Client for any loss or costs incurred as a result of the delayed delivery and/or the termination.

31 Facilitation by the Client

31.1 Obligations of the Client

Unless and insofar as expressly agreed otherwise, the Client shall itself – in a manner deemed sufficient and timely by the Contractor – ensure:

• earthworks, paving, pile driving, demolition, foundation works, concrete works, carpentry and finishing works, or any other ancillary works of whatever nature;
• good and consistent access to the site(s) and guidance to/at the site(s) to which the Contractor must have access in connection with the performance of the Contract;
• drawings, documentation, plans, diagrams and explanations required by the Contractor concerning the Client’s site and the items thereon;
• the necessary assistance for the installation or relocation of items that cannot reasonably be handled by two people, as well as the hoisting and/or lifting equipment and similar aids to be operated;
• the provision, erection and, upon completion of the Contractor’s Works, removal of scaffolding, platforms and ladders;
• the supply of fuels, energy and auxiliary materials such as compressed air, gas, water, electricity, diesel and petrol, supply and discharge pipes, and the necessary connection points, required for the performance of the Contract and any testing and commissioning;
• the provision of switching and safety equipment and cabling for the electric motors and/or other electrical equipment to be supplied or used, with the exception of starting and control resistors that form part of the electrical equipment;
• the provision, during the period of performance of the Contract, in the immediate vicinity of the location(s) where the Contract is to be carried out, of a dry, heated, lit and separately lockable room of sufficient size, to serve as accommodation for the relevant workers and for the storage of the materials and tools to be processed or used and of the workers’ personal belongings, as well as the provision of a toilet;
• work required to restore parts that have become soiled, damaged or malfunctioning, or which no longer function, to a good and serviceable condition, unless the soiling or damage was caused by the Contractor’s employees;
• the start-up and/or operation and/or shutdown of installations under the Client’s management, insofar as this is desirable or necessary for the performance of the Contract;
• providing adequate lighting and, where applicable, bringing and maintaining the location(s) where the Contract is to be performed at the required or desired temperature and humidity, in such a way that the Works or the Work can proceed without difficulty;
• applying for and paying in a timely manner the amounts due in respect of power supply lines, connections, public utility charges, nuisance control permits, permits under the Environmental Management Act and other legislation relating to the environment, building and renovation permits, and other statutory requirements.

31.2 Surplus materials

Replaced, discarded or removed materials shall become the property of the Contractor unless the Contractor chooses not to exercise that right.

32 Additional/reduced work

32.1 Changes/extensions/restrictions

The Parties may agree on a variation or additional or reduced work in respect of the agreed Works or the Project. If a fixed price has been agreed in the Contract, the Contractor shall inform the Client of the financial, time-related and other consequences entailed by the desired variation.

32.2 Additional or reduced scope of work constitutes an amendment to the Agreement

If the Parties agree on a modification or on additional or reduced scope of work, this shall be deemed an amendment to the Agreement as referred to in Article 5.

32.3 Delivery times shall be adjusted accordingly

Where the Parties agree to an amendment to the Contract, the agreed delivery period or delivery date shall be extended or postponed, respectively, by the number of days necessary to implement the amendment to the Contract.

32.4 Necessary amendment

If, in connection with the performance of the Works or the Project, the Contractor considers that an amendment and/or extension thereof is necessary or reasonably desirable, it shall inform the Client accordingly. If the Client does not then agree in writing to the proposed amendment(s) and/or extension(s) and the associated price adjustment within fourteen (14) days, the Contractor shall be entitled to suspend the performance of its obligations towards the Client. In that event, the Client shall be obliged to pay the Contractor remuneration for the Work already carried out and the Goods already Supplied, based on the Contractor’s applicable rates, without prejudice to the Contractor’s right to compensation for any loss suffered by it.

32.5 Payment for additional work

Unless otherwise agreed, additional work may be invoiced separately by the Contractor once, in the Contractor’s opinion, such additional work has been completed.

33 Delivery and Acceptance

33.1 Milestones

If it has been agreed that the Contract is to be carried out in phases, the Contractor shall be entitled to defer or suspend the Works and deliveries relating to the next step or phase, or any part of those Works or deliveries, until the Client has approved the results of the preceding step(s) or phase(s) in writing in accordance with the agreed test criteria.

33.2 Test period

Unless otherwise agreed, the Client shall test the Deliverables against the agreed test criteria within a test period of eight (8) working days, commencing from the moment the Contractor has notified the Client that the Deliverables are ready for acceptance.

33.3 Extension of the test period

If, during the performance of the test(s), it transpires that the progress of the test(s) is hindered by a Defect in the Delivered Goods, the Client shall inform the Contractor of this in Writing in as much detail as possible; in such a case, the test period shall be suspended until the Delivered Goods are once again presented for testing.

33.4 Reporting Defects in the Delivered Goods during testing

The Client shall notify the Contractor immediately, in writing and with proper substantiation and documentation, of any Defect that comes to light during the tests or during the warranty period. The Contractor shall not be obliged to remedy a Defect until it has received from the Client all available information necessary for the remedy of the Defect.

33.5 Costs of rectifying defects

The rectification of a defect identified during testing shall be carried out free of charge where a fixed price has been agreed. If no fixed price has been agreed, the Contractor shall be entitled to reasonable remuneration in accordance with the agreed prices and rates for the efforts involved in rectifying the defect.

33.6 Test criteria

The test criteria should preferably be agreed in writing by the Parties prior to or at the time of the conclusion of the Agreement. Subjective criteria shall not form part of the test criteria. Criteria agreed at a later date shall only apply insofar as they have been confirmed in writing by the Contractor to the Client. The Client may not rely on the fact that the Delivered Goods do not meet certain requirements if these requirements do not form part of the agreed test criteria. Failure to meet the test criteria constitutes a Defect as referred to in Article 1.5.

33.7 Time of acceptance of the Delivered Goods

The Delivered Goods shall be deemed to have been duly delivered and accepted at the earlier of the following times:

• the time at which the Client has inspected the Delivered Goods following testing in accordance with the agreed test criteria and has not identified any material Defect as referred to in Article 33.9;
• the time at which the test period has expired, calculated from the day following the day on which the Contractor notified the Client in writing that the Deliverables were ready for acceptance and the Client failed to test the Deliverables within the test period;
• the moment at which the test period expires, calculated from the day following the day on which the Contractor notified the Client in writing that the Delivered Goods were ready for acceptance and the Client failed to inform the Contractor in writing of any material defect (as described in Article 33.9) in the Delivered Goods;
• the time at which the Client has actually commenced use of the Delivered Goods or the installation of which they form part, or of which they have become part following installation;
• the time at which the Client has settled the invoices relating to the Delivered Goods.

33.8 Work following delivery

Insofar as the delivery of a Work has been agreed and the Contractor is still required to carry out Work in connection with that Work (for example, calibration or the provision of instructions), the Work shall nevertheless be deemed to have been delivered and accepted when the Work itself is deemed to have been delivered and accepted pursuant to Article 33.7.

33.9 Material Defect

A Material Defect is defined as a fault which, in the Contractor’s opinion, significantly impedes the normal operation or use of the Delivered Goods.

33.10 Rectification of Non-Essential Defects

If, in the course of acceptance tests, only one or more non-essential defects are identified, the Delivered Goods shall be deemed to have been accepted. The Contractor is obliged to rectify this (these) non-essential Defect(s) as soon as possible. A non-essential Defect does not entitle the Client to refuse to accept the Delivered Goods, to terminate the Agreement in whole or in part, or to suspend payments.

33.11 Advice

Advice, information, data and/or suggestions provided by the Contractor regarding the use, installation, commissioning, fitting, removal, etc. of the Delivered Goods shall not constitute a guarantee of, for example, performance, accuracy, compatibility with other items, operation in a specific environment or installation, etc., provided that this has been explicitly agreed, subject to the provisions of Article 14.2.

34 Warranty

34.1 Transitional provision

The warranty provisions of Article 14 of ALV2020 also apply to the supply of a Work and of Works, insofar as these may be applicable given the specific nature of the Delivered Goods.

34.2 In accordance with agreed specifications

The Contractor guarantees to carry out the Works and the Work in accordance with the Design Data and to carry them out in such a way that they comply with the agreed specifications and the requirements that may reasonably be imposed thereon, subject to Article 28.2.

34.3 Warranty period under normal use

Unless otherwise agreed, the warranty period applies to use during working days of eight (8) hours per day. If the Delivered Goods are used during working days exceeding eight (8) hours per day, the actual warranty period shall be correspondingly shorter.

34.4 Exclusion

The Contractor provides no warranty for items which, although assembled, installed, adjusted, calibrated, validated, tested, inspected, set up and/or commissioned etc. by or on behalf of the Contractor, were not supplied by or on behalf of the Contractor itself.

35 Liability

Without prejudice to the provisions of Article 18, the following provisions shall apply.

35.1 Exclusions relating to the Works

The Contractor shall not be liable for any damage or costs arising as a result of:

• the performance of Works on or in connection with goods supplied by third parties;
• incorrect, late or incomplete Design Data provided by the Client;
• the performance of Works for the purpose of using, testing, commissioning or decommissioning a Work of which goods supplied by third parties form part or in which such items have been fitted or installed;
• the performance of Works on a Project that has become part of the Client’s property (for example, by incorporating it) during the period prior to the moment the Delivered Goods were duly handed over and accepted;
• goods used in the performance of Works at the Client’s request, on its advice or in accordance with its instructions;
• Work carried out by persons recommended or appointed by the Client.

35.2 Exclusions relating to the Work

Furthermore, the Contractor shall not be liable for damage or costs resulting from:

• the design or parts of the design of the Work, in so far as this design or these parts of the design were not created entirely by the Contractor itself;
• the malfunctioning of the Client’s machinery, installations or processes of which the Delivered Work has become a part during the period prior to the moment at which the Delivered Work was duly delivered and accepted;
• the use of certain components in the Work, insofar as those components were used at the Client’s request, on its advice or as directed by it, or were sourced from a Supplier designated or recommended by the Client.

Part C: Concerning the development and supply of Software

36 Applicability

36.1 Supply of Software

The provisions in Part C of the ALV2020 apply to all legal relationships between the Client and the Contractor concerning the development and/or supply of Software or modifications thereto, without prejudice to the applicability of the provisions in Part A and Part B of the ALV2020.

36.2 Part C takes precedence

The provisions of Part C of the ALV2020 supplement the provisions of Part A and Part B of the ALV2020. Where a provision in Part C of the ALV2020 is also applicable and conflicts, in whole or in part, with a provision in Part A or Part B of the ALV2020, the provision in Part C of the ALV2020 shall prevail to the extent of the conflict.

36.3 Explanatory notes regarding Software

The design, creation or writing of Software and related activities shall be deemed to constitute the provision of services. Under the ALV2020, the creation of Software falls under ‘Work’ (see, inter alia, Article 1.19).

37 Definitions

37.1 Customised Software: Software, websites, protocols or operating systems developed by the Contractor on behalf of the Client, or modifications to existing software, websites, protocols or operating systems developed on behalf of the Client.

37.2 Standard software package: The software which is or was offered on the market by the Contractor as standard software in the general sense of the term, whether or not adapted, set up, configured, modified or extended for the Client’s benefit.

37.3 Software: Standard Package and/or Customised Software.

38 General

38.1 Licence Agreement

Where the Contractor supplies Software and the terms and conditions of its use are not set out in a separate licence agreement, the provisions of Part C of the ALV2020 shall apply to the supply and use of that Software to the extent applicable. If the use of Software supplied by the Contractor is governed by a separate licence agreement, the provisions of that licence agreement shall take precedence over those in Part C of the ALV2020.

38.2 Service/Maintenance Agreement

If the Parties have entered into a service or maintenance agreement in respect of Software supplied by the Contractor, the provisions therein relating to the reporting and rectification of Defects, maintenance of older releases and costs shall take precedence over the relevant provisions in Part C of the ALV2020.

38.3 Scope of the right of use

Upon delivery of the Software, the Client shall acquire, in respect of that Software, a non-transferable, non-exclusive right of use for its own purposes, for the application for which the Software was sold, and for the location for which the Software was sold. Unless otherwise agreed, the right of use referred to above shall take effect once the Client has fulfilled all its obligations towards the Contractor. The right of use does not include the right to modify or adapt the Software and is non-transferable.

38.4 Further rights

The Parties may make additional agreements regarding further rights.

38.5 Duration

If no duration has been agreed for the right of use of a Standard Package, the right as set out in Article 38.3 shall be of unlimited duration.

38.6 Own use and further development

The Contractor is at all times entitled to use, apply, further develop (or have developed) and sell to third parties any Software developed by, on behalf of or on the instructions of the Contractor.

38.7 Warranty

Unless otherwise agreed, and notwithstanding the period specified in Article 14.3, the warranty period in respect of the Software shall be 3 (three) months from the date of delivery. Unless 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 it is suitable for the intended and/or actual use by the Client.

38.8 Reporting Defects

The Client shall report any Defect to the Contractor without delay after becoming aware of it. Furthermore, Article 33.4 applies with regard to the reporting of a Defect.

38.9 Rectification of Defects

Insofar as the Contractor is obliged to remedy a Defect, it shall do so to the best of its ability.

38.10 Costs of remedy following improper use

If, in the Contractor’s opinion, a Defect has been caused wholly or partly by, or is related to, improper use or by other causes not attributable to the Contractor, or if the Defect could already have been detected during the performance of the tests referred to in Article 33.2, all costs of rectification shall be borne by the Client.

38.11 Limitations on warranty following modification

The Contractor shall be released from its warranty obligations if the Software has been adapted or modified by parties other than the Contractor.

38.12 Software is not error-free

The Contractor does not guarantee that the Software is error-free, will function without interruption or without Defects, or that all Defects will be rectified or improved.

38.13 New releases

Where a maintenance agreement has been concluded in respect of a Standard Package developed by the Contractor, the Contractor shall make any improved version of the Standard Package available to the Client as soon as it becomes available on the market.

38.14 Older releases

Three (3) months after the launch of a new version of a Standard Package, the Contractor shall no longer be obliged to rectify any Defects in an older version thereof. The Contractor is entitled, if a new version of the Standard Package offers new capabilities and/or functions compared to older versions, to charge a fee for making that new version available.

38.15 Third-party packages

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 user or licence agreement of or with a third party, or if maintenance in respect of a Standard Package is carried out on the basis of or in accordance with the provisions of an agreement between the Contractor and a third party, the provisions of Articles 38.1 to 38.14 of the ALV2020 shall not apply; instead, only the provisions of the relevant agreement(s) between the Contractor and that third party or those third parties shall apply. By entering into the Agreement, the Client authorises the Contractor to purchase the software necessary for the performance of the Assignment and to agree to the associated licence terms. The Contractor shall, at the Client’s request, inform the Client of the relevant applicable provisions.

38.16 General Data Protection Regulation

The Client indemnifies the Contractor against claims from third parties whose personal data has been recorded or is being processed, insofar as such claims relate to data and Software supplied by the Contractor to the Client or data processed by the Contractor on behalf of the Client.

38.17 Client’s Licences

By entering into the Agreement, the Client warrants that, insofar as the Contractor must use software, systems, platforms, data and accounts owned by the Client in order to carry out the Work, the Client possesses sufficient rights for this purpose, such as licences, access rights and authorisations. The Client shall indemnify the Contractor against all claims by third parties insofar as the Client does not possess the rights referred to above.

39 Bespoke Software

39.1 Costs of rectification during the warranty period

Only if a fixed price has been agreed for the development of Customised Software shall the Contractor not charge any costs for rectifying the Defect. If no fixed price has been agreed, the Contractor is entitled to charge the Client for the costs involved in the rectification.

39.2 Source code for customised software

Unless otherwise agreed, the source code shall not form part of the Customised Software to be supplied. If the Parties have agreed that the source code forms part of the delivery, the right of use referred to in clause 38.3 shall also include 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, the Client shall pay reasonable compensation for this.

40 Standard Package

40.1 The licence covers one installation

The Standard Package may be used by the Client exclusively on one processing unit, on the understanding that, in the event of a fault, the software comprising the Standard Package may be used temporarily on a second processing unit, but only until the fault has been rectified.

40.2 Copies

Provided that the Contractor has not imposed any other conditions, the Client is entitled to make a maximum of two backup copies of the Standard Package for security purposes; these copies may only be used to replace original material that has become unusable. The copies must bear the same labels and the same markings as the original material.

40.3 Source code of the Standard Package

The source code of a Standard Package shall not be made available to the Client.

40.4 Ownership

Ownership of the Standard Package and the intellectual property rights relating to the Standard Package shall not be transferred by the Contractor to the Client. The Client shall fully respect the ownership rights and intellectual property rights relating to the Standard Software. The Client shall not remove any indications of intellectual property rights, such as copyright notices, nor render them illegible or unrecognisable.

40.5 Confidentiality

By entering into an agreement relating to, or partly relating to, a Standard Package developed by the Contractor, the Client declares that it is aware that the Standard Package contains confidential information and trade secrets of the Contractor. The Client is obliged to keep the Standard Package confidential and not to disclose it to third parties or cause it to be disclosed.