Standard terms and conditions

1. General

1.1.   The following terms and conditions apply to all of our offers and agreements. Any amendments and/or additions to these terms and conditions are only binding when and in so far as we have confirmed these in writing.

1.2.   These terms and conditions similarly apply to all agreements which third parties have been engaged to perform.

1.3.   The terms “the other party” and the “purchaser” refer in these terms and conditions to the party with which Fergutec b.v. contracts.

1.4.   The applicability of other Standard Terms and Conditions is excluded except where we do not consider these onerous for Fergutec b.v.

2. Offers/order confirmations /changes to prices

2.1.   All of our offers are free of obligation. Items from stock are offered subject to “no interim sale to third parties”.

2.2.   Quotations comprising various items do not oblige us to supply part of the products and services included in the offer at a price corresponding to that part of the quotation price. Furthermore, our offers do not automatically apply to repeat orders.

2.3.   The offers we issue are valid for 30 days, unless stated otherwise. We are only bound by our offers if the purchaser has confirmed acceptance of the order in writing within 30 days.

2.4.   We only consider orders to be binding when and in so far as we have confirmed the order in writing.

2.5.   In the case of direct deliveries, the invoice sent by us is also valid as the confirmation of the order.

2.6    Fergutec b.v. is permitted to pass on to the purchaser any increases of factors determining the cost price after entering into an agreement.

2.7    Fergutec b.v. is obliged to allow the price increase referred to in paragraph 6 of this article to be paid at one of the following moments, according to the preference of the purchaser:

1. when the price increase occurs;
2. at the same time as payment of the principal sum;
3. in the next agreed payment instalment.

3. Documents

3.1.   Our listings in catalogues and prospectuses as well as the documents belonging to the offer and order such as illustrations, drawings, sizes and weights, usage and performance statistics and other specifications are solely for information purposes and we are not bound by these unless expressly agreed.

3.2.   We reserve the right to introduce design changes and use other materials in one-off cases.

3.3.   We expressly reserve ownership rights and copyrights to cost estimates, drawings and other documents. These may not be used wholly or in part for other purposes, be duplicated or otherwise made available to third parties.

3.4.   Drawings and other documents that belong to an offer must be immediately returned to us when requested. If the offer is not accepted, the drawings and other documents must be returned to us even when we have not requested this.

4. Technical requirements, etc.

4.1.   If the items that we supply must be used outside of the Netherlands, we are not responsible for the supplied items meeting the technical requirements, standards and/or regulations that are laid down by the laws or regulations in the country where the items are to be used. This does not apply where it has been specified that the items will be used abroad and all necessary information and specifications have been provided at the time of entering into the agreement.

4.2.   When entering into the agreement, the purchaser must specifically describe any technical requirements it may have for the items to be supplied by us, where these requirements differ from the normally applicable requirements.

5. Prices, packaging and insurance

5.1.   Our prices apply ex factory and do not include packaging, assembly and commissioning, unless stated otherwise. Packaging is calculated at cost price and we do not accept returned packaging.

5.2    All prices quoted/calculated by us exclude turnover tax, import or export duties and other statutory duties, unless expressly stated otherwise.

5.3.   Where this is not expressly stated otherwise, the items ordered from us are insured for the usual transportation risks including breakage, at the expense of the purchaser.

5.4.   The other party is obliged to take delivery of the purchased products from us at the time that these are delivered to the other party or at a time when the purchased products are made available to the other party in accordance with the agreement.

6. Assembly and commissioning

6.1.   Where assembly, assembly inspection or commissioning need to take place, the relevant terms and conditions that we set will apply.

7. Transfer of risk

7.1.   The risks associated with the items we have supplied are transferred to the purchaser at the moment that the first carrier has received the items to be supplied, unless expressly stated otherwise. This also applies to part deliveries or when, for instance, we bear the costs of dispatch, delivery or commissioning.

7.2.   If the dispatch is postponed due to circumstances which cannot be attributed to us, then the risk will be at the expense of the purchaser from the moment that the purchaser has been notified that the items are ready for dispatch.

8. Delivery period

8.1.   Our delivery periods are always approximate and can never be considered as strict deadlines, unless expressly agreed otherwise. Therefore we must be sent a written notice of default if a delivery does not take place in time. We carefully calculate all delivery periods based on our production capacity, manpower levels and the delivery times of our suppliers. If there are any subsequent changes to this, we retain the right to make similar adjustments to our delivery date. The delivery period for the items to be delivered by us commences on the date that we have sent the order confirmation, all commercial and technical terms and conditions for the implementation of the order are clear to both parties, the documents to be provided by the purchaser have been made available to us and the various permits have been issued and agreed payments made.

Maintaining the delivery period is on condition that the purchaser has correctly observed its obligations.

Changes requested by the purchaser may cause the delivery period to be extended.

Delivery is considered to have taken place within the agreed period when the items to be delivered have been handed to the first carrier or the purchaser has been notified that the items are ready for dispatch. Partial deliveries are permitted. This does not apply if a partial delivery has no independent value. If the items are delivered in consignments, we are authorised to invoice for each consignment separately. The delivery is considered to have taken place on time if the items we deliver show any defects which are only rectified after the delivery period.

8.2.   If the dispatch of the items is postponed in accordance with the wishes of the purchaser or the delivery is not called for as per the schedule, then we are entitled, without being liable for this, to store the items ordered at the risk of the purchaser and to invoice for the items on the basis of the ex-factory price. If the items are stored at our premises, the storage costs will be charged to the purchaser from the date that the items were ready for dispatch. Storage costs each month will be at least 0.5% of the invoice value. Furthermore, after the purchaser has been allowed a reasonable period of time, we are entitled to decide otherwise about the items. The obligations with respect to the purchaser will then be observed with due observance of an extended delivery period.

8.3    If the delivery is postponed due to unforeseen circumstances which are beyond our control such as force majeure, strikes, operational failures, rejection of significant pieces of work, sabotage, delays in the delivery of essential raw materials and construction parts and the delay or failure of the authorities to give consent to us or our suppliers, then the delivery period will be extended in accordance with the requirements of reasonableness and fairness with due regard for article 16.

8.4    If it becomes apparent that we are unable to deliver the ordered items after the formation of an agreement on the grounds of interim sale to third parties or stock management inaccuracies, this will also not constitute a reason for Fergutec b.v. to suspend the delivery as described in article 8.

8.5    If it becomes apparent within seven days of forming an agreement that the items to be delivered by Fergutec b.v. are not available and also can no longer be delivered in connection with an interim sale to third parties or stock management inaccuracies, this will constitute a reason to retroactively terminate the agreement where any payment made by the purchaser will be refunded without any obligation to pay compensation in this case.

 9. Payment

9.1.   Payments must be made to Fergutec b.v. in accordance with what was established in this regard in the order confirmation and the agreement entered into respectively and otherwise within 30 days in a manner which we will specify and in the currency specified in the invoice.

9.2    Payments to Fergutec b.v. must only be made to one of our bank accounts. Payments must be made on the due date, free of any surcharges, other costs and any deductions. If payment has been agreed by means of a bill of exchange or cheque, then the associated costs are to be borne by the purchaser. The date on which the bill was made out or the date on which notification was given that the items were ready for delivery are decisive for determining the due date. The date on which payment occurred is deemed to be the date on which we can access the amount owed.

9.3.   The suspension of payments to us or compensation with a counterclaim against us is not permitted.

9.4.   If the due date is exceeded, the total amounts payable by the purchaser will be immediately due and payable without any notice of default, irrespective of any bills of exchange or cheques that have been made out in respect of these claims. Without prejudice to other measures, we are entitled in this case to charge interest on overdue amounts at 3% above the promissory note discount rate of DNB (De Nederlandsche Bank) in addition to suspending activities and extending the agreed delivery period.

9.5.   In the event of a liquidation or bankruptcy or moratorium of the purchaser, the amounts owing to us and the obligations of the purchaser towards us will be immediately exigible.

9.6.   If the purchaser fails to comply with or breaches one or more of its obligations, then all reasonable costs incurred in settling the payment out of court will be borne by the purchaser.

 10. Credit restriction

10.1.Fergutec b.v. is entitled to charge a credit restriction charge of 2% which will not be due when payments are made within 30 days of the invoice date.

 11. Reservation of ownership

11.1.Delivered items will fully remain our property until all of the payments arising from the agreement have been settled in full. In the event that the purchaser fails to comply with its obligations towards us, we are entitled to demand the return of the items and to take them without this leading to the suspension of the purchaser’s payment obligations. Where the reservation of ownership is bound by special regulations or other conditions in the country in which the purchaser is established, the purchaser is obliged to ensure that these special regulations or other conditions are met.

11.2.The purchaser is not authorised to dispose of, pledge or in any other way encumber items falling under the reservation of ownership.

11.3.The purchaser now gives its unconditional and irrevocable permission to us or to a third party indicated by us to enter all places where our property is located and to remove it in all cases in which we wish to exercise our property rights.

11.4.In the event that the items we supplied, which have remained our property, are seized from the purchaser by a third party, the purchaser will immediately notify us of this.

11.5.The purchaser must insure the delivered items against the usual risks such as theft and damage from fire, explosions, floods and breakage and must provide the policy to us for inspection when requested for the duration of the reservation of ownership. Should the purchaser fail to do this, we are entitled to take out an insurance policy at the expense of the purchaser.

 12. Guarantee

12.1.If the items supplied by us show any deficiencies such as design, material or manufacturing defects and/or the absence of the guaranteed characteristics due to events or circumstances prior to the transfer of risk, we will repair or replace the items at our discretion.

12.2.Fergutec b.v. must be notified in writing of any visible defects within 8 days of delivery or after the commencement of storage as referred to in article 8.2. The purchaser must notify Fergutec b.v. in writing immediately after discovering any non-visible defects. In doing this, the purchaser must always indicate whether the defects were observed immediately or only after processing or treatment. We are entitled to have the reported defects inspected by our employees.

12.3.The purchaser must allow us the necessary time and opportunity to perform repairs and replacements which we consider to be reasonably necessary. If the purchaser fails to do this, we will be discharged from our responsibility for any defects.

12.4  If the purchaser wishes to hold Fergutec b.v. liable under the guarantee in accordance with the terms of this article, the purchaser must send the items supplied by Fergutec b.v. to the address of Fergutec b.v. at its own expense and risk. Any additions to the items referred to will likewise be at the expense and risk of the purchaser. If Fergutec b.v. declares the complaint or claim to be valid, Fergutec b.v. will carry out repairs or send a replacement within a reasonable period of time to be determined by Fergutec b.v.. The repair costs or costs for supplying and sending a replacement to the purchaser will then be met by Fergutec b.v. The costs of reincorporating or fitting the item will be at the expense of the purchaser. If neither repair nor replacement is possible, then Fergutec b.v. will inform the purchaser of this, and the amount paid to Fergutec b.v. will be refunded and there will be no obligation to compensation in the widest sense of the word. If the complaint or claim on the guarantee provided by Fergutec b.v. is rejected, the purchaser will be informed of this in writing. If the purchaser wishes the items it has sent to Fergutec b.v. to be returned, this will be effected under the express condition that the purchaser first pays Fergutec b.v. the costs associated with the return dispatch.

12.5.Our guarantee concerning new products applies for a period of 12 months after delivery or at the onset of storage as referred to in article 8. The guarantee period for supplied items will be extended by the time in which the production process was shut down as a result of necessary repairs. Our guarantee for used or overhauled products applies for a period of three (3) months after delivery or at the onset of storage as referred to in article 8, unless otherwise agreed in writing.

12.6.The guarantee period for replacement parts and repairs performed is three (3) months, but this will not expire before the end of the original guarantee period.

12.7.The liability regime in article 14 applies to damage as a result of a defect in the supplied item.

12.8.The guarantee does not apply if the damage is a result of incorrect handling or a failure to correctly follow the instructions. The guarantee similarly does not apply if the purchaser has introduced modifications or had modifications introduced to the product or has attempted to perform repairs or has had repairs performed by third parties.

12.9.If the guarantee concerns a product or service that has been manufactured or supplied by a third party, the guarantee is limited to the guarantee that is issued by the third party concerned for that product or service.

12.10.         The purchaser can only make claims under the guarantee once it has met all of the respective obligations arising from the agreement in question.

 13. Defects and time limit for lodging a complaint

13.1.The purchaser must inspect the purchased items or have the purchased items inspected upon delivery or at the earliest opportunity after delivery. During the inspection, the purchaser must verify that the supplied item or items meets or meet the terms of the agreement, namely:

–        whether the correct items have been delivered;

–        whether the quantity (for instance the amount and number of items) of the delivered items corresponds to what was agreed;

–        whether the items delivered meet the agreed quality requirements or in the absence of these requirements, the requirements that may be made for normal use and/or commercial purposes.

13.2.If any visible defects or shortcomings are detected, the purchaser must notify us in writing of these within 8 days of delivery.

13.3.The purchaser must notify us of any non-visible defects immediately after discovery or within the guarantee period stated in article 12 at the latest.

13.4.Even if the purchaser submits a complaint within the specified time, its obligation to pay and take delivery of the orders made will continue.

13.5.Items can only be returned to us after prior written consent.

14. Liability

14.1.The liability provided for in article 12 of these terms and conditions will exclusively apply for damage as a result of defects in the items supplied.

14.2.Liability is restricted to the amount payable in that situation by our third-party liability insurer.

14.3  Fergutec b.v. is solely liable for direct damage and solely to the extent that this was caused intentionally or as a result of gross negligence on our part. All further claims by the purchaser, in particular claims concerning the cancellation, amendment, termination or reduction and replacement of damage to persons, items or property in any form are excluded. With the exception of other arrangements in these terms and conditions, all claims by the purchaser, on whatever legal grounds, for instance due to the failure to comply with or breach of contractual obligations, breach of ancillary obligations and guarantee obligations, wrongful acts or damage that do not concern the delivered items are excluded unless there is intent or gross negligence on the part of the vendor.

Fergutec b.v. is not liable for loss of profits.

14.4.According to our knowledge of the state of the technology in the country of establishment, the supplied items do not conflict with patents or other rights belonging to third parties. Nevertheless, if the supplied items or part of these items infringe a patent registered in the country of origin before the expiry of the guarantee period referred to in article 12, we will make every effort at our expense and at our discretion, within the limits of fairness and reasonableness, to either acquire the usage rights for the purchaser or adjust the part of the procedure concerned such that the breach of the rights belonging to third parties ceases. Fergutec b.v. is entitled to terminate the agreement instead of the efforts referred to in the previous sentence. We do not recognise any further liability with regard to the procedure, application, products and so forth.

If the items or specifications of the purchaser infringe the rights of third parties, then the purchaser will be liable for this and will indemnify us against any claims by third parties.

 15. Termination of the agreement

15.1.We can immediately terminate an agreement with a purchaser in situations which include the following:

–        if we become aware of circumstances which give good grounds to fear that the purchaser will not comply with its obligations after entering into the agreement;

–        if we have asked the purchaser to furnish security upon entering into the agreement for the performance of the agreement and this security has not been forthcoming or is insufficient despite a demand for this.

In the aforementioned situations, we have the power to suspend the continued performance of the agreement or to terminate the agreement, both of which do not prejudice the right to claim compensation from the purchaser.

15.2.If circumstances arise concerning the persons and/or materials which we use or tend to use in the performance of the agreement, such that it is not possible to perform the agreement or to the extent that this becomes onerous and/or disproportionately costly and that compliance with the agreement can no longer be reasonably demanded, then we are authorised to terminate the agreement.

15.3.If a delivery is postponed due to circumstances attributable to us and if, due to our negligence, we do not meet a reasonable new period expressly stated by the purchaser after which it will no longer be able to accept the delivery, then the purchaser is entitled to terminate the agreement.

15.4.If the inability to perform part of the agreement only becomes known after the purchaser has postponed receipt of delivery, then the purchaser will remain obliged to make the full payment.

16. Force majeure

16.1.In addition to the provisions regarding force majeure in the law and jurisprudence, force majeure on the part of Fergutec b.v., is understood in these standard terms and conditions to be all external causes, seen or unforeseen, which we cannot reasonably influence yet which cause us to fail to be able to meet our obligations, including work strikes.

16.2.When force majeure occurs, the delivery and other obligations will be suspended. If the period in which force majeure makes it impossible to comply with any obligations lasts for over 2 months, both parties are authorised to terminate the agreement without any obligation to pay compensation in this case.

16.3.If we have already partially performed our obligations at the onset of force majeure, or if we have only been able to partly meet our obligations, we are authorised to separately invoice for the part that has already been delivered or that will be delivered and the other party is obliged to settle this invoice as if it concerns a separate contract. However, this does not apply where the part that has already been delivered or the deliverable part has no independent value.

 17. Dispute resolution and applicable law

17.1.All disputes will be exclusively subject to judgement in the first instance by the competent court in the Court District of ’s-Hertogenbosch.

17.2  Dutch law in addition to these “Standard Terms and Conditions” applies to any disputes arising from or related to all of our offers and all agreements entered into by us..

The application of the United Nations Convention on the International Sale of Goods (CISG or the Vienna Convention) is excluded. The application of international or national laws and regulations concerning the applicable law and/or the competent court are also excluded.

17.3  These terms and conditions have been drawn up in both Dutch and English. In the event of any inconsistency, the Dutch version will prevail.

 18. Filing terms and conditions

These terms and conditions have been filed at the Chamber of Commerce and Industry in Eindhoven. The most recently filed version or the version that was applicable at the time of the transaction concerned will always be applicable.