General terms and conditions / Bonhof BV delivers according to Fedecom terms and conditions 2019

Fedecom terms and conditions 2019

General terms and conditions issued by Fedecom (branch organisation for mechanisation technology), filed at the registry of the District Court in Rotterdam on 5 March 2019, deed no. 23/2019. Published by Fedecom, PO Box 2600, 3430 GA Nieuwegein.


Article 1: Applicability

1.1 These terms and conditions apply to all offers made by a member of Fedecom, to all agreements concluded by him and to all agreements resulting therefrom, all insofar as the Fedecom member is a provider or contractor.

1.2 The Fedecom member using these terms and conditions is referred to as the Contractor. The other party is referred to as client.

1.3 In the event of a conflict between the contents of the agreement concluded between the client and the contractor and these terms and conditions, the provisions of the agreement shall take precedence.

1.4 These terms and conditions may only be used by Fedecom members.

Article 2: Offers

2.1 All offers are without obligation. The contractor has the right to revoke his offer up to two working days after the acceptance has reached him.

2.1 All offers are without obligation.

2.3 The prices mentioned in the offer are expressed in euros, exclusive of sales tax and other governmental levies or taxes. Prices are further exclusive of travel, accommodation, packaging, storage and transport costs as well as costs for loading, unloading and cooperation with customs formalities.

Article 3: Confidentiality

3.1 All information (such as offers, designs, images, drawings and know-how) provided by or on behalf of the Contractor to the Client, of whatever nature and in whatever form, shall be confidential and shall not be used by the Client for any purpose other than the performance of the Agreement.

3.2 The information mentioned in paragraph 1 of this article shall not be disclosed or duplicated by the client.

3.3 If the client violates any of the obligations mentioned in paragraphs 1 and 2 of this article, he shall be liable for an immediately payable fine of €25,000 for each violation. This fine can be claimed in addition to damages under the law.

3.4 The Client must return or destroy the information referred to in paragraph 1 of this article upon first request, within a period set by the Contractor, at the Contractor’s discretion. If this provision is violated, the Client will owe the Supplier an immediately payable penalty of €1,000 per day. This fine can be claimed in addition to damages under the law.

Article 4: Advice and information provided

4.1 The client cannot derive any rights from advice and information provided by the contractor that does not directly relate to the assignment.

4.2 If the Client provides information to the Contractor, the Contractor may assume the accuracy and completeness of such information in the performance of the Agreement.

4.3 Client determines and is responsible for the scope and efficiency of the repair(s) and/or work to be performed. The Customer shall decide on the (tech-nical) specifications on which the repair(s) and/or other work shall ultimately be carried out.

4.4 The Client shall indemnify the Contractor against any claim by third parties relating to the use of advice, drawings, accounts, designs, materials, marks, samples, models and the like provided by or on behalf of the Client. The Principal shall compensate the Contractor for all losses incurred by the Contractor, including all costs incurred to defend against such claims.

Article 5: Delivery period / execution period

5.1 A stated delivery time or execution period is indicative.

5.2 The delivery period or performance period will not commence until all commercial and technical details have been agreed, all information, including final and approved drawings and the like are in the Contractor’s possession, the agreed (instalment) payment has been received and the other conditions for performance of the engagement have been met.

5.3 If:

  1. circumstances other than those known to the Contractor when he quoted the delivery deadline or work period, the delivery deadline or work period will be extended by the time that the Contractor, with due observance of his schedule, needs to perform the engagement under these circumstances;
  2. additional work, the delivery deadline or work period will be extended by the time that the Contractor needs, with due observance of his schedule, to supply (or arrange for the supply of) the materials and parts necessary for this purpose and to carry out the additional work;
  3. suspension of obligations by the Contractor, the delivery deadline or work period will be extended by the time that the Contractor needs, with due observance of its schedule, to carry out the engagement after the reason for the suspension lapses.

Barring evidence to the contrary by the Client, the duration of the extension of the delivery period or work period will be presumed to be necessary and to be the result of a situation as referred to above under a through c.

5.4 The Principal is obliged to pay all costs incurred by the Contractor or damage suffered by the Contractor as a result of a delay in the delivery time or execution period, as referred to in paragraph 3 of this article.

5.5 Exceeding the delivery time or execution period shall in no case entitle the client to damages or dissolution. The Client indemnifies the Supplier against any third-party claims as a result of the delivery deadline or work period being exceeded.

Article 6: Delivery and transfer of risk

6.1 Delivery shall take place at the time the Contractor makes the item available to the Client at its premises and has notified the Client that the item is available to it. Client shall bear the risk of the item from that moment on, including storage, loading, transport and unloading.

6.2 Client and Contractor may agree that Contractor will provide transportation. The risks of, inter alia, storage, loading, transport and unloading shall in that case also be borne by the Client. The customer may insure himself against these risks.

6.3 If there is a trade-in and the customer holds the good to be traded in pending delivery of the new good, the risk of the good to be traded in shall remain with the customer and all costs shall be borne by him until he has placed it in the possession of the contractor. The costs mentioned in the previous sentence also include the costs of maintenance and any damage caused by any cause. If the client cannot deliver the item to be exchanged in the condition it was in when the contract was concluded, the contractor may rescind the contract.

Article 7: Price change

7.1 The contractor may pass on to the client any increase in cost-determining factors that occurred after the conclusion of the agreement. Client shall be obliged to pay the price increase at the first request of the Contractor.

7.2. If the client is a consumer, being a natural person not acting in the exercise 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 has the right to dissolve the agreement.

Article 8: Force majeure

8.1 A failure to fulfill its obligations cannot be attributed to the Contractor if such failure is the result of force majeure.

8.2 Force majeure shall include the circumstance that third parties engaged by the Contractors, such as suppliers, subcontractors and carriers, or other parties on which the Principal depends, fail to meet their obligations or fail to do so in a timely manner, weather conditions, natural disasters, terrorism, cybercrime, disruption of digital infrastructure, fire, power failure, loss, theft or loss of tools, materials or information, road blocks, strikes or work stoppages and import or trade restrictions.

8.3 The Contractor is entitled to suspend the performance of its obligations if it is temporarily prevented from fulfilling its obligations to the Client due to force majeure. Once the force majeure situation has lapsed, the contractor shall fulfill its obligations as soon as its schedule permits.

8.4 If there is a situation of force majeure and performance is or becomes permanently impossible, or the temporary situation of force majeure has lasted for more than six months, the contractor shall be entitled to dissolve the contract in whole or in part with immediate effect. Client shall in such cases be entitled to dissolve the agreement with immediate effect, but only for that part of the obligations not yet fulfilled by Contractor.

8.5 The parties shall not be entitled to compensation for damages suffered or to be suffered as a result of the force majeure, suspension or dissolution within the meaning of this article.

Article 9: Scope of work

9.1 The Client must ensure that all permits, exemptions and other orders necessary to perform the work are obtained in a timely manner. The Client shall be obliged to send a copy of the aforementioned documents to the Contractor at the Contractor’s first request.

9.2 Unless otherwise agreed in writing, the work does not include:

  1. earthwork, pile driving, demolition, foundation work, masonry, carpentry, plastering, painting, wallpapering, repair work or other construction work;
  2. the realisation of connections of gas, water, electricity, internet or other infrastructural facilities;
  3. measures to prevent or limit damage to or theft or loss of items present at or near the work site;
  4. removal of materials, building materials or waste;
  5. vertical and horizontal transport.

Article 10: Additional work

10.1 Changes in the work shall result in additional work in any case if:

  1. there is a change in the design, the specifications or the contract documents;
  2. the information provided by the customer does not correspond with reality;
  3. estimated quantities deviate by more than 5%.

10.2 Additional work shall be calculated on the basis of the pricing factors applicable at the mo-ment that the additional work is performed. The Client shall be required to pay the price of the additional work at the Contractor’s first request.

Article 11: Performance of the work

11.1 The Client shall ensure that the Contractor is able to perform its work undisturbed and at the agreed time and that in the performance of its work activities it is provided with the necessary facilities, such as:

  1. gas, water, electricity and internet;
  2. heating;
  3. lockable dry storage space;
  4. facilities prescribed under the Working Conditions Act and regulations.

11.2 The Client shall bear the risk and shall be liable for damage to and theft or loss of property of the Contractor, the Client and third parties, such as tools, materials intended for the Work or equipment used in the Work, located at or near the place where the Work is performed or at any other agreed place.

11.3 Without prejudice to the provisions of paragraph 2 of this article, the client shall be obliged to take out adequate insurance against the risks mentioned in that paragraph. Client shall additionally provide insurance for the work risk of equipment to be used. Client shall send Contractor a copy of the relevant insurance policy or policies and proof of payment of the premium upon first request. If there is damage, is

client is obliged to report this immediately to its insurer for further treatment and settlement.

11.4 If circumstances arise that make it necessary to perform the work at a time outside the Contractor’s normal working hours, the Contractor shall be entitled to charge the Client for the additional costs arising therefrom.

11.5 Where there is an order for inspection and/or repair and such work is to take place at a site of the Client, the Contractor shall not be obliged to announce its arrival, that of its personnel or the third parties engaged by it for the work and to inform the Client of the exact time of arrival.

11.6 The Principal shall ensure that the object to be inspected and/or repaired is made available to the Contractor in a cleaned condition so that the work arising from the contract can be carried out.

Article 12: Completion of the work

12.1 The work is considered completed in the following cases:

  1. if the customer has approved the work;
  2. when the work has been put into use by the client. If client takes a part of the work into use then that part is considered delivered;
  3. ; if the Supplier has notified the Client in writing that the work has been completed and the Client has not communicated, within 14 days after the date of notification, that the work has not been approved;
  4. if the Client does not approve the work on grounds of minor defects or missing parts that can be repaired or supplied within 30 days and that do not prevent the work from being put into use.

12.2 If the customer does not approve the work, he shall be obliged to notify the contractor of this in writing, giving reasons. Client shall give Contractor the opportunity to still complete the work.

12.3 The Client shall indemnify the Contractor against claims by third parties for damage to parts of the work not completed caused by the use of parts of the work already completed.

Article 13: Liability

13.1 In the event of an attributable failure, the Contractor shall still be bound to fulfill its contractual obligations, subject to Article 14.

13.2 The Contractor’s obligation to compensate damages on any basis whatsoever is limited to those damages for which the Contractor is insured under an insurance policy taken out by or on behalf of the Contractor. However, the extent of this obligation shall never exceed the amount paid under this insurance in the relevant case.

13.3 If, for whatever reason, the Contractor is not entitled to invoke paragraph 2 of this article, the obligation to compensate damages shall be limited to a maximum of 15% of the total contract sum (excluding VAT). If the agreement consists of parts or partial deliveries, this obligation is limited to a maximum of 15% (excluding VAT) of the order price of that part or partial delivery. In the case of continuing performance contracts, the obligation to compensate damage is limited to a maximum of 15% (excluding VAT) of the contract sum due over the last twelve months prior to the event causing damage.

13.4 Not eligible for reimbursement:

  1. consequential damages. Consequential damages include stagnation damages, loss of production, lost profits, fines, transportation costs and travel and accommodation costs;
  2. supervision damage. Oversight damage includes damage caused by or during the performance of the work to items on which work is being performed or to items located in the vicinity of the work site;
  3. damage caused by intent or deliberate recklessness on the part of helpers or non-management employees of the Contractor.

If possible, the Client may take out insurance to cover such damages.

13.5 The Contractor shall not be obliged to compensate for damage to material supplied by or on behalf of the Principal as a result of work not having been performed properly.

13.6 The Client shall indemnify the Contractor against all third-party claims for pro-product liability resulting from a defect in a product supplied by the Client to a third party of which the products or materials supplied by the Contractor are a part. Client shall be obliged to compensate all damages suffered by Contractor in this connection including the (full) costs of defense.

Article 14: Warranty and other claims

14.1 Unless otherwise agreed in writing, the Contractor shall guarantee the proper performance of the agreed pres-tation for a period of six months after delivery or completion, as detailed in the following paragraphs of the article.

14.2 If the parties have agreed on different warranty terms, the provisions of this article shall apply unimpaired, unless in conflict with those different warranty terms.

14.3 No warranty is given for delivered items that were not new at the time of delivery.

14.4 If the agreed performance has not been properly performed, the Contractor shall make a choice within a reasonable period of time as to whether it will still perform it properly or credit the Client for a proportionate part of the contract sum.

14.5 If the contractor chooses to still perform properly, he shall determine the manner and time of performance. The Client must in all cases give the Contractor the opportunity to do so. If the agreed performance consisted (in part) of the processing of material supplied by the client, the client must supply new material at his own expense and risk.

14.6 Parts or materials to be repaired or replaced by the Contractor must be sent to it by the Client.

14.7 For the client’s account are:

  1. all transport or shipping costs;
  2. costs of disassembly and assembly
  3. travel and accommodation expenses and travelling time.

14.8 The Contractor shall not be obliged to perform the guarantee until the Client has fulfilled all its obligations.

14.9 a. Warranty is excluded for defects resulting from:

– normal wear and tear;

– injudicious use;

– incorrect or non-executed maintenance;

– installation, assembly, modification or repair by Client or by third parties;

– defects to or unsuitability of items originating from, or prescribed by the client;

– defects to or unsuitability of materials or tools used by the principal.

b. No warranty is given on:

– the inspection and repair of items belonging to the principal;

– parts for which a manufacturer’s warranty has been issued.

14.10 The provisions of paragraphs 3 to 9 of this article shall apply mutatis mutandis to any claims by the Client based on breach of contract, non-conformity or any other basis whatsoever.

Article 15: Obligation to complain

15.1 The Principal may no longer invoke a defect in the performance if he has not complained to the Contractor in writing about it within fourteen days of discovering or reasonably ought to have discovered the defect.

15.2 The Client must have submitted complaints about the invoice, under penalty of forfeiting all rights, to the Contractor in writing within the payment period. If the payment period exceeds thirty days, the client must have complained in writing no later than thirty days after the invoice date.

Article 16: Uncollected items

16.1 The Client is obliged to actually take delivery of the item or items that are the subject of the contract at the agreed place after the delivery time or execution period has expired.

16.2 The Principal shall provide all cooperation free of charge to enable the Contractor to deliver.

16.3 Uncollected goods shall be stored at the client’s expense and risk.

16.4 If the provisions of paragraph 1 or 2 of this article are violated, the Client will owe the Contractor a penalty of €250 per day for each violation, subject to a maximum of €25,000, after the Contractor has given it notice of default. This fine can be claimed in addition to damages under the law.

Article 17: Payment

17.1 Payment shall be made at the Contractor’s place of business or to an account designated by the Contractor.

17.2 Unless otherwise agreed, payment shall be made as follows:

  1. at counter sales in cash;
  2. in case of installment payment:

– 50% of the total price upon order;

– 50% of the total price upon completion;

  1. in all other cases within thirty days of the invoice date.

17.3 If the customer fails to fulfill his payment obligation, he shall be obliged, instead of paying the agreed sum of money, to comply with a request from the ordering party for payment in instalments.

17.4 The Client’s right to set off its claims against the Contractor or to suspend the performance of its obligations is excluded, unless there is a suspension of payments or bankruptcy of the Contractor or the statutory debt cancellation ring applies to the Contractor.

17.5 Regardless of whether the Contractor has fully performed the agreed performance, everything that the Client owes or will owe the Contractor under the Contract shall be immediately due and payable if:

  1. a term of payment has been exceeded;
  2. client fails to meet his obligations under article 16;
  3. bankruptcy or suspension of payments has been filed for the principal;
  4. attachment is levied on goods or claims of client;
  5. client (company) is dissolved or liquidated;
  6. client (natural person) applies for admission to statutory debt restructuring, is placed under guardianship or dies.

17.6 In the event of a delay in the payment of a sum of money, the Client shall owe the Contractor interest on that sum of money with effect from the day following the day agreed as the last day for payment up to and including the day on which the Client has paid the sum of money. If the parties have not agreed on a due date for payment, interest is due from 30 days after due date. The interest rate is 12% per year, but is equal to the legal interest rate if higher. In the interest calculation, part of a month is considered a full month. Each time at the end of a year, the amount on which interest is calculated is increased by the interest due for that year.

17.7 The Contractor shall be entitled to set off its debts to the Client against claims of companies affiliated with the Contractor against the Client. In addition, the Contractor is authorized to set off its claims against the Client against debts owed to the Client by companies affiliated with the Contractor. Furthermore, the contractor is authorized to set off its debts to the client against claims on companies affiliated with the client. Affiliated companies means all companies belonging to the same group, within the meaning of Article 2:24b of the Dutch Civil Code and a participation within the meaning of Article 2:24c of the Dutch Civil Code.

17.8 If payment has not been made in time, the Client shall owe the Contractor all extrajudicial costs with a minimum of €75.

These costs shall be calculated on the basis of the following table (principal sum incl. interest):

over the first € 3,000,- 15%

over the amount up to € 6.000,- 10%.

over the amount up to € 15.000,- 8%.

over the amount up to € 60.000,- 5%.

over the amount exceeding € 60.000,- 3%.

The actual extrajudicial costs incurred shall be due if they are higher than follows from the above calculation.

17.9 If the Contractor is wholly or substantially successful in legal proceedings, all costs incurred by the Contractor in connection with such proceedings shall be borne by the Client.

Article 18: Collateral

18.1 Regardless of the agreed payment terms, the Client shall be obliged to provide adequate security for payment at the Contractor’s first request, at the Contractor’s discretion. If the client fails to comply with this within the stipulated period, he will immediately be in default. In such a case, the contractor shall be entitled to rescind the agreement and recover its damages from the client.

18.2 The Contractor remains the owner of delivered items for as long as the Client:

  1. has not fulfilled his obligations under any agreement with the contractor;
  2. has not paid claims arising from non-compliance with the above-mentioned agreements, such as damages, penalties, interest and costs.

18.3 As long as goods delivered are subject to retention of title, the Client may not encumber or dispose of them outside the scope of its normal business operations. This clause has property law effect.

18.4 After the contractor has invoked its retention of title, it may recover the delivered goods. Client will provide all cooperation to this end. The cost of pickup shall be borne by the client as well as any man code or damage to the delivered items.

18.5 If, after the goods have been delivered to him by the contractor in accordance with the agreement, the customer has fulfilled his obligations, the retention of title in respect of these goods shall revive if the customer fails to fulfil his obligations under a later agreement concluded.

18.6 The Contractor shall have a lien and a right of retention on all goods in his possession or to be in his possession from the Client for whatever reason and for all claims he has or may have against the Client.

Article 19: Intellectual property rights.

19.1 The Contractor shall be considered the creator, designer or inventor, respectively, of the works, models or inventions created under the Agreement. Contractor therefore has the exclusive right to apply for a patent, trademark or design.

19.2 The Contractor does not transfer intellectual property rights to the Client in the performance of the Agreement.

19.3 If the performance to be delivered by the Contractor consists (in part) of the delivery of computer software, the source code will not be transferred to the Principal. Transferee acquires a non-exclusive, worldwide and perpetual user license to the computer software solely for the purpose of normal use and proper operation of the case. Client is not permitted to transfer the license or to sublicense. Upon sale of the item by the principal to a third party, the license passes by operation of law to the transferee of the item.

19.4 The Contractor shall not be liable for damages suffered by the Client as a result of an infringement of intellectual property rights of third parties. Client shall indemnify Op-Trader for any third party claim regarding an infringement of intellec-tual property rights.

Article 20: Transfer of rights or obligations

Client may not transfer or pledge any rights or obligations under any article of these general conditions or the underlying agreement(s), subject to Contractor’s prior written consent. This clause has property law effect.

Article 21: Termination or cancellation of the agreement

21.1 The Client is not authorized to terminate or cancel the Agreement unless the Contractor agrees. Upon consent of the Contractor, the Client shall owe the Contractor immediately due and payable compensation in the amount of the agreed upon price, minus the savings to the Contractor resulting from the termination. The fee is a minimum of 20% of the agreed price.

21.2 If the price is made dependent on the actual costs to be incurred by the Contractor (cost-plus basis), the fee referred to in the first paragraph of this Article will be based on the sum of the costs, working hours and profit that the Contractor would have expected to incur for the entire Assignment.

Article 22: Applicable law and competent court

22.1 Dutch law shall apply.

22.2 The Vienna Sales Convention (C.I.S.G.) does not apply, nor does any other in-ternational regulation whose exclusion is permitted.

22.3 The Dutch civil court having jurisdiction in the place of business of the commissionee shall take cognizance of disputes. Contractor may deviate from this jurisdictional rule and use the statutory jurisdictional rules.