GENERAL TERMS AND CONDITIONS OF DELIVERYlaid down by the
"Vereniging van Fabrikanten van en Handelaren in Bouwmachines, Magazijninrichtingen,
Wegenbouwmachines en Transportmiddelen B.M.W.T." [Association of Manufacturers and
Traders in Construction Machines, Warehouse Systems, Road Construction Machines and
Transport Equipment: also referred to as BMWT], established in The Hague.
Filed with the Registry of the District Court at The Hague on 26 March 2014
Article 1. Definitions; area of application
1.1 In these Terms and Conditions:
Supplier is understood to mean: the BMWT member who offers, sells and supplies goods and/or
Customer is understood to mean: the other party, i.e. the party buying from the Supplier.
1.2 These Terms and Conditions apply to agreements - including the actions related to the
realisation of the agreements - for the supply/delivery of goods and/or the performance of
services and/or the realisation of a job. They are also applicable to any additional or follow-up
agreements. These are also applicable to all forms of service provided by (an employee of) the
Supplier to (an employee of) the Customer that are (in any way) related to the agreements
referred to in the first sentence (such as the provision of technical advice at no expense).
1.3 These Terms and Conditions apply exclusively in the sense that specific stipulations and
general terms and conditions from the side of the Customer are not valid, except in the case that
and to the extent that the Supplier has agreed to them expressly and in writing. Any deviant
stipulation (condition) shall apply exclusively to such cases in which the deviation has been
1.4 If on the sale/purchase or trade in of a used machine and/or truck, a "Certificate of
Guarantee for used machines or trucks" is issued, the conditions of such Certificate of Guarantee
also apply. Insofar as the Terms & Conditions of the Certificate of Guarantee deviate from these
General Terms & Conditions, the Terms & Conditions of the Certificate of Guarantee take
Article 2. Offers; information material
2.1 Unless specifically otherwise indicated, all offers made by the Supplier, in whatever form
they have been made, are free of obligations in the sense that even after the Customer has
accepted an offer from the Supplier, the Suppler is entitled to revoke the offer within three full
calendar weeks from acceptance.
2.2 Unless specifically otherwise indicated, statements and specifications concerning
dimensions, capacities, performances or results in pictures, drawings, catalogues, price lists,
advertising material and suchlike are approximations only, which are not binding to the Supplier.
Article 3. Delivery; obligation to take; time and place of delivery; transfer of risk and ownership
3.1 The Supplier is entitled to make part-deliveries.
3.2 The Customer is obliged to take goods and services, the delivery of which has been agreed
by the Supplier, at the time and the place applicable between the parties in accordance with the
agreement concerned and/or these Terms and Conditions.
3.3 The delivery or execution term commences upon realisation of the agreement or, if it has
been agreed that the Supplier shall receive payment before or upon starting the execution of the
agreement, at the moment that full payment of said amount has been received.
If the Supplier is partly dependant on assistance from the Customer for the execution of the
agreement and the Customer fails to provide said assistance for whatever reason, the execution
term shall be extended by as much time as the Supplier requires within reason to undo the delay
caused by the Customer's failure thereto. The same applies if delays in the execution occur as a
result of requests from or on behalf of the Customer or a government agency to change, adjust or
add to that which has been agreed. Furthermore, the resulting additional costs incurred by the
Supplier in connection with such a delay shall be at the expense of the Customer. The Supplier
defaults on his obligation to deliver within the set term if the Customer, after the expiry of the
term agreed to, sets a reasonable additional term in writing — (which term may not be shorter
than fourteen calendar days calculated from the day on which notification is received) — and the
Supplier does not fulfil his obligation to deliver within this additional term for reasons of his
3.4 Unless specifically otherwise agreed, delivery shall take place in the Supplier's factory or
3.5 The risk for any item to be supplied by the Supplier is permanently transferred to the
Customer upon arrival at the place of delivery. If, at the time of delivery agreed between the
Supplier and the Customer, the Customer does not take receipt for reasons for which the Supplier
cannot be held accountable, the risk transfers permanently to the Customer at that time. All costs
in connection with storage and transport, incurred by the Supplier from the time of delivery
mentioned in the previous sentence in connection with the case, shall be fully at the expense of
3.6 Even if the Supplier is obliged to provide ownership of an item, the ownership of the item
shall - despite delivery thereof - remain with the Supplier until the Supplier has received full
payment from the Customer of whatever the Customer owes the Supplier on account of goods
and services supplied and due to the Customer's failure to pay the sum which said Customer
therefore owes the Supplier.
Goods, which are still subject to a restriction on ownership, may be used by the Customer for his
ordinary business activities only. However, he is not allowed to transfer ownership or rent out
said goods or give them as security or burden them with other limited business rights.
If the Customer fails to meet any payment obligation, the Supplier is entitled to take possession -
without the Customer's co-operation - of goods which are still subject to a restriction on
ownership. The Supplier is not obliged to compensate the Customer for the damages suffered by
said Customer in connection with the repossession thereof. The costs for repossession and, if
necessary, the selling off of the goods shall be fully at the expense of the Customer. The
commercial value of the repossessed goods to the Supplier shall be deducted from the amount, 3
which the Customer still owes the Supplier. However, the Supplier never has to apply a value
that is higher than the price agreed with the Customer for said goods.
Article 4. Manual; instructions
4.1 As regards the machines and installations to be supplied, the Supplier shall - in the form of a
manual or instruction book - provide the Customer with information about the construction,
operation and handling of the machines and installations; this provision shall only apply in case
of a Dutch buyer and said information shall be in Dutch.
4.2 The Customer is entitled to free instruction, to the extent agreed in the agreement concerned.
Article 5. Drawings, software and the like
5.1 All drawings, pictures, catalogues, software and other data, insofar as it does not concern a
manual or instruction book as referred to in article 4, which the Supplier makes available to the
Customer, shall remain the property of the Supplier and shall be returned at the first request of
the Supplier. It is forbidden to copy said information or disclose it to a third party without prior
written consent thereto.
Article 6. Price; price adjustments
6.1 Unless specifically otherwise agreed, a specified or agreed price does not include the VAT
or any other government levies due in connection with the agreement and, if the Supplier is
taking care of the transport of goods, nor the costs in connection with packaging, transport and
insurance. The Supplier is entitled to invoice the items mentioned in the previous sentence
separately and in full.
6.2 If the costs for the execution of the agreement have become higher for the Supplier because
cost factors relevant to the price such as wages, premiums of social and other types of insurance,
materials, value of foreign currency and the like have risen after the moment of the last (price)
offer made by the Supplier, the Supplier is entitled to make an additional charge for said higher
costs through price adjustments.
6.3 If the Supplier and the Customer have agreed a price in a currency other than the Euro and
said other currency devalues in relation to the Euro after the moment of the last (price) offer
made by the Supplier, the Supplier is entitled to adjust the price to the extent required to fully
compensate the devaluation that occurred up to the moment of full payment.
Article 7. Payment and fulfilment by the Customer
7.1 Insofar as it has not been expressly otherwise agreed, the agreed price shall be paid in full
without any discount or deduction within three weeks from the invoice date stated on the invoice
concerned by remittance to the bank account specified thereto by the Supplier. The Supplier is
entitled to send invoices for part-deliveries, too.
7.2 Unless the Supplier has agreed to postponement of payment in writing and in advance, the
Customer is not entitled to postpone payment of the price because he is of the opinion that the
delivery or performance of the Supplier is faulty/inferior. 4
7.3 If the Customer does not fulfil its payment obligations or does not fulfil its payment
obligations on time, the Supplier is, without prejudice to his other rights according to the law or
agreement and without any notice or proof of default being required, entitled to:
a. postpone execution of the agreement, with regard to which the Customer is in default, as well
as any other agreements with the Customer;
b. compensation for all damages as a result of the non-fulfilment. Insofar as the non-fulfilment
consists of failure to pay or failure to pay on time, the said compensation shall at least include
the statutory interest (as referred to in Article 6:119a and 6:120 Paragraph 2 of the Dutch Civil
Code). Interest shall be due from the moment the Customer is in default of payment until the
moment the Customer has paid in full what he owes to the Supplier. Each time a year expires,
the interest referred to in the previous sentence shall also be owed on the interest already due but
not yet paid;
c. compensation for all judicial and extra-judicial costs, the latter of which are deemed to be at
least 15% of the amount not paid on time by the Customer and which is being claimed by the
7.4 If the Supplier has any reason to doubt whether the Customer shall meet his obligations -
whereby the following circumstances on the Customer's side constitute in any event enough
reason for doubt: repeated default of payment, seizure of the Customer's property, moratorium,
bankruptcy, full or partial stoppage of the company -, everything the Customer owes the Supplier
shall become due immediately and the Supplier shall be entitled to postpone the fulfilment of his
obligations until the Customer has fulfilled its obligations, including full payment and/or - to the
Supplier's satisfaction – providing security for the payment. If full payment is not made or
satisfactory security given within fourteen (14) calendar days from the request to that effect, the
Supplier is entitled to declare the agreement concerned as being annulled, without prejudice to
his right to compensation for damages suffered and/or still to be suffered.
Article 8. Force Majeure
8.1 Applicable to the Supplier as Force Majeure are circumstances of a factual, legal or other
nature, which - whether or not foreseeable - through no fault of his own are preventing him from
fulfilling his agreement on time or are extremely problematic thereto. The following
circumstances, among others, are applicable as such: strikes; sit-in strikes; interruptions in
production as a result of machine failure, failures in the supply of energy and water or fire or the
like; import, export and production bans and other government measures; transport blockages;
failure of suppliers and auxiliary service staff.
8.2 Should a Force Majeure situation occur on the Supplier's side, he shall notify the Customer
thereof with all possible speed. Unless it is beyond doubt that the Force Majeure situation is
going to last thirty full working days or longer, the obligations whose fulfilment is being
hindered by Force Majeure or is becoming extremely problematic for the Supplier, as well as any
other as yet unfulfilled obligations, shall be postponed, without this giving rise to any right to
damages. As soon as it is beyond any doubt that the Force Majeure situation is going to last more
than thirty full working days, or as soon as the Force Majeure situation has lasted more than
thirty days, each of the parties is entitled to annul the agreement by sending a written declaration
to the other party, without this giving rise to any right to damages.
Article 9. Assembly, installation and/or putting into operation
9.1 If the Supplier is supplying goods, he shall bear responsibility for the assembly, installation
and/or putting into operation thereof only if and to the extent that it has specifically been agreed.
9.2 If and to the extent the Supplier is taking care of the assembly, installation and putting into
operation, the following applies:
a. The Customer shall give all assistance required to enable the Supplier to execute or
commission the execution of the assembly, installation and/or putting into operation in a timely
and sound fashion. He shall in any case provide in due course: good and safe access to the work
location, if necessary also outside the Customer's usual working hours; the presence of permits,
to the extent necessary for the execution of the activities; an unloading location as well as
sufficient storage space, insofar as necessary covered and lockable; the necessary energy, water,
fuel and lubricants and, unless otherwise agreed, the necessary ladders, scaffolding and other
ancillary equipment to be indicated by the Supplier.
b. The Customer shall see to it that any works needing to be done in order to enable the Supplier
to continue working thereon during his assembly, installation and/or putting-into-operation
activities - whereof it has not been agreed that the Supplier shall carry out said works – for
example any dismantling activities and any electrical and plumbing activities, any groundwork,
brickwork, foundation work, carpentry and painting as well as any other activities of a structural
nature - shall be done soundly and on time. The Customer shall consult with the Supplier on a
regular basis and shall provide him with all information required for good co-ordination of each
c. The Customer shall give all assistance required to realise and maintain safety at the work
location, whereby he shall also observe the applicable legal and industrial regulations. In
particular he shall see to fire safety measures.
Article 10. Quality; inspection; rectification of defects; service
10.1 The Supplier shall supply goods and carry out works that meet the quality standards, which
have been expressly agreed, and the legal stipulations - especially those concerning operation,
use on roads and safety - applicable in the Netherlands at the time of the Supplier's last offer.
Should the Supplier - after his last offer but before delivery - become aware of new relevant legal
stipulations in the Netherlands, he shall notify the Customer. In consultation with each other the
performance to be delivered by the Supplier shall be adjusted. The delivery time shall be
adjusted to the extent necessary and the additional costs for the Supplier as a result of the
adjustment shall be at the expense of the Customer. Insofar as no specific quality standards have
been agreed with regard to the goods or performances to be delivered, the quality of the goods
and performances to be delivered shall not lie below good average quality.
10.2 The Customer is responsible for obtaining any permit that may be required for the
possession and/or use of goods.
10.3 Upon delivery of goods or upon notification by the Supplier to the Customer that he has
completed the agreed works, the Customer shall carefully check the completeness and soundness
of the goods and/or works as soon as possible but in any case within ten (10) working days. In
the case of shortcomings and/or defects - (each of which fails to fulfil that which was agreed to) -
which the Customer could have discovered in the period mentioned in the previous sentence if he
had checked carefully or which he discovered but then failed to notify the Supplier in writing
within 21 calendar days from delivery or notification by the Supplier, the Customer can no
longer appeal to the Supplier. This also applies in the event of part-deliveries.
10.4 Shortcomings or defects, discovered during the check referred to in 10.3 and of which the
Supplier is notified on time in writing, as well as shortcomings or defects, which could not have
been discovered during the check referred to in 10.3 but which still come to light within six
months from delivery or notification by the Supplier and which are reported to the Supplier in
writing within ten (10) calendar days from discovery thereof, shall insofar as possible be
rectified by the Supplier by way of supplement or – at the discretion of the Supplier – repair or
replacement. Insofar as it is not otherwise specified hereafter in 10.5, said rectification shall be
done at the expense of the Supplier.
10.5 As regards rectification of shortcomings and defects, the following stipulations are also
a. The Supplier shall do his best to ensure that the rectification is done as soon as possible under
the given circumstances. The Customer shall give any assistance required thereto.
b. The rectification shall be done as much as possible at a location assigned thereto by the
Supplier. The goods shall be transported to and from said location at the expense and risk of the
c. In the event of rectification outside the Netherlands, the travel and accommodation expenses
of those who are carrying out the investigation and rectification will be at the expense of the
d. Goods or components, which become available in the event of replacement, shall
automatically become the Supplier's property.
e. In the event of shortcomings or defects concerning goods, which the Supplier has obtained
from a third party, or concerning activities, which the Supplier has had done by a third party,
rectification thereof shall - without prejudice to the statements in 10.3 - be done free of charge
only to the extent that said third party accepts the costs for rectification.
f. The Customer does not have the right to oblige the Supplier to rectify shortcomings or defects,
which are likely to be the result of normal wear, of improper or careless (negligent) use, of use
not in accordance with the intended application, or of failure to (correctly) comply with the
instructions of the Supplier.
g. The Customer's right to oblige the Supplier to rectify shortcomings and defects expires if the
Customer does the rectification himself or has it done by a third party without the prior written
consent of the Supplier.
h. The occurrence of shortcomings or defects does not constitute a basis for postponement of the
Customer's payment obligation towards the Supplier. The Customer's failure to fulfil his
payment obligation - even after a written summons thereto - shall result in the expiry of his right
to rectification of shortcomings and defects.
10.6 If the Customer is submitting a claim concerning a shortcoming or defect which cannot
be rectified or which can only be rectified at disproportionately high costs to the Supplier, the
Supplier is not obliged to rectify the shortcoming or defect. In that case the price for the
delivered item shall be reduced, whereby said reduction shall be determined as much as possible
on the basis of consultation between the Supplier and the Customer and in accordance with the
unit prices applied upon entering into the agreement concerned, or each of the parties shall be
entitled to annul the agreement concerned by way of written notification thereof. The Customer
is entitled to annul the agreement concerned only if the shortcoming or defect which cannot be
rectified is so problematic to him that - even despite a price reduction - he cannot within reason
be expected to uphold the agreement concerned.
10. 7 The occurrence of shortcomings or defects, which the Supplier is obliged to rectify, can -
except for the case mentioned in 10.6 - only form a basis for annulment of the agreement 7
concerned by the Customer, if the Supplier - even after a written summons thereto - fails to
rectify the shortcoming or defect within a reasonable period taking all circumstances into
10.8 As regards vehicles, machines and installations, the Customer is entitled to free service to
the extent agreed upon entering into the relevant agreement.
10.9 Any claim of the Customer in respect of compliance with, nullification or dissolution of the
agreement expires if he does not institute legal action against the Supplier in a legal manner
within six (6) months after he has given notice of a shortcoming or defect in accordance with the
provisions in 10.3 and 10.4.
Article 11. Contravention of industrial/intellectual rights of ownership
11.1 The Supplier is obliged to supply goods, which do not violate a third party's industrial or
intellectual rights of ownership in the Netherlands. Should a third party call the Customer to
account in connection with violation in the Netherlands of an industrial or intellectual right of
ownership, he shall notify the Supplier hereof at once and let the Supplier handle and settle the
claim made by the third party. Should the Supplier agree to the existence of a violation in the
Netherlands of an industrial or intellectual right, the Supplier is entitled – at his discretion and,
by the way, in consultation with the Customer – to remove the violation by adjusting or replacing
the item concerned or by obtaining a licence or by taking back the item involved against
repayment of the purchase price received for it. The costs for handling and settling the third-
party claim shall be at the expense of the Supplier, who is not obliged to compensate for any
11.2 If the Supplier is using materials, drawings, models, instructions and/or suchlike from or on
behalf of the Customer in the execution of an agreement with the Customer and a third party
claims the Supplier for violation of an industrial or intellectual right in connection with the use
of materials, drawings, models, instructions and/or suchlike from or on behalf of the Customer,
he shall notify the Customer hereof at once. The Supplier shall leave the handling and settlement
of the third-party claim to the Customer, who shall bear all his own and the Supplier's expenses
and damages in connection with the third-party claim. The Supplier is entitled either to postpone
the execution of the agreement concerned pending the result of the Customer's action towards the
third party, or to annul the agreement concerned - effective immediately - without being obliged
to pay any compensation.
Article 12. Responsibility for damages
12.1 As regards the Supplier's responsibility towards the Customer for damages suffered by the
Customer as a result of failure on the part of the Supplier to fulfil its obligations or any wrongful
act committed by the Supplier, the following stipulations apply:
a. As regards damage consisting of injury or damage to one's health, whether or not having death
as a result, and any damage resulting therefrom, the Customer is entitled to compensation to the
extent that the Supplier is able to obtain a payment for said case under a liability insurance
policy, on the understanding that a maximum of Euro 1,125,000 applies per incident/claim.
b. As regards damages consisting of damage or full or partial loss of an item and any damage
resulting therefrom, the Customer is entitled to compensation to the extent that the Supplier is
able to obtain a payment for said case under a liability insurance policy, on the understanding 8
that a maximum of Euro 45,450 applies per incident/claim or series of interrelated
c. As regards damages other than those mentioned above under a. and b. the Customer is not
entitled to compensation, unless said damage is the result of intentional reckless conduct by the
managerial staff of the Supplier only.
d. The Supplier is not responsible for any damage which comes to light twelve (12) months after
the event that caused the damage, for which the Supplier can be held legally responsible.
Without prejudice to the statements in the previous sentence, any claim for compensation expires
if no legal action has been instituted against the Supplier within six (6) months from the damage
coming to light.
e. The Customer shall indemnify the Supplier against all third-party claims, irrespective of the
grounds on which they are based, related to goods and services supplied to the Customer by the
Supplier or work performed by the Supplier, unless and insofar the Customer demonstrates that
there is no connection between the third-party claim and any occurrence for which the Customer
bears the risk.
f. Should the Customer claim the Supplier - on the basis of a claim taken over from a third party
- for compensation of damages, in the causation of which the Supplier is in some way or other
directly or indirectly involved, the Supplier may also appeal to the above-mentioned stipulations
towards the Customer.
g. The above-mentioned stipulations also apply to the persons, who are in any way whatsoever
involved in the fulfilment of the Supplier's obligations towards the Customer.
Article 13. Applicable law; competent judge
13.1 The legal relationship(s) between Supplier and Customer is/are subject to Dutch
substantive law exclusively. The Trade Treaty of Vienna of 11 April 1980, effective to the
Netherlands as from 1 January 1992, is not applicable.
13.2 Insofar as compulsory legal stipulations do not require otherwise and the parties do not
agree on arbitration after all, the judge, within whose jurisdiction the Supplier has his main
branch, is exclusively authorised to try any disputes arising between the Supplier and the
Customer concerning or related to a legal relationship between them and which cannot be settled
out of court (amicably). However, the Supplier remains entitled to sue the Customer – at the
Supplier's discretion - in a court whose jurisdiction covers the Customer's main branch and/or the
Customer's subsidiary branch, which is closely involved in the dispute.
13.3 Should the parties agree on arbitrage after all, said arbitrage shall, unless otherwise agreed
at that time, be governed by the then applicable arbitration rules of the Arbitration Council for
the Metal Industry and Trade in The Hague.