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Delivery conditions

FME Conditions of Sales and Supply for Metallurgic and Electrical Products.

Clause IGeneral
  1. When these General Delivery Conditions form part of offers to and agreements regarding the providing of supplies and/or services by the contractor, all provisions of these Conditions are effective between the parties, insofar as neither party expressly deviates here from in writing. The contractor will not accept a reference by the customer to any of the customer's own purchasing, contracting or other conditions.
  2. In these Delivery Conditions the following terms have the following meanings:
    • product: goods, and services, such as maintenance, advice and inspection. In these Delivery Conditions the following definitions also apply:
    • the contractor: any party who refers to these Delivery Conditions in his offer;
    • the customer: the party to whom the aforementioned offer is addressed;
    • service: the contracting of work.
Clause IIOffer
  1. All offers made by the contractor are without commitment
  2. Every offer is based on performance of the agreement by the contractor under normal circumstances and during normal working hours.
Clause IIIAgreement
  1. If the agreement is made in writing, it will be made on the day the contractor signs the contract, or on the day the contractor sends the written assignment confirmation respectively.
  2. Additional work includes all quantities delivered and/or work carried out which are/is additional to the quantities and/or work expressly laid down in the contract or the assignment confirmation, agreed between the contractor and the customer, whether or not in writing, during the performance of the agreement.
  3. Verbal promises of and agreements of subordinates of the contractor do not bind the contractor unless and insofar as the contractor has confirmed such in writing.
Clause IVPrice
  1. The prices indicated by the contractor are exclusive of turnover tax and other government levies relating to sale and delivery and are based on delivery ex-factory in accordance with the Incoterms applicable on the date of the offer, except insofar as otherwise stipulated in these Conditions. Factory means the contractor's business premises.
  2. If after the date the agreement is made one or more of the cost factors is increased - even if such takes place pursuant to foreseeable circumstances - the contractor is entitled to increase the agreed price accordingly.
  3. The agreement includes the right of the contractor to separately charge for the additional work he carries out, as soon as he knows the amount to be charged therefore. The rules set out in Paragraphs 1 and 2 of this clause apply mutatis mutandis for the calculation of additional work.
  4. Unless otherwise agreed, cost budgets and plans will not be charged separately. If the contractor has to make new drawings, calculations, descriptions, models or equipment and the like for any retrospective orders, costs will be charged therefore.
  5. The packing is not included in the price and will be charged separately. Packing will not be taken back.
  6. Costs of loading and unloading and of carriage of raw materials, semi-manufactured products, models, equipment and other items made available by the customer are not included in the price and will be charged separately. Costs paid by the contractor in this respect are to be deemed an advance to be charged to the customer.
  7. If the contractor has accepted to assemble the product, the calculated price includes assembly and completion of the product ready for operation on the site set out in the offer and including all costs, except for costs which pursuant to the preceding paragraphs are not included in the price or which are set out in Clause VII. Costs made in respect of inclement weather will be charged.
Clause VDrawings, calculations, descriptions, models, equipment and the like
  1. Information set out in catalogues, illustrations, drawings, specifications of dimension and weight is only binding if and insofar as such information is expressly included in a contract signed by the parties or an assignment confirmation signed by the contractor.
  2. The offer made by the contractor, and the drawings, calculations, software, descriptions, models, equipment and the like produced or furnished by the contractor remain his property, regardless of whether costs have been charged therefore. The information which is contained in the foregoing or which is the basis of the manufacture and construction methods, products and the like, will remain exclusively reserved for the contractor, even if costs have been charged therefore. The customer guarantees that said information, except to perform the agreement, will not be copied, shown to third parties, disclosed or used other than with the written permission of the contractor.
Clause VIDelivery time
  1. The delivery time starts on the last day of the following dates:
    • the day the agreement is made;
    • the day of receipt by the contractor of the documents, information, permits and the like necessary for the performance of the assignment;
    • the day of carrying out the formalities necessary for starting the work;
    • the day of receipt by the contractor of the amounts which pursuant to the agreement must be paid in advance before the work is started.
    If a delivery date or week is agreed, the delivery time is formed by the period between the date the agreement is made and the delivery date or week.
  2. The delivery time is based on the working circumstances applicable at the time the agreement was made and on timely delivery of the materials ordered by the contractor for the performance of the work. If delay arises, beyond the control of the contractor, which as a result of a change in said working circumstances or because materials necessary for the execution of the work which were ordered in time are not delivered in time, the delivery time will be extended insofar as necessary.
  3. The product will be deemed delivered with regard to the delivery time when, if inspection on the contractor's premises has been agreed, the product is ready for inspection and in the other cases when it is ready for shipment, after the customer has been given written notice thereof and without prejudice to the contractor's obligation to perform any assembly/installation obligations he might have.
  4. Without prejudice to the provisions elsewhere in these Conditions with regard to extension of the delivery time, the delivery time will be extended by the term of the delay which arises on the part of the contractor as a result of non-performance by the customer of any obligation ensuing from the agreement or failure to cooperate with regard to performance of the agreement.
  5. Except in the event of gross negligence on the part of the contract, exceeding of the delivery time by the customer does not give any entitlement to whole or partial dissolution of the agreement. Exceeding of the delivery time - for any reason whatsoever - does not entitle the customer to execute work or instruct the execution of work to perform the agreement without judicial authorization.
  6. A contractual penalty fixed for late delivery must be deemed to take the place of any right of the customer to damages. Such penalty is not owed if delivery is late as a result of force majeure.
Clause VIIAssembly/installation
  1. The customer is responsible vis-à-vis the contractor for the accurate and timely execution of all installations, facilities and/or conditions, which are necessary for the setting up of the product to be assembled and/or the proper working of the product in assembled condition, except if and insofar as such execution is carried out by or on behalf of the contractor in accordance with information and/or drawings furnished and/or made by or on behalf of the latter.
  2. Without prejudice to the provisions of Paragraph 1, the customer will in any event ensure, at his own expense and risk, that:
    • the contractor's personnel, as soon as they have arrived at the place of installation, can start the work and can continue carrying out the work during the normal working hours and, moreover, if the contractor deems such necessary, outside of the normal working hours, provided he has informed the customer hereof in due time;
    • suitable housing and/or all facilities required by government regulations, the agreement and custom are available for the contractor's personnel;
    • the access roads to the place of installation are suitable for the necessary transport;;
    • the designated place of installation is suitable for storage and assembly;
    • the necessary lockable storage places for material, equipment and other goods are present;
    • the necessary and usual workers, machinery, auxiliary and operating materials (including fuel, oil and greases, polishing and other small material, gas, water, electricity, steam, compressed air, heating, lighting, etc.) and the normal measuring and testing equipment for the customer's business are available for the contractor at the right place in time and free of charge;
    • all necessary safety and precautionary measures are taken and will be maintained, and that all measures are taken and will be maintained in order to comply with the applicable safety regulations in the framework of the assembly/installation;
    • at the start of and during the assembly the products sent are available at the right location.
  3. Damage and costs arising because the conditions laid down in this clause have not been performed or have not been performed in time, are at the customer's expense.
  4. Clause VI applies mutatis mutandis with regard to the assembly/installation time.
Clause VIIIInspection and takeover test
  1. The customer will inspect the product within 14 days at latest after the delivery as referred to in Clause VI Paragraph 3 or - if assembly/installation has been agreed - within 14 days at latest after the assembly/installation. If this term passes without written and specific reporting of well-founded complaints, the product will be deemed to have been accepted.
  2. If a takeover test is agreed, after the receipt or, if assembly/installation is agreed, after the assembly/installation, the customer will give the contractor the opportunity to carry out the necessary tests, and to effect such improvements and changes as the contractor deems necessary. The takeover test will be executed immediately after the contractor's request in the presence of the customer. If the takeover test has been executed without a specific and well-founded complaint, and if the customer does not perform his aforementioned obligations, the product will be deemed to have been accepted.
  3. The customer will provide the necessary facilities, including those referred to in Clause VII Paragraph 2.f for the takeover test and for any other tests, as well as any representative samples of any materials to be processed in sufficient quantities, in time and free of charge at the right location at the contractor's disposition, so that the circumstances of use which the parties foresee for the product can be reproduced as much as possible. If the customer does not comply with this, Paragraph 2 last sentence applies.
  4. In the event of minor shortcomings, in particular those which do not or barely affect the intended use of the product, the product will be deemed to have been accepted regardless of these shortcomings. In such case the contractor will rectify such shortcomings as soon as possible.
  5. Without prejudice to the contractor's obligation to perform his guarantee obligations, acceptance in accordance with the preceding paragraphs will exclude any claim of the customer with regard to a shortcoming in the contractor's performance.
Clause. IXTransfer of risk and title
  1. Immediately after the product has been delivered as referred to in Clause VI Paragraph 3, the customer will bear the risk for all direct and indirect damage which might arise with regard to the product, except insofar as such is attributable to the contractor's gross negligence. If the customer remains in default with regard to taking the product, after having been given notice of default, the contractor will be entitled to charge the customer the costs of storage of the product.
  2. Without prejudice to the provisions of the preceding paragraph and the provisions of Clause VI Paragraph 3, title to the product will first be transferred to the customer when the customer has paid the contractor all amounts which the customer owes the contractor under the heading of supplies or work, including interest and costs, in full.
  3. Where appropriate, the contractor will be entitled to have unhindered access to the product. The customer will fully cooperate with the contractor in order to give the contractor the opportunity to enforce the retention of title set out in Paragraph 2 by retrieving the product, including any requisite disassembly.
Clause XPayment
  1. Unless otherwise agreed, payment of the agreed price will be made in 2 instalments: 1/3 (one-third) at latest within 7 days after the agreement is made; 2/3 (two-thirds) at latest within 14 days after delivery in accordance with Clause VI Paragraph 3.
  2. Additional work must be paid for as soon as the customer has been charged therefore.
  3. All payments must be made, without any set-off or deduction, at the office of the contractor or by deposit on an account designated by him.
  4. If the customer does not make payment by the agreed dates, he will be deemed to be legally in default and the contractor has the right, without the need for any notice of default, to charge interest as of the due date which will be 3 percentage points above the statutory interest rate applicable in the Netherlands and additionally all judicial and extrajudicial costs relating to the collection of his claim.
Clause XIGuarantee
  1. Without prejudice to the provisions set out hereafter, the contractor guarantees both the quality of the product delivered by him and the quality of the material used and/or supplied therefore, insofar as the matter relates to defects in the delivered product which could not be detected at the inspection or takeover test, for which the customer proves that they arose within 6 months after delivery in accordance with Clause VI Paragraph 3 exclusively or primarily as a direct result of an inaccuracy in the construction used by the contractor or as a result of poor finishing or use of poor material..
  2. Paragraph 1 applies mutatis mutandis for defects which could not be detected at the inspection or takeover test which arose exclusively or primarily as a result of improper assembly/installation by the contractor. If the contractor sees to assembly/installation of the product, the guarantee period of 6 months referred to in Paragraph 1 commences on the day that the contractor has completed assembly/installation, on the understanding that in such case the guarantee term will in any event end if 12 months have passed after delivery in accordance with Clause VI Paragraph 3.
  3. Defects covered by the guarantee referred to in Paragraph 1 and Paragraph 2 will be rectified by the contractor by means of repair or replacement of the faulty part, which may take place on the contractor's premises, or by sending a replacement part, at the contractor's election. All costs exceeding the mere obligation described in the preceding sentence, such as but not limited to, transport costs, travel and accommodation costs and costs of disassembly and assembly, are at the customer's expense.
  4. The guarantee does not in any event include defects which arise in or which are the whole or partial result of:
    • non-compliance with operating and maintenance regulations or use other than the foreseen normal use;
    • normal wear and tear;
    • assembly/installation or repair by third parties, including the customer;
    • the application of any government measure regarding the nature or quality of the materials used;
    • used materials or goods used in consultation with the customer;
    • materials or goods which the customer gives to the contractor for processing;
    • materials, goods, working methods and constructions, insofar as applied on the express instruction of the customer, as well as of materials and goods delivered by or on behalf of the customer
    • parts which the contractor acquires from third parties, insofar as the third party has not given a guarantee to the contractor.
  5. If the customer does not perform any obligation ensuing for him from the agreement made with the contractor or any related agreement, or does not perform such properly or in time, the contractor is not bound by any guarantee - howsoever called - with regard to any of these agreements. If the customer disassembles, repairs or carries out other work in respect of the product or instructs such, without the prior written approval of the contractor, any claim under guarantee will lapse.
  6. Complaints regarding defects must be lodged in writing as soon as possible after they have been detected, but at latest within 14 days after expiry of the guarantee term. If complaints are not lodged in time, any claim against the contractor in respect of such defects will lapse. Legal claims in this respect must be brought within 1 year after the timely lodging of a complaint; failure to do so will result in the lapsing of any rights in this respect.
  7. If the contractor replaces parts/products to perform his guarantee obligations, the parts/products to be replaced will become the property of the contractor.
  8. With regard to the repair or revision work carried out by or other services provided by the contractor, unless otherwise agreed, a guarantee is only given in respect of the quality of the carrying out of the instructed work for a period of 6 months. This guarantee encompasses the mere obligation of the contractor, in the event of poor quality, to carry out the work again, insofar as of inferior quality. The second full sentence of Paragraph 3 applies mutatis mutandis in such case.
  9. No guarantee is given in respect of inspections carried out by, advice given by and similar actions on the part of the contractor.
  10. The alleged non-performance by the contractor of his guarantee obligations will not discharge the customer from the obligations ensuing for him from any agreement made with the contractor.
Cause XIILiability
  1. The contractor's liability is limited to performance of the guarantee obligations described in Clause XI of these Conditions.
  2. Except in the event of gross negligence on the part of the contractor and subject to the provisions of Paragraph 1, all liability of the contractor, such as for trading loss, other indirect damage and damage resulting from liability vis-à-vis third parties is excluded.
  3. The contractor is thus not liable for:
    • infringement of patents, licences or other rights of third parties as a result of use of information provided by or on behalf of the customer;
    • damage or loss, due to any cause whatsoever, of raw materials, semi-manufactured products, models, equipment and other goods made available by the customer.
  4. If the contractor, without having been instructed to carry out the assembly, does assist in the assembly - in any manner whatsoever - such will be at the customer's risk.
  5. The customer is bound to indemnify the contractor in respect of all claims of third parties for compensation of damage, for which the liability of the contractor is excluded in these Conditions in the relationship with the customer.
Clause XIIIForce majeure
  1. In these General Delivery Conditions, force majeure means any circumstance beyond the control of the contractor - even if such was foreseeable at the time the agreement was made - which permanently or temporarily hinders performance of the agreement, which in any event includes war, risk of war, civil war, riot, work strike, employee lock-out, transport difficulties, fire and other serious disruptions in the business of the contractor or his suppliers.
Clause XIVSuspension and dissolution
  1. In the event of hindering of the performance of the agreement as a result of force majeure, the contractor is entitled, without judicial intervention, to either suspend the performance of the agreement for a maximum of 6 months, or to dissolve the agreement in whole or in part, without being bound to pay any compensation. During the suspension the contractor is entitled and at the end thereof he is obliged to elect performance or whole or partial dissolution of the agreement.
  2. Both in the event of suspension and of dissolution pursuant to Paragraph 1, the contractor is entitled to immediately demand payment of the raw materials, materials, parts and other goods which he reserved, started to process and manufactured for the performance of the agreement, for the value which must reasonably be attributed thereto. In the event of dissolution pursuant to Paragraph 1, the customer is bound, after payment of the amount he owes pursuant to the preceding full sentence, to take the goods covered by said amount. In the event of failure to do so, the contractor is entitled to store these goods at the expense and risk of the customer or to sell such at the expense of the customer.
  3. If the customer does not perform any obligation ensuing for him from the agreement made with the contractor or any related agreement, or does not perform such properly or in time, or if there are good grounds for fearing that the customer is not or will not be able to perform his contractual obligations vis-à-vis the contractor, and in the event of bankruptcy, moratorium, cessation, liquidation or partial transfer - whether or not as security - of the customer's business, including the transfer of an important part of his claims, the contractor is entitled, without the need for notice of default and without judicial intervention, to either suspend the performance of each of these agreements for a maximum of 6 months, or to dissolve such in whole or in part, without his being bound to pay any compensation or being bound by any guarantee and without prejudice to any of his further rights. During the suspension the contractor is entitled and at the end thereof he is obliged to elect for performance or whole or partial dissolution of the suspended agreement(s).
  4. In the event of suspension pursuant to Paragraph 3, the agreed price will become immediately payable, after deduction of the instalments already paid and of the costs saved by the contractor as a result of the suspension, and the contractor is entitled to store the raw materials, materials, parts and other goods which he has reserved, started processing and manufactured for the performance of the agreement at the expense and risk of the customer. In the event of dissolution pursuant to Paragraph 3, the agreed price - if there has been no prior suspension - will become immediately payable, after deduction of the instalments already paid and of the costs saved by the contractor as a result of the dissolution, and the customer is obliged to pay the aforementioned amount and to take the goods covered by said price. In the event of failure to do so, the contractor is entitled to store these goods at the expense and risk of the customer or to sell them at the expense of the customer.
  5. The customer is not entitled to demand dissolution of the agreement with retroactive effect.
Clause XVDisputes
  1. Subject to the applicability of Paragraph 2 of this clause and without prejudice to the option to request preliminary relief in preliminary relief proceedings from the President of the competent District Court, all disputes which might arise in connection with an agreement to which these Delivery Conditions apply in whole or in part, or following other agreements which result from such agreement, will be adjudicated by an arbitration panel, to the exclusion of the ordinary court. This arbitration panel will be appointed in accordance with the Articles of Association of Stichting Raad van Arbitrage voor Metaalnijverheid en -Handel, based in The Hague, and will pronounce a judgment in accordance with the Articles of Association of said Stichting.
  2. Insofar as the disputes described in the preceding paragraph belong to the subject-matter competence of the Cantonal Court in accordance with rules of Dutch civil procedural law, only the competent Cantonal Court will be able to adjudicate the dispute..
Art. XVIApplicable law
  1. All agreements to which these Conditions apply in whole or in part are governed by Dutch law applicable for the Kingdom in Europe.