PART B. Regarding Agreements for carrying out Activities and contracting for Work
26.1 Activities and Work
The conditions in Part B of the GTCD2014 shall apply to all legal relations between the Client and the Contractor regarding the carrying out of Activities and the contracting for Work without prejudice to the applicability of the provisions of Part A of the GTCD2014, which, as far as applicable, shall also apply to the carrying out of Activities and the contracting for Work.
26.2 Part B > Part A
The provisions of Part B of the GTCD2014 therefore complement the provisions of Part A of the GTCD2014. In the event that a provision from Part B of the GTCD2014 shall also apply and is in conflict in whole or in part with a provision from Part A of the GTCD2014, the provision under part B of the GTCD2014 shall prevail as long as the dispute persists.
27.1 Contracting for Work: Creating (making, building or delivering) an item of a material nature on the Client’s behalf. This could include for example, making an installation, a test set-up, a system, machine, equipment, circuit board, control box, etc. Before completing the Work, the Parties shall normally agree a recommended price, establish specifications and agreements on additional or less work and the method of administering tests.
27.2 Design Data: All details and circumstances including information, data, specifications, demands, method of use and environmental conditions based on which the Contractor is to carry out Activities or deliver Work or that it should otherwise take into account in carrying out this Agreement as far as the Client provided these before or on concluding this Agreement and the Contractor has confirmed these to the Client. As far as during the carrying out of this Agreement, additional relevant details and/or circumstances are known to the Contractor, these shall only form part of the Design Data if the Contractor has expressly confirmed this In Writing to the Client.
27.3 Order: The order for carrying out of Activities and/or delivering Work as specified in this Agreement, the GTCD2014 and the Design Data.
28 The Order
The Agreement for the delivery of Activities and/or Work shall only be concluded taking into consideration article 3. The application of article 3.7 shall be excluded for the delivery of Activities or Work or pieces of work.
The scope of the order and the specifications to which the Item/Service Supplied shall correspond, shall only be determined based on what the Parties have agreed on In Writing.
28.3 Obligation to perform
The Activities to be carried out by the Contractor shall be in the form of an obligation to perform unless expressly agreed that this shall have the character of an obligation to produce results and the envisaged result is described with sufficient positiveness with due consideration for the following paragraph.
28.4 Obligation to produce results
The Parties may agree In Writing that the Contractor is to achieve a concrete result in carrying out the order. In this case, an obligation to produce results shall not exist unless the following conditions are also fulfilled:
- The Client shall notify the Contractor of and confirm to it all the Design Data required by the Contractor that are important for achieving the agreed result before or during the conclusion of this Agreement.
- Following the conclusion of this Agreement, nothing has been changed in a negative sense in the Contractor’s opinion regarding the information, details and circumstances stated in the previous point.
- The criteria based on which and the circumstances in which it shall be assessed as to whether the agreed result has been achieved shall be measurable in crystal-clear and objective manner as agreed.
- The Contractor shall confirm to the Client In Writing the method in which the Parties establish whether the agreed result has been achieved before or on concluding this Agreement.
28.5 Partial obligation to produce results
As far as the Parties have indeed agreed an obligation to produce results but not all the conditions for this have been fulfilled, this Agreement shall assume the character of an obligation to perform as far as the Contractor believes that the guaranteed result could not be achieved as a result of the failure to comply with the conditions for this.
29.1 Basis for the Activities and the Work
The Contractor shall carry out the agreed Activities and the agreed Work based on the Design Data.
29.2 Format of Design Data
The Client shall as far as possible deliver the Design Data digitally, in the agreed format. The Design Data shall be delivered digitally in the format stipulated by the Contractor unless agreed otherwise. The Client shall carry out the necessary adjustments, arrangements, conversions and sorting of the Design Data on first request from the Contractor.
29.3 Access to systems
As far as the Contractor considers it important that it has access to the Client’s installations, networks or systems for carrying out the Activities, the Client shall provide the Contractor with its assistance Without Delay. The Contractor shall not be responsible for damage or costs as a result of using the Client’s networks, systems or installations unless the Client can show that the damage or costs are the result of intent or gross negligence by the Contractor’s management.
29.4 Accuracy of Design Data
The Client shall ensure the correctness and completeness of the Design Data. If the Contractor believes that the Design Data contain errors, it shall be entitled to suspend its Activities until the Client has rectified such errors. The Client shall in any case be liable to the Contractor for the applicable fee with respect to the part of this Agreement already carried out while the Contractor shall then be entitled to charge extra fees in accordance with its normal rates and without prejudice to its right to claim compensation. The Client may not derive any right to any fees from the Contractor’s suspending work irrespective of the grounds for this.
29.5 Client’s obligation to inform
The Client shall remain obliged to inform the Contractor in good time of all relevant details and circumstances within its domain and that may be important for carrying out this Agreement.
30 Delivery period
30.1 Start of delivery period
If the Parties have agreed a certain delivery period, this period shall begin on the day following the day on which, as far as applicable, each of the following conditions has been fulfilled:
- The Agreement regarding the order has been concluded.
- The Client has provided all the Design Data in the correct format that the Contractor considers necessary for carrying out the order.
- The Contractor has received the advance sum if such an advance has been agreed.
- The day on which all the formalities that the Contractor considers necessary in connection with the carrying out of the order are fulfilled, including the obtaining of permits.
- If an order has be to carried out on premises or an installation, network or system designated by the Client in connection with the carrying out of this order, the Contractor is of the opinion that this/these has/have been prepared and the Contractor has or shall be granted unhindered access to this/these.
30.2 Delivery date instead of delivery period
If a delivery date instead of a delivery period has been agreed, the delivery period shall be the same as the number of days between the point at which this Agreement is concluded and the agreed delivery date. This period shall not begin before the point at which all conditions provided for under article 30.1 have been complied with. The point of delivery shall in this case be the point at which the delivery point stated has lapsed with consideration to the other provisions of article 30.
If a delay occurs in carrying out the order that is not completely attributed to the Contractor, the delivery period shall be extended by the duration of the delay.
30.4 Extending the delivery period
If when carrying out the order, the conditions for commencement of the delivery period as described in article 30.1 are no longer fulfilled and the Contractor believes that this is impeding the progress of the agreed Activities and/or Work, the delivery period shall be extended by the number of days on which the conditions have no longer been fulfilled.
30.5 Non-binding delivery period
The agreed delivery period shall be an estimate based on delivery times from suppliers, information and circumstances of which the Contractor is aware at the point at which the Offer is made. If during the delivery period, circumstances occur outside the responsibility of the Contractor whereby the agreed delivery period is no longer feasible, the delivery period shall be extended as far as necessary in the opinion of the Contractor.
30.6 Delay > 16 weeks
In the event that the total delay as stated in article 30.5 amounts to more than 16 weeks, the Client shall be entitled to terminate this Agreement. The Contractor shall in such case not be obliged to compensate the Client for any damage or costs incurred due to later delivery and/or termination.
31 Facilitation by the Client
31.1 Obligations of the Client
Only if and as far as expressly agreed otherwise shall the Client itself, at the Contractor’s discretion, ensure sufficiently and on time for:
- Ground, paving, pile-driving, demolition, foundation, concrete laying, carpentry and upholstering work or other additional work of whatever nature;
- Good and concrete accessibility of the place(s) and accompaniment to/at the place(s) where the Contractor is required to have access in connection with the carrying out of the order;
- Drawings, Documentation, maps, diagrams and explanations by the Client required by the Contractor with respect to the grounds and the items on this;
- Any help required for the placement or replacement of items, which in all reasonableness cannot be handled by two people as well as any necessary hoisting and/or lifting tackle or similar equipment to be operated;
- The provision, setting up and removal of staging, scaffolding and ladders after completion of the Contractor’s Activities;
- The supply of fuels, energy and resources such as compressed air, gas, water, electricity, diesel oil and petrol, supply and drainage cables and the necessary connections required for carrying out the order and any testing and commissioning;
- The provision of connection and safety equipment and cabling for the electric motors to be supplied or used and/or other electrical equipment with the exception of starting and control resistors that form a part of the electrical equipment;
- For the duration of the order and near the place(s) where the order is to be carried out, the provision of a dry, heated, adequately lighted and separate lockable space of sufficient size to be used as a shelter for the workforce involved and for the storage of the materials and tools to be processed/used and for the workforce’s personal possessions;
- Activities required to restore to a good and usable state any parts that become dirty or damaged or which are out of order or which no longer function unless the contamination or damage was caused by the Contractor’s subordinates;
- The starting up and/or maintaining in service and/or shutting down of installations under the Contractor’s control as far as desirable or necessary in carrying out the order;
- Providing sufficient lighting and, where necessary, providing and maintaining the required or desired temperature and humidity for the place(s) where the order to be carried out in such a way that the Activities or Work can be carried out without difficulty;
- Requesting and the timely compliance with the necessary requirements for the supply lines, connections, sufferance dues, permits under the Nuisance Act, permits under the Environmental Protection Act and other environmental legislation, building or renovation permits and other statutory requirements.
31.2 Surplus materials
Replaced, residual or removed materials shall be the property of the Contractor unless it chooses not to avail itself of this right.
32 Additional/less work
The Parties may agree on a change or additional or less work with respect to the agreed Activities or Work. If this Agreement involves a fixed price, the Contractor shall inform the Client as to the financial, time and other consequence of any change that may be desired.
32.2 Additional/less work equals amendment
If the Parties agree on a change or additional or less work, this shall be considered an amendment to this Agreement as provided for under article 5.
32.3 Postponement of delivery times
If the Parties agree on an amendment to this Agreement, the agreed delivery time or delivery date shall be extended or postponed by the number of days required to complete the change to this Agreement.
32.4 Necessary amendment
If the Contractor in connection with the carrying out of the Activities or the Work believes that an amendment and/or extension of this is necessary or in all reasonableness, desirable, it shall inform the Client accordingly. If the Client then fails to agree In Writing within 14 days to the proposed amendment(s) and/or extension(s) and the associated price change, the Contractor shall be entitled to suspend the carrying out of its obligations towards the Client. The Client shall in this case be obliged to pay the Contractor a fee for the Activities already carried out and the Item/Service already Suppliedbased on the Contractor’s applicable rates without prejudice to the Contractor’s right to claim compensation for the damage it suffers.
32.5 Payment for additional work
The Contractor may invoice separately for any additional work once the Contractor has completed this additional work unless agreed otherwise.
33 Delivery and acceptance
If it has been agreed that the Order will be executed in stages, the Contractor will be entitled to postpone or suspend the Activities and deliveries regarding a next step or stage or any part of those Activities or deliveries until the Client has approved of the results of the previous step(s) or stage(s) In Writing in accordance with the agreed test criteria.
33.2 Test period
Unless otherwise agreed, the Client will test the Item/Service Supplied in relation to the agreed test criteria within the test period of 8 (eight) working days, counting from the moment that the Contractor has made known that the Item/Service Supplied is ready for acceptance.
33.3 Extension of test period
If it appears during the performance of the test(s) that the progress of the test(s) is impeded by a Shortcoming in the Item/Service Supplied, the Client will notify the Contractor thereof In Writing as detailed as possible; in such a case, the test period will be interrupted until the Item/Service Supplied is offered for testing again.
33.4 Notification of Shortcomings in the Item/Service Supplied during tests
The Client will report to the Contractor any Shortcoming that is detected during the tests or during the guarantee period, appropriately substantiated and documented. The Contractor is not obliged to rectify a Shortcoming before it has received all information from the Client that is available and required to rectify the Shortcoming.
33.5 Costs of rectification of Shortcomings
Any Shortcoming established during the tests will be rectified free of charge when a fixed price has been agreed. If no fixed price has been agreed, the Contractor will be entitled to a reasonable fee in accordance with the agreed prices and rates for the efforts involved in rectifying the Shortcoming.
33.6 Test criteria
The test criteria should preferably be agreed by the Parties In Writing before or on entering into the Agreement. Subjective criteria do not form part of the test criteria. Criteria agreed at a later stage will only apply insofar as they have been confirmed by the Contractor in Writing to the Client. The Client is not entitled to invoke that the Item/Service Supplied does not comply with certain requirements when these requirements do not form part of the agreed test criteria. When the test criteria are not fulfilled, it is considered a Shortcoming as referred to in Article 1.5.
33.7 Moment of Delivery Item/Service Supplied
The Item/Service Supplied is duly delivered and accepted on the earliest of the following:
- The moment at which the Client has inspected the Item/Service Supplied after testing it in accordance with the agreed test criteria, and has not detected any essential Shortcomings as referred to in Article 33.9;
- The moment at which the test period has expired, counting from the day following the day on which the Contractor notified the Client In Writing that the Item/Service Supplied is ready for acceptance and the Client has failed to test the Items/Service Supplied within the test period;
- The moment at which the test period has expired, counting from the day following the day on which the Contractor notified the Client that the Item/Service Supplied is ready for acceptance and the Client has not informed the Contractor of an essential Shortcoming in the Item/Service Supplied in Writing (as described in Article 33.9);
- The moment that the Client has in fact put into use the Item/Service Supplied or the equipment which it forms part of or has started to form part of after it was installed;
- The moment at which the Client has paid the invoices for the Item/Service Supplied.
33.8 Activities after delivery
Insofar as the delivery of a Work has been agreed and the Contractor still has to carry out Activities (for example calibration or giving instructions) in relation to that Work, the Work will nevertheless be considered as delivered and accepted when the Work itself is considered as delivered and accepted pursuant to Article 33.7.
33.9 Essential Shortcoming
An essential Shortcoming means: a failure that significantly impedes the normal operations or the normal use of the Item/Service Supplied in the opinion of the Contractor.
33.10 Rectification of non-essential Shortcoming
If in relation to the acceptance, in the context of tests, only one or more non-essential Shortcomings are established, the Item/Service Supplied will be considered as delivered. The Contractor is obliged to rectify this (these) non-essential Shortcoming(s) as soon as possible. A non-essential Shortcoming will not give the Client the right to not accept the Item/Service Supplied, to terminate the Agreement in full or in part or to suspend payment.
Advices, information provided, details and/or suggestions given by the Contractor regarding the use, placement, starting-up, assembly, extension, etc. of the Item/Service Supplied only have the character of a guarantee of i.e. return, accuracy, compatibility with other items, effect in a certain environment, or installation, etc. when explicitly agreed and subject to the provisions of Article 14.2.
34.1 Mutatis mutandis provision
The guarantee provisions of Article 14 of GTCD2014 apply mutatis mutandis to the delivery of Work and Activities, insofar as they can be considered to apply as regards the specific character of the Item/Service Supplied.
34.2 In accordance with agreed specifications
The Contractor guarantees that it will carry out the Activities and the Work with due observance of the Design Data, and that it will carry these out in such a way that they will comply with the agreed specification and the requirements reasonably set for this with due observance of Article 28.2.
34.3 Guarantee period on normal use
Unless otherwise agreed, the guarantee period applies for use during working days of eight (8) hours per day. If the Item/Service Supplied is used during working days of more than eight (8) hours per day, the actual guarantee period will be shorter accordingly.
The Contractor will not give a guarantee on items that have been assembled, installed, fine-tuned, calibrated, validated, tested, inspected, adjusted and/or started up, etc. by or on behalf of the Contractor, but that have not been supplied by or on behalf of the Contractor itself.
Notwithstanding the provisions in Article 18 the following provisions will apply.
35.1 Exclusions in connection with Activities
The Contractor is not liable for any damage or costs incurred as a result of:
- Activities undertaken on or in connection with goods supplied by third parties;
- Incorrect, late or incomplete delivery of Design Data by the Client;
- Use, testing, commissioning or decommissioning of a Work, which goods supplied by third parties form part of or in which such items are assembled or installed, or Activities undertaken in order to do so;
- The carrying out of Activities on a Work that has become part of an item of the Client (for example by assembling it) in the period before the moment that the Item/Service Supplied has been delivered and accepted.
- Items used during the carrying out of the Activities on request, recommendation or instruction of the Client;
- Activities carried out by individuals recommended or appointed by the Client.
35.2 Exclusions in connection with Work
Furthermore, the Contractor is not liable for any damage or costs incurred as a result of:
- The design or parts of the design of the Work insofar as this design/these parts of the design has/have not been fully created by the Contractor;
- The malfunctioning of the Client’s machines, installations or processes, of which the Item/Service Supplied has started to form part of in the period before the moment at which the Item/Service Supplied was properly delivered and accepted;
- The use of certain parts in the Work insofar as those parts have been used at the request, recommendation or instruction of the Client or have been obtained from a Supplier appointed or recommended by the Client.
PART C: regarding the development and supply of Software
36.1 Supply of Software
The provisions in Part C of the GTCD2014 apply to all legal relationships between the Client and the Contractor regarding the development and/or supply of Software or the adjustments thereto, subject to the applicability of the provisions of Part A and Part B of the GTCD2014.
36.2 Part C will prevail
The provisions of Part C of the GTCD2014 are a supplement to the provisions of Part A and Part B of the GTCD2014. When a provision of Part C also applies and is in full or partial contravention of a provision of Part A or Part B of the GTCD2014, the provision of Part C of the GTCD2014 will prevail insofar as there is a conflict.
36.3 Explanation on Software
The designing, creation or writing of Software and activities related thereto are regarded as the provision of services. The creation of Software under Activities (see Article 1.19 among others) falls within the GTCD2014.
37.1 Customised Software: Software, websites, protocols or operating systems developed by order of the Client, or adjustments to already existing software, websites, protocols or operating systems developed by order of the Client.
37.2 Standard Package: The Software that is or was offered on the market by the Contractor as standard software in the general sense of the word, whether or not adjusted, fine-tuned, configured, changed or extended for the benefit of the Client.
37.3 Software: Standard Package and/or Customised Software.
38.1 Licence Agreement
If Software is supplied by the Contractor and the modalities of the use thereof have not been provided for in a separate licence agreement, the provisions of Part C of the GTCD2014 will apply to the delivery and the use of that Software insofar as applicable. If the use regarding the Software supplied by the Contractor is provided for in a separate licence agreement, the provisions in that licence agreement shall prevail over those in Part C of the GTCD2014.
38.2 Service/Maintenance Agreement
If a service or maintenance agreement has been entered into by the Parties in respect of the Software supplied by the Contractor, the provisions contained therein regarding the notification and rectifying of Shortcomings, maintenance on old releases and costs will prevail over the relevant provisions of Part C of the GTCD2014.
38.3 Scope of user rights
On delivery of the Software, the Client will obtain the non-transferable, non-exclusive right of use for own use regarding the Software, for the application for which the Software was sold, for the location for which the Software was sold. Unless otherwise agreed, the above-mentioned rights of use will take effect from the moment that the Client has fulfilled all its obligations towards the Contractor. The right of use does not comprise the right to change or adjust the Software and it is not transferable.
38.4 Further rights
The Parties can conclude additional arrangements on further rights.
If no duration has been agreed for the duration of the rights of use of a Standard Package, the right provided for in Article 38.3 will be valid for an indefinite period of time.
38.6 Own use and further developments
The Client will at all times be entitled to use, apply, further develop (have developed), or sell to third parties, the Software developed by, on behalf of or by order of it.
Unless otherwise agreed, the guarantee period in respect of the Software will, contrary to the period mentioned in Article 14.3 be 3 (three) months from the date of delivery. Unless agreed otherwise, subject to the provisions of Article 2.2 and Article 28.4 , the Contractor cannot guarantee that the Software supplied by it is suitable for the aimed and/or actual use by the Client.
38.8 Reporting of Shortcoming
The Client will report a Shortcoming to the Contractor without delay after he has detected it. Furthermore, Article 33.4 also applies in respect of the reporting of a Shortcoming.
38.9 Rectification of Shortcomings
Insofar as the Contractor is obliged to take care of rectifying a Shortcoming, it will do so to its best ability.
38.10 Costs of rectification after improper use
If, in the opinion of the Contractor, a Shortcoming was fully or partially caused by or related to improper use or other causes that cannot be attributed to the Contractor or if the Shortcoming could already have been established when performing the tests as referred to in Article 33.2, all costs of rectification will be at the expense of the Client.
38.11 Guarantee restrictions after changes
The Contractor will be discharged from its guarantee obligations if the Software has been adjusted or changed by other parties than the Contractor.
38.12 Software is not flawless
The Contractor does not guarantee that the Software is flawless, or will function without interruption or without Failures, or that all Failures will be rectified or improved.
38.13 New releases
When a maintenance agreement has been made with regard to a Standard Package developed by the Contractor and when an improved version of the Standard Package becomes available for the market, the Contractor will make such a version available to the Client.
38.14 Old releases
The Contractor is, after three (3) months of expiry of the release of a new version of a Standard Package, no longer obliged to rectify any Shortcomings in an older version. If a new version of the Standard Package offers more possibilities and/or functionality than older versions then the Contractor is entitled to charge a fee for making the new version available.
38.15 Package of third parties
When the Contractor provides the right to use a Standard Package from a third party in accordance with the conditions of use or licensing agreement of or with the third party or if maintenance with regard to a Standard Package is performed on the basis of the conditions of an agreement between the Supplier and a third party, then the provisions of Articles 38.1 to 38.14 of the GTCD2014 do not apply and they are replaced by the provisions of the relevant agreement(s) that the Contractor has with the third party or parties. By entering into the Agreement, the Client authorises the Contractor to purchase the software required for the performance of the Order and to agree to the accompanying licence terms. The Contractor will inform the Client at its request on the relevant applicable provisions.
38.16 Personal Data Protection Act
The Client indemnifies the Contractor against claims from third parties of whom personal data is registered or is being processed insofar as those claims are related to data and Software supplied by the Contractor to the Client or data processed by the Contractor on behalf of the Client.
38.17 Licences of Client
The Client guarantees by entering into the Agreement that if the Contractor has to make use of software, systems, platforms, data and accounts that are in the possession of the Client, for the performance of the Activities, the Client will dispose of the sufficient rights, such as licences, access rights and authorities. The Client indemnifies the Contractor against any claims from third parties insofar as the Client should not dispose of the above-mentioned rights.
39 Customised Software
39.1 Costs of rectification during the guarantee
The Contractor will not charge any costs for the rectification of the Shortcoming if a fixed price has been agreed for the development of Customised Software. If no fixed price has been agreed, the Customised Party will be entitled to charge the costs incurred for the rectification to the Client.
39.2 Source code of customised work
Unless otherwise agreed, the source code will not form part of the Customised Software to be supplied. If the Parties have agreed that the source code forms part of the delivery, the user rights as referred to in Article 38.3 will also comprise the right to adapt or change the Software supplied by the Contractor. If the Contractor is obliged by law to provide the source code to the Client, the Client must pay a reasonable remuneration for this.
40 Standard Package
40.1 Right of use comprises one installation
The Standard Package may be used by the Client exclusively on one processing unit, with the understanding that the Software of the Standard Package may be used on a second processing unit if there is a temporary failure of this processing unit and only for so long as the failures lasts.
If and insofar as no other conditions have been set by the Contractor, the Client is entitled, for security reasons, to make a maximum of two back-up copies of the Standard Package; these copies may only be used for the replacement of original material which has been rendered unusable. The copies must have the same labels and markings as the original material.
40.3 Source code of Standard Package
The source code of a Standard Package will not be made available to the Client.
The ownership of the Standard Package and the rights of IP in respect of the Standard Package will not be delivered to the Client by the Contractor. The Client will fully respect the ownership rights and rights of IE regarding the Standard Software. Markings relating to rights of intellectual ownership such as author’s rights markings will not be removed or made unreadable or unrecognisable by the Client.
By entering into an agreement concerning or relating to a Standard Package developed by the Contractor, the Client declares that it knows that the Standard Package contains confidential information and business secrets of the Contractor. The Client is obliged to keep the Standard Package secret and not to make it known to third parties.