GENERAL TERMS AND CONDITIONS OF DELIVERY AND PAYMENT "FMT EXPORT-CONDITIONS"
1.1 These FMT export conditions" apply to all price quotations and all contracts for the performance of work or for sales orders between FMT. and its affiliated companies, hereinafter referred to as "FMT" and other contracting parties in so far as these have been placed or concluded with FMT, in so far as not expressly otherwise agreed in writing.
2.1 Our quotations are not binding. We shall not be bound until such time as we have accepted an
order in writing.
2.2 Documentation material, drawings and statements of dimensions and weight furnished by us shall not be binding upon us. These documents shall remain our property and shall not be duplicated, shown to third parties or used in any other way without our express permission.
3.1 The prices quoted in our confirmation of order are based on the costs of material, transport and labour, insurance premiums, taxes, import duties and other factors used to determine the prices when the contract is concluded.
3.2 If the aforementioned price factors change in any way after the signing of the contract and before delivery, irrespective of whether this was foreseeable when the quotation was made, including increases in the prices of material and components as a result of changes in the exchange rate for the EURO, our price shall be adjusted correspondingly, even if it has already been invoiced.
4.1 Contracts for work or purchase contracts and additions thereto shall only be binding if they have been confirmed in writing or the order is being processed by us. Contracts and additions thereto shall be binding upon us if and when they have been accepted and confirmed in writing by us.
5.1 The agreed terms of delivery shall be interpreted in accordance with the Incoterms 2000 applicable at the time the contract is concluded. In the absence of special terms of delivery in the contract, the item shall be delivered "ex-orks" (EXW).
5.2 The delivery time shall commence when agreement has been reached on all the technical details following confirmation of the order and we have received all the technical data, drawings etc. required to carry out the work.
5.3 The following circumstances shall defer the delivery date:
I failure on the part of the client to meet his payment obligations punctually;
II failure to supply punctually the documents required to commence and carry out the work;
III irregularities in our production;
IV non-punctual delivery of materials, raw materials, auxiliary products etc.;
V all cases of force majeure, which shall be taken to include circumstances such as strikes, lockouts, shortage of labour, schedule disruptions, casting faults, measures imposed from above, war and siege situations, fire, natural disasters, epidemics and similar circumstances.
5.4 If the delivery deadline is not met, the client shall not be entitled (a) to demand compensation and/or cancellation of the contract or (b) to have the contract performed in whole or in part by third parties without our written approval.
5.5 In all cases referred to in section 5.3 e. we reserve the right to rescind the contract in whole or in part without judicial intervention and without any obligation to pay compensation to the client.
5.6 In the event of products ordered from third parties not being able to be supplied within the foreseeable future, we shall endeavour to find a solution as quickly as possible, after consulting the client. The resulting costs shall be borne by the client.
5.7 In the event of no solution being found, we shall consider ourselves discharged from our delivery obligation and the client shall pay the agreed price, after deduction of the price for the missing parts edited to him by us.
The completed goods shall then be the client's responsibility and risk and may be stored by us at his responsibility and risk.
Reservation of title
6.1 Until such time as the client or purchaser has paid in full, all costs and risks associated with the goods supplied shall be borne by the client or purchaser and shall remain the property of the contractor or vendor, irrespective of whether or not they have been processed.
6.2 The client shall not be entitled to alienate, encumber or pledge the goods in any way and shall not lace them in the hands of third parties in any other way as long as title has not yet been transferred to him. Transport and risk
7.1 The goods shall be on the client's account and at the client's risk from the time we or the suppliers are ready to transport them and after this has been communicated in writing to the client.
7.2 Storage costs and other costs associated with non-punctual acceptance by the client shall be borne by the client.
Assembly work and prices
8.1 Assembly work shall be performed at the usual rates for fitters. The obligation of the fitter shall be limited to assembling the materials supplied by the contractor or vendor or covered by the contract. The contractor or vendor accepts NO liability for assembly work which is not covered by the contract.
8.2 If an all-inclusive price has been agreed for the assembly work, this shall not include the costs referred to in sections 8.6 and 8.7.
8.3 The price for the agreed contract work shall not include the following work (in so far as not expressly confirmed in writing):
Earthmoving, pile-driving, cutting, opening or foundation work, masonry, joinery, plasterwork, painting and wall covering, repairs or other architectural work of any kind, or the costs of connections to the main sewer system and gas, water or electrical mains.
In all cases, the work shall be limited to the obligations stated in the contract.
8.4 Other than when section 8.2 applies, the following costs shall be charged for the performance of the work:
the Costs of overtime assembly work and travelling time in accordance with the rates stated in the most recent quotation;a daily and nightly allowance per fitter in accordance with the rates stated in the most recent quotation;
travel expenses in the widest sense of the word, including any visas and insurance associated therewith.
8.5 The client shall regularly sign the time sheets completed by our personnel.
These time sheets shall serve as a basis for invoicing. In the event of these time sheets not being submitted, the client shall notify us thereof. The client shall have the right to annotate these reports.
Time sheets submitted by us remaining unsigned without written justification, shall be deemed to have been signed.
8.6 All changes to the contract work - whether pursuant to special instructions from the client or resulting from design changes or due to discrepancies between the data supplied and the actual implementation of the design - shall be deemed to be additional work if additional costs are incurred thereby, or a reduction in work if the costs are reduced thereby.
Additional or reduced work shall be compensated fairly when the account or final instalment is paid.
8.7 The rates as referred to in section 8.4 and enclosed with or mentioned in our quotations shall be regularly adjusted by us.
9.1 The assembly work, pilot run and commissioning of a machine and/or plant shall not be terminateduntil such time as we have notified the client to this effect.
9.2 The client shall take over the machine and/or plant as soon as it has been put into operation and corresponds in essence to the specifications of the purchase contract.
9.3 If a takeover trial has been agreed, the purchaser shall give us the opportunity - after operational onsite installation - to carry out the preliminary tests and to make any improvements and changes we consider necessary, on condition that the purchaser's operations shall not be disrupted unless this is necessary to carry out the work we consider necessary.
The takeover trial shall take place as soon as possible after completion of the preliminary tests.
10.1 In the absence of any agreement to the contrary, 50% of the purchase price shall be due when the contract is concluded and 40% after we have informed the client that the plant/equipment to be supplied, or substantial parts thereof, is/are ready for shipment.
The final payment is due on delivery.
10.2 Irrespective of the means of payment used, payment shall not be deemed to have been made until such time as the full amount of the invoice has been irrevocably credited to our account.
10.3 In the event of the client falling in arrears with his payments, we may charge interest on arrears from the date when payment falls due.
10.4 If the client fails to meet his payment obligations, or to do so correctly or on time, or in the event of bankruptcy, moratorium, plant shutdown or termination of operations, he shall be lawfully deemed to be in default and we shall have the right to demand immediate payment of all amounts due.
Liability for defects
11.1 We shall not under any circumstances be obliged to compensate for any loss suffered directly or indirectly (irrespective of its nature) resulting from defects in the work carried out or by equipment or plant fitted or supplied.
11.2 We accept no liability for any damage (irrespective of its nature) arising during performance of the work or assembly of the plant supplied caused by omissions or failures on the part of third parties.
11.3 We shall not under any circumstances be obliged to compensate for commercial losses (interruption of business, loss of income etc.), irrespective of how these were caused, including delays in completion of the work or the plant and equipment sold.
11.4 We accept no liability for claims by third parties on account of infringement of patent, licence, brand name, model or other rights, however designated, in so far as we are said to have infringed these rights by the use of documents furnished to us by or by way of the client for the fulfilment of the order.
11.5 We accept no liability for actions or omissions by personnel supplied to us by the client or through his good offices, even if this personnel is acting in accordance with our instructions.
12 Without prejudice to any rules to the contrary in the present Terms and Conditions, each party shall have the right to cease fulfilment of its obligations if it is clear without doubt from the circumstances that the other party will not be able to fulfil its obligations.
A party ceasing to fulfil its obligations shall immediately inform the other party thereof in writing.
13.1 We give a guarantee for 6 months from the date of commissioning, up to a maximum of 1000 operating hours. The guarantee period shall in any event end 9 months from the date of delivery ex-works, ‘s-Hertogenbosch.
13.2 We shall repair or replace, free of charge, any components supplied by us which do not function correctly, and we shall refund any labour costs incurred by the client at our request in respect of the said repair or replacement.
13.3 The guarantee shall end immediately and lawfully in the event of:
I payment obligations not being met punctually;
II operating instructions not being correctly observed;
III inadequate maintenance;
IV assembly, repair or commissioning of the goods supplied being carried out by the client and/or
third parties without our express approval.
14.1 Our export conditions shall also apply to replacement parts in so far as nothing to the contrary is
specifically stated below.
14.2 Replacement parts shall be guaranteed for 6 months from the dispatch date ex-works.
14.3 We can only make out a credit note for returned parts if:
I the defect is notified to us within 10 days of receipt of the part and we agree to the return;
II the parts are still unused;
III the documents required for the return have been furnished by the client;
IV the order number is stated on the documents.
14.4 Payment must be made within 30 days of the invoice date.
15.1 All disputes shall be settled by the competent court in ‘s-Hertogenbosch, unless the law imperatively prescribes a different court.
15.2 Application of the LUV/LUVI-CISG conditions is excluded under the present General Terms and Conditions of Delivery and Payment.
15.3 In the event of individual clauses of the present contract or the present Terms and Conditions being or becoming ineffective, or of the present contract or the present Terms and Conditions containing comissions, the contract or the present Terms and Conditions shall remain fully in force in other respects. FMT shall be entitled to issue replacement terms in place of the ineffective or missing terms, taking into consideration the meaning and purpose of the present contract or the present
Terms and Conditions.
15.4 Dutch law shall apply to the present Terms and Conditions.
‘s-Hertogenbosch, 1 September 1995