A. General provisions
Article 1 Scope and definitions
1. These general terms and conditions apply to all
(legal) acts of the Contractor and also prevail
over the general terms and conditions of the Client if the Contractor has not
expressly rejected their applicability. A reference by the Client to its own purchasing, tendering or other conditions is
expressly rejected and does not lead to the applicability of
those conditions.
2. In addition to and in addition to the provisions of paragraph 1, these
general terms and conditions apply if the Client has accepted their application in previous agreements
with the Contractor.
3. The Client accepts the application of these
general terms and conditions to all future legal acts with the Contractor.
4. If the following terms are capitalized, the following definitions apply:
a) Agreement: the agreement with respect to
the Activities between the Client and the Contractor to which these general terms and conditions
apply; b) Activities: the entirety of design, installation and/or maintenance activities – including
the delivery of goods and/or services – that the
Contractor must perform under the Agreement;
c) Contractor: the natural or legal person to whom the Activities have been assigned;
d) Client: the natural or legal person who assigns the
Activities;
e) Building: a building as referred to in article 7:758
paragraph 4 of the Dutch Civil Code.
Article 2 Offer
1. The offer of the Contractor to the Client is without obligation. The offer of the Contractor can still be revoked by the Contractor immediately after receipt of the acceptance
of the Client.
General
Terms
of
Delivery
Installing
Companies 2024
2. The content of all offer documents, such as drawings, descriptions or specifications, is as accurate
as possible, but is not binding. 3. In the event of conflicting provisions in the documents, the following applies:
a. a newly written or signed document takes precedence over an old written or signed document;
b. a description takes precedence over a drawing, and
c. a special arrangement takes precedence over a general
arrangement.
Furthermore, a takes precedence over b and c, and b takes precedence over c.
4. The Client shall treat information from the offer documents and offers confidentially and
may not use this information for its own use or use by third parties or disclose it to third parties without written permission. The provisions of
Article 4, paragraph 19 of these terms and conditions apply accordingly.
5. If no Agreement is concluded on the basis of the offer documents, all these documents
must be returned to the Contractor’s address immediately at the Contractor’s first request by the
Client and at its own expense and risk.
As far as digital documents are concerned, all these
documents must be removed or destroyed immediately at the Contractor’s first request by the
Client and at its own expense and risk. Article 3 Obligations of the Contractor
1. The Contractor is obliged to warn the Client if the Agreement contains such an obvious error that he would act contrary to the requirements of reasonableness and fairness if he were to continue to carry out Work without warning. The provisions of Article 7:754 paragraph 2 of the Dutch Civil Code do not apply.
2. However, the Contractor is not obliged to do more than a general assessment of the information, designs, drawings, calculations and specifications provided by the Client. The Contractor’s inspection of goods to be delivered by the Client will, to the extent possible, not include more than a visual inspection.
3. The Contractor will make every effort to carry out the Work to the best of its ability.
4. The Contractor will ensure that he is aware of the statutory regulations and general technical and/or industrial standards that are relevant to the Work. 5. The Contractor shall make every effort to perform the
Works in such a way that the installation
complies with the Agreement.
6. In the event of damage to the installation or any part thereof that occurs during and through or in connection with the performance of the Work, the Contractor shall repair the
work at its own expense before delivery, unless the
damage was not caused by it or it is otherwise
unreasonable that this damage should be at its expense,
without prejudice to the liability of the parties under the Agreement or the law.
General Terms and Conditions of Delivery for Installation Companies 2024 3
7. Upon request, the Contractor shall transfer all rights from
guarantees provided to it by independent assistants with regard to the installation or parts
of it to the Client.
8. The Contractor shall ensure that the Client
receives timely information on request about the ratio between wages and materials used in his offer
and his payment behaviour in the context of the Chain Liability Act and the VAT reverse charge scheme.
9. The Contractor shall, to the best of his ability and on request, provide timely instructions for commissioning and decommissioning
and keeping the installation operational.
10. The Contractor is obliged to treat all data of the
Client confidentially, insofar as
this data has been made known to the Contractor as confidential. 11. If the Contractor, in the context of its Activities, must supply products, including software and hardware, for which the supplier applies generic terms and conditions (which the Client would reasonably have had to accept if it had contracted with that supplier itself), the Contractor is not obliged to do more with regard to the delivery by that supplier towards the Client in terms of performance and liability than what the Contractor can hold that supplier to under the generic terms and conditions as applied by the supplier towards the Contractor. Article 4 Obligations of the Client 1. The Client shall ensure that the Contractor has timely access to all (technical) information, data, decisions and changes that are necessary to enable the Contractor to carry out the Activities in accordance with the Agreement. The Client is responsible for the accuracy and completeness of this information, data, decisions and changes. 2. The Client shall ensure that the Contractor
has all goods to be made available by the Client in a timely manner. The Client is
responsible if these goods are not sound or
unsuitable.
3. The Client shall indemnify the Contractor against
claims from third parties in connection with the information, data, decisions, changes
and goods referred to in paragraphs 1 and 2.
4. The Client shall ensure that the Contractor
has the permits, exemptions,
orders and permissions necessary
for the design of the Activities and/or the use of the installation in a timely manner.
In obtaining these, the
Contractor shall provide the necessary cooperation to the best of its ability. If the Client fails to
fulfill this obligation, the Contractor may terminate the Agreement pursuant to Article 11, paragraph 5
and claim damages. 5. The Client shall ensure in good time that the site, the building and the location on or in which the Work is to be carried out are available free of charge and have free access to them and to clean, safe and healthy conditions, as well as suitable storage and canteen space there.
6. The Client shall ensure that the buildings/locations and the installations or parts thereof around, under, in or above which the Work is to be carried out are in good condition and have unobstructed access. The Client is responsible for the circumstances that limit, prevent and/or hamper the execution of the Work. The Client is obliged to inform the Contractor and its personnel in good time about working conditions, including warning them of dangerous situations.
7. The Client shall ensure that at the locations where the Work is to be carried out, the Contractor can have access to the necessary (utility) facilities, such as electricity (mains voltage), (drinking) water, gas, compressed air, telecom and/or sewerage connection, in good time, free of charge and with a delivery guarantee. 8. The Client is responsible for the timely
connection of the installation to the public networks.
9. The Client shall provide timely information about the
nature and content of the work of subcontractors and other third parties engaged by him, the expected time at which they will be
performed, as well as the coordination thereof, so that the
Contractor can take this information into account in his offer. Changes to this information and/or the offer entitle the Contractor to
additional payment and/or an extension of the term pursuant to Article 12.
The Client is solely responsible for
the coordination of this work, unless otherwise agreed.
10. The Client is responsible for delays
and/or costs that are caused by the work of subcontractors and that cannot be
attributed to the Contractor. Damage caused to the installation by the work of subcontractors
will be borne by the Client. 11. The Client is obliged to warn the Contractor in writing and within a reasonable time if he has become aware or could reasonably have become aware of a shortcoming of the Contractor.
12. The Client is liable for the (soil) contamination(s), environmentally harmful substances and/or bacteria
encountered during the execution of the Activities, such as asbestos or legionella. The Client may instruct the Contractor to remove the
contaminations, substances and/or bacteria found
by means of an amendment pursuant to Article 13. Regardless of whether the Contractor carries out this assignment,
he is entitled to an extension of the term and/or reimbursement of costs
under Article 12.
13. The Client is responsible for the goods
that he has prescribed or that must be obtained from a prescribed
supplier, as well as for their non-delivery or late delivery.
14. The Client is responsible for auxiliary persons,
such as subcontractors or suppliers that he has prescribed. The Contractor is not obliged to contract these
General Terms and Conditions of Delivery for Installation Companies 2024 4
independent assistants, if the Client does not wish to accept the contract terms of these assistants. If the prescribed
assistant does not perform, does not perform on time or does not perform properly,
the Contractor is entitled to an extension of the term and/or reimbursement of costs under Article 12.
15. Outside the working hours of the
Contractor, the Client is responsible for all goods,
such as materials, tools or equipment that have been brought to
the work, regardless of who these goods belong to. The Client ensures that these
goods are adequately insured; including against
theft, disabling and/or destruction.
16. The Client is responsible for delays and/or costs resulting from compliance with statutory regulations and government orders,
as well as regulations of a special nature, such as
technical and industrial standards, that are amended or come into effect after the offer. 17. The Client permits the Contractor to place signs of its name and company or advertising on fences and enclosures that serve to enclose the building or the places where the Work is carried out, as well as elsewhere on the work site.
18. The Client is responsible for the supplied materials and goods and is obliged to receive them.
19. The Client is obliged to treat all (company) data or all information received from the Contractor in connection with the Agreement as confidential. The Client is prohibited from using this data and information for its own use or use by third parties or from disclosing it to third parties.
In the event of a breach of the obligation included in this clause, the Client shall forfeit an immediately due and payable fine of €100,000.00, not subject to judicial mitigation, without prejudice to the right of the Contractor to claim damages. 20. The Client shall pay the amounts owed by him to the
Contractor in accordance with the
agreed payment arrangement, even if the
Client is entitled to compensation under Article 16.
Article 5 Insurance of the Client
1. The Client is obliged to take out and maintain a customary CAR insurance or equivalent customary
insurance in which
the Contractor (including subcontractors
and assistants) is included as co-insured if
the Contractor’s Activities serve to
execute the Client’s business, unless
otherwise agreed in writing.
2. In the event of export of products and installations
which also consist of goods developed and/or supplied by the Contractor to the US, Canada or
areas to which the law of these countries has been declared applicable, the Client is obliged to
notify the Contractor of the intention to export in good time. In the event of the above occurring, the Client must take out sufficient and adequate liability insurance to the satisfaction of the Contractor and maintain it unchanged.
3. The Client shall ensure that the Contractor
receives written proof of the
existence, payment and content of the insurances referred to in paragraphs 1 and 2
as well as the insurances referred to in article 4 paragraph 15
as soon as possible.
Article 6 Takeover of personnel and seconded employees
1. The Client is not permitted, during the term of the
Agreement and up to one year after its termination,
to employ employees of the Contractor
who are or have been involved in the performance of the Agreement, or to have them work for it in any other way. In the event of violation of this prohibition,
the Client shall forfeit to the Contractor an
immediately payable fine equal to one gross
annual salary of the employee in question.
2. In the event of provision within the meaning of the Waadi
(Labour Allocation Actskrachten door intermediaries) the Client is only permitted to take over a seconded employee of the Contractor after the end of the provision against payment of a reasonable fee to the Contractor.
Article 7 Retention of title
1. All goods intended for the Activities, such as
materials or parts, will only become the property of the Client after the Client has fulfilled all its financial obligations to the Contractor.
Article 8 Terms
1. The Contractor cannot be required to
start the execution of its Activities until after all necessary information, data, goods and/or
(proof of) insurance to be provided by the Client, such as those referred to in Articles
4 and 5, are in its possession in good time and it has received the agreed
instalment payment. Exceeding the applicable terms entitles the Contractor to additional payment and/or an extension of the term pursuant to Article 12. He is authorised to commence and/or deliver earlier, unless otherwise specified in the Agreement. 2. Unless expressly agreed otherwise, the terms applicable to the Contractor will be observed as much as possible. The mere exceeding of a stated term does not put the Contractor in default. If there is a risk of exceeding, the Contractor and the Client will enter into consultation as soon as possible. Article 9 Testing, acceptance and delivery 1. The Client is authorised to test whether the Work complies with the Agreement by means of checks, trials or tests. 2. Testing by or on behalf of the Client is carried out at the expense and risk of the Client. The
Contractor shall provide the Client with the necessary cooperation within reasonable limits if an assessment plan has been agreed and the plan
provides for this.
3. The Client must disrupt the Work as little as possible when exercising its
assessment authority. The Client is responsible for any delay and/or costs that result from this and that cannot be
attributed to the Contractor. Any damage to the installation caused by the exercise of the assessment authority will be borne by the Client.
4. As soon as the Contractor has given written notice that the Work is ready for
acceptance and the Client does not approve it within the set period, the Work
will be deemed to have been tacitly accepted.
5. Minor defects that can be remedied before a subsequent payment term may not be a reason for
refusing acceptance of the Work, provided that they do not impede the commissioning of the installation and/or
the Work.
6. After (tacit) acceptance, the Work will be considered to have been delivered. The Contractor is
authorized to divide the delivery into a number of partial deliveries.
7. If the Work is (tacitly) accepted by the Client, the date of
acceptance will be considered the day of the notification referred to in paragraph 4.
8. At the request of the Client, the Work can also be accepted without the notification pursuant to paragraph 4. To this end, the Client will inform the
Contractor in writing that it considers the Work to have been
accepted. The date of dispatch of this notification will be considered the date of acceptance.
9. In deviation from article 7:757a of the Dutch Civil Code, the
Contractor is not obliged to issue a delivery file, unless the parties have determined otherwise in the agreement. In that case, the Contractor will make an effort to provide the Client with the delivery file at the time of the notification as referred to in paragraph 4. Article 10 Early commissioning 1. If the Client wishes to commission the installation or parts thereof before delivery, the parties will consider this as a change and will follow article 13 (changes). In any case, the payment terms will be adjusted in such a way that the Client will pay the Contractor at the time of earlier commissioning that which he would owe on the basis of this early commissioning or the relevant parts thereof. Any other payment obligations will be adjusted proportionally over time. The Client is only
authorized to take into use earlier if the following two cumulative conditions have been met: i) acceptance by the Client of the offer of the
Contractor as referred to in Article 13 paragraph 3 and ii) the
Client has approved the Activities with regard to
the installation or parts thereof that he wishes to take into use earlier and has signed for completion.
2. If the Client fails to follow the procedure as
bedIf the Contractor fails to follow the instructions in Article 13 and the previous paragraph and/or fails to approve the Work and sign for completion and nevertheless puts the installation or parts thereof into use, the Contractor shall be entitled to payment in one go of the entire price or contract sum as of the date of (partial or full) early use, which shall then be immediately due and payable, and the installation/the Work shall be deemed to have been approved and completed in its entirety. If the (partial or full) early use leads to damage and/or disruption and/or delay of the Contractor’s Work, any financial and time consequences thereof shall be borne by the Client, whereby the statement thereof by the Contractor shall be presumed to be reasonable and correct, unless the Client provides proof to the contrary. 3. The early commissioning of (part of) the installation(s)/Works by the Client shall be considered as the date of (partial) delivery as referred to in article 16.
4. The early commissioning of (part of) the
installation(s)/Works by the Client shall commence any agreed warranty and/or maintenance period as well as any limitation and
expiry periods with respect to the
installation(s)/Works taken into use.
5. Damage that occurs during or as a result of early commissioning as
referred to in paragraph 1, for example to the installation and/or the
Works, shall be borne by the
Client. Delays that occur during or as a result of commissioning as referred to in this article in the
Works shall be borne by the Client and
entitle the Contractor to an extension of the term and
compensation for delay damages. Article 11 Suspension, termination and cancellation
1. The Client is authorised to
suspend the Activities. The Client is obliged to
substantiate this in writing and to
consult the Contractor directly about the consequences.
2. If the Contractor must take appropriate measures or provisions as a result of the suspension,
he is entitled to an extension of the term and/or reimbursement of costs
under Article 12.
3. If the Activities or any part thereof are suspended or delayed and this is not
attributable to the Contractor, the Client is obliged to
compensate the Contractor for all Activities performed, calculated on the basis of the status of the Activities, as well as, among other things, all
reasonably incurred and yet to be incurred costs, calculated from the moment of
the commencement of the suspension or delay.
4. If the Activities are suspended or delayed for more than two
months, the Contractor is authorised to terminate the Activities in an unfinished state. General Terms and Conditions of Delivery for Installation Companies 2024 6
5. If the Client has applied for a moratorium, has been declared bankrupt or has failed to comply with the Agreement, the
Contractor is entitled to terminate the Agreement.
6. The Client is at all times entitled to terminate the Agreement in whole or in part.
7. In the cases referred to in paragraphs 4 to 6, the
Client is obliged to pay the fixed price set out in the
Agreement, increased by the costs that the Contractor has had to incur as a result of
non-completion and reduced by the savings that the Client must prove result in for the
Contractor as a result of the termination. If the
price was made dependent on the actual costs to be incurred by the
Contractor, the price owed by the Client will be calculated on the basis of
the costs incurred, the work performed and the profit that the Contractor would have made if the
Work had been fully performed. 8. The Client is also obliged to compensate the damage suffered by the
Contractor, without prejudice to the Contractor’s obligation to limit that damage as
much as possible, unless the damage is the result of a shortcoming that cannot be
attributed to the Client.
Article 12 Extension of term and/or reimbursement of costs
1. In addition to article 7:753 paragraph 1 of the Dutch Civil Code, the
Contractor has the option to claim reimbursement of costs without the intervention of the
court. 2. In addition to the provisions of paragraph 1 and article 13, the
Contractor shall in any case be entitled to an extension of the term
and/or compensation for costs if:
a) these conditions expressly provide for this and
on the condition that the delay and/or costs
are caused by a circumstance that cannot be attributed to the
Contractor, or
b) they are caused by a circumstance for which the Client is responsible and against which the
Contractor did not have to warn
given its obligation referred to in article 3 paragraph 1,
or
c) an unforeseen circumstance occurs of
such a nature that the Client could not reasonably have expected n that the
Agreement remains unchanged.
3. If the Contractor believes that he is entitled
to an extension of the term and/or reimbursement of costs, he will
notify the Client of this in writing and with reasons.
He will also state all direct and indirect costs, as well as a reasonable surcharge for general costs, profit
and risk. He will also state the consequences with regard to the planning.
Article 13 Changes (more and less work)
1. The Client is authorized to instruct the Contractor to make changes to the
Agreement and the Activities.
2. The Contractor is not obliged to carry out an assigned
change if the change:
a) has not been ordered in writing, or;
b) would lead to an unacceptable disruption of the Activities, or;
c) exceeds his knowledge and/or skills and/or capacities, or;
d) would not be in his interest, or;
e) if the parties do not reach an agreement on the
financial consequences and the consequences with regard to the
planning. 3. If the Contractor is prepared to implement the change, he will send the Client a written offer containing the following information:
a) the balance, formed by all direct and indirect
costs, profit and risk, related to the change, reduced by any savings
as a result of implementing the change, and;
b) the adjustment of the Activities, schedules and
such documents, and;
c) the adjustment of the term sheet or payment conditions.
4. The Contractor is entitled to a reasonable compensation for the costs associated with the
offer referred to in paragraph 3, regardless of whether the parties agree on that
offer.
5. The Contractor is authorised to submit proposals for
changes to the Client if he sees reason to do so and provided that the Activities will comply with the Agreement.
6. The Client may refuse or accept the proposals for
changes referred to in paragraph 5, if there are reasonable grounds for doing so. In the latter case, the parties will follow this
article.
7. If, in connection with the changes, a delay occurs
due to a circumstance that cannot be attributed to the Contractor, the Contractor
is entitled to an extension of the term and/or compensation for costs
under article 12.
8. The absence of a written order
regarding the change does not affect the Contractor’s claims for payment.
Article 14 Price and payment
1. The agreed amounts and the amounts stated in these general
terms and conditions do not include turnover tax. The Client will reimburse the turnover tax owed by the Contractor
under the Agreement.
2. All prices and rates are based on a normal working week from Monday to Friday. All Work performed outside normal working hours per calendar day will be settled at the rates and surcharges
specified in the Agreement, based on the normal working hours of the Contractor. All waiting hours or downtime for
personnel or equipment of the Contractor attributable to the Client will be settled on the basis of the
rates set out in the Agreement.
General Terms and Conditions of Delivery for Installation Companies 2024 7
3. The settlement of changes in wages, social security contributions,
prices, rents and freight will take place in accordance with the installation technology risk scheme, unless otherwise agreed.
4. The parties agree on a payment schedule in installments. The Contractor may submit the invoice for the final settlement if and as soon as the Work has been
completed, or on the day on which the Agreement
is terminated, terminated in an unfinished state or dissolved pursuant to Article 11. Submission of this invoice does
not imply a waiver of the right to further claims by the
Contractor under the Agreement.
5. Payment will be made without deductions or settlement,
unless otherwise agreed, within 14 calendar days after the date of the relevant invoice. 6. The Client is not entitled to make payments for or on behalf of the Contractor to its independent assistants.
7. A payment will first be applied to reduce all costs and interest due and finally to reduce the oldest outstanding invoices, even if the Client states that the payment relates to later invoices.
Article 15 Default by the Client
1. If the Client fails to cooperate in a timely manner with an inspection or acceptance
of the Work or fails to pay in a timely manner, the Contractor is entitled to compensation
of interest at the statutory interest rate in accordance with Article 6:119a of the Dutch Civil Code with effect from the day
on which the cooperation should have been provided or
payment should have been made. In that case, the Contractor is also entitled to suspend the Work. 2. If the cooperation or payment does not take place within one month after the day on which this should have taken place at the latest, the Contractor may claim compensation of interest at the statutory interest rate increased by two percentage points with effect from the day on which this month has expired, without notice from the Contractor. In that case, the Contractor is also entitled to terminate the Agreement by virtue ofns article 11.
3. If the Contractor suspects that the Client
does not or will not fulfil the obligations incumbent on him, the Contractor may require sufficient security from the Client and at his expense and risk, such as a bank guarantee. If the Client fails to provide the required security, the Contractor is authorised to suspend the Activities or to terminate the Agreement
in accordance with article 11.
4. If the Client fails or will not fulfil his obligation to collect goods
on time at the agreed place of delivery, the Contractor is authorised to store these goods at the expense and risk of the Client or to sell them in a
suitable manner and to recover the amount owed to him from the proceeds, provided that he has given notice to the Client to collect the goods within five working days. The Contractor is
authorised to pay the surplus to be paid to the Client by offsetting, also during his
moratorium or bankruptcy. 5. All costs actually incurred by the Contractor
to obtain payment of the invoices due, both
judicial and extrajudicial costs, shall be borne by the Client, unless the Contractor chooses to determine these costs as a fixed amount at
15 percent of the amount to be claimed.
Article 16 Liability and warranty
1. After the time of delivery, the Contractor is no longer
liable for defects, unless:
a) those defects can be attributed to him, and
furthermore;
b) the Client did not notice those defects prior to
delivery, and furthermore;
c) the Client should not reasonably have
discovered those defects up to and at the time of delivery.
1a. By way of exception to the first paragraph, if and to the extent that a Building is being accepted (as referred to in Article 1.4 under e), the Contractor shall be liable for defects as referred to in Article 7:758 paragraph 4 of the Dutch Civil Code that were not discovered upon delivery of the Building, unless these defects cannot be attributed to the Contractor and except in the event that the Agreement and/or the Contractor’s offer deviates from this. 2. If the Contractor is liable under the provisions of paragraph 1, paragraph
1a and/or under the Agreement, he is only obliged to compensate the direct material damage suffered by the Client as a result, if and to the extent that such damage could not be limited by the Client and is not remedied by repair as referred to in paragraph 4.
3. Direct material damage shall in no event include: all forms of consequential damage other than those referred to in the previous paragraph, such as – but not limited to – loss of production,
business damage (such as loss of turnover or profit) or depreciation or loss of products, nor shall it include amounts that would have been included in the execution costs if the Work had been properly
performed from the outset.
4. Without prejudice to the provisions of this article, the
Contractor undertakes to repair the defects for which he is liable as well as reasonably
possible during the period referred to in paragraph 10 at his own expense. In the event that the costs of repair are not in
reasonable proportion to the interest of the Client in repair and in the event that the installations
are not installed in the Netherlands, the right of the Client to repair will be converted into compensation to be paid by the Contractor as referred to
in paragraph 2. Parts replaced by the Contractor
will become its property.
5. For compensation of damage other than that referred to in this article, the Contractor is only liable if and
insofar as the Client proves that this is attributable to intent or gross negligence on the part of the Contractor. General Terms and Conditions of Delivery for Installation Companies 2024 8
6. Without prejudice to the provisions of this article, the Contractor shall only be liable for damages that are not covered by the insurance referred to in Article 5 paragraph 1 for Activities that serve to exercise the Client’s profession or business, and for Activities that relate to products and installations that are exported by the Client to the US and Canada, or to areas to which the law of one of these countries has been declared applicable, the Contractor shall only be liable for damages that are not covered by the insurance referred to in Article 4 paragraph 15 and Article 5 paragraph 2.
7. If and to the extent that the Client has insured any risk associated with the Agreement, he shall be obliged to
claim any damages under that insurance and to
indemnify the Contractor against claims for recovery
from the insurer. 8. The extent of the damages to be compensated by the Contractor is limited to a maximum of the amount of the price set out in the Agreement or as agreed upon at the time the Agreement was concluded.no price has been determined,
as with management, up to the amount of the presumed price.
For maintenance contracts with a term of more than
one year, the price is set at the total of the fees for one year.
9. In no case will the compensation amount to
more than the total of the amounts of the excess of the
Contractor’s insurance and the payment made by the
Contractor’s insurer up to a maximum of € 1,000,000.00.
10. Any liability of the Contractor as well as
any (legal) claim of the Client on the grounds of
any shortcoming(s) of the Contractor shall lapse,
unless otherwise agreed, after
one year from the time of i) delivery
or termination in an unfinished state or ii) the time
at which the Agreement has ended by dissolution or cancellation. 11. The legal action based on a defect is inadmissible if the Client has not given the Contractor written and reasoned notice of default with due speed after discovering or reasonably
should have discovered the defect.
12. The right to claim based on a defect expires after one month after the expiry of the reasonable period stated in a written and reasoned notice of default.
13. The Contractor is not liable for compensation for damage to the Client or third parties (partly) caused by persons as referred to in article 6 paragraph 2.
14. The Client indemnifies the Contractor against all
claims by third parties due to (product) liability as a result of a defect in a product or installation supplied by the Client to a third party and
that partly consisted of goods developed and/or supplied by the Contractor, except if and to the extent that the Client proves that the damage was caused by those goods and without prejudice to the provisions
of paragraph 7 of this article.
15. Insofar as this does not already follow from the law or Agreement, the Contractor shall in any case not be liable if a shortcoming of the Contractor is the result of:
• labour disturbances at third parties or among own
personnel;
• performance of the Contractor’s supplier as
referred to in article 3 paragraph 11;
• transport problems;
• delivery problems of materials and/or
raw materials;
• epidemics;
• major riots;
• fire and loss of parts to be processed;
• measures by any domestic, foreign
or international government, such as import bans or
trade bans;
• violent or armed actions;
• disruptions in the energy supplies, in communication connections or in equipment or software of
the Contractor or third parties. If a circumstance as referred to in this section occurs, the Contractor will – in order to limit any adverse consequences for the Client – take such measures as may reasonably be expected of him.
16. The Client indemnifies the Contractor against
claims from third parties for compensation for damages, to the extent that such damages remain the responsibility of the Client under these general terms and conditions.
Article 17 Intellectual property
1. The intellectual and industrial property rights to all goods, software, data and (technical) information
delivered to the Client shall remain with the Contractor. Only the Contractor has the
right to publish, realise and reproduce these goods, data and information
and the Client has the exclusive right of use
thereof. 2. The documents issued by the Contractor to the Client, such as designs, drawings, technical descriptions or specifications, become the property of the Client and may be used by the Client in compliance with the rights arising from legislation in the field of intellectual and industrial property, after the Client has fulfilled its financial obligations to the Contractor. 3. The Client is not permitted to repeat the installation realised according to the Contractor’s design, in whole or in part, without the express written permission of the Contractor and without prejudice to the provisions of paragraphs 5 and 6. The Contractor is authorised to attach conditions to that permission, including the payment of a fee. The provisions of this paragraph apply accordingly to goods manufactured according to the Contractor’s design. 4. The Client is only authorized to have the installation
according to the Contractor’s design, without the Contractor’s intervention and approval,
by a third party, if the Agreement has been terminated
due to a shortcoming that can be attributed to the Contractor. In that case, the Contractor
is not liable for defects to the extent that they can be traced back to th
e installation by or on behalf of the Client.
5. The Client’s right of use with regard to the software developed and delivered by the Contractor is non-exclusive. The Client may only use this software in its own company or organisation and only for the technical installation for which the right of use has been granted. The right of use may relate to multiple installations to the extent that this is stipulated in the Agreement.
6. The right of use is not transferable. The Client is prohibited from making the software and the media on which it is recorded available to a third party in any way whatsoever or allowing a third party to use it. The Client is prohibited from reproducing the software or making copies thereof. The Client will not modify the software other than in the context of correcting errors. The source code of the software and the technical information produced during the development thereof will not be made available to the Client, unless otherwise agreed.
7. The Contractor is entitled to apply for a patent in its name and at its expense for inventions that have arisen during and through the execution of the Agreement.
8. If the Contractor obtains a patent as referred to in paragraph
7, it grants the Client a non-transferable right of use to that invention free of charge. In the event of a concrete application of that right of use, the Client will request permission from the Contractor, which permission can only be refused if the Contractor can demonstrate conflicting interests with its company.
Article 18 Applicable law and disputes
1. Dutch law applies to the Agreement and to all agreements resulting from it. 2. Any dispute between the parties will be settled by arbitration, to the exclusion of the ordinary court, in accordance with the statutes of the Council of Arbitration in Construction Disputes, as they read on the date on which the Agreement was concluded.
3. Notwithstanding the previous paragraph, the Contractor is authorised to have the dispute settled by the (ordinary) court in the district of the place of establishment of the Contractor.
4. The Client is obliged to elect domicile in the Netherlands in connection with the Agreement, insofar as he is not already established in the Netherlands. Failing this, the Client is deemed to have elected domicile in The Hague. General Terms and Conditions of Delivery for Installation Companies 2024 10
B. Special provisions
regarding maintenance
The provisions in this chapter “Maintenance” apply in addition to the
General Provisions of these general terms and conditions
if it is explicitly stated in the Agreement that the Contractor will carry out
maintenance work during the maintenance period.
Article 19 Scope and definitions
1. Unless otherwise agreed, Maintenance work will only be carried out on installations
installed in the Netherlands.
2. The following words used with a capital letter
in this chapter are given the corresponding meaning:
a) Maintenance work: all activities,
including the delivery of goods, that the
Contractor must carry out to ensure that
the technical condition of the installation and the functions to be
fulfilled by the installation during the maintenance period meet the requirements arising from the Agreement.
b) Fault: a sudden unexpected interruption
of the performance of the installation. Article 20 Execution of the Work
1. During the maintenance period, the Contractor will make reasonable efforts to keep the chance of Faults occurring at an acceptable level in accordance with the work plan referred to in paragraph 3 by means of preventive Maintenance Work and, if agreed, to eliminate Faults by means of corrective Maintenance Work.
2. The Contractor is authorised to perform the Maintenance Work remotely by means of a
connection to the installation established via a telecommunications facility.
3. After the Agreement has been concluded but before the start of the Maintenance Work, the Contractor will draw up a work plan with a schematic
overview of the Maintenance Work, the order and time period (week, month, annual schedule) in which it will be carried out. 4. The work plan is based on the description of the
Client of the fault behaviour of the installation,
of all tasks, frequencies of execution, materials,
resources and any necessary skills,
all for the purpose of carrying out the preventive
Maintenance activities and making the corrective
Maintenance activities manageable.
5. The work plan comes into effect after approval by the
Client. If the work plan fits the description
as mentioned in paragraph 4, the Client canever not withhold its approval of the work plan.
6. The Contractor shall adjust the work plan annually and
based on this estimate all maintenance costs for the year in question. The
work plan may only be adjusted in the interim by means of an
amendment pursuant to article 13.
7. As agreed, the work plan contains the
date of commencement and delivery of anticipated and intended
assignments for the execution of preventive and/or
corrective Maintenance Work and/or other
work.
8. The assignments referred to in paragraph 7 shall be issued in writing by the Client at least one
month in advance on the basis of the work plan. Assignments
that are not included in the work plan shall be issued in writing at least two
months in advance. Prior to issuing an assignment, the Contractor shall have given its price for it.
9. When carrying out corrective Maintenance Work, the Client must issue an
assignment in writing in advance. If this is not possible due to circumstances, the
assignment shall be issued afterwards on the basis of the actual costs incurred by the Contractor. 10. After completion of the Maintenance Activities, the Contractor requests the Client to sign the order for completion. After signing, the Maintenance Activities are deemed to have been delivered.
11. If this has been expressly agreed, the Contractor ensures that one copy of the technical information is present on the site or location where the Maintenance Activities are being carried out, that these documents can be consulted at all reasonable times and that the ‘As Built’ situation of the Maintenance Activities carried out is included in them for a fee set out in the Agreement.
12. If the performance, operational reliability and maintenance of the installation require this or the rules referred to in Article 3 paragraph 4 prescribe this, the Contractor will inform the Client of the measures to be taken. The Client can, by means of an amendment pursuant to Article 13, separately instruct the Contractor to carry out the necessary construction change or other (project-based) Activities. 13. The Contractor shall inform the Client in advance of the time at which the Maintenance Work will be carried out. If the Work is not carried out at the agreed time and this is not attributable to the Contractor, he shall be entitled to an extension of the term and/or compensation for costs pursuant to Article 12. 14. If this has been expressly agreed, the Contractor shall ensure that Faults can be reported 24 hours a day, seven days a week to a designated reporting point. 15. Without prejudice to the provisions of paragraph 9, the Contractor shall make every effort to remedy urgent Faults upon instruction from the Client within 24 hours of their reporting, unless a different period has been agreed. Other Faults shall be remedied during the Contractor’s normal working hours where possible. 16. The Contractor shall carry out the Maintenance Work during the maintenance period specified in the Agreement, failing which a period of one year shall apply.
General Terms and Conditions of Delivery for Installation Companies 2024 11
17. The maintenance period will be tacitly extended each time for the original period, unless one of the parties terminates the Agreement in writing with
observance of a notice period of three months
before the end of the relevant period.
18. The Maintenance Work carried out by the Contractor will be settled according to the rates, unit prices or
as a fixed price that are indexed annually in accordance with the Installation Technology Risk Regulation, unless otherwise
agreed.
19. Payment of the fees will take place within
14 calendar days after the date of the relevant
invoice.
20. In the event of cancellation of an order to carry out
Maintenance Work, the Client must observe a
notice period of at least one month.
