Terms and Conditions
General terms and conditions issued by Koninklijke Metaalunie (entrepreneurs' organization for small and medium-sized enterprises in the metal industry) referred to as METAALUNIE CONDITIONS, filed at the registry of the Rotterdam court on January 1, 2019. Published by Koninklijke Metaalunie, Postbus 2600, 3430 GA Nieuwegein.
Article 1: Applicability
1.1. These terms and conditions apply to all offers made by a Metaalunie member, to all agreements he concludes and to all agreements arising from this, all this insofar as the Metaalunie member is a supplier or contractor.
1.2. The Metaalunie member who uses these terms and conditions is referred to as the contractor. The other party is referred to as the client.
1.3. In the event of a conflict between the content of the agreement concluded between the client and the contractor and these terms and conditions, the provisions of the agreement will prevail.
1.4. These terms and conditions may only be used by Metaalunie members.
Article 2: Offers
2.1. All offers are without obligation. The contractor has the right to revoke his offer up to two working days after the acceptance has reached him.
2.2. If the client provides information to the contractor, the contractor may assume that it is correct and complete and will base its offer on this.
2.3. The prices stated in the offer are expressed in euros, excluding sales tax and other government levies or taxes. The prices are also exclusive of travel, accommodation, packaging, storage and transport costs, as well as costs for loading, unloading and cooperating with customs formalities.
Article 3: Confidentiality
3.1. All information provided to the client by or on behalf of the contractor (such as offers, designs, images, drawings and know-how), of whatever nature and in whatever form, are confidential and will not be used by the client for any purpose other than for the implementation of the contract. the agreement.
3.2. The information referred to in paragraph 1 of this article will not be made public or reproduced by the client.
3.3. If the client violates one of the obligations referred to in paragraphs 1 and 2 of this article, he is liable for each violation
an immediately due and payable penalty of € 25,000. This penalty can be claimed in addition to compensation under the law.
3.4. The client must return or destroy the information referred to in paragraph 1 of this article at the contractor's first request, within a period set by the contractor, at the contractor's option. In the event of a violation of this provision, the client will owe the contractor an immediately due and payable fine of € 1,000 per day. This penalty can be claimed in addition to compensation under the law.
Article 4: Advice and information provided
4.1. The client cannot derive any rights from advice and information from the contractor that are not directly related to the assignment.
4.2. If the client provides information to the contractor, the contractor may assume its correctness and completeness in the performance of the agreement.
4.3. The client indemnifies the contractor against any claim from third parties with regard to the use of advice, drawings, calculations, designs, materials, brands, samples, models and the like provided by or on behalf of the client. The client will compensate all damage suffered by the contractor, including full costs incurred for defense against these claims.
Article 5: Delivery time / performance period
5.1. A specified delivery time or execution period is indicative.
5.2. The delivery period or implementation period only commences when agreement has been reached on all commercial and technical details, all information, including final and approved drawings and the like are in the possession of the contractor, the agreed payment or installment has been received and the other conditions for the performance of the order has been fulfilled.
5.3. If there is:
a. circumstances other than those known to the contractor when it stated the delivery time or performance period, the delivery time or performance period will be extended by the time that the contractor needs, with due observance of its planning, to perform the assignment under these circumstances;
b. additional work, the delivery time or performance period will be extended by the time that the contractor needs, with due observance of its planning, to deliver the materials and parts for this (or have them delivered) and to perform the additional work;
c. suspension of obligations by the contractor, the delivery time or performance period will be extended by the time it needs, with due observance of its planning, to perform the assignment after the reason for the suspension has lapsed. Subject to evidence to the contrary by the client, the duration of the extension of the delivery time or performance period is presumed to be necessary and to be the result of a situation as referred to above under a to c.
5.4. The client is obliged to pay all costs that the contractor incurs or damage that the contractor suffers as a result of a delay in the delivery time or implementation period, as stated in paragraph 3 of this article.
5.5. Exceeding the delivery time or performance period does not entitle the client to compensation or dissolution under any circumstances. The client indemnifies the contractor against any claims from third parties as a result of exceeding the delivery time or implementation period.
Article 6: Delivery and risk transfer
6.1. Delivery takes place at the moment that the contractor makes the item available to the client at its business location and has informed the client that the item is available to it. From that moment onwards, the Client bears the risk of the goods for storage, loading, transport and unloading, among other things.
6.2. The client and the contractor can agree that the contractor will take care of the transport. The risk of, among other things, storage, loading, transport and unloading also rests with the client in that case. The Client can insure itself against these risks.
6.3. If there is a trade-in and the client retains the item to be exchanged pending delivery of the new item, the risk of the item to be exchanged remains with the client until the moment it has placed it in the possession of the contractor. If the client cannot deliver the item to be exchanged in the condition it was in when the agreement was concluded, the contractor can dissolve the agreement.
Article 7: Price change
The contractor may pass on to the client an increase in cost-determining factors that occurred after the conclusion of the agreement. The Client is obliged to pay the price increase at the Contractor's first request.
Article 8: Force majeure
8.1. A shortcoming in the fulfillment of its obligations cannot be attributed to the contractor if this shortcoming is the result of force majeure.
8.2. Force majeure includes the circumstance that third parties engaged by contractors, such as suppliers, subcontractors and transporters, or other parties on which the client depends, do not or do not timely comply with their obligations, weather conditions, natural disasters, terrorism, cybercrime, disruption of digital infrastructure, fire, power failure, loss, theft or loss of tools, materials or information, roadblocks, strikes or work stoppages and import or trade restrictions.
8.3. The Contractor has the right to suspend the fulfillment of its obligations if it is temporarily prevented from fulfilling its obligations towards the Client due to force majeure. If the force majeure situation has lapsed, the contractor will fulfill its obligations as soon as its schedule allows.
8.4. In the event of force majeure and compliance is or becomes permanently impossible, or if the temporary force majeure situation has lasted more than six months, the contractor is authorized to dissolve the agreement in whole or in part with immediate effect. In those cases, the client is authorized to dissolve the agreement with immediate effect, but only for that part of the obligations that has not yet been fulfilled by the contractor.
8.5. The parties are not entitled to compensation for damage suffered or to be suffered as a result of the force majeure, suspension or dissolution within the meaning of this article.
Article 9: Scope of the work
9.1. The Client must ensure that all permits, exemptions and other decisions necessary to carry out the work are obtained in a timely manner. The client is obliged to send a copy of the aforementioned documents to the contractor at the contractor's first request.
9.2. Unless otherwise agreed in writing, the work does not include:
a. earthworks, piling, chopping, breaking, foundations, masonry, carpentry, plastering, painting, wallpapering, repair work or other construction work;
b. realizing connections for gas, water, electricity, internet or other infrastructural facilities;
c. measures to prevent or limit damage to or theft or loss of items present at or near the workplace
d. removal of materials, building materials or waste;
e. vertical and horizontal transport;
Article 10: Additional work
10.1. Changes in the work will in any case result in additional work if:
a. there is a change in the design, specifications or specifications;
b. the information provided by the client does not correspond to reality;
c. estimated amounts over 5% differ.
10.2. Additional work is calculated on the basis of the price-determining factors that apply at the time it becomes additional work
conducted. The Client is obliged to pay the price of the additional work at the Contractor's first request.
Article 11: Execution of the work
11.1. The Client will ensure that the Contractor can perform its work undisturbed and at the agreed time and that it will have access to the necessary facilities during the performance of its work, such as:
a. gas, water, electricity and internet;
c. lockable dry storage space;
d. facilities prescribed under the Working Conditions Act and regulations.
11.2. The client bears the risk and is liable for damage to and theft or loss of property of the contractor, client and third parties, such as tools, materials intended for the work or equipment used for the work, which are located at or near the place where the work is performed. performed or at another agreed place.
11.3. Without prejudice to the provisions of paragraph 2 of this article, the client is obliged to take out adequate insurance against the risks referred to in that paragraph. In addition, the Client must ensure insurance of the work risk of equipment to be used. The client must send the contractor a copy of the relevant insurance(s) and proof of payment of the premium at the contractor's first request. If there is any damage, the client is obliged to do so immediately
to his insurer for further processing and settlement.
Article 12: Completion of the work
12.1. The work is considered completed in the following cases:
a. if the client has approved the work;
b. if the work has been put into use by the client. If the client takes part of the work into use, that part will be regarded as completed;
c. if the contractor has notified the client in writing that the work has been completed and the client has not made it known in writing within 14 days after the day of the notification that the work has not been approved;
d. if the client does not approve the work due to minor defects or missing parts that can be repaired or subsequently delivered within 30 days and that do not prevent the work from being put into use.
12.2. If the client does not approve the work, he is obliged to inform the contractor of this in writing, stating the reasons. The client must give the contractor the opportunity to still deliver the work.
12.3. The client indemnifies the contractor against claims from third parties for damage to undelivered parts of the work caused by the use of already delivered parts of the work.
Article 13: Liability
13.1. In the event of an attributable shortcoming, the contractor is still obliged to fulfill its contractual obligations, with due observance of Article 14. 13.2. The contractor's obligation to compensate damage, on whatever grounds, is limited to that damage against which the contractor is liable under a contract by or
insurance taken out on his behalf is insured. However, the size of this obligation never exceeds the amount that is paid out under this insurance in the relevant case.
13.3. If, for whatever reason, the contractor cannot invoke paragraph 2 of this article, the obligation to compensate damage is limited to a maximum of 15% of the total contract sum (excluding VAT). If the agreement consists of parts or partial deliveries, this obligation is limited to a maximum of 15% (excluding VAT) of the contract amount of that part or partial delivery. In the case of continuing performance contracts, the obligation to compensate damage is limited to a maximum of 15% (excluding VAT) of the assignment sum due over the last twelve months prior to the event causing the damage.
13.4. Not eligible for reimbursement:
a. consequential damages. Consequential damage includes, among other things, stagnation damage, loss of production, lost profit, fines, transport costs and travel and accommodation costs;
b. damage. Supervisory damage is understood to mean, among other things, damage caused by or during the performance of the work to items that are being worked on or to items that are located in the vicinity of the place where work is being done;
c. damage caused by intent or deliberate recklessness on the part of auxiliary persons or non-executive subordinates of the contractor. If possible, the Client can insure itself against these damages.
13.5. The contractor is not obliged to compensate damage to material supplied by or on behalf of the client as a result of improper processing.
13.6. The client indemnifies the contractor against all claims from third parties due to product liability as a result
of a defect in a product that has been delivered by the client to a third party and of which the products or materials supplied by the contractor form part. The client is obliged to compensate the contractor for all damage suffered in this connection, including the (full) costs of defence.
Article 14: Guarantee and other claims
14.1. Unless agreed otherwise in writing, the contractor guarantees the proper performance of the agreed performance for a period of six months after delivery or completion, as further elaborated in the following paragraphs.
14.2. If the parties have agreed on deviating guarantee conditions, the provisions of this article shall apply in full, unless this conflicts with those deviating guarantee conditions.
14.3. If the agreed performance has not been performed properly, the contractor will decide within a reasonable period of time whether to perform it properly or to credit the client for a proportionate part of the contract amount.
14.4. If the contractor opts for proper performance as yet, it will determine the manner and time of performance itself. The Client must in all cases offer the Contractor the opportunity to do so. If the agreed performance (partly) consisted of processing material supplied by the client, the client must supply new material at its own expense and risk.
14.5. Parts or materials that are repaired or replaced by the contractor must be sent to him by the client.
14.6. At the expense of the client:
a. all transportation or shipping costs;
b. costs for disassembly and assembly;
c. travel and accommodation costs and travel hours.
14.7. The contractor is only obliged to implement the guarantee if the client has fulfilled all his obligations.
14.8. a. Warranty is excluded for defects that are the result of:
- normal wear and tear;
- improper use;
- no maintenance or incorrect maintenance;
- installation, assembly, modification or repair by the client or by third parties;
- defects or unsuitability of goods originating from or prescribed by the client;
- defects or unsuitability of materials or tools used by the client.
b. No warranty is given on:
- delivered goods that were not new at the time of delivery;
- inspecting and repairing client's items;
- parts for which a manufacturer's warranty has been granted.
14.9. The provisions of paragraphs 3 to 8 of this article apply mutatis mutandis to any claims by the client based on breach of contract, non-conformity or any other basis.
Article 15: Complaint obligation
15.1. The Client can no longer invoke a defect in the performance if it has not complained to the Contractor in writing within fourteen days after it discovered the defect or should reasonably have discovered it.
15.2. The client must submit complaints about the invoice to the contractor in writing within the payment term, under penalty of forfeiture of all rights. If the payment term is longer than thirty days, the client must have submitted a written complaint within thirty days of the invoice date.
Article 16: Uncollected items
16.1. The client is obliged to actually take delivery of the item or items that are the subject of the agreement at the agreed location after the delivery period or performance period has expired.
16.2. The client must provide all cooperation free of charge to enable the contractor to make delivery.
16.3. Goods that have not been purchased will be stored at the expense and risk of the client.
16.4. In the event of a violation of the provisions of paragraph 1 or 2 of this article, after the contractor has given him notice of default, the client will owe the contractor a fine of € 250 per day with a maximum of € 25,000 per violation. This penalty can be claimed in addition to compensation under the law.
Article 17: Payment
17.1. Payment is made at the location of the contractor or to an account to be designated by the contractor.
17.2. Unless agreed otherwise, payment will be made within 30 days of the invoice date.
17.3. If the client does not fulfill its payment obligation, it is obliged, instead of paying the agreed amount, to comply with a request from the contractor for payment.
17.4. The right of the client to set off its claims against the contractor or to suspend the fulfillment of its obligations is excluded, unless there is a suspension of payment or bankruptcy of the contractor or the statutory debt restructuring applies to the contractor.
17.5. Irrespective of whether the contractor has fully performed the agreed performance, everything that the client owes or will owe to him under the agreement is immediately due and payable if:
a. a payment term has been exceeded;
b. the client does not fulfill its obligations under Article 16;
c. the bankruptcy or suspension of payment of the client
has been requested;
d. goods or claims of the client are seized;
e. client (company) is dissolved or liquidated;
f. the client (natural person) requests to be admitted to statutory debt rescheduling, is placed under guardianship or has died.
17.6. In the event of a delay in the payment of a sum of money, the Client will owe interest on that sum of money to the Contractor from the day following the day agreed as the final day of payment up to and including the day on which the Client has paid the sum of money. If the parties have not agreed on a final date for payment, the interest is due from 30 days after it became due and payable. The interest is 12% per year, but is equal to the statutory interest if this is higher. For the interest calculation, part of a month is regarded as a full month. Each time after the end of a year, the amount on which the interest is calculated is increased by the interest due for that year.
17.7. The contractor is authorized to set off its debts to the client against claims of companies affiliated with the contractor against the client. In addition, the contractor is authorized to set off its claims against the client against debts owed to the client by companies affiliated with the contractor. Furthermore, the contractor is authorized to set off its debts to the client against claims against companies affiliated with the client. Affiliated companies are understood to mean: all companies that belong to the same group, within the meaning of Section 2:24b of the Dutch Civil Code, and a participating interest within the meaning of Section 2:24c of the Dutch Civil Code.
17.8. If payment has not been made on time, the client shall owe the contractor all extrajudicial costs
payable with a minimum of € 75.00. These charges are calculated based on the following
table (principal sum incl. interest):
over the first € 3,000 15%
over the excess up to € 6,000 10%
over the excess up to € 15,000 8%
over the excess up to € 60,000 5%
over the excess from € 60,000 3%
The extrajudicial costs actually incurred are due if they are higher than follows from the above calculation.
17.9. If the contractor is wholly or largely in the right in legal proceedings, all costs incurred in connection with these proceedings will be borne by the client.
Article 18: Security
18.1. Irrespective of the agreed payment conditions, the client is obliged to provide sufficient security for payment at the contractor's first request, in its opinion. If the client does not comply with this within the set term, it will immediately be in default. In that case, the contractor has the right to dissolve the agreement and to recover its damage from the client.
18.2. The contractor remains the owner of the delivered goods as long as the client:
a. has not fulfilled its obligations under any agreement with the contractor;
b. claims arising from non-compliance with the above agreements, such as damage, penalty,
interest and costs, has not paid.
18.3. As long as a retention of title rests on the delivered goods, the client may use them outside its normal
not encumber or alienate business operations. This clause has property law effect.
18.4. After the contractor has invoked his retention of title, he may retrieve the delivered goods. The Client will fully cooperate in this respect.
18.5. If the client has fulfilled its obligations after the goods have been delivered to it by the contractor in accordance with the agreement, the retention of title with regard to these items will revive if the client fails to fulfill its obligations under an agreement concluded later.
18.6. The contractor has a right of pledge and a right of retention on all goods that it has or will receive from the client for whatever reason and for all claims that it has or may have against the client.
Article 19: Intellectual property rights
19.1. The Contractor is regarded as the creator, designer or inventor of the works, models or inventions created in the context of the agreement. The Contractor therefore has the exclusive right to apply for a patent, trademark or design.
19.2. The Contractor does not transfer any intellectual property rights to the Client during the performance of the agreement.
19.3. If the performance to be delivered by the contractor (partly) consists of the delivery of computer software, the source code will not be transferred to the client. The Client will receive a non-exclusive, worldwide and perpetual user license for the computer software exclusively for the purpose of normal use and proper functioning of the item. The client is not permitted to transfer the license or to issue a sub-licence. When the client sells the item to a third party, the license is transferred by operation of law to the acquirer of the item.
19.4. The contractor is not liable for damage suffered by the client as a result of an infringement of intellectual property rights of third parties. The client indemnifies the contractor against any claim from third parties with regard to an infringement of intellectual property rights.
Article 20: Transfer of rights or obligations
The client cannot transfer or pledge rights or obligations under any article of these general terms and conditions or the underlying agreement(s), without the prior written consent of the contractor. This clause has property law effect.
Article 21: Termination or cancellation of the agreement
21.1. The client is not authorized to terminate or cancel the agreement, unless the contractor agrees to this. With the consent of the contractor, the client owes the contractor an immediately due and payable compensation in the amount of the agreed price, minus the savings resulting for the contractor from the termination. The compensation is at least 20% of the agreed price.
21.2. If the price is made dependent on the actual costs to be incurred by the contractor (cost-based basis), the compensation as referred to in the first paragraph of this article is estimated on the sum of the costs, working hours and profit that the contractor expects to have for the entire assignment. would have made.
Article 22: Applicable law and competent court
22.1. Dutch law applies.
22.2. The Vienna Sales Convention (CISG) is not applicable, nor are any other international regulations from which exclusion is permitted.
22.3. The Dutch civil court that has jurisdiction in the place of business of the contractor will take cognizance of disputes. The Contractor may deviate from this jurisdiction rule and apply the statutory jurisdiction rules.