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Fedecom Terms and Conditions 2019
General Terms and Conditions issued by Fedecom (the sector association for mechanisation technology), filed at the Registry of the Rotterdam District Court on 5 March 2019.
Issued by Fedecom, P.O. Box 2600, 3430 GA Nieuwegein, the Netherlands.
1.1. These Terms and Conditions apply to all offers made by a Fedecom member, to all agreements that it enters into and to all agreements arising from this, all of which insofar as the Fedecom member is the supplier or the contractor.
1.2. Fedecom members who apply these Terms and Conditions are referred to as the Contractor. The other party is referred to as the Client.
1.3. In the event of conflicts between the agreement entered into by the Client and the Contractor and these Terms and Conditions, the provisions of the agreement will prevail.
1.4. These Terms and Conditions may only be applied by Fedecom members.
2.1. All offers are without obligation. The Contractor is entitled to revoke its offer up to two working days after it has received the acceptance.
2.2. If the Client provides the Contractor with information, the Contractor may assume that it is accurate and complete and will base its offer on this information.
2.3. The prices stated in the offer are denominated in euros, excluding VAT and other government levies or taxes. The prices do not include travel, accommodation, packaging, storage and transport costs, nor do they include costs for loading, unloading and cooperating with customs formalities.
3.1. All information provided to the Client by or on behalf of the Contractor, such as offers, designs, images, drawings and know-how, of whatever nature and in whatever form are confidential, and the Client will not use it for any purpose other than for the implementation of the agreement.
3.2. The Client will not disclose or reproduce the information referred to in paragraph 1 of this article.
3.3. If the Client infringes one of the obligations referred to in paragraphs 1 and 2 of this article, it will owe an immediately payable penalty of €25,000 for each infringement. This penalty can be claimed in addition to compensation by virtue of the law.
3.4. The Client must return or destroy the information referred to in paragraph 1 of this article immediately on request, within a period set at the discretion of the Contractor. If this provision is infringed, the Client will owe the Contractor an immediately payable penalty of €1,000 per day. This penalty can be claimed in addition to compensation by virtue of the law.
4.1. The Client cannot derive any rights from advice and information provided by the Contractor that is not directly related to the contract.
4.2. If the Client provides the Contractor with information, the Contractor may assume that it is accurate and complete when implementing the agreement.
4.3. The Client determines and is responsible for the scope and efficiency of the repair(s) and/or work to be performed. The Client decides on the technical and other specifications based on which the repair(s) and/or other work will ultimately be performed.
4.4. The Client indemnifies the Contractor against any third-party claims related to the use of advice, drawings, calculations, designs, materials, brands, samples, models and the like provided by or on behalf of the Client. The Client will compensate the Contractor for all damage suffered by the Contractor, including all costs incurred for defence against these claims.
5.1. Delivery times or implementation periods specified are indicative.
5.2. The delivery time or implementation period only commences once an agreement has been reached on all commercial and technical details, once all the information, including final and approved drawings and the like, is in the possession of the Contractor, the agreed payment (or instalment) has been received, and the other conditions for the contract have been met.
5.3. If:
Unless the Client has evidence to the contrary, the duration of the extension of the delivery period or implementation period is presumed to be necessary and to be the result of a situation as referred to above in a to c.
5.4. The Client is obliged to pay all costs that the Contractor incurs or damages that the Contractor suffers as a result of a delay in the delivery or implementation period as stated in paragraph 3 of this article.
5.5. Under no circumstances does exceeding the agreed delivery or implementation period give the Client the right to compensation or to terminate the agreement. The Client indemnifies the Contractor against any third-party claims due to exceeding the delivery or implementation period.
6.1. Delivery takes place when the Contractor, at its business location, makes the good available to the Client and has informed the Client that the good is at its disposal. From that time onwards, the Client bears the risk of the good in terms of storage, loading, transport and unloading among others.
6.2. The Client and the Contractor may agree that the Contractor will be responsible for the transport. In that case too, the Client bears the risk of, inter alia, storage, loading, transport and unloading. The Client can insure itself against these risks.
6.3. If a good is exchanged and the Client retains the good to be exchanged pending delivery of the new good, the risk of the good to be exchanged remains with the Client and all costs will be for its account until the time that it hands over the good to the Contractor. The costs referred to in the previous sentence also include the costs of maintenance and any damage, regardless of the cause. If the Client is unable to deliver the good to be exchanged in the condition in which it was when the agreement was concluded, the Contractor may terminate the agreement.
7.1. The Contractor may pass on to the Client an increase in cost-determining factors that occurs after entering into the agreement. The Client is obliged to pay the price increase immediately on the Contractor’s request.
7.2. If the Client is a consumer, being a natural person who is not acting by reason of his profession or business, and the price increase referred to in paragraph 1 occurs within three months of the date on which the agreement was concluded, the Client will have the right to terminate the agreement.
8.1. If the Contractor fails to fulfil its obligations, this cannot be attributed to the Contractor if this failure is due to force majeure.
8.2. Force majeure includes, inter alia, if third parties engaged by the Contractor – such as suppliers, subcontractors and transporters, or other parties that the Client is dependent on – do not meet their obligations at all or on time, or circumstances due to weather conditions, natural disasters, terrorism, cybercrime, disruption of digital infrastructure, fire, power failures, loss, theft or loss of tools, materials or information, roadblocks, strikes or work interruptions and import or trade restrictions.
8.3. The Contractor is entitled to suspend fulfilment of its obligations if it is temporarily prevented from fulfilling its obligations to the Client due to force majeure. Once the force majeure circumstances no longer apply, the Contractor will fulfil its obligations as soon as its planning permits.
8.4. If it concerns force majeure and fulfilment is or becomes permanently impossible, or the temporary force majeure circumstances have lasted for more than six months, the Contractor is entitled to terminate the agreement with immediate effect either entirely or in part. In those cases, the Client is entitled to terminate the agreement with immediate effect, but only for that part of the obligations that the Contractor has not yet fulfilled.
8.5. The parties are not entitled to compensation for the damages suffered or to be suffered as a result of the force majeure, suspension or termination as referred to in this article.
9.1. The Client must ensure that all licences, exemptions and other decisions that are necessary to carry out the work are obtained in good time. The Client is obliged to send the Contractor a copy of the aforementioned documents immediately on the Contractor’s request.
9.2. Unless otherwise agreed in writing, the work does not include:
10.1. Changes in the work will in any event lead to contract extras if the Contractor incurs extra costs. Contract extras are also possible if these costs are incurred as a result of an act or omission by the Client or due to circumstances that could reasonably be expected to be taken into account during the contract.
10.2. The Client will pay the Contractor for the contract extras.
10.3. The Contractor will provide the Client with a written estimate of the contract extras and the related price.
10.4. If the Client has approved the estimate referred to in paragraph 3 of this article, the Contractor is entitled to charge the amount as an additional amount to the price agreed upon in the contract.
10.5. The Contractor is entitled to request an advance payment or a partial payment of the amount referred to in paragraph 3 of this article.
10.6. If the Contractor does not submit an estimate, the contract extras will be calculated according to the hourly rate or cost price applicable at the time of the contract extras.
11.1. The Contractor is entitled to invoice the Client periodically for the work performed or to be performed.
11.2. The payment terms are 30 days after the invoice date, unless otherwise agreed.
11.3. If the Client fails to pay within the payment term, the Contractor is entitled to charge statutory interest on the outstanding amount from the due date.
11.4. If the Client is in default of payment, the Contractor may suspend the fulfilment of its obligations until the outstanding amount has been paid.
11.5. If the Contractor has to incur costs for collection, including judicial and extrajudicial costs, these will be at the Client’s expense. The extrajudicial costs are set at 15% of the outstanding amount with a minimum of €150.00.
11.6. Payments made by the Client always serve to settle the oldest outstanding invoices, irrespective of any indication of the Client that the payment relates to a later invoice.
12.1. The Contractor is not liable for damage other than damage to property and personal injury, unless the damage is the result of intent or deliberate recklessness.
12.2. The Contractor is not liable for indirect damage, including consequential damage, lost profit and loss of income.
12.3. The Contractor’s liability is limited to the amount paid out by the insurer in the relevant case.
12.4. If the insurer does not provide coverage or if the damage is not covered by insurance, the Contractor’s liability is limited to a maximum of the amount of the agreement or, if the agreement has a longer duration than one year, the amount of the annual fee.
12.5. The Contractor is not liable for damage suffered by the Client if the Client does not comply with its obligations under the agreement or these Terms and Conditions.
12.6. The Contractor is not liable for damage suffered by the Client if the Client has not fulfilled its obligations to provide information, approval or other cooperation.
13.1. All disputes arising from or related to the agreement, these Terms and Conditions or other agreements between the parties will be settled by the competent court in the place of business of the Contractor.
13.2. The agreement and these Terms and Conditions are governed by Dutch law.
13.3. The applicability of the Vienna Sales Convention (CISG) is excluded.
Fedecom
P.O. Box 2600, 3430 GA Nieuwegein, the Netherlands
www.fedecom.nl
**These Terms and Conditions constitute a comprehensive translation of the Dutch version of the Terms and Conditions of Fedecom as filed with the Registry of the Court of Rotterdam on 5 March 2019. The Dutch version will prevail in the explanation and interpretation of this text.