Terms and Conditions
General terms and conditions of the Koninklijke Metaalunie (entrepreneurial organisation for small and medium-sized enterprises in the metal industry), referred to as METAALUNIE CONDITIONS, filed with the Registry of the Court of Rotterdam on 1 January 2019. Published by Koninklijke Metaalunie, Postbus 2600, 3430 GA Nieuwegein.
Article 1: Applicability
1.1 These General Terms and Conditions apply to all offers made by a Metaalunie member, to all agreements concluded by him and to all agreements resulting therefrom, provided that the Metaalunie member is a supplier or contractor.
1.2 The Metaalunie member using these general terms and conditions is referred to as the Contractor. The other party is referred to as the Customer.
1.3. In the event of a contradiction between the content of the agreement concluded between the Client and the Contractor and these Terms and Conditions, the provisions of the agreement shall prevail.
1.4 These General Terms and Conditions may only be used by Metaalunie members.
Article 2: Offers
2.1. All offers are subject to change. The contractor has the right to revoke his offer up to two working days after receipt of acceptance.
2.2 If the Client provides information to the Contractor, the Contractor may assume that this information is correct and complete and will base its offer on it.
2.3. The prices stated in the offer are in euros, exclusive of VAT and other government levies or taxes. The prices also exclude travel, accommodation, packaging, storage and transport costs, as well as the costs of loading and unloading and the completion of customs formalities.
Article 3: Confidentiality
3.1. All information (such as offers, designs, images, drawings and know-how) made available to the Client by or on behalf of the Contractor, regardless of nature and in whatever form, are confidential and will not be used by the Client for any purpose other than the implementation of the Agreement.
3.2 The information referred to in paragraph 1 of this article will not be published or reproduced by the Customer.
3.3. If the Customer breaches any of the obligations referred to in paragraphs 1 and 2 of this Article, he shall be liable for each breach
an immediately payable contractual penalty of €25,000. This penalty can be claimed in addition to the statutory compensation.
3.4. The Client is obliged to return or destroy the information referred to in paragraph 1 of this article at the Contractor's first request within a period determined by the Contractor at the Contractor's discretion. In the event of a breach of this provision, the Client shall owe the Contractor an immediately payable fine of €1,000 per day. This penalty may be claimed in addition to the statutory compensation.
Article 4: Provision of advice and information
4.1 The Client cannot derive any rights from advice and information provided by the Contractor which are not directly related to the order.
4.2 If the Client provides information to the Contractor, the Contractor may assume that this information is correct and complete when fulfilling the contract.
4.3. The Client shall indemnify the Contractor against any claims by third parties in connection with the use of advice, drawings, calculations, designs, materials, trademarks, samples, models and the like provided by the Client or on its behalf. The Client shall compensate the Contractor for all damages incurred, including all costs incurred in defending against these claims.
Article 5: Delivery time/performance period
5.1. Any stated delivery time or execution period is an indication.
5.2. The delivery period or execution period only begins when agreement has been reached on all commercial and technical details, all information, including final and approved drawings and the like, is in the possession of the contractor, the agreed payment or instalment has been received and other requirements for the execution of the order have been met.
5.3. If there is:
a. If circumstances exist other than those known to the Contractor when specifying the delivery or performance period, the delivery or performance period shall be extended by the time required by the Contractor, taking into account his planning, to execute the order specified in the circumstances;
B. In the case of additional work, the delivery or performance period shall be extended by the period required by the Contractor, taking into account its planning, to deliver (or have delivered) the materials and parts and to carry out the additional work;
C. If the Contractor suspends its obligations, the delivery or performance period shall be extended by the time it requires to complete the order after the reason for the suspension has ceased to apply, taking into account its planning. Unless the Client provides evidence to the contrary, it shall be presumed that the extension of the delivery or performance period is necessary and results from one of the circumstances mentioned under a to c above.
5.4 The Client shall be obliged to bear all costs incurred by the Contractor or damage suffered by the Contractor as a result of a delay in the delivery time or the execution period as referred to in paragraph 3 of this article.
5.5. Exceeding the delivery or performance deadline does not entitle the client to compensation or termination under any circumstances. The client shall indemnify the contractor against any claims by third parties due to exceeding the delivery or performance deadline.
Article 6: Delivery and transfer of risk
6.1 Delivery takes place at the moment the Contractor makes the item available to the Client at his place of business and has informed the Client that the item is available to him. From that moment on, the Client bears the risk for the goods, including storage, loading, transport and unloading.
6.2. The client and the contractor can agree that the contractor will take over the transport. In this case, too, the risk for storage, loading, transport and unloading, among other things, lies with the client. The customer can insure against these risks.
6.3. If a trade-in occurs and the customer keeps the item to be exchanged until the new item is delivered, the risk for the item to be exchanged remains with the customer until he has transferred it into the contractor's possession. If the customer cannot deliver the exchange item in the condition it was in when the contract was concluded, the contractor can withdraw from the contract.
Article 7: Price change
The contractor is entitled to pass on to the client any increase in cost-determining factors that occurs after the contract has been concluded. The client is obliged to pay the price increase upon the contractor's first request.
Article 8: Force majeure
8.1 A failure to fulfil its obligations cannot be attributed to the Contractor if this failure is due to force majeure.
8.2 Force majeure is deemed to include the fact that third parties engaged by Contractors, such as suppliers, subcontractors and transport companies or other parties on whom the Client is dependent, do not fulfil their obligations or do not fulfil them on time, weather conditions, natural disasters, terrorism, cybercrime, disruptions to the 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 performance of its obligations if it is temporarily prevented from fulfilling its obligations to the Client due to force majeure. When the situation of force majeure no longer exists, the Contractor will fulfill its obligations as soon as its schedule allows.
8.4. In the event of force majeure and if compliance is or becomes permanently impossible or if the temporary force majeure situation has lasted longer than six months, the Contractor is entitled to dissolve the Agreement in whole or in part with immediate effect. In these cases, the Client is entitled to dissolve the Agreement with immediate effect, but only for the part of the obligations that the Contractor has not yet fulfilled.
Article 9: Scope of work
9.1. The Client must ensure that all permits, exemptions and other decisions required to carry out the work are obtained in a timely manner. The Client is obliged to send the Contractor a copy of the aforementioned documents at the Contractor's first request.
9.2 Unless otherwise agreed in writing, the work does not include:
a. earthworks, piling, chopping, breaking, foundation, bricklaying, carpentry, plastering, painting, wallpapering, repair or other construction work;
B. Implementation of connections for gas, water, electricity, internet or other infrastructure facilities;
C. Measures to prevent or limit damage, theft or loss of items located at or near the workplace
Affairs;
D. Removal of materials, building materials or waste;
e. vertical and horizontal transport;
Article 10: Additional work
10.1. Changes in the work will always result in additional work if:
a. there is a change in the design, specifications or specifications;
B. the information provided by the customer does not correspond to reality;
C. The estimated amounts above 5% differ.
10.2. The calculation of the overtime is based on the price-determining factors applicable at the time the overtime occurs
carried out. The client is obliged to pay the price of the additional work upon the contractor's first request.
Article 11: Execution of the work
11.1 The Client shall ensure that the Contractor can carry out its work without disruption and at the agreed time and that it has access to the necessary facilities during the execution of its work, such as:
a. gas, water, electricity and internet;
B. Heating;
C. lockable dry storage room;
D. Facilities required by the Working Conditions Act and the relevant regulations.
11.2 The Client shall bear the risk and be liable for damage and theft or loss of property belonging to the Contractor, Client and third parties, such as tools, materials intended for the work or equipment used for the work, located at or near the location where the work is carried out or at another agreed location.
11.3. Without prejudice to the provisions of paragraph 2 of this article, the Client is obliged to take out appropriate insurance against the risks referred to in this paragraph. In addition, the Client must ensure that the equipment to be used is insured against the work risk. At the Contractor's first request, the Client must provide the Contractor with a copy of the relevant insurance(s) and proof of payment of the premium. If damage occurs, the Client is obliged to remedy this immediately.
to his insurer for further processing and billing.
Article 12: Completion of the work
12.1 The work shall be deemed to be completed in the following cases:
a. if the client has approved the work;
B. when the work has been put into use by the client. If the client puts part of the work into use, this part is deemed to be completed;
C. if the Contractor has notified the Client in writing of the completion of the Works and the Client has not notified the Contractor in writing within 14 days of the date of notification that the Works have not been approved;
D. if the Client does not approve the work due to minor defects or missing parts which can be repaired or replaced within 30 days and which do not prevent the work from being put into operation.
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 provide the service nonetheless.
12.3. The Client shall indemnify the Contractor against claims by third parties for damage to undelivered work parts that arise from the use of work parts that have already been delivered.
Article 13: Liability
13.1. In the event of an attributable failure, the Contractor shall continue to be obliged to fulfil its contractual obligations, taking into account Article 14. 13.2. The Contractor's obligation to pay compensation for damages, regardless of the reason, is limited to the damage for which the Contractor is liable under a contract with or
Insurance policies taken out for him are insured. However, the amount of this obligation never exceeds the amount paid out from this insurance in the respective case.
13.3 If the Contractor cannot, for whatever reason, invoke paragraph 2 of this article, the obligation to pay damages is limited to a maximum of EUR 151,000 of the total contract amount (excluding VAT). If the contract consists of parts or partial deliveries, this obligation is limited to a maximum of EUR 151,000 (excluding VAT) of the contract amount of this part or partial delivery. In the case of continuous performance contracts, the obligation to pay damages is limited to a maximum of EUR 151,000 (excluding VAT) of the contract amount owed in the twelve months preceding the event causing the damage.
13.4. Non-refundable:
a. Consequential damages. Consequential damages include, among others, stagnation damages, loss of production, loss of profits, fines, transport costs and travel and accommodation costs;
B. Damage. Damage caused by supervision includes, among other things, damage caused by or during the execution of the work to objects being worked on or to objects located in the vicinity of the workplace;
C. Damage caused by intent or deliberate negligence on the part of the contractor's assistants or non-managerial employees. The customer can, if possible, insure himself against such damage.
13.5. The Contractor is not obliged to compensate for damage to material supplied by the Client or on his behalf that occurs due to improper processing.
13.6. The Client shall indemnify the Contractor against all resulting third-party claims for product liability
a defect in a product delivered by the Client to a third party and to which the products or materials delivered by the Contractor belong. The Client is obliged to compensate the Contractor for all damages incurred in this connection, including the (full) costs of defence.
Article 14: Guarantee and other claims
14.1 Unless otherwise agreed in writing, the Contractor warrants the proper performance of the agreed service for a period of six months after delivery or completion, as explained in more detail in the following paragraphs.
14.2 If the parties have agreed on different warranty conditions, the provisions of this article shall apply in full, unless the different warranty conditions conflict with them.
14.3 If the agreed service has not been properly provided, the Contractor shall decide within a reasonable period of time whether to properly provide the service or to credit the Client with a proportionate part of the contract amount.
14.4. If the Contractor nevertheless chooses to provide the service properly, he will determine the type and timing of the service provision himself. The Client must give the Contractor the opportunity to do so in any case. If the agreed service (partly) consisted of processing material supplied by the Client, the Client must deliver new material at his own expense and risk.
14.5 Parts or materials to be repaired or replaced by the Contractor must be sent to him by the Client.
14.6. At the customer’s expense:
a. all transport or shipping costs;
B. Costs for dismantling and assembly;
C. Travel and accommodation costs as well as travel hours.
14.7. The Contractor is only obliged to provide a warranty if the Client has fulfilled all of his obligations.
14.8. a. The warranty is excluded for defects that are attributable to:
- normal wear and tear;
- incorrect use;
- no or incorrect maintenance;
- Installation, assembly, modification or repair by the client or by third parties;
- Defects or unsuitability of the goods originating from the customer or specified by him;
- Defects or unsuitability of the materials or tools used by the client.
B. No warranty is given for:
- delivered goods which were not new at the time of delivery;
- Inspection and repair of customer items;
- Parts covered by a manufacturer's warranty.
14.9 The provisions of paragraphs 3 to 8 of this article shall apply accordingly to all claims of the Customer based on breach of contract, lack of conformity or any other reason.
Article 15: Obligation to complain
15.1 The Client may no longer invoke a defect in the service if he has not notified the Contractor in writing within fourteen days after he has discovered the defect or should reasonably have discovered it.
15.2. The Client must submit any complaints regarding the invoice to the Contractor in writing within the payment period, otherwise he will lose all rights. If the payment period is more than 30 days, the Client must submit a written complaint within 30 days of the invoice date.
Article 16: Uncollected items
16.1 The Client is obliged to actually accept the contractual item(s) at the agreed location after expiry of the delivery or service period.
16.2 In order to enable the Contractor to deliver, the Client must provide all cooperation free of charge.
16.3. Goods not purchased are stored at the customer’s expense and risk.
16.4 In the event of a breach of the provisions of paragraph 1 or 2 of this article, the Client shall owe the Contractor, after notice of default by the Contractor, a fine of €250 per day, up to a maximum of €25,000 per breach. This penalty may be claimed in addition to the statutory compensation.
Article 17: Payment
17.1 Payment shall be made at the Contractor’s location or to an account specified by the Contractor.
17.2 Unless otherwise agreed, payment shall be made within 30 days of the invoice date.
17.3 If the Client fails to meet his payment obligation, he is obliged to comply with a payment request from the Contractor instead of paying the agreed amount.
17.4. The Client's right to offset its claims against the Contractor or to suspend the performance of its obligations is excluded unless the Contractor has suspended payments or is insolvent or the Contractor's statutory debt restructuring takes effect.
17.5. Regardless of whether the Contractor has fully performed the agreed service, everything that the Client owes or will owe him under the contract is immediately due and payable if:
a payment deadline has been exceeded;
B. the Customer fails to comply with his obligations under Article 16;
C. bankruptcy or cessation of payments by the customer
was requested;
D. The client’s goods or claims are seized;
e. Customer (company) is dissolved or liquidated;
F. The customer (natural person) applies for admission to statutory debt restructuring, is placed under guardianship or has died.
17.6 In the event of late payment of a sum of money, the Client shall owe the Contractor interest on that sum of money from the day following the day agreed as the last payment date up to and including the day on which the Client has paid the sum of money. Unless the parties have agreed on a final date for payment, interest shall be due 30 days after the due date. The interest shall amount to 121% per year, but shall correspond to the statutory interest if this is higher. For the purpose of calculating interest, a month that has begun shall be considered a full month. Each time after a year has passed, the amount on which interest is calculated shall be increased by the interest due for that year.
17.7 The Contractor is entitled to set off its debts to the Client against claims of the Contractor's affiliated companies against the Client. In addition, the Contractor is entitled to set off its debts to the Client against debts of the Client to the Contractor's affiliated companies. In addition, the Contractor is entitled to set off its debts to the Client against claims against affiliated companies of the Client. Affiliated companies are understood to mean: all companies that belong to the same group as referred to in section 2:24b of the Dutch Civil Code and a participation as referred to in section 2:24c of the Dutch Civil Code.
17.8 If payment is not made on time, the Client shall owe the Contractor all extrajudicial costs
payable with a minimum amount of € 75.00. These fees are calculated based on the following calculations
Table (principal amount including interest):
over the first 3,000 € 15%
about the deductible up to 6,000 € 10%
about the deductible up to 15,000 € 8%
about the deductible up to 60,000 € 5%
over the deductible of €60,000 3%
The extrajudicial costs actually incurred shall be due if they are higher than those resulting from the above calculation.
17.9 If the Contractor is wholly or predominantly successful in legal proceedings, all costs incurred in connection with these proceedings shall 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 the contractor's opinion. If the customer fails to meet this deadline, he will immediately be in default. In this case, the contractor has the right to terminate the contract and claim damages from the client.
18.2. The Contractor remains the owner of the delivered goods as long as the Client:
a. has failed to fulfil its obligations under an agreement with the Contractor;
B. Claims arising from non-compliance with the above agreements, such as damages, contractual penalties,
has not paid interest and costs.
18.3. As long as the delivered goods are subject to retention of title, the customer is entitled to use them outside of his usual use
not burden or alienate the business operations. This clause has property law effect.
18.4. After the Contractor has asserted its retention of title, it may take back the delivered goods. The Customer will cooperate fully in this regard.
18.5. If the Client has fulfilled his obligations after the Contractor has delivered the goods in accordance with the contract, the retention of title to these items shall be revived if the Client fails to fulfill his obligations under a contract concluded later.
18.6 The Contractor shall have a lien and a right of retention on all goods which it has or will receive from the Client, for whatever reason, and for all claims which it has or may have against the Client.
Article 19: Intellectual property rights
19.1 The Contractor shall be deemed to be the author, designer or inventor of the works, models or inventions created under the Contract. The Contractor shall therefore have the exclusive right to register a patent, trademark or design.
19.2. The Contractor shall not transfer any intellectual property rights to the Client in the course of fulfilling the contract.
19.3. If the service to be provided by the Contractor consists (partially) in the delivery of computer software, the source code will not be passed on to the Client. The Client receives a non-exclusive, worldwide and unlimited license to use the computer software solely for the purpose of normal use and proper functioning of the item. The Client is not permitted to transfer the license or grant a sublicense. If the Client sells the item to a third party, the license passes to the purchaser of the item by operation of law.
19.4. The contractor is not liable for damages incurred by the client due to the infringement of third-party intellectual property rights. The client shall indemnify the contractor against any claims by third parties in connection with the infringement of intellectual property rights.
Article 20: Transfer of rights or obligations
Without the prior written consent of the Contractor, the Client is not entitled to transfer or pledge any rights or obligations arising from any article of these General Terms and Conditions or the underlying agreement(s). This clause has property law effect.
Article 21: Termination or cancellation of the contract
21.1 The Client shall not be entitled to terminate or cancel the Agreement unless the Contractor consents to this. With the Contractor's consent, the Client shall owe the Contractor an immediately due compensation in the amount of the agreed price, less any savings accruing to the Contractor as a result of the termination. The compensation shall be at least 20% of the agreed price.
21.2 If the price is made dependent on the actual costs incurred by the Contractor (cost basis), the compensation within the meaning of the first paragraph of this article shall be estimated on the basis of the sum of the costs, working hours and profit that the Contractor would have expected to have incurred for the entire assignment.
Article 22: Applicable law and competent court
22.1 Dutch law applies.
22.2 The Vienna Sales Convention (CISG) and other international regulations from which an exclusion is permissible shall not apply.
22.3. Any disputes shall be subject to the jurisdiction of the Dutch civil court at the Contractor's registered office. The Contractor may deviate from this jurisdiction rule and apply the statutory jurisdiction rules.
