General Terms and Conditions

The following general terms and conditions of the FHI apply to all our offers and agreements.

FHI GENERAL TERMS AND CONDITIONS OF DELIVERY 2020

© FHI, Federation of Technology Industries 2020

These general terms and conditions of delivery have been drawn up by FHI, the Federation of Technology Industries, for the benefit of members of a trade association affiliated with the Association (defined below). Parties other than those referred to above are not permitted to use these general terms and conditions.

Neither FHI, the Federation of Technology Industries, nor its board is responsible or liable for the actions or inactions of its members.

No part of these general terms and conditions of delivery may be modified, reproduced, stored in an automated database, or published in any form or by any means, whether electronic, mechanical, by photocopying, recording, or any other means, without the prior written consent of FHI, Federation of Technology Industries.

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PART A: GENERAL PART

1 Definitions

1.1 Offer: Any offer made by the Contractor to the Client.

1.2 Advice: The provision of advice in the general sense of the word, which in any case includes advising in the field of automation and/or organisation, conducting applicability studies, performing system analysis, advising on equipment and/or software to be used by the Client, providing support in the development of software, giving and/or organising instruction, courses or workshops, and instructing and supervising employees.

1.3 ALV2014: These general terms and conditions of delivery, consisting of:

-Part A with general provisions;

-Part B with additional provisions concerning the delivery of services, including R&D, consulting, service and training, and including the contracting of work with the exception of the development of Software;

-Part C with additional provisions concerning the development and/or delivery of Software.

1.4 Documentation 
Brochures, product information, factory drawings, instructions, test certificates, catalogues, price lists, leaflets and all information provided in or with an Offer or during the performance of the Agreement, such as, but not limited to: designs, drawings/images, plans, descriptions, explanations, ideas, models, samples, tables, diagrams, databases, software, calculations and all other information that is confidential by nature.

1.5 Defect
A defect exists if the Goods or Services delivered by the Contractor to the Client under the Agreement are incomplete and/or do not meet the specifications and/or do not possess the characteristics that were explicitly confirmed in writing by the Contractor to the Client before or upon the conclusion of the Agreement.

1.6 Delivered
The goods delivered by the Contractor under the Agreement, including (part of) the Work and/or the Activities that the Contractor has delivered to or performed for the Client under the Agreement.

1.7 Without delay
As soon as reasonably possible.

1.8 Assignment
The agreed Work, as well as the agreed Work and other items to be delivered by the Contractor under the Agreement.

1.9 Order Confirmation
The written communication from the Contractor to the Client summarising the content of the Agreement. The Order Confirmation will usually describe the scope of the agreed delivery and the agreed prices and conditions.

1.10 Client
The party to whom the Offer made by the Contractor is addressed, to whom the Contractor has delivered and/or with whom the Contractor has entered into an agreement.

1.11 Contractor
A member of one of the trade associations affiliated with the Association (defined below) that uses the ALV2020 , refers to it or by or on behalf of whom the ALV2020 has been declared applicable, its representative(s), authorised representative(s) and legal successor(s) and any other (legal) person who, with the demonstrable consent of the Association, makes use of the ALV2020

1.12 Agreement
The Agreement between the Client and the Contractor, including any amendments agreed upon after the conclusion of the Agreement, and the agreed additional and reduced work.

1.13 Parties
Client and Contractor.

1.14 Party
One of the Parties.

1.15 In writing
Correspondence by registered letter, bailiff's writ, regular post or fax. This also includes correspondence by electronic means (such as by e-mail or web form), insofar as neither Party has demonstrably objected to the use of the electronic means in question.

1.16 Supplier
The party from which the Contractor obtains the goods it offers.

1.17 Association
FHI, federation of technology branches, registered in the trade register of the Chamber of Commerce under number 40507574.

1.18 Work
The item of a material nature or parts thereof that must be produced by the Contractor for the Client in order to fulfil the Agreement, such as, for example, a device, machine, semi-finished product, structure, installation or other item.

1.19 Work
The work performed by the Contractor for the Client in execution of the Agreement concerning the provision of services, insofar as this does not relate to the creation of a Work for the Client. This may include, for example, conducting research and development (R&D), conducting feasibility studies, providing advice, developing, designing, building and supplying and/or modifying software, systems or operating systems, designing mechanical and electrical installations, performing service and maintenance, assembly, disassembly, installation, de-installation, connection and disconnection, installation, construction, demolition, adjustment, calibration, validation, configuration, adjustment and setting work, commissioning, testing, measuring, calibration, inspection, inventory, training, workshops, guidance, etc. Services provided are generally charged on an hourly basis based on actual costs incurred when it concerns a pure best-efforts obligation.

2 Applicability of the ALV2014, titles and language

2.1 Applicability
These Terms and Conditions apply to every Offer, every delivery by the Contractor, every Agreement between the Contractor and the Client, and all other legal relationships between the Client and the Contractor. Deviations from these ALV2020 are only valid insofar as they have been explicitly confirmed in writing by the Contractor to the Client.

2.2 Authorised persons
Only employees of the Contractor who are authorised to do so according to the trade register of the Chamber of Commerce are authorised to perform legal acts on behalf of the Contractor. Legal acts performed by persons other than those authorised to do so according to the commercial register cannot be invoked against the party on whose behalf the legal acts were performed, unless the Contractor has ratified these legal acts in Writing.

Legal acts include, among other things, making an Offer, guaranteeing certain characteristics of a product, making commitments regarding delivery dates, changing previously made agreements, entering into an agreement, etc.

2.3 Digital communication requirements
During the term of the legal relationship, the Contractor may impose requirements on communication between the Parties or the performance of legal acts via digital media.

2.4 Titles
The titles and articles of the ALV2020 serve solely to facilitate reading and clarity and have no other meaning. In particular, the titles cannot be used for the interpretation of the ALV2020.

2.5 References
Where the ALV2020 refers to article numbers, those article numbers refer to the relevant articles of the ALV2020 unless the text indicates that the reference refers to articles from another document or source.

2.6 Proof of receipt
If the recipient disputes that certain Written correspondence has reached him, the sender bears the burden of proof that the recipient has received this correspondence. In the case of correspondence by electronic means, unless there is convincing evidence to the contrary, data concerning sending and receipt as recorded on the Contractor's server(s) shall serve as the sole proof.

2.7 Mutual priority clauses
Insofar as a clause in Parts B or C of the ALV2020 applies to the Agreement in question or to part thereof and a clause in Part B or C conflicts with a clause in Part A, the clause in Parts B or C shall prevail over the relevant clause in Part A with which it conflicts.

2.8 Language
The ALV2020 drawn up in the Dutch language shall prevail over the ALV2020 translated into English or any other language.

2.9 Leniency
If the Contractor – consciously or unconsciously – does not invoke any provision of these ALV2020 at any time, this does not mean that it waives the right to invoke that provision at a later stage.

3 The Offer and the Conclusion of the Agreement

3.1 Non-binding
Every Offer is non-binding unless a term for acceptance is specified in the Offer. A non-binding Offer may be withdrawn immediately after acceptance. In that case, no Agreement will be concluded.

3.2 Offer and acceptance
The Agreement is concluded by means of a Written Offer and its acceptance, with due observance of Articles 3.4 to 3.6.

3.3 Sales via webshop 
Contrary to the other provisions of this article, in the event that an order is placed via a webshop, the Agreement will only be concluded at the moment that it has been confirmed in writing by the Contractor to the Client by means of an Order Confirmation.

3.4 Modified acceptance
Insofar as the Client's acceptance of an Offer made by the Contractor deviates from the Offer in any respect, the Agreement shall only be concluded when the Contractor accepts the deviation in Writing and thereby confirms the conclusion and content of the Agreement by means of an Order Confirmation.

3.5 Non-written acceptance
If the Offer or the acceptance or both the Offer and the acceptance were not made in Writing, the Agreement will only be concluded at the moment that the Contractor confirms the conclusion and the content of the Agreement by means of an Order Confirmation and the Client does not immediately object to this in Writing.

3.6 Agreement by commencement of work
If, for whatever reason, there is a deviation from the procedure described in Articles 3.2, 3.4 or 3.5, the Agreement will still be concluded , subject to the following. The Agreement will then be concluded at the moment that the Contractor actually commences the performance of the Agreement or instructs third parties to do so. In such a situation, unless the Client can provide evidence to the contrary, the invoice shall be deemed to fully and correctly reflect the content of the Agreement.

3.7 Attached information
Documentation provided by or on behalf of the Contractor shall only be binding on the Contractor insofar as the Offer explicitly refers to information contained in this Documentation.

3.8 Documentation in single copy
The Contractor shall provide Documentation free of charge in a single copy, insofar as this has been agreed or is deemed important by the Contractor. The Client shall owe the Contractor reasonable compensation for additional copies of such Documentation.

3.9 Providing security
At the Contractor's first request, the Client shall, at its own expense, provide the Contractor with adequate security for the timely fulfilment of its obligations under the Agreement.

3.10 Engagement of third parties
The Contractor is authorised to engage third parties for the purpose of performing the Agreement concluded between the Parties and to charge the costs thereof to the Client in accordance with that Agreement.

4 Confidentiality

4.1 Prohibition
Without the Contractor's written consent, the Client is prohibited from copying or reproducing the Documentation or parts thereof in any way whatsoever, disclosing it to third parties, allowing third parties to use it, selling it to third parties or making it available to third parties.

4.2 Right to use Documentation
The Client is only permitted to use Documentation insofar as this is necessary for the conclusion or performance of the Agreement. At the Contractor's first request, as well as if the Agreement is not concluded, is terminated prematurely or is cancelled, the Client must immediately return all Documentation provided to it to the Contractor at its own expense.

4.3 Limited circle of readers
Within its own organisation, the Client shall only share the Documentation with its own employees and to the extent necessary for the conclusion or performance of the Agreement.

By accepting the Documentation, the Client guarantees that it has taken and will take adequate measures in a timely manner to prevent the Documentation or parts thereof from being disclosed to persons other than those persons/third parties who are permitted to take cognisance of the Documentation on the basis of this article.

5 Amendment of the Agreement

5.1 Only in Writing
An amendment to the Agreement can only be agreed in Writing. If the Parties have reached agreement on a specific amendment to the Agreement, the Contractor will confirm the amendment to the Client in Writing. This confirmation will in any case state the substantive, financial and time-related consequences of the amendment.

5.2 Or amended performance
If the Parties agree on the substance of the desired amendment to the Agreement but do not meet the Written Form Requirements as set out in Article 5.1, and the Contractor performs the Agreement in an amended form with the Client's knowledge, the invoice or invoices received by the Client from the Contractor shall be deemed to reflect the correct content and scope of the amended Agreement, unless the Client can provide evidence to the contrary.

5.3 Costs already incurred
If an amendment to the Agreement has been agreed, the Client shall in any case be obliged to reimburse the Contractor the agreed price for the work already delivered by the Contractor up to the time of the amendment and/or the work performed up to that time.

5.4 Costs of changes
If a change to the Agreement has been agreed, the Client shall reimburse the Contractor for the associated costs resulting from the change, as determined by the Contractor in all reasonableness. This may include, among other things, the cost price of materials or manpower already purchased, price changes of supplies, or cancellation costs as a result of the cancellation of supplies that were initially necessary for the performance of the unamended Agreement.

5.5 Delivery times also change
If a change to the Agreement has been agreed, the Contractor shall be entitled to deviate from previously agreed delivery times and lead times to the extent that it deems necessary in order to be able to perform the Agreement in its amended form.

6 Early termination

6.1 Mutual consent

The parties may only jointly agree that the Agreement will be terminated early and under what conditions such termination will take place.


7 Prices

7.1 Euros
Unless stated otherwise in the Offer, all prices are in euros and exclude VAT, import duties and other levies, taxes or excise duties, packaging costs, insurance costs and disposal fees.

7.2 Transport and insurance costs in the Netherlands
Unless otherwise agreed, the costs of transport and insurance for deliveries within the Netherlands shall be borne by the Client.

7.3 Transport and insurance costs abroad
Unless otherwise agreed, deliveries outside the Netherlands shall be made ex-works manufacturer in accordance with the most current version of the Incoterms at the time the Offer is made.

7.4 Other costs
The costs of assembly, installation, extension or removal, connection or disconnection, construction, connection, adjustment, calibration, validation, verification, instruction, testing, inspection and commissioning are only included in the price or form part of the delivery insofar as the Parties have agreed this in writing.

7.5 Exchange rate fluctuations > +/- 2%
In the event of a non-binding Offer and also if this reservation is included in a binding Offer, the Contractor is entitled to adjust prices if the official currency parity at the time of purchase of the necessary goods and/or the time of delivery deviates by more than 2% from the currency parity on the date on which the Offer was made, with the latter parity being set at 100.
 

8 Risk

8.1 Risk of transport within the Netherlands
For shipments within the Netherlands, the risk of theft, damage, destruction or deterioration shall pass to the Client at the time of delivery of the goods in question, with due observance of the other provisions of this article.

8.2 Risk of transport abroad
For deliveries outside the Netherlands, the risk associated with transport is regulated in accordance with the provisions of the Incoterms agreed by the Parties (see Article 7.3).

8.3 Transport risk within the gates
The risk during transport on the Client's premises shall at all times be borne by the Client, unless the Client can prove that the damage was caused by intent or gross negligence on the part of the Contractor's management.

8.4 Risk after transport abroad
In the case of delivery outside the Netherlands, the risk of theft, damage or deterioration shall in any case pass to the Client at the moment that the Contractor has fulfilled all its obligations in accordance with the agreed provisions of the Incoterms.

8.5 Risk of actions
Except in cases of intent or gross negligence on the part of the Contractor's management and unless otherwise agreed, without prejudice to the provisions of Article 18, the following risk shall be borne by the Client:
The risk of loss, theft, damage, destruction or deterioration of the Contractor's Deliverables, the Client's property the Client and those of third parties, in connection with the work performed by the Contractor for the purpose of, among other things, but not limited to, assembly, installation, extension or removal, connection or disconnection, construction, connection, adjustment, calibration, validation, calibration, instruction, testing, inspection and commissioning.

8.6 Risk of goods under the Contractor
If the Contractor has separated goods for the Client from its other stock items but has not yet delivered them for any reason whatsoever, or if the Contractor keeps goods for the Client in its possession, for example for repair, inspection, calibration, validation, training, testing or for any other reason, the risk of loss, theft, damage, destruction or deterioration shall be borne by the Client, unless the risk in question has materialised as a result of intent or gross negligence on the part of the Contractor's management.

8.7 Risk of return shipment of Client's goods
In the event that the Contractor has goods belonging to the Client in its possession for, for example, repair, inspection, etc., and these goods have to be sent or transported for any reason whatsoever, the risk of loss, theft, damage, destruction or deterioration during that transport shall be borne by the Client.
 

9 Delivery

9.1 Administration costs
For orders that do not exceed an amount to be determined by the Contractor, the Contractor may charge a fee to be determined by him as a contribution to the administrative and logistical costs.

9.2 Time of delivery
In the case of delivery within the Netherlands, the time of delivery is the moment at which the goods to be delivered are unloaded or discharged at the agreed location. In the case of delivery outside the Netherlands, the time of delivery is the moment at which the Contractor has fulfilled all obligations in accordance with the provisions of the Incoterms agreed by the Parties (see Article 7.3). For the moment at which the risk is transferred, see Article 8; for the moment at which ownership is transferred, see Article 16.

9.3 Reporting transport damage, etc.
The Client must report any shortages, defects and damage in writing directly to the Contractor within 24 hours of delivery, failing which the goods will be deemed to have reached the Client in good order, complete and without damage or defects.

9.4 Deliveries in parts
The Contractor is entitled to deliver the goods to be delivered in parts and to invoice these parts separately.

9.5 Acceptance
Insofar as a test, trial or inspection (hereinafter: “Acceptance Test”) has been agreed with regard to a delivery and a Defect is found, the Defect must be reported immediately, with due observance of the provisions of Article 17.4. If no Defect is reported immediately after the Acceptance Test, with due observance of the provisions of Article 17.4, the delivery shall be deemed to be in accordance with the Client's legitimate expectations.

9.6 Return shipment
The return to the Contractor of goods delivered by the Contractor or any part thereof, for whatever reason, may only take place after prior Written consent and only in accordance with any shipping instructions given by the Contractor to the Client.

9.7 Non-acceptance of goods
In the event that the Client does not accept a delivery offered by the Contractor or has indicated that it will not accept it, the Contractor is nevertheless entitled to charge the Client for the goods in question and is furthermore entitled to store these goods at its own discretion and at the Client's expense and risk as long as it deems this appropriate, without prejudice to all other rights granted to it by law in connection with the Client's failure to comply.

9.8 Permits
The Client shall be responsible for obtaining, at its own expense, any permits, concessions, licences, authorisations, etc. that are necessary for the Contractor to properly fulfil all its obligations under the Agreement.
 

10 Call-off orders

10.1 Definition
The parties may agree that the Client will purchase a certain quantity within a certain period and that the Client will purchase this quantity in more than one separate delivery, according to a specific call-off schedule. This agreement is hereinafter referred to as a 'Call-off order'. In that case, the Contractor has the right to invoice the separate deliveries referred to above separately.

10.2 Deliveries according to call-off schedule
If a Call-off Order has been agreed, the Contractor shall offer the separate partial deliveries on the agreed delivery dates without any action being required on the part of the Client.

10.3 Deviating from the call-off schedule
After a call-off order has been agreed, the Parties may agree to deviate from a specific delivery time in the call-off schedule, with due observance of the following paragraphs of this article.

10.4 Written confirmation
A change to the call-off schedule shall only take effect after the Contractor has confirmed the changed delivery dates for the relevant partial deliveries to the Client in writing.

10.5 Keeping goods in stock for longer
If, as a result of an agreed change to the call-off schedule, the Contractor has to keep goods in stock for longer than would have been the case if the original call-off schedule had been followed, the Contractor shall keep these goods in stock at the Client's expense and risk.

10.6 Changes to call-off schedule and end date
If the Parties agree on a new delivery date for a specific partial delivery of a Call-off Order, the other agreed delivery dates for partial deliveries will remain unchanged; they will not automatically be moved forward. A newly agreed delivery date for a partial delivery may not be later than the originally agreed delivery date for the last partial delivery of the Call-off Order. If the Client wishes to change the delivery date of the last instalment of the call-off order, the Agreement must be amended as described in Article 5.

10.7 Interrupting call-off orders
A call-off order can only be terminated prematurely with the consent of both Parties, with due observance of the provisions of Article 6. If the agreed price was based on the purchase of a certain volume and if a higher price would have been charged for the final purchase of a lower volume, the Client shall in any case be obliged to pay the difference, without prejudice to the provisions of Article 6.

11 Spare parts

11.1 After the warranty period
After the expiry of the agreed warranty period, the Contractor cannot be obliged to supply spare parts for goods delivered.

11.2 Warranty on spare parts
If spare parts are supplied or installed by the Contractor to repair a Defect, the warranty period for these spare parts will not recommence. The warranty period for the original delivery remains unchanged.

11.3 Parts no longer available
Insofar as the Contractor is obliged by law or Agreement to supply spare parts for goods or parts thereof previously delivered to the Client, this obligation shall lapse at the moment that the Contractor no longer has these spare parts in stock and they are also no longer available on the market through regular channels at reasonable conditions.

11.4 Comparable goods/parts
In the event that the Contractor is obliged to replace goods or parts thereof delivered to the Client, it shall be free to supply a comparable good or part insofar as it is suitable, in its opinion, for the same normal use for which the good or part to be replaced was suitable.

11.5 Consumables
Insofar as the Parties have not made any Written agreements regarding the availability of consumables, the Contractor shall no longer be obliged to supply consumables after the expiry of the agreed warranty period.

12 Delivery times

12.1 Foreign Supplies
It may happen that the goods offered by the Contractor, such as parts, semi-finished products or raw materials required for their production, hereinafter referred to as 'Foreign Supplies', are supplied directly or indirectly from various continents and countries and/or are sourced from different Suppliers. The Contractor cannot rule out the possibility that, in exceptional cases, these Foreign Supplies may be difficult to obtain or even unavailable for some time as a result of, for example, a shortage of raw materials on the world market, environmental disasters and significant fluctuations on the supply side. As a result, it is not always possible for the Contractor to predict exactly when delivery can be made at the time the order is placed. In order to inform the Client as accurately as possible, the Contractor will apply the procedure described in the following paragraphs of this article.

12.2 No strict deadlines
The Contractor shall state the estimated delivery times in its Offer. After the Agreement has been concluded, the Contractor may verify these estimated delivery times and confirm them to the Client. The verified delivery times may differ from the estimated delivery times stated in the Offer. Neither the estimated delivery times nor the verified delivery times are strict deadlines.

12.3 Extension of delivery times
Because unexpected situations may arise during the purchase, production, assembly and transport of the ordered goods and the materials, raw materials and semi-finished products used in them, over which the Contractor has no influence in its reasonable opinion, the Contractor has the right to extend the verified delivery times by a maximum of four weeks at any time. To this end, the Contractor shall send a confirmation before the end of the verified delivery period, stating the new verified delivery time(s).

12.4 Termination after four extensions
If the expected delivery time has been extended more than four times, the Client is entitled to terminate the Agreement in whole or in part. If the Client terminates the Agreement on the basis of this provision, this will not result in any obligation on the part of either Party to compensate the other Party for any damage suffered as a result of that termination.

12.5 Notice of default required for default on agreed delivery date
If, at the Client's request, the Parties have agreed that deliveries must take place on a specific day and it has been stated in writing before or upon conclusion of the Agreement that later delivery is not acceptable, the Contractor shall not be in default with regard to exceeding those agreed delivery times until it has been given written notice of default and has been offered a reasonable period of time to still deliver. In determining the reasonable period, account shall in any case, but not exclusively, be taken of the currently applicable delivery times and production lead times, the duration of any transport(s) and the availability of raw materials and building materials.

13 Force majeure (non-attributable failure)

13.1 No obligation in case of force majeure
Neither Party shall be obliged to fulfil any obligation, including any warranty obligation agreed between the Parties, if it is prevented from doing so as a result of force majeure.

13.2 Scope
Force majeure shall also include: (I) force majeure on the part of the Contractor's Suppliers, (II) the failure of Suppliers prescribed by the Client to the Contractor to properly fulfil their obligations, (III) defects in goods, equipment, software or materials of third parties whose use has been prescribed to the Contractor by the Client, (IV) government measures, (V) power failure, (VI) failure of the internet, service providers, computer network or telecommunications facilities, (VII) war, (VIII) work occupation, (IX) strike, (X) general transport problems and (XI) the unavailability of one or more members of staff whose personal efforts are necessary in connection with the performance, (XII) terrorist attacks or occupations, (XIII) epidemics and pandemics, (XIV) financial crisis, (XV) the non-functioning of the payment network of the relevant banks.

13.3 Partial termination
If a force majeure situation lasts longer than ninety days, each of the Parties shall be entitled to terminate the Agreement in writing, or, if performance has already been rendered under the Agreement, to terminate it partially. In the event of partial termination or the impossibility of undoing the performance, the Parties shall be obliged to make a partial payment or compensation for the value respectively. The Parties shall make the payments to be made in connection with this settlement without delay.

13.4 Notification of force majeure
If the Contractor wishes to invoke force majeure, it shall notify the Client of this as soon as practicable. The consequences of force majeure shall take effect from the moment the circumstance, cause or event leading to it has occurred.

13.5 Suspension
If the Contractor is prevented by force majeure from fulfilling any due obligation towards the Client and the force majeure situation is, in the Contractor's opinion, of a temporary or transitory nature, the Contractor is entitled to suspend the performance of the Agreement until the circumstance causing the force majeure situation no longer exists.

13.6 Priority
If, as a result of force majeure, the Contractor is prevented from fulfilling its obligations towards one or more of its customers or Clients, but not its obligations towards all customers and Clients, the Contractor shall be entitled to decide at its own discretion which of the obligations it will fulfil and towards which customers and Clients, as well as the order in which this will take place.

14 Warranty

14.1 Product warranty
With due observance of the other provisions of these general terms and conditions, the Contractor exclusively guarantees that the Delivered Goods, with the exception of consumables, comply with the product specifications at the time of delivery and that they possess the properties confirmed in writing by the Contractor to the Client before or upon the conclusion of the Agreement.

14.2 Extended warranty/Performance warranty
The Parties may agree that the Contractor will provide a warranty that goes beyond the product warranty as referred to in Article 14.1, with due observance of the provisions of this paragraph. The Contractor only guarantees that the Delivered Goods will function and/or perform in a certain way in combination with goods delivered by third parties and/or in combination with goods belonging to the Client (e.g. in a process, in a machine or in an installation belonging to the Client), hereinafter referred to as: "Performance Guarantee", when and insofar as this has been explicitly confirmed in writing by the Contractor to the Client before or upon the conclusion of the Agreement, with due observance of Article 2.2. The conditions for the creation of an obligation to achieve a result with regard to a Work, as included in Article 28.4, also apply to the creation of a Performance Guarantee. A Performance Guarantee shall lapse if, after delivery, circumstances arise which, in the opinion of the Contractor, adversely affect the functioning of the Delivered Goods and which were not reported by the Client to the Contractor before or upon the conclusion of the Agreement and confirmed in Writing by the Contractor to the Client. Unless otherwise agreed, a Performance Guarantee expires twelve (12) months after delivery.

14.3 Term
Unless other warranty periods are stated in the Offer, the warranty referred to in 14.1 for new items is twelve (12) months from the moment of delivery. Unless otherwise stated in the Offer, no warranty is given on used items delivered by the Contractor.

14.4 Reporting defects during the warranty period
If the Client becomes aware of a Defect and wishes to invoke the warranty in respect of the defective delivery, the Client must report this Defect in accordance with the provisions of Article 17.4, on pain of forfeiture of the right to do so.

14.5 Repair or replacement
If, in the opinion of the Contractor, there is indeed a Defect that can be attributed to him and if the Client is entitled to the warranty referred to in Article 14.1 with regard to this Defect, the Contractor shall, at its discretion, either repair this Defect or replace the defective item, unless such repair or replacement cannot reasonably be expected of it.

14.6 Method of repair
The Contractor is free to repair a Defect itself or to outsource this or engage third parties for this purpose.

14.7 Delivery to the Contractor
Goods that are eligible for warranty must be delivered to the Contractor by the Client at the Client's own expense. All costs incurred as a result, such as, but not limited to, costs related to installation and removal, calibration, verification, start-up, loss of production, waiting time, production downtime, packaging, insurance and transport, shall be borne by the Client.

14.8 Reimbursement of costs
If, in the opinion of the Contractor after inspection, the goods sent to the Contractor under warranty do not appear to have any Defects, or if the Client is not entitled to a warranty, the Client is obliged to reimburse the Contractor for all costs of inspection, storage and shipment.

14.9 What is not covered by the warranty
Without prejudice to the other provisions of this article, the Client shall in no event be entitled to a warranty:

• if the Delivered Goods have not been used for the purpose and under the conditions for which they were delivered;
• if the Delivered Goods are used contrary to the instructions and regulations, etc.;
• with regard to items made available for processing by the Client;
• if the alleged Defect is the result of wear and tear due to normal use;
• for Work delivered that is of a best-efforts nature;
• to items prescribed by the Client or procured by the Contractor from third parties designated by the Client.
   

14.10 Expiry of warranty
All warranty claims shall lapse immediately if, without the Contractor's written consent:

• changes, modifications and/or repairs have been made to the Delivered Goods;
• the Delivered Goods are not or have not been used or treated in accordance with the accompanying and/or applicable (manufacturer's) instructions or user manuals;
• the Delivered Goods are or have been used or treated improperly in any other way;
• a software modification or upgrade has been made to or in relation to the Delivered Goods that has not been carried out by the Contractor itself or by a third party designated by the Contractor;
• the Delivered Product is or has been used or applied for purposes other than those for which it is intended;
• the Delivered Goods are or have been used in a manner that could not reasonably have been foreseen by the Contractor on the basis of the information provided by the Client to the Contractor before or at the time of the conclusion of the Agreement.
   

14.11 Exemption from warranty obligations
As long as the Client fails to fulfil one or more of its obligations towards the Contractor under any Agreement, the Contractor shall be exempt from its warranty obligations from the moment the Client fails to fulfil its obligations properly until the moment the Client has properly fulfilled all its obligations towards the Contractor. The warranty period shall continue to run during the period that the Contractor is released from its warranty obligations.

14.12 Damage during the warranty period
Insofar as the Contractor is obliged during the warranty period to compensate the Client for damage or costs suffered by the Client as a result of a Defect, the Contractor's fulfilment of its warranty obligation shall be deemed to be the sole and complete compensation.

15 Security rights

15.1 Right of retention
The Contractor shall have a right of retention on all goods belonging to or on behalf of the Client that are in the Contractor's possession, regardless of the cause or reason for this, for as long as the Client has not fulfilled all its obligations towards the Contractor.

15.2 Formation of new items
If the Client creates a new item (in part) from items delivered by the Contractor, the Client shall create the newly formed item for the Contractor until the Client has fulfilled all its obligations towards the Contractor arising from the Agreement. In that case, the Contractor shall retain all rights as owner of the formed item until the Client has paid in full. By entering into the Agreement with the Contractor, the Client grants the Contractor permission to enter its premises and buildings to take possession of its property.

15.3 Pledge
At the Contractor's first request and at the Client's expense, the Client shall cooperate in establishing a non-possessory pledge on newly formed items as referred to in Article 15.2, in which items delivered by the Contractor have been incorporated, as long as the Client has not yet fulfilled all its obligations towards the Contractor.

16 Retention of title

16.1 Extensive retention
Without prejudice to the provisions of Article 8 concerning risk and its transfer, all goods delivered by or on behalf of the Contractor shall remain the property of the Contractor until the Client has fulfilled all its due and payable obligations towards the Contractor.

16.2 Due care
The Client is obliged, for as long as the ownership of goods delivered by or on behalf of the Contractor still belongs to the Contractor pursuant to the provisions of Article 16.1, to keep these goods separate from other goods in such a way that they can be easily and clearly recognised as goods belonging to the Contractor.

16.3 Recovery
In the event of non-payment of any amount owed and due by the Client to the Contractor, and furthermore in the event that the Agreement ends other than by completion, the Contractor is entitled to reclaim the goods to which the retention of title applies as its property and to take or have taken the measures associated with this, offset against any amount already paid in respect of those goods, without prejudice to the Contractor's right to claim compensation for any loss or damage. In the event of such non-payment or termination of the Agreement, any claim that the Contractor has against the Client shall become immediately due and payable.

16.4 Recovery of goods
At the Contractor's first request, the Client shall provide a power of attorney for the immediate return of the goods that have not yet been paid for in full, wherever they may be located. The Client undertakes to cooperate at the Contractor's first request in order to enable the Contractor to exercise its retention of title, including any dismantling, removal, disconnection, etc.

16.5 Consequences of sale
The Client is entitled to sell or use goods subject to retention of title in favour of the Contractor in the normal course of business; however, no security interest may be established on these goods, and the Client may not perform or cause to be performed any acts with regard to these goods that would make them part or component of one or more other goods. In the event that goods are resold to which a retention of title in favour of the Contractor still applies, the Client is obliged to retain ownership of these goods and, at the Contractor's first request, to assign all claims against the Client's debtor to the Contractor up to the amount owed.

17 Prevention of damage, notification of defects

17.1 Care by the Contractor
In performing the Agreement, the Contractor shall exercise the care that may reasonably be expected of it. Nevertheless, it cannot be ruled out that the Deliverables delivered by the Contractor may arrive at the Client's premises with Defects as a result of events during transport or unforeseen circumstances, or may develop Defects as a result of the manner in which they are used by the Client.

17.2 Prevention of damage
The Deliverables may be used in the Client's processes or installations. The manner in which the Deliverables are incorporated or used, the circumstances under which the Deliverables are used and the specific requirements imposed on the Deliverables are generally not fully known to the Contractor. In the unlikely event that the Deliverables show a Defect, this may cause damage to the Client. The extent of that damage depends to a large extent on the manner in which the Client's processes and installations are designed and the purpose of those processes and installations. Important factors include, for example, the method and speed of monitoring, whether or not redundant designs are used, the frequency and depth of inspections, the types and methods of alerting in the event of malfunctions, whether or not permanent supervision is in place, malfunction handling routines and related business processes, the quality of maintenance, etc. Since all the above parameters fall within the Client's domain, the Client is responsible for taking adequate measures to prevent unnecessary or unnecessarily high damage in the event that a good delivered by the Contractor becomes defective.

17.3 Warning
The use of items that do not function properly can have serious consequences for the functioning of processes or installations of which the Delivered Goods form part, or for the persons involved. This is therefore strongly discouraged by the Contractor.

17.4 Notification of Defect
The Client must report a Defect to the Contractor in writing immediately after becoming aware of it or after it could reasonably have become aware of it if it had taken adequate measures as referred to in Article 17.2. The notification of the Defect must be sufficiently specific and concrete ( ) that it is clear to the Contractor, without further enquiry, what the nature of the Defect is and what actions may reasonably be expected of him. When notifying the Defect, all relevant circumstances that are or could be important for assessing the circumstances of the Defect must be described.

18 Liability

18.1 Conditions for compensation for damage
Except in the case of intent or gross negligence on the part of the Contractor's management and with due observance of the other provisions of the ALV2020 and in particular the other paragraphs of this article, the Contractor is only obliged to compensate the Client for damage suffered as a result of a Defect. The obligation to compensate for damage shall not arise until each of the following conditions has been met:

• the Defect must have been reported by the Client to the Contractor in the manner described in Article 17.4;
• there must be a failure as described in Article 18.2 and Article 18.3;
• the damage must be attributable to the Contractor;
• The client has sufficiently demonstrated that it has taken adequate precautions to prevent or limit the damage as referred to in Articles 17.2 and 17.3, among others.
   

18.2 Duration of default
The contractor is in default for the period during which the performance is delayed after it has become due and the requirements of Article 18.3 have been met, except insofar as the delay cannot be attributed to him or performance has already become permanently impossible.

18.3 Notice of default
The default referred to in Article 18.2 shall only occur when the Contractor is given notice of default by the Client in a written reminder setting a reasonable period for performance, and performance does not take place within this period. In determining the reasonable period, account shall in any case, but not exclusively, be taken of the delivery times and production lead times applicable at the time of the notice of default, the duration of any transport(s) and the availability of raw materials and building materials.

18.4 Liability insurance
The Contractor may, but is not obliged to, insure itself against damage that may arise as a result of a failure attributable to it in the fulfilment of its obligations towards the Client. By entering into an Agreement, the Client accepts that it is his responsibility to check in advance whether the cover provided by the liability insurance taken out by the Contractor is, in his opinion, sufficient for the Assignment in question. The Contractor shall send a copy of the relevant insurance policy to the Client at the Client's first request.

18.5 Limitation of liability
If, with due observance of the above, the Contractor is liable to the Client and is obliged to compensate the Client for damage, the obligation to compensate for damage is limited to compensation for direct damage and to a maximum of the amount involved in the Agreement (excluding VAT). If the Agreement is primarily a continuing performance contract with a term of more than one year, the amount involved in the Agreement shall be set at the total of the fees (excluding VAT) stipulated for one year. In any case, the obligation to pay compensation shall in all cases be limited to a maximum of €500,000 (five hundred thousand euros).

Direct damage is exclusively understood to mean: (I) repair, restoration or replacement costs, (II) reasonable costs incurred to determine the cause and extent of the damage, (III) reasonable costs incurred to prevent or limit damage, insofar as the other party demonstrates that these costs have led to a limitation of direct damage as referred to in these general terms and conditions.In the event that the insurer pays out an amount in connection with the Contractor's liability as referred to above, the obligation to compensate for damage is also limited to the amount paid out by the insurer for the case in question or to the amount covered by the insurance.

18.6 Exclusion of liability for indirect damage

The Contractor's liability is excluded for indirect damage or consequential damage, which in any case includes:

• damage other than the damage incurred by the Contractor in remedying the direct consequences of the non-performance;
• damage due to lost profit, production stoppage, destruction or deterioration of goods as a result of production stoppage, missed savings, business interruption or reduced goodwill;
• damage resulting from claims by third parties, including customers of the Client;
• damage related to the use of items prescribed by the Client to the Contractor, including but not limited to: installations, tools, machines, materials or data, information or software from third parties;
• damage related to the engagement of suppliers, programmers, advisers or auditors prescribed by the Client to the Contractor;
• damage resulting from mutilation, destruction or loss of data, settings of digital equipment, software, information, data or documents.
   

18.7 Other exclusions
The Contractor's liability is also excluded for:

• the direct and indirect consequences of the Client's failure to strictly comply with the instructions for use or operation;
• normal wear and tear, and damage and/or wear caused by improper use and as a result of overloading or any other form of abnormal use.
• abnormal or unforeseen circumstances, or at least circumstances that the Contractor could not reasonably have taken into account on the basis of the information provided to it when the Agreement was concluded;
• damage against which the Client could have insured itself.
   

18.8 Accumulation
The exclusions and limitations of the Contractor's liability as described in Article 18 do not affect the other limitations and exclusions included in the ALV2020.

18.9 Limitation period
Any claim that the Client has against the Contractor shall lapse by the mere expiry of twelve (12) months after the claim arose and in any case after the expiry of three years after delivery by the Contractor, regardless of the legal basis of the claim.

18.10 Indemnification
The Client shall indemnify and compensate the Contractor in respect of all claims by third parties for compensation for damage suffered by these third parties, including claims for product liability and infringement of intellectual property rights, as a result of goods delivered by the Client to these third parties that also consisted of goods delivered by the Contractor.

18.11 Invocation of ALV2020 by others
The provisions of this article, as well as all other limitations and exclusions of liability mentioned in the ALV2020, also apply in favour of employees in the service of the Contractor and of all (legal) persons of whom the Contractor makes use in the performance of the Agreement and in favour of the group of which it is a part.

18.12 General terms and conditions of third parties
With regard to goods and services that the Contractor has obtained from a third party, the provisions applicable to the relevant agreement concerning warranty, spare parts and liability shall also apply to the Agreement between the Contractor and the Client, if and insofar as the Contractor invokes them. By entering into an Agreement, the Client grants the Contractor the authority to accept a limitation of the liability of this third party.

19 Intellectual property rights

19.1 Ownership
All intellectual property rights, hereinafter referred to as 'IP', to the Documentation, inventions, ideas, software, ICs, data files, diagrams, equipment, samples, circuits, methods, setups, installations, solutions, analyses, designs, reports, quotations, are vested exclusively in the Contractor or its licensor(s) or its Supplier(s).

19.2 Right of use of deliveries
Unless otherwise agreed in Writing, the Client shall, in connection with the agreed deliveries, insofar as applicable, only acquire the perpetual, non-exclusive and non-transferable rights of use for the specific application for which the delivery was intended and exclusively for use in the country where the delivery was to take place in accordance with the Agreement.

19.3 Transfer of right of use
The rights of use referred to in Article 19.1 shall only transfer to the Client once the relevant deliveries have been completed and have taken place properly and the Client has fulfilled all its obligations under the Agreement towards the Contractor.

19.4 Registration of IP rights
Insofar as registration is required with regard to the rights referred to in 19.1 before the relevant right comes into existence, the Client is prohibited from performing or having performed the relevant registration actions without the Contractor's written consent.

19.5 Infringement
In the unlikely event that a product sold by the Contractor to the Client infringes a third party's intellectual property rights in the Netherlands and the Client is held liable in this regard, the Client is obliged to immediately notify the Contractor of this in writing. In that case, the Contractor is entitled, at its discretion, to remedy this infringement by:

• granting the Client the right to use that item, or
• modifying the goods in such a way that they no longer infringe, or
• supplying a replacement good that does not infringe, or
• refunding the purchase price to the Client after the goods have been returned, less a reasonable compensation for the period during which the Client had the goods at its disposal.

The Client shall not be entitled to assert any claim against the Contractor or have any recourse in respect of any infringement of an IP right outside the Netherlands.

19.6 Exclusion of liability for IP
The Contractor shall not be liable for any infringement of any intellectual property right or any other exclusive right resulting from:

• any change in or to goods sold or delivered by or on behalf of the Contractor;
• any use or application of such goods other than that prescribed by the Contractor or that the Contractor could assume on the basis of the Agreement;
• integration, use or application with goods, including (parts of) systems and networks, not sold and delivered by or on behalf of the Contractor;
• a software modification that has not been made by or on behalf of the Contractor.

20 Payment

20.1 Payment terms
The Client shall pay the invoices in accordance with the payment conditions stated on the invoice. If no specific terms are stated on the invoice, the Client shall pay within thirty (30) days of the invoice date stated on the invoice. The Client is not entitled to set off or suspend payment. The value date indicated on the Contractor's bank statements on which a payment is received shall be deemed to be the date on which the payment was made.

20.2 Order of payment
Any payment made by the Client shall first be used to settle any interest owed by the Client and any collection and administration costs owed to the Contractor, if applicable, and then to settle any outstanding claims in order of age.

20.3 Late payment
If the Client fails to pay the amounts owed to the Contractor on time, the Client shall owe statutory interest on commercial transactions on the outstanding amount, calculated cumulatively per month, without any reminder or notice of default being required. If, after a payment reminder, demand or notice of default, the Client still fails to fulfil its payment obligations within a reasonable period of time, it shall be in default by operation of law. From that moment on, in addition to the costs determined by law, the Client shall also be obliged to reimburse the Contractor for the actual legal costs incurred by the Contractor and the actual extrajudicial costs incurred, including the costs charged by party and/or legal experts.

20.4 Complaints about invoices
Complaints regarding an invoice must be submitted to the Contractor in writing within eight (8) days of the date of that invoice.

20.5 Payment obligation remains
Reporting a Defect as described in Article 14.4 and/or Article 17.4 does not release the Client from its payment obligations towards the Contractor.

21 Termination of the Agreement

21.1 Dissolution
In the event that one of the Parties is in default, this gives the other Party the right to terminate the Agreement in whole or in part.

21.2 Compensation for damage
In the event of termination by the Client, the Contractor shall not be obliged to pay compensation to the Client.

21.3 Immediate termination in specific cases
The Contractor may terminate the Agreement with immediate effect without notice of default if the other Party is declared bankrupt, surrenders its assets, is granted a (provisional or definitive) moratorium on payments, if the entire assets of the other Party or part thereof are seized, or if the other Party's business is liquidated or terminated.

21.4 Consequences of termination
If a Party terminates an Agreement pursuant to the provisions of this article, the amounts owed by the Client to the Contractor at the time of termination shall remain fully due and payable, and the Client shall owe interest and costs on these amounts in accordance with the provisions of the ALV2020, without prejudice to the Contractor's right to claim compensation, to exercise the rights arising from retention of title, to take other (legal) measures and to exercise other rights to which the Contractor is entitled.

22 Cancellation at the request of the Client

22.1 Mutual consent
The Client may request the Contractor to agree to the cancellation of an Agreement that has already been placed but not yet executed. Cancellation of an Agreement cannot take place until the Parties have reached agreement in writing on the cancellation conditions, including the amount of the cancellation costs, and until all agreed cancellation conditions have been fully met in the opinion of the Contractor.

22.2 Time of cancellation
As long as the Parties have not reached agreement on the cancellation conditions or as long as the Contractor considers that the cancellation conditions have not been fully met, the Agreement will continue and the Parties will remain obliged to fulfil their mutual obligations under that Agreement in full.

22.3 Amount of cancellation costs
The amount of the cancellation costs will be determined by the Contractor on a case-by-case basis. The following factors, among others, are important in determining the amount of the cancellation costs:

• the amount involved in the Agreement;
• the extent to which the Agreement has already been performed;
• the type of Agreement (delivery of goods, development assignment, delivery of a work, service agreement, training/education, etc.);
• the costs already incurred by the Contractor up to the time of cancellation; the obligations already entered into by the Contractor in connection with the performance of the Agreement;
• the actions that the Contractor must take in connection with the cancellation;
• the profit that the Contractor will lose as a result of the cancellation.
   

22.4 Damage due to cancellation
In the event of cancellation of an Agreement, the Contractor shall in no event be obliged to compensate the Client for any damage suffered or likely to be suffered by the Client as a result of such cancellation.

 

23 Applicable law and disputes

23.1 Dutch law
Dutch law applies to every Offer made by the Contractor, every Agreement entered into by or on behalf of the Contractor and every other legal relationship between the Parties. The applicability of the Vienna Sales Convention 1980 is excluded.

23.2 Choice of forum
Disputes arising from an Agreement concluded between the Contractor and the Client will be submitted to the competent court in the district in which the Contractor is established as the court of first instance, on the understanding that if a particular court is designated as the competent court by mandatory law, the dispute will be settled by the court thus designated as the court of first instance, without prejudice to the Contractor's right to seize assets and take or cause to be taken other provisional measures at the place(s) before those courts where the Contractor deems this desirable.

23.3 Other
The provisions of Article 23.2 do not affect the Contractor's right to submit a dispute to the court with jurisdiction under the normal rules of jurisdiction, or to have it settled by arbitration or binding advice.

24 Validity

In the event that any provision of these ALV2020 is wholly or partially invalid and/or unenforceable, as a result of any statutory provision, court ruling, or any directive, decision, recommendation or measure of any local, regional, national or supranational authority or body, or otherwise, this shall not affect the validity of all other provisions of these GTC2020. If any provision of this ALV2020 is invalid for any reason referred to in the previous sentence, but would be valid if it were more limited in scope or extent, then this provision shall automatically apply with the most far-reaching or extensive limited scope or extent with which or in which it is valid.

25 Filing

These general terms and conditions have been filed with the Chamber of Commerce under number 40507574.

PART B: Concerning Agreements to perform Work and undertake Work

26 Applicability

26.1 Work and Jobs
The provisions in Part B of the ALV2020 apply to all legal relationships between the Client and the Contractor concerning the performance of Work and the acceptance of Work, without prejudice to the applicability of the provisions of Part A of the ALV2020 which, , insofar as applicable, also apply to the delivery of Work and the acceptance of Work.

26.2 Part B > Part A
The provisions of Part B of the ALV2020 therefore supplement the provisions of Part A of the ALV2020. If a provision from Part B of the ALV2020 is also applicable and conflicts in whole or in part with a provision from Part A of the ALV2020, the provision from Part B of the ALV2020 shall prevail to the extent of the conflict.

27 Definitions

27.1 Acceptance of Work
The creation (manufacture, construction, delivery) of a tangible item on behalf of the Client. Examples include the manufacture of an installation, test setup, system, machine, device, printed circuit board, switch box, etc. For the creation of the Work, the Parties will usually agree on a target price, lay down specifications and make agreements about additional and less work and the method of acceptance and testing.

27.2 Design data
All data and circumstances, including information, data, specifications, requirements, method of use and environmental conditions, on the basis of which the Contractor must perform Work or deliver a Work or which it must otherwise take into account in the performance of the Agreement, insofar as these have been provided by the Client before or during the conclusion of the Agreement and have been confirmed by the Contractor to the Client. Insofar as additional relevant information and/or circumstances become known to the Contractor during the performance of the Agreement, these will only form part of the Design Data if this has been explicitly confirmed in writing by the Contractor to the Client.

27.3 Assignment
The assignment to perform Work and/or deliver a Work as specified in the Agreement and the ALV2020 and Design Data.

28 The Assignment

28.1 Conclusion
The Agreement concerning the delivery of Work and/or a Work can only be concluded in Writing, with due observance of Article 3. The effect of Article 3.7 is excluded for the delivery of Work and of a Work.

28.2 Scope
The scope of the Assignment and the specifications with which the Delivered Work must comply are determined exclusively by what the Parties have agreed in Writing.

28.3 Best efforts obligation
The Work to be performed by the Contractor is of a best efforts nature, unless it has been explicitly agreed that it is of a result obligation nature and the intended result has been described with sufficient certainty, with due observance of the provisions of the following paragraph.

28.4 Obligations to achieve a specific result
The Parties may agree in writing that the Contractor must achieve a specific result in performing the Assignment. In that case, there will only be an obligation to achieve a specific result if the following conditions are also met:

• all Design Data required by the Contractor that is relevant to achieving the agreed result must have been reported by the Client to the Contractor before or during the conclusion of the Agreement and confirmed by the Contractor to the Client;
• after the Agreement has been concluded, in the opinion of the Contractor, nothing has changed in a negative sense in the information, data and circumstances referred to in the previous point;
• the criteria and circumstances used to assess whether the agreed result has been achieved must be crystal clear and objectively measurable in the agreed manner;
• the manner in which the Parties determine whether the agreed result has been achieved must be confirmed in writing by the Contractor to the Client before or upon conclusion of the Agreement.
   

28.5 Partial obligation to achieve results
Insofar as the Parties have agreed on an obligation to achieve a result but the conditions for this have not been fully met, the Agreement shall have the character of an obligation to perform to the best of its ability insofar as, in the opinion of the Contractor, the guaranteed result could not be achieved as a result of non-compliance with the aforementioned conditions.

29 Scope

29.1 Basis for the Work and Work
The Contractor shall perform the agreed Work and produce the agreed Work on the basis of the Design Data.

29.2 Design Data Format
The Client shall deliver the Design Data digitally in the agreed format as much as possible. If no agreement has been made in this regard, the Design Data shall be delivered digitally in the format specified by the Contractor. Any necessary adjustments, organisation, conversions and sorting of the Design Data shall be carried out by the Client at the Contractor's first request.

29.3 Access to systems
Insofar as the Contractor deems it necessary for the performance of the Work to have access to the Client's installations, networks or systems, the Client shall cooperate in this immediately. The Contractor shall not be liable for any damage or costs resulting from the use of the Client's networks, systems or installations, unless the Client proves that the damage or costs are the result of intent or gross negligence on the part of the Contractor's management.

29.4 Accuracy of Design Data
The Client guarantees the accuracy and completeness of the Design Data. If, in the opinion of the Contractor, there are any inaccuracies in the Design Data, it is entitled to suspend its Work until the inaccuracies have been remedied by the Client. In such a case, without prejudice to the Contractor's right to compensation for damage, the Client will in any event owe the Contractor the applicable compensation for what has already been performed in execution of the Agreement, while the Contractor will also be entitled to charge additional costs in accordance with its usual rates. The Client cannot derive any right to compensation from the suspension by the Contractor, regardless of the legal basis thereof.

29.5 Client's duty to provide information
The Client is obliged to disclose to the Contractor in a timely manner all relevant information and circumstances within its domain that could be important for the performance of the Agreement.

30 Delivery period

30.1 Commencement of delivery period
If the Parties have agreed on a specific delivery period, this period shall commence on the day following the day on which, where applicable, each of the following conditions has been met:

• the Agreement concerning the Assignment has been concluded;
• all Design Data necessary for the performance of the Assignment, in the opinion of the Contractor, have been made available by the Client in the correct format;
• insofar as an advance payment has been agreed, this has been received by the Contractor;
• the day on which, in the opinion of the Contractor, all formalities necessary for the performance of the Assignment have been completed, including obtaining permits, has been met, in the opinion of the Contractor;
• insofar as work in connection with the performance of the Assignment is to be carried out on a site to be designated by the Client or on an installation, network or system to be designated by the Client, this/these has/have been prepared for this purpose in the opinion of the Contractor and the Contractor has unhindered access to it/them or it/they has/have been made available to him.
   

30.2 Delivery date instead of delivery period
If a delivery date rather than a delivery period has been agreed, the delivery period shall be equal to the number of days between the date on which the Agreement is concluded and the agreed delivery date. This period shall not commence until all the conditions set out in Article 30.1 have been met. In that case, the moment of delivery will be the moment at which the aforementioned delivery period has expired, with due observance of the other provisions of Article 30.

30.3 Delay
If, during the execution of the Assignment, a delay occurs that is not entirely attributable to the Contractor, the delivery period will be extended by the duration of that delay.

30.4 Extension of delivery period
If, during the execution of the Assignment, the conditions for the commencement of the delivery period as described in Article 30.1 are no longer met and the progress of the agreed Work and/or the Project is impeded as a result, in the opinion of the Contractor, the delivery period will be extended by the number of days that those conditions are no longer met.

30.5 No strict delivery period
The agreed delivery period is an estimated delivery period, based on the delivery times of Suppliers, information and circumstances known to the Contractor at the time the Offer was made. If, during the delivery period, circumstances arise through no fault of the Contractor that make the agreed delivery period no longer feasible, the delivery period will be extended to the extent necessary in the opinion of the Contractor.

30.6 Delay > 16 weeks
In the event that the total delay as referred to in Article 30.5 exceeds sixteen (16) weeks, the Client shall be entitled to terminate the Agreement. In that case, the Contractor shall not be obliged to compensate the Client for any damage or costs incurred by the Client as a result of the later delivery and/or termination.

31 Facilitation by the Client

31.1 Obligations of the Client
Unless and insofar as expressly agreed otherwise, the Client shall, at the Contractor's discretion, ensure that the following are provided in a sufficient and timely manner:

• groundwork, paving, pile driving, demolition, foundation, concrete, carpentry and upholstery work or other additional work of any kind;
• good and constant accessibility of the location(s) and guidance to/at the location(s) to which the Contractor must have access in connection with the performance of the Assignment;
• drawings, documentation, floor plans, diagrams and explanations concerning the site and the Client's property on it, as required by the Contractor;
• the assistance required for placing or moving items that cannot reasonably be handled by two people, as well as the hoisting and/or lifting equipment and similar aids to be operated;
• the provision, erection and, after completion of the Contractor's Work, removal of scaffolding, platforms and ladders;
• the supply of fuels, energy and auxiliary materials such as compressed air, gas, water, electricity, diesel and petrol, supply and discharge pipes, and the required connection points, necessary for the performance of the Assignment and any testing and commissioning;
• the provision of switching and safety equipment and pipes for the electric motors and/or other electrical equipment to be supplied or used, with the exception of starting and control resistors that form part of the electrical equipment;
• the provision, during the term of the Contract, in the immediate vicinity of the place(s) where the Assignment is to be performed, of a dry, heated, lit and separately lockable room of sufficient size to accommodate the workers concerned and to store the materials and tools to be processed or used and the workers' personal belongings, as well as the provision of a toilet;
• work required to restore parts that have become dirty, damaged or malfunctioning, or that no longer function, to good and usable condition, unless the contamination or damage was caused by the Contractor's subordinates;
• starting up and/or keeping in operation and/or stopping installations that fall under the Client's management insofar as this is desirable or necessary for the performance of the Assignment;
• providing sufficient lighting and, if applicable, bringing and maintaining the location(s) where the Assignment is to be carried out at the required or desired temperature and humidity, so that the Work or the Project can proceed without difficulty;
• applying for and paying on time the amounts due in respect of power lines, connections, precarious rights, nuisance permits, permits pursuant to the Environmental Management Act and other legislation relating to the environment, building and renovation permits and other legal requirements.

32 Additional/less work

32.1 Changes/extensions/restrictions
The parties may agree to a change or additional or reduced work in relation to the agreed Work or the Project. If a fixed price has been agreed in the Agreement, the Contractor shall inform the Client of the financial, time and other consequences of the desired change.

32.2 Additional/less work constitutes an amendment to the Agreement
If the Parties agree to a change or additional or less work, this shall be deemed to be a change to the Agreement as referred to in Article 5.

32.3 Delivery times are adjusted accordingly
If the Parties agree to an amendment to the Agreement, the agreed delivery period or delivery date shall be extended or postponed by the number of days necessary to implement the amendment to the Agreement.

32.4 Necessary amendment
If, in connection with the performance of the Work or the Project, the Contractor is of the opinion that an amendment and/or extension thereof is necessary or reasonably desirable, it shall inform the Client thereof. If the Client does not agree to the proposed amendment(s) and/or extension(s) and the associated price change in writing within fourteen (14) days, the Contractor shall be entitled to suspend the fulfilment of its obligations towards the Client. In that case, the Client shall be obliged to pay the Contractor compensation for the Work already performed and the Deliverables already delivered, based on the Contractor's applicable rates, without prejudice to the Contractor's right to compensation for the damage it has suffered.

32.5 Payment for additional work
Unless otherwise agreed, additional work may be invoiced separately by the Contractor after this additional work has been completed according to the Contractor.

33 Delivery and acceptance

33.1 Milestones
If it has been agreed that the Assignment will be carried out in phases, the Contractor is entitled to postpone or suspend the Work and deliveries relating to a subsequent step or phase or any part of that Work or those deliveries until the Client has approved the results of the previous step(s) or phase(s) in Writing in accordance with the agreed test criteria.

33.2 Test period
Unless otherwise agreed, the Client shall test the Deliverables against the agreed test criteria within the test period of eight (8) working days from the moment the Contractor has indicated that the Deliverables are ready for acceptance.

33.3 Extension of test period
If, during the performance of the test(s), it appears that the progress of the test(s) is impeded by a Defect in the Delivered Goods, the Client shall inform the Contractor of this in Writing in as much detail as possible; in such a case, the test period shall be interrupted until the Delivered Goods are again presented for testing.

33.4 Reporting Defects in Delivered Goods during tests
The Client shall immediately notify the Contractor in writing of any Defect that comes to light during the tests or during the warranty period, providing proper substantiation and documentation. The Contractor shall not be obliged to repair a Defect until it has received all available information from the Client that is necessary for repairing the Defect.

33.5 Costs of repairing Defects
The repair of a Defect identified during the tests will be carried out free of charge if a fixed price has been agreed. If no fixed price has been agreed, the Contractor is entitled to reasonable compensation in accordance with the agreed prices and rates for the efforts involved in repairing the Defect.

33.6 Test criteria
The test criteria should preferably be agreed in writing by the Parties before or at the time of the conclusion of the Agreement. Subjective criteria are not part of the test criteria. Criteria agreed at a later date shall only apply insofar as they have been confirmed in writing by the Contractor to the Client. The Client cannot invoke the fact that the Delivered Goods do not meet certain requirements if these requirements are not part of the agreed test criteria. If the test criteria are not met, this constitutes a Defect as referred to in Article 1.5.

33.7 Time of delivery of the Delivered Goods
The Delivered Goods shall be deemed to have been properly delivered and accepted on the first of the following dates:

• the moment at which the Client has inspected the Delivered Goods after testing them in accordance with the agreed test criteria and has not identified any essential Defect as referred to in Article 33.9;
• the moment at which the test period has expired, calculated from the day following the day on which the Contractor has notified the Client in Writing that the Delivered Goods are ready for acceptance and the Client has failed to test the Delivered Goods within the test period;
• the moment at which the test period has expired, counting from the day following the day on which the Contractor has notified the Client in Writing that the Delivered Goods are ready for acceptance and the Client has not informed the Contractor in Writing of any essential Defect (as described in Article 33.9) in the Delivered Goods;
• the moment at which the Client has actually started using the Delivered Goods or the installation of which they form part or will form part after installation;
• the moment at which the Client has paid the invoices relating to the Delivered Goods.
   

33.8 Work after delivery
Insofar as the delivery of a Work has been agreed and the Contractor still has to perform Work in connection with that Work (e.g. calibration or providing instructions), the Work will nevertheless be deemed to have been delivered and accepted when the Work itself is deemed to have been delivered and accepted on the basis of Article 33.7.

33.9 Essential Defect
A fundamental defect is understood to mean a shortcoming that, in the opinion of the Contractor, significantly impedes the normal functioning or normal use of the Delivered Goods.

33.10 Repair of non-essential Defect
If only one or more non-essential Defects are identified in the context of tests in connection with acceptance, the Delivered Goods shall be deemed to have been delivered. The Contractor is obliged to repair this (these) non-essential Defect(s) as soon as possible. A non-essential Defect does not entitle the Client to refuse to accept the Delivered Goods, to terminate the Agreement in whole or in part, or to suspend payments.

33.11 Advice
Advice, information, data and/or suggestions provided by the Contractor regarding the use, installation, commissioning, incorporation, expansion, etc. of the Delivered Goods are only a guarantee of, for example, efficiency, accuracy, compatibility with other items, operation in a specific environment or installation, etc., if this has been explicitly agreed in accordance with the provisions of Article 14.2.

34 Guarantee

34.1 Switching provision
The warranty provisions of Article 14 of ALV2020 also apply to the delivery of a Work and of Work Activities, insofar as these may apply to them given the specific nature of the Delivered Goods.

34.2 In accordance with agreed specifications
The Contractor guarantees to carry out the Work and the Work Activities in accordance with the Design Data and to carry them out in such a way that they comply with the agreed specifications and the requirements that can reasonably be imposed on them, with due observance of Article 28.2.

34.3 Warranty period under normal use
Unless otherwise agreed, the warranty period applies to use during working days of eight (8) hours per day. If the Delivered Goods are used during working days of more than eight (8) hours per day, the actual warranty period will be shorter accordingly.

34.4 Exclusion
The Contractor does not provide any warranty on items that were assembled, installed, adjusted, calibrated, validated, tested, inspected, tuned and/or commissioned, etc. by or on behalf of the Contractor, but which were not supplied by or on behalf of the Contractor itself.

35 Liability
Without prejudice to the provisions of Article 18, the following provisions shall apply.

35.1 Exclusions in relation to Work
The Contractor shall not be liable for any damage or costs arising as a result of:

• the performance of Work on or in connection with goods supplied by third parties;
• incorrect, late or incomplete Design Data submitted by the Client;
• the performance of Work for the use, testing, commissioning or decommissioning of a Work of which goods supplied by third parties form part or in which such goods are assembled or installed;
• performing Work on a Work that has become part of an item belonging to the Client (e.g. by installing it) in the period prior to the moment that the Delivered Goods have been properly delivered and accepted;
• items used in the performance of Work at the request, advice or instruction of the Client;
• Work carried out by persons recommended or appointed by the Client.
   

35.2 Exclusions relating to Work
The Contractor is also not liable for damage or costs resulting from:

• the design or parts of the design of the Work, insofar as this design/these parts of the design were not created entirely by the Contractor itself;
• the malfunctioning of the Client's machines, installations or processes of which the Delivered Goods have become a part in the period prior to the moment at which the Delivered Goods were properly delivered and accepted;
• the use of certain parts in the Work insofar as those parts have been used at the request, on the advice or on the instructions of the Client or have been obtained from a Supplier designated or recommended by the Client.

PART C: Concerning the development and delivery of software

36 Applicability

36.1 Deliveries of Software
The provisions in Part C of the ALV2020 apply to all legal relationships between the Client and the Contractor concerning the development and/or delivery of Software or modifications thereto, without prejudice to the applicability of the provisions of Part A and Part B of the ALV2020.

36.2 Part C prevails
The provisions of Part C of the ALV2020 supplement the provisions of Part A and Part B of the ALV2020. If a provision of Part C of the ALV2020 is also applicable and conflicts in whole or in part with a provision of Part A or Part B of the ALV2020, the provision of Part C of the ALV2020 shall prevail to the extent of the conflict.

36.3 Explanation regarding Software
The design, creation or writing of Software and related activities shall be deemed to constitute the provision of services. Within the ALV2020, the creation of Software falls under Activities (see, inter alia, Article 1.19).

37 Definitions

37.1 Custom Software:
Software, websites, protocols or operating systems developed by the Contractor on behalf of the Client, or modifications to existing software, websites, protocols or operating systems developed on behalf of the Client.

37.2 Standard Package:
The software that is or was offered by the Contractor on the market as standard software in the general sense of the word, whether or not adapted, set up, configured, modified or expanded for the Client.

37.3 Software: Standard package and/or Customised Software.

38 General

38.1 Licence Agreement
If Software is supplied by the Contractor and the terms and conditions of use are not set out in a separate licence agreement, the provisions of Part C of the ALV2020 shall apply to the supply and use of that Software insofar as applicable. If the use of Software supplied by the Contractor is regulated in a separate licence agreement, the provisions of that licence agreement shall prevail over those in Part C of the ALV2020.

38.2 Service/maintenance agreement
If the Parties have concluded a service or maintenance agreement with regard to Software supplied by the Contractor, the provisions therein with regard to the reporting and repair of Defects, maintenance of old releases and costs shall prevail over the relevant provisions of Part C of the ALV2020.

38.3 Scope of right of use
Upon delivery of Software, the Client shall acquire the non-transferable, non-exclusive right of use for its own use, for the application for which the Software was sold, for the location for which the Software was sold. Unless otherwise agreed, the above-mentioned right of use shall commence at the moment the Client has fulfilled all its obligations towards the Contractor. The right of use does not include the right to modify or adapt the Software and is non-transferable.

38.4 Further rights
The parties may make additional agreements about further rights.

38.5 Duration
If no duration of the right of use of a Standard Package has been agreed, the right specified in Article 38.3 is of unlimited duration.

38.6 Own use and further development
The Contractor is at all times entitled to use, apply, further develop (or have developed) and sell to third parties any Software developed by, on behalf of or on the instructions of the Contractor.

38.7 Warranty
Unless otherwise agreed, contrary to the term referred to in Article 14.3, the warranty period for Software is three (3) months from delivery. Unless explicitly agreed otherwise, with due observance of the provisions of Article 2.2 and Article 28.4, the Contractor does not guarantee that the Software it delivers is suitable for the intended and/or actual use by the Client.

38.8 Reporting Defects
The Client shall report any Defect to the Contractor immediately after becoming aware of it. Article 33.4 also applies to the reporting of Defects.

38.9 Repair of Defects
Insofar as the Contractor is obliged to remedy a Defect, it shall do so to the best of its ability.

38.10 Costs of repair after improper use
If, in the Contractor's opinion, a Defect is wholly or partly caused by or related to improper use or other causes not attributable to the Contractor, or if the Defect could already have been detected during the tests referred to in Article 33.2, all repair costs shall be borne by the Client.

38.11 Limitations of warranty after modification
The Contractor shall be released from its warranty obligations if the Software has been modified or altered by parties other than the Contractor.

38.12 Software is not error-free
The Contractor does not guarantee that the Software is error-free, will function without interruption or without Defects, or that all Defects will be repaired or improved.

38.13 New releases
If a maintenance agreement has been concluded with regard to a Standard Package developed by the Contractor, the Contractor shall make this version available to the Client when an improved version of the Standard Package becomes available on the market.

38.14 Old releases
Three (3) months after the launch of a new version of a Standard Package, the Contractor shall no longer be obliged to repair any Defects in an older version thereof. If a new version of the Standard Package offers new features and/or functions compared to older versions, the Contractor is entitled to charge a fee for making that new version available.

38.15 Third-party package
If the Contractor does not make a Standard Package developed by itself available, but grants the right to use a Standard Package in accordance with the provisions of a user or licence agreement of or with a third party, or if the maintenance with regard to a Standard Package is carried out on the basis of or in accordance with the provisions of an agreement between the Contractor and a third party, the provisions of Articles 38.1 to 38.14 of the ALV2020 shall not apply, but only the provisions of the relevant agreement(s) between the Contractor and that third party or those third parties. By entering into the Agreement, the Client authorises the Contractor to purchase the software necessary for the performance of the Assignment and to agree to the associated licence conditions. The Contractor shall inform the Client of the relevant applicable provisions at the Client's request.

38.16 General Data Protection Regulation
The Client indemnifies the Contractor against claims from third parties whose personal data has been registered or is being processed, insofar as those claims relate to data and Software supplied by the Contractor to the Client or data processed by the Contractor for the Client.

38.17 Client Licences
By entering into the Agreement, the Client guarantees that, insofar as the Contractor must use software, systems, platforms, data and accounts owned by the Client to perform the Work, the Client has sufficient rights to do so, such as licences, access rights and authorisations. The Client indemnifies the Contractor against all claims from third parties insofar as the Client does not have the rights referred to above.

39 Customised Software

39.1 Repair costs during warranty period
Only if a fixed price has been agreed for the development of Custom Software will the Contractor not charge any costs for repairing the Defect. If no fixed price has been agreed, the Contractor is entitled to charge the Client for the costs involved in the repair.

39.2 Source code for customised software
Unless otherwise agreed, the source code is not part of the Custom Software to be delivered. If the Parties have agreed that the source code forms part of the delivery, the right of use referred to in Article 38.3 also includes the right to adapt or modify the Software delivered by the Contractor. If the Contractor is legally obliged to provide the source code to the Client, the Client must pay reasonable compensation for this.

40 Standard package

40.1 Right of use includes one installation
The Standard Package may only be used by the Client on one processing unit, on the understanding that, in the event of a malfunction, the software of the Standard Package may be used temporarily on a second processing unit , but only until the malfunction has been remedied.

40.2 Copies
If and insofar as no other conditions have been set by the Contractor, the Client is entitled to make a maximum of two backup copies of the Standard Package for security purposes; these copies may only be used to replace original material that has become unusable. The copies must be provided with the same labels and the same indications as the original material.

40.3 Source code Standard Package
The source code of a Standard Package will not be made available to the Client.

40.4 Ownership
The ownership of the Standard Package and the IP rights relating to the Standard Package will not be transferred by the Contractor to the Client. The Client will fully respect the ownership rights and IP rights relating to the Standard Software. The Client shall not remove any indications of intellectual property rights, such as copyright notices, nor render them illegible or unrecognisable.

40.5 Confidentiality
By entering into an agreement that relates or partly relates to a Standard Package developed by the Contractor, the Client declares that it is aware that the Standard Package contains confidential information and trade secrets of the Contractor. The Client is obliged to keep the Standard Package confidential and not to disclose it to third parties.