General terms and conditions issued by Koninklijke Metaalunie (entrepreneurs’ organisation for small and medium-sized enterprises in the metal industry) referred to as METAALUNIE Conditions, filed with the registry of the court in Rotterdam on 1 January 2014.
Published by Koninklijke Metaalunie, P.O. Box 2600, 3430 GA Nieuwegein.
Copyright Koninklijke Metaalunie
1.1. These terms and conditions apply to all offers made by a member of Koninklijke Metaalunie, to all agreements it concludes and to all agreements that may result from this, all insofar as the Metaalunie member is a provider or supplier.
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 shall prevail.
1.4. These terms and conditions may only be used by Metaalunie members.
2.1. All offers are without obligation.
2.2. If the Client provides the Contractor with data, drawings and the like, the Contractor may assume that this is correct and complete and will base its offer on this.
2.3. The prices stated in the offer are based on delivery ex works, the Contractor’s place of business, in accordance with Incoterms 2010. Prices do not include sales tax and packaging.
2.4. If the Client does not accept the Contractor’s offer, the Contractor is entitled to charge the Client for all costs incurred in making its offer.
3.1. Unless otherwise agreed in writing, the Contractor retains the copyrights and all industrial property rights to the offers made by the Contractor, the designs, images, drawings, (test) models, software and the like made by the Contractor.
3.2. The rights to the data referred to in paragraph 1 of this article remain the property of the Contractor, regardless of whether the Client has been charged for their production. This data may not be copied, used or shown to third parties without the prior express written permission of the Contractor. The Client owes the Contractor an immediately payable penalty of € 25,000 for each violation of this provision,-. This penalty can be claimed in addition to compensation under the law.
3.3. The Client must return the information provided to it as referred to in paragraph 1 of this article on first request within a period set by the Contractor. In the event of a violation of this provision, the Client will owe the Contractor an immediately payable penalty of € 1,000 per day. This penalty can be claimed in addition to compensation
under the law.
4.1. The Client cannot derive any rights from advice and information it receives from the Contractor if these do not relate to the assignment.
4.2. If the Client provides the Contractor with data, drawings and the like, the Contractor may assume that this is correct and complete in the execution of the agreement.
4.3. The Client indemnifies the Contractor against any claim by third parties with regard to the use of advice, drawings, calculations, designs, materials, samples, models and the like provided by or on behalf of the Client.
5.1. The delivery time and/or implementation period will be determined by the Contractor as an approximate.
5.2. When determining the delivery time and/or execution period, the Contractor assumes that it can carry out the assignment under the circumstances known to it at that time.
5.3. The delivery time and/or execution period will only commence when agreement has been reached on all commercial and technical details, all necessary data, final and approved drawings and the like are in the possession of the Contractor, the
agreed (instalment) payment has been received and the necessary conditions for the execution of the assignment have been met.
5.4.a
. If there are circumstances other than those known to the Contractor when it determined the delivery time and/or performance period, it may extend the delivery time and/or implementation period by the time it needs to carry out the assignment under these circumstances. If the work cannot be fitted into the Contractor’s schedule, it will be carried out as soon as its schedule permits.
b. In the event of additional work, the delivery time and/or implementation period will be extended by the time that the Contractor needs to deliver the materials and parts for this (or have them delivered) and to perform the additional work. If the additional work cannot be fitted into the Contractor’s schedule, the work will be carried out as soon as its schedule permits.
c. In the event of suspension of obligations by the Contractor, the delivery time and/or implementation period will be extended by the duration of the suspension. If the continuation of the work cannot be fitted into the Contractor’s schedule, the work will be carried out as soon as its schedule permits.
d. In the event of unworkable weather, the delivery time and/or implementation period will be extended by the resulting delay.
5.5. The Client is obliged to pay all costs incurred by the Contractor as a result of a delay in the delivery time and/or implementation period as stated in paragraph 4 of this article
.
5.6. Exceeding the delivery time and/or execution period does not entitle you to compensation or dissolution under any circumstances.
6.1. Delivery takes place ex works, in accordance with Incoterms 2010. The risk of the item is transferred at the moment that the contractor
makes it available to the client.
6.2. Notwithstanding the provisions of paragraph 1 of this article, the Client and the Contractor may agree that the Contractor will take care of the transport. In that case, the risk of storage, loading, transport and unloading rests with the client. The Client can insure itself against these risks.
6.3. If there is a trade-in and the Client retains the good to be exchanged pending delivery of the new good, the risk of the good to be exchanged will remain with
the Client until the moment that it has placed it in the possession of the Contractor. If the Client is unable to deliver the good to be exchanged in the condition it
was in when the agreement was concluded, the Contractor can dissolve the agreement.
7.1. The Contractor may pass on to the Client an increase in cost-determining factors that has occurred after the conclusion of the agreement.
7.2. The Client is obliged to pay the price increase as referred to in paragraph 1 of this article at the Contractor’s discretion at one of the following times:
a. if the price increase occurs;
b. at the same time as payment of the principal;
c. at the next agreed payment term.
8.1. The Contractor has the right to suspend the fulfilment of its obligations if it is temporarily prevented from fulfilling its contractual obligations towards the Client due to force majeure.
8.2. Force majeure is understood to mean, among other things, the circumstance that suppliers, subcontractors of the Contractor or transporters engaged by the Contractor do not fulfil their obligations or do not do so on time, the weather, earthquakes, fire, power failure, loss, theft or loss of tools or materials, road blocks, strikes or work stoppages and import or trade restrictions.
8.3. The Contractor is no longer entitled to suspend if the temporary inability to perform has lasted more than six months. The Client and the Contractor may terminate the agreement with immediate effect after the expiry of this period, but only for that part of the obligations that has not yet been fulfilled.
8.4. If there is force majeure and performance is or becomes permanently impossible, both parties are entitled to terminate
the agreement with immediate effect for that part of the obligations that has not yet been fulfilled.
8.5. The parties are not entitled to compensation for the damage suffered or to be suffered as a result of the suspension or termination within the meaning of this article.
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. The price of the work does not include:
a. the costs for earthwork, pile-driving, cutting, breaking, foundation, masonry, carpentry, plastering, painting, wallpapering, repair work or other architectural work;
b. the costs of connecting gas, water, electricity or other infrastructural facilities;
c. the costs of preventing or limiting damage to items present on or near the work;
d. the costs for the removal of materials, building materials or waste;
e. travel and accommodation costs.
10.1. Changes to the work will in any case result in additional or less 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 quantities vary
by more than 10%.10.2. Additional work is calculated on the basis of the price-determining factors that apply at the time the additional work is performed. Less work is settled on the basis of the price-determining factors that applied at the time the agreement was concluded.
10.3. The Client is obliged to pay the price of the additional work as referred to in paragraph 1 of this article at the Contractor’s discretion at one of the following times:
a. if the additional work occurs;
b. at the same time as payment of the principal;
c. at the next agreed payment term.
10.4. If the sum of the contract deductions exceeds that of the contract extras, the Contractor may charge the Client 10% of the difference in the final settlement. This provision does not apply to contract deductions that are the result of a request from the Contractor.
11.1. The Client will ensure that the Contractor can carry out 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 and electricity;
b. heating;
c. lockable dry storage area;
d. facilities prescribed on the basis of the Working Conditions Act and regulations.
11.2. The Client bears the risk and is liable for damage in connection with loss, theft, burning and damage to property of the Contractor, the Client and third parties, such as tools, materials intended for the work or equipment used in the work, which are located at the place where the work is carried out or at another agreed location.
11.3. The Client is obliged to take out adequate insurance against the risks referred to in paragraph 2 of this article. The Client must also ensure that the work risk of the equipment to be used is insured. The Client must send the Contractor a copy of the relevant insurance(s) and proof of payment of the premium upon first request. In the event of damage, the client is obliged to report this immediately to its insurer for further processing and settlement.
11.4. If the Client does not fulfil its obligations as described in the previous paragraphs of this article and this results in a delay in the performance of the work, the work will be carried out as soon as the Client still fulfils all its obligations and the Contractor’s schedule allows this. The Client is liable for all damage to the Contractor resulting from the delay.
Article 12: Delivery of the work
12.1. The work is considered to have been 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 starts using part of the work, that part is considered to have been 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 of the notification whether or not the work has been approved;
d. if the client does not approve the work on the grounds of minor defects or missing parts that can be repaired or 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, it is obliged to notify the Contractor of this in writing, stating the reasons. The Client must give the Contractor the opportunity to deliver the work after all.
12.3. The Client indemnifies the Contractor against claims from third parties for damage to parts of the work that have not been delivered caused by the use of parts of the work that have already been delivered.
13.1. In the event of an attributable shortcoming, the Contractor is obliged to fulfil its contractual obligations.
13.2. The Contractor’s obligation to pay compensation on the basis of any legal basis whatsoever is limited to the damage for which the Contractor is insured under an insurance policy taken out by or on behalf of the Contractor, but will never exceed the amount paid out by this insurance in the case in question.
13.3. If, for whatever reason, the Contractor is not entitled to invoke the limitation of paragraph 2 of this article, the obligation to pay compensation is limited to a maximum of 15% of the total contract amount (excluding VAT). If the agreement consists of parts or partial deliveries, the obligation to pay compensation is limited to a maximum of 15% (excluding VAT) of the contract amount of that part or partial delivery.
13.4. The following are not eligible for compensation:
a. consequential damage. Consequential damage includes interruption damage, loss of production, loss of profit, transport costs and travel and accommodation costs. If possible, the Client
can insure itself against this damage;
b. damage to property. Damage to property is understood to mean, among other things, damage caused by or during the execution of the work to property being worked on or to property located in the vicinity of the place where work is being carried out. If desired, the Client can insure itself against this damage;
c. damage caused by intent or deliberate recklessness on the part of auxiliary persons or non-managerial subordinates of the Contractor.
13.5. The Contractor is not liable for damage to material supplied by or on behalf of the Client
as a result of improperly carried out processing.
13.6. The Client indemnifies the Contractor against all claims by third parties on account of product liability as a result of a defect in a product that was supplied by the Client to a third party and that consisted (in part) of products and/or materials supplied by the Contractor. The Client is obliged to compensate all damage suffered by the Contractor in this context, including the (full) costs of defence.
14.1. Unless otherwise agreed in writing, the Contractor guarantees the proper performance of the agreed performance for a period of six months after delivery or completion. If a different warranty period has been agreed, the other paragraphs of
this article also apply.
14.2. If the agreed performance has not been sound, the Contractor will choose whether to perform it properly or credit the Client for a proportionate part of the invoice. If the Contractor chooses to perform the performance properly, it will determine the manner and time of performance itself. If the agreed performance consisted (also) of the processing of material supplied by the client, the client must supply new material
at its own expense and risk.
14.3. Parts or materials that are repaired or replaced by the Contractor must be sent to it by the Client.
14.4. The following will be borne by the Client:
a. all transport or shipping costs;
b. costs for dismantling and assembly;
c. travel and accommodation expenses.
14.5. In all cases, the Client must give the Contractor the opportunity to rectify any defect or to carry out the processing again.
14.6. The Client can only invoke the warranty after it has fulfilled all its obligations towards the Contractor.
14.7. a. No warranty is given if defects are the result of:
– normal wear and tear;
– improper use;
– maintenance that has not been carried out or has been carried out incorrectly;
– installation, assembly, modification or repair by the Client or by third parties;
– defects in or unsuitability of goods originating from or prescribed by the Client;
– defects in or unsuitability of materials or aids used by the Client.
b. No warranty is given on:
– delivered goods that were not new at the time of delivery;
– inspecting and repairing the client’s goods;
– parts for which a manufacturer’s warranty has been granted.
14.8. The provisions of paragraphs 2 to 7 of this article shall apply mutatis mutandis to any claims by the Client on the basis of breach of contract, non-conformity or any other basis whatsoever.
14.9. The Client cannot transfer any rights under this article.
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 has discovered or should reasonably have discovered the defect.
15.2. The Client must submit complaints about the amount of the invoice to the Contractor in writing within the payment term, on pain of forfeiture of all rights. If the payment term is longer than thirty days, the client must have complained in writing within thirty days of the invoice date at the latest.
16.1. The Client is obliged to take delivery of the item or items that are the subject of the agreement at the agreed place after the delivery period and/or execution period has expired.
16.2. The Client must provide all cooperation that can reasonably be expected of it in order to enable the Contractor to deliver.
16.3. Items that have not been taken will be stored at the expense and risk of the Client.
16.4. In the event of a violation of the provisions of paragraphs 1 and/or 2 of this article, the Client will owe the Contractor a penalty of € 250 per day with a maximum of € 25,000,-. This penalty can be claimed in addition to compensation under the law.
17.1. Payment is made at the Contractor’s place of business or to an account to be designated by the Contractor.
17.2. Unless otherwise agreed, payment will take place as follows:
a. in the case of counter sales in cash;
b. in the case of payment in instalments:
– 40% of the total price for the assignment;
– 50% of the total price after delivery of the material or if the delivery of material is not included in the order after the start of the work;
– 10% of the total price upon completion;
c. in all other cases within thirty days of the invoice date.
17.3. If the Client fails to fulfil its payment obligation, it will be obliged to comply with a request from the Contractor for payment in lieu of payment of the agreed sum of money.
17.4. The Client’s right to set off or suspend its claims against the Contractor is excluded, unless the Contractor is bankrupt or the statutory debt rescheduling applies to the Contractor.
17.5. Regardless of whether the Contractor has fully performed the agreed performance, everything that the Client owes or will owe to it under the agreement is immediately due and payable if:
a. a payment term has been exceeded;
b. the bankruptcy or suspension of payments of the client has been filed;
c. the goods or claims of the Client are seized;
d. the client (company) is dissolved or liquidated;
e. the client (natural person) requests to be admitted to the statutory debt restructuring, is placed under guardianship or has died.
17.6. If payment has not been made within the agreed payment term, the Client will owe the Contractor immediate interest. The interest rate is 12% per annum, but is equal to the statutory interest rate if it is higher. In the interest calculation, part of the month is seen as a full month.
17.7. The Contractor is entitled to set off its debts to the Client against claims of companies affiliated with the Contractor against the Client. In addition, the Contractor is entitled to set off its claims against the Client against debts owed to the Client by companies affiliated with the Contractor. Furthermore, the Contractor is entitled to set off its debts to the Client against claims on companies affiliated with the Client. Affiliated companies are understood to mean the companies that belong to the same group, within the meaning of Article 2:24b of the Dutch Civil Code, and a participation within the meaning of Article 2:24c of the Dutch Civil Code.
17.8. If payment has not been made within the agreed payment term, the Client will owe the Contractor all extrajudicial costs with a minimum of € 75,-. These costs are calculated on the basis of the following table (principal including interest):
on the first € 3,000 15%
on the excess up to € 6,000 10%
on the excess up to € 15,000 8%
on the excess up to € 60,000 5%
on the excess from € 60,000 3%
The actual extrajudicial costs incurred are due if they are higher than follows from the above calculation.
17.9. If the Contractor is successful in legal proceedings, all costs incurred in connection with these proceedings will be borne by the Client.
18.1. Regardless of the agreed payment conditions, the Client is obliged to provide what it deems sufficient security for payment at the Contractor’s first request. If the client does not comply with this within the set period, it will immediately be in default. In that case, the Contractor has the right to dissolve the agreement and recover its damages from the Client.
18.2. The Contractor will remain the owner of the delivered goods as long as the Client:
a. fails or will fail to fulfil its obligations under this or other agreements;
b. has not paid claims arising from the non-performance of the above-mentioned agreements, such as damages, penalty, interest and costs.
18.3. As long as the delivered goods are subject to retention of title, the Client may not encumber or dispose of them outside its normal business operations.
18.4. After the Contractor has invoked its retention of title, it may retrieve the delivered goods. The Client will provide full cooperation to this end.
18.5. The Contractor has a right of pledge and a right of retention on all items that it has or will have in its possession for any reason whatsoever and for all claims that it has or may have against the Client against anyone who requires the surrender thereof.
18.6. 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 goods will revive if the Client fails to fulfil its obligations under an agreement concluded at a later date.
If the Client wishes to terminate the agreement without there being a shortcoming on the part of the Contractor and the Contractor agrees to this, the agreement will be terminated by mutual consent. In that case, the Contractor is entitled to compensation for all financial loss, such as loss suffered, loss of profit and costs incurred.
20.1. Dutch law applies.
20.2. The United Nations Convention on the International Sale of Goods (C.I.S.G.) does not apply, nor does any other international regulation from which exclusion is permitted.
20.3. Only the Dutch civil court that has jurisdiction in the Contractor’s place of business will take cognizance of disputes, unless this is contrary to mandatory law. The Contractor may deviate from this rule of jurisdiction and apply the statutory rules of jurisdiction.
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