Saferoad Holland applies the general sales and delivery conditions for the technology industry to its agreements. These are public and issued by Vereniging FME, filed at the registry of the District Court of The Hague on May 13, 2022 under number 13/2022.
Art. 1 General
1. If these terms and conditions are part of offers and agreements to perform deliveries and/or services by a supplier for a buyer, all provisions of these terms and conditions shall apply between these parties, insofar as they have not been deviated from by an express written agreement between the parties. Any reference by the buyer to its own purchasing or other terms and conditions is expressly rejected by the supplier..
2. In these terms and conditions, the following definitions shall apply
- product: the performance(s) that the supplier performs for the buyer, such as delivery of goods, assembly of goods delivered by the supplier or not, contracting of work, maintenance, repair and services, such as advice and inspection;
- good: a material object, including any software included therein;
- software: software exclusively included in the delivered good;
- in writing: by letter, e-mail message and in any other manner agreed upon by the parties, other than verbally;
- additional work: any performance performed by the supplier in consultation with the buyer, whether in writing or not, in addition to the agreement;
- Price: the price applicable to the product according to Art. 4.
Art. 2 Offer
1. Any offer of the supplier is without obligation and can be revoked up to 3 working days after acceptance.
2. Each offer is based on execution of the agreement by the supplier under normal conditions and during normal working hours.
Art. 3 Agreement
1. Without prejudice to Art. 2 paragraph 1, the agreement is concluded if the acceptance is in accordance with the offer. If the acceptance deviates from the offer, the agreement shall only be concluded after the supplier has expressly accepted these deviations.
2. Data mentioned in product documentation, illustrations, drawings, dimensional and weight specifications, etc. are only binding if and insofar as they are expressly included in an offer or order confirmation from the supplier or in a contract signed by the parties..
3. Verbal promises/agreements shall bind the Supplier only insofar as they have been made/made by a representative employee of the Supplier or confirmed in writing by such an employee.
Art. 4 Price
1. Unless otherwise agreed in writing, the agreed price shall be exclusive of sales tax and other government charges applicable to the sale and delivery and based on delivery Ex Works according to the Incoterms in force on the date of offer. "Factory" shall mean the Supplier's business premises as designated by the Supplier.
2. If after the date of conclusion of the contract one or more of the cost price factors undergo an increase - even if this occurs as a result of foreseeable circumstances - the supplier is entitled to increase the price accordingly.
3. The Supplier may charge for additional work separately, as soon as the amount to be charged for it is known to him. For the calculation of additional work, paragraphs 1 and 2 shall apply mutatis mutandis.
4. Costs of loading, unloading and transportation of raw materials, semi-finished products, models, tools and other items made available by the customer are not included in the price.
5. If it has been agreed that assembly of the Product is to be performed by the Supplier, the price shall be calculated including assembly, except for the costs mentioned in Article 7, paragraphs 3 and 5.
Art. 5 Intellectual property/secrecy
1. All intellectual property rights to the product, its design and the drawings, calculations, descriptions, technical documents, models, tools and the like made for design, production and use of the product belong to the supplier or, as the case may be, to a third party who has licensed the supplier to use these rights. This also applies if all this has been developed specifically for the buyer, unless otherwise agreed in writing. The buyer acquires a non-exclusive, time unlimited, transferable right to use these intellectual property rights, but only for the delivered product and subject to any limitations in underlying third party licenses. The supplier is under no obligation to provide the customer with source code or updates for software.
2. Technical, commercial and financial information and information marked as confidential or which by its nature should be considered confidential, disclosed by one Party in writing or orally to the other Party, shall be treated as confidential by the other Party. Therefore, the information shall not be used by the other party for any purpose other than that for which it was provided without the written consent of one party. The information shall not be reproduced or transferred, communicated or disclosed to any third party.
Art. 6 Delivery time
1. If the parties have agreed on a specific deadline for delivery, this deadline shall commence as soon as the agreement has been entered into and also all conditions to be fulfilled by the buyer prior to the commencement of performance by the supplier of its obligations by the buyer, such as provision to the supplier of necessary documents and data, obtaining permits, performance of necessary formalities and payment of an amount due in advance. If, instead of a deadline, a specific delivery date, week or month has been agreed upon, it shall be reasonably postponed in time.
2. The product is deemed delivered for delivery purposes when, if acceptance tests have been agreed upon at the supplier's facility, it is ready for these tests and in other cases when the item is ready for shipment and the buyer has been notified of this in writing and, in the case of performance other than delivery of an item, when the performance has been delivered.
3. The delivery time shall be based on the working conditions applicable at the time the agreement is concluded and on timely delivery of the items and/or services ordered by the supplier for the execution of the work. If a delay arises through no fault of the supplier because of a change in said working conditions or because items and/or services ordered in time for the execution of the work are not delivered in time, the delivery time shall be extended to the extent necessary.
4. If the execution of the agreement is delayed due to an act or omission on the part of the buyer or due to circumstances attributable to the buyer, the supplier may extend the delivery time by a period that is necessary, considering all circumstances. This applies even if the cause of the delay only occurs after the agreed delivery time.
5. Exceeding the delivery time shall not entitle the buyer to rescind the agreement in whole or in part or to compensation for damages. However, if this overrun exceeds 16 weeks or will exceed 16 weeks according to the supplier's notification, the buyer may rescind the agreement by written notification to the supplier. The buyer shall then be entitled, insofar as applicable, to reimbursement of the portion of the price already paid and to compensation for damages suffered by him, up to a maximum of 15 percent of the price. If partial delivery has already taken place, the contract can only be partially dissolved after 16 weeks, namely for the part not yet delivered, unless the part already delivered is not independently usable for the customer. In the event of partial rescission, the customer is entitled, insofar as applicable, to reimbursement of that part of the price which relates to the undelivered part and to compensation for damages. For this compensation, the aforementioned maximum of 15% shall in that case be calculated on the part of the price that relates to the undelivered part. If exceeding the delivery time is the result of force majeure, Art. 13 shall apply.
6. If the buyer remains in default of taking delivery of the product after notice of default, the supplier has the right to charge the buyer for the resulting costs and damages, without prejudice to the supplier's rights according to clause 14. The buyer is then further obliged to pay the price as if delivery had taken place according to the agreed delivery time.
Art. 7 Assembly
1. If it has been agreed that the supplier will provide the assembly of an item, the buyer is responsible for the correct execution and timely availability of all fixtures, facilities and conditions necessary for the assembly of the item and the proper functioning of the item in its assembled state
2. In any case, the buyer shall, at its own expense and risk, ensure that:
a) the supplier's personnel can start the work according to the agreed time schedule and can work during normal working hours. Insofar as the supplier deems it necessary, work may also be carried out outside normal working hours, provided this is reported to the customer in writing within a reasonable period of time;
b) he informs the supplier in writing and in good time before the start of assembly of all safety regulations applicable at the place of assembly;
c) assembly can be performed in a healthy and safe environment;
d) prior to commencement of assembly, all necessary
safety measures are taken and maintained during assembly;
e) the supplier's personnel can use proper sanitary facilities;
f) all necessary auxiliary personnel, cranes, lifting and hoisting equipment, transport and auxiliary equipment, machinery, operating materials (such as fuels, oils, greases, gas, water, electricity, steam, compressed air, heating and lighting) and the measuring and testing equipment normal for the buyer's business shall be available in good time at the place of assembly;
g) sufficient office space at the assembly site is available to the supplier;
h) sound and adequately secured digital infrastructure and
Internet facilities, as needed, are available;
i) sufficient storage space is available to protect against theft, loss and damage of the tools and equipment intended for assembly and the personal property of the supplier's personnel;
j) access roads to the assembly site are suitable for the necessary transportation of the item to be assembled and the supplier's assets.
3. Damages and costs, which arise for the supplier and/or the buyer due to not or not timely fulfilling one of the obligations mentioned in this article, are for the buyer's account.
4. If the supplier does provide help and assistance - of any kind - during the assembly, without having the assembly under contract, this will take place at the buyer's risk.
5. Costs incurred by the supplier due to unworkable weather shall be borne by the buyer.
Art. 8 Inspection and acceptance testing
1. The purchaser shall inspect the product no later than 7 days after delivery as referred to in clause 6 paragraph 2. If assembly has been agreed upon, the purchaser shall inspect its proper execution no later than 5 days after assembly. If the applicable period has elapsed without written and specified notification of justified complaints, the product is deemed to have been accepted.
2. If acceptance tests have been agreed upon, the buyer shall give the supplier the opportunity after the delivery as referred to in clause 6 paragraph 2 to make the necessary preparations and make the changes the supplier deems necessary. The acceptance tests shall be held in the presence of the buyer immediately after the supplier's request to do so. The costs of acceptance tests shall be borne by the buyer. However, the supplier shall bear the costs of its own personnel and its other representatives. If the acceptance tests have been carried out without justified complaint or if the buyer does not fulfill the aforementioned obligations, the product shall be deemed accepted.
3. For the acceptance tests and the preparations and changes referred to in paragraph 2, the buyer shall make the necessary facilities, support and materials, including those referred to in Article 7, paragraph 2 (f), and representative samples of any materials to be worked or processed available to the supplier in sufficient quantities, on time and free of charge at the place specified by the supplier. If the buyer fails to do so, the product shall be deemed accepted.
4. The supplier shall make a report of the acceptance tests which shall be sent to the buyer. If the buyer, having been invited to do so in time and in writing by the supplier, was not represented at the tests, the test report shall be considered by him to be a correct representation.
5. If the acceptance tests show that the product does not comply with the agreement, the Supplier shall eliminate the deficiencies as soon as possible. If the customer requests this in writing, new acceptance tests shall be subsequently performed in compliance with paragraphs 2-4.
6. In case of minor shortcomings that do not affect the proper functioning of the product, the product shall be deemed accepted regardless of these shortcomings. The Supplier shall eliminate these shortcomings as soon as possible.
7. The buyer is not authorized to use the product or any part thereof prior to acceptance. If the buyer does so, without written permission from the supplier, the product is deemed accepted.
8. Without prejudice to Art. 11, the acceptance according to the preceding paragraphs excludes any claim by the buyer based on a shortcoming in the supplier's delivery obligation.
Art. 9 Transfer of risk and retention of title
1. As soon as the product is considered delivered in the sense of art. 6 paragraph 2, the buyer bears the risk for all damages that may be caused to or by this product, except insofar as the damages are due to intent or deliberate recklessness of the supplier's employees who are members of the company management.
2. Ownership of the delivered item transfers to the buyer as soon as all that the buyer owes the supplier for deliveries and related work, including interest and costs, has been paid to the supplier in full. In case of late payment, the supplier may take back the delivered item.
3. When exercising the retention of title according to paragraph 2, the supplier shall have unhindered access to the delivered item. The buyer shall then grant the supplier all cooperation to take back the item, including disassembly.
Art. 10 Payment
1. If not otherwise agreed in writing, payment of the price shall be made within 30 days from the invoice date. Invoicing will take place in the following 2 installments
- 1/3 of the price after the conclusion of the agreement;
- 2/3 of the price after delivery according to Art. 6 para. 2.
2. Payment for additional work shall be made no later than 7 days after it has been invoiced to the customer.
3. All payments shall be made without deduction, suspension or set-off in the manner determined by the Supplier.
4. If the buyer fails to pay on time, he shall be in default by operation of law and the supplier shall have the right, without notice of default, to charge him interest from the due date at a rate of 3 points above the legal interest rate for commercial contracts in force in the Netherlands, as referred to in art. 6:119a and art. 6:120 paragraph 2 of the Civil Code, and all judicial and extrajudicial costs.
Art. 11 Defects in the product
1. The product shall comply with the contract. The supplier is obliged to eliminate any deviation therefrom (hereinafter referred to as "defect(s)") resulting from improper or faulty design or material or poor workmanship, in accordance with this Clause 11. Unless otherwise agreed, an infringement of intellectual property rights of a third party applicable in the Netherlands shall also be considered a defect. The obligation to remove the defect shall apply only to defects in the product that are undetectable upon inspection and (if agreed) acceptance tests, which the Customer proves to have occurred within 6 months after delivery in accordance with Clause 6.2.
2. In case of assembly of an item delivered by the supplier, the period of 6 months referred to in paragraph 1 for both the delivered item and its assembly shall start on the day the assembly is completed by the supplier. This period shall in any case end 12 months after delivery of the item according to clause 6 paragraph 2.
3. Defects in a delivered good shall be removed by the supplier by repairing or replacing the defective part, whether or not at the supplier's company, or by sending a repaired part or a part for replacement, all this always at the supplier's discretion. After the removal of the defect, the Supplier shall be similarly obliged for a period of 6 months to remove defects in the repaired or replacement part. Any liability for defects in the delivered item shall in any case lapse 12 months after its delivery in accordance with Clause 6 paragraph 2 or, if paragraph 2 applies, 18 months after such delivery.
4. Defects in the assembly of an item delivered by the supplier shall be eliminated by the supplier by carrying out remedial work. After the elimination of the defect, the supplier shall be equally liable for defects in the remedial work for a period of 6 months. Any liability for defects therein shall in any case lapse 18 months after the delivery of the item according to clause 6 paragraph 2.
5. Defects in maintenance, repair (if not performed pursuant to paragraph 3 or paragraph 4), assembly of an item delivered to the buyer by a third party, overhaul, contract work and similar work, shall be eliminated by the supplier by redoing the work, insofar as it is defective. After redoing the work, the supplier shall be liable for defects in the remedial work for a period of 6 months. Any liability shall in any case expire 12 months after the delivery according to clause 6 paragraph 2.
6. Defects due to infringement of intellectual property rights shall, at the Supplier's option, be eliminated by the Supplier by:
- acquisition of the customer's right of use;
- such modification of the matter that infringement no longer exists, or
- replacement of the case with another case that does not infringe intellectual property rights.
The supplier shall be liable for any defects therein for 6 months after the said modification or replacement under the conditions set forth in this article. Any liability of the supplier for defects therein shall in any case expire 12 months after the delivery of the item in accordance with Clause 6(2) or, if Clause 2 applies, 18 months after such delivery.
7. Transportation costs and additional costs of disassembly and reassembly incurred by the supplier in the removal of defects shall be borne by the buyer.
8. The supplier is not liable for defects in inspections, consulting and similar services.
9. The Supplier shall not be liable for defects, which occur in or in whole or in part as a result of:
a) non-observance of operating and maintenance instructions or other than the intended normal use;
b) normal wear;
c) (de)assembly, repair or modifications by the customer or by third parties;
d) the application of a government regulation;
e) applied materials and items already used in consultation with the buyer;
f) materials and items provided, for processing or otherwise, by or on behalf of the customer;
g) materials, items, design, construction or process applied at the express instruction of the customer;
h) components (including software) procured by the Supplier from third parties, to the extent that the third party is not liable to the Supplier for them.
Supplier shall further not be liable for infringement of intellectual property rights resulting from the circumstance that:
i) the product is used outside the Netherlands;
j) the product is used in a manner other than agreed upon;
k) the product is used in conjunction with equipment or software not supplied by the supplier.
10. In case the buyer does not, not properly or not timely comply with an obligation arising for him from any agreement concluded with the supplier, the supplier is not obliged to remove defects. If the buyer proceeds to dismantle, repair or perform other work on the product without the prior written approval of the supplier, any obligation on the part of the supplier to remove defects lapses.
11. Defects must be reported in writing to the Supplier as soon as possible after their discovery, but no later than 14 days after the expiration of the applicable liability period. If these periods are exceeded, any claim for such defects shall lapse. Legal actions must be brought within 1 year after said notification under penalty of forfeiture of all rights.
12. If the buyer has made said notification and no defect is found for which the supplier is liable, the supplier is entitled to reimbursement of the costs incurred as a result of the notification.
13. If the Supplier replaces parts when removing defects, the replaced parts become the Supplier's property.
14. If the buyer claims that the supplier does not fulfill an obligation mentioned in this article, the buyer remains obliged to fulfill the obligations arising for him from any agreement concluded with the supplier.
15. If the supplier has not eliminated the defect within a reasonable time, the buyer may set a final, reasonable deadline for doing so by written notice. If the supplier fails to meet its obligations within this final deadline, the buyer may, at the supplier's expense, have the defect eliminated itself or by a third party, provided that the buyer or the third party has the necessary expertise to do so. If the defect is thus successfully removed, the supplier shall be released from all liability for the defect by reimbursing the reasonable costs incurred by the buyer. These costs shall not exceed 15 percent of the price of the product.
16. If the defect is not eliminated according to paragraph 15,
a) the customer shall be entitled to a discount on the price in proportion to the depreciation of the product. This discount shall not exceed 15 percent of the price, or
b) the buyer, if the defect is so serious that it significantly deprives him of the interest in the contract for the product or an essential part of the product, respectively, has the right by written notice to the supplier to rescind the contract for the product or the essential part of the product, respectively. The buyer is then entitled to reimbursement of the price paid for the part for which the agreement is dissolved. The buyer is also entitled to compensation for damages up to a maximum of 15% of the portion of the price relating to the part of the product for which the agreement is rescinded.
Art. 12 Liability
1. Unless there is intent or conscious recklessness on the part of the employees belonging to the supplier's management and subject to the applicability of art. 6 paragraph 5 and art. 11, all liability of the supplier, regardless of the legal basis, is excluded. The supplier shall therefore not be liable, among other things, for damages caused by:
- non-delivery;
- liability to third parties;
- any wrongful act or omission of (employees and auxiliary persons of) the supplier;
- infringement of intellectual property rights, licenses and other rights of third parties;
- damage or loss, from whatever cause, of raw materials, semi-finished products, models, tools and other items provided by the buyer;
- loss or corruption of data;
- loss of production and reduction of uses;
- loss of contracts and customers.
The supplier is further not liable for lost profits and any consequential and indirect damages.
2. The buyer is obliged to indemnify and hold the supplier harmless from and against all claims by third parties for compensation for damages in connection with the execution of the agreement.
Art. 13 Acts of God
1. In these general terms and conditions, force majeure means every circumstance independent of the will of the supplier - even if it was foreseeable at the time the agreement was concluded - which permanently or temporarily prevents the supplier from fulfilling the agreement or makes it unreasonably onerous, and, insofar as not already included, war, danger of war, civil war, riots, strikes lockout, transport difficulties, import and export restrictions, government measures, fire, terrorism, epidemics and pandemics, natural disasters, extreme weather conditions, limited availability of energy, electricity failure, failure of internet, computer network and telecommunication facilities, cybercrime and defects and delays in delivery by suppliers as a result of circumstances mentioned in this paragraph.
2. If the supplier is temporarily unable to fulfill the agreement due to force majeure or only in a way that is unreasonably onerous for him, he has the right to suspend the performance of the agreement. After 6 months, if the force majeure situation still persists, each party shall be entitled to dissolve the agreement in whole or in part. Each party is also entitled to dissolve the agreement in whole or in part if after the force majeure situation has occurred it is or becomes clear that fulfilment of the agreement by the supplier for longer than 6 months will be impossible or unreasonably onerous.
3. In the event of suspension and dissolution pursuant to paragraph 2, the supplier shall not be obliged to pay compensation. The supplier shall then be entitled to demand payment of the costs he has incurred for the goods purchased, reserved, processed and manufactured by him for the execution of the contract.
raw materials, materials, parts and other items. In case of dissolution pursuant to paragraph 2, the buyer is obliged to take delivery of the said goods after payment of the said costs. If the buyer fails to do so, the supplier is authorized to store these items at the buyer's expense and risk or to sell or destroy them at the buyer's expense.
Art. 14 Suspension and dissolution
1. If there is good reason to fear that the buyer is or will be unable or unwilling to fulfill his obligations and in case of bankruptcy, suspension of payments, shutdown, liquidation or full or partial transfer of the buyer's business, the supplier shall have the right to require appropriate security for all contractual obligations of the buyer (whether due or not) and to suspend the execution of the agreement in the meantime. Failure to provide such security within a reasonable period set by the supplier shall entitle the supplier to rescind the agreement in whole or in part. The supplier has these powers in addition to his other rights under the law, the agreement and these terms and conditions.
2. If the buyer does not, does not timely or does not properly fulfill an obligation under an agreement with the supplier, the supplier is entitled to suspend the execution of the agreement and/or to dissolve the agreement.
3. Upon suspension and dissolution according to paragraphs 1 and 2, the supplier has the right to store the raw materials, materials, parts and other items purchased, reserved, processed and manufactured by him for the execution of the agreement at the buyer's expense and risk. The supplier may also choose to sell or destroy at the buyer's expense. In case of suspension and dissolution according to paragraphs 1 and 2, the supplier shall be entitled to full compensation, but shall not be obliged to pay compensation himself.
4. If the buyer terminates the agreement without the prior written approval of the supplier, he is obliged to pay the full price without notice of default, minus the costs saved by the supplier.
Art. 15 Disputes
All disputes based on the agreement and further agreements arising therefrom shall be settled by the competent Dutch court of the supplier's district, unless otherwise provided by mandatory law.
Art. 16 Applicable law
All agreements, to which these conditions apply, shall be governed by the law applicable in the Netherlands, to the exclusion of rules of referral and conflict of international private law. The applicability of the Vienna Sales Convention is excluded.a) The supplier's personnel may commence work in accordance with the agreed schedule and may work during normal working hours. To the extent the supplier deems it necessary, work may also be performed outside normal working hours, provided this is reported to the customer in writing within a reasonable period of time;a) the supplier's personnel may commence the work in accordance with the agreed time schedule and may work during normal working hours. Insofar as the supplier deems it necessary, work may also be carried out outside normal working hours, provided this is reported to the customer in writing within a reasonable period of time;;
