General terms and conditions issued by Koninklijke Metaalunie, filed with the registry of the District Court of Rotterdam on 1 January 2019. Published by Koninklijke Metaalunie, P.O. Box 2600, 3430 GA Nieuwegein, the Netherlands.
These terms and conditions apply to all offers made by a Metaalunie member, to all agreements concluded by it, and to all agreements arising therefrom, insofar as the Metaalunie member acts as supplier or contractor.
The Metaalunie member using these terms and conditions is referred to as the contractor. The other party is referred to as the client.
If there is any conflict between the contents of the agreement concluded between the client and the contractor and these terms and conditions, the provisions of the agreement shall prevail.
These terms and conditions may only be used by Metaalunie members.
Article 2, Offers
All offers are non binding. The contractor has the right to revoke its offer up to two working days after the acceptance has reached it.
If the client provides information to the contractor, the contractor may assume that this information is correct and complete and shall base its offer on it.
The prices stated in the offer are expressed in euros, excluding VAT and other government levies or taxes. The prices also exclude travel, accommodation, packaging, storage and transport costs, as well as costs for loading, unloading and cooperation with customs formalities.
Article 3, Confidentiality
All information provided by or on behalf of the contractor to the client, such as offers, designs, images, drawings and know how, of whatever nature and in whatever form, is confidential and shall not be used by the client for any purpose other than the performance of the agreement.
The information referred to in paragraph 1 shall not be disclosed or reproduced by the client.
If the client breaches one of the obligations referred to in paragraphs 1 and 2, it shall owe an immediately payable penalty of €25,000 per breach. This penalty may be claimed in addition to damages under the law.
At the first request of the contractor, the client must, within a period set by the contractor and at the contractor’s discretion, return or destroy the information referred to in paragraph 1. In the event of breach, the client shall owe an immediately payable penalty of €1,000 per day. This penalty may be claimed in addition to damages under the law.
Article 4, Advice and information provided
The client may not derive any rights from advice and information provided by the contractor that do not directly relate to the assignment.
If the client provides information to the contractor, the contractor may assume, when performing the agreement, that this information is correct and complete.
The client indemnifies the contractor against any claim by third parties relating to the use of advice, drawings, calculations, designs, materials, trademarks, samples, models and the like provided by or on behalf of the client. The client shall compensate all damage suffered by the contractor, including the full costs of defending against such claims.
Article 5, Delivery time and performance period
A stated delivery time or performance period is indicative.
The delivery time or performance period only commences once agreement has been reached on all commercial and technical details, all information, including final and approved drawings, is in the possession of the contractor, the agreed instalment payment has been received, and the other conditions for performance have been met.
If circumstances arise that differ from those known to the contractor when the delivery time or performance period was stated, if additional work is required, or if the contractor suspends its obligations, the delivery time or performance period shall be extended by the time necessary to perform the assignment. Unless proven otherwise, it is presumed that such extension is necessary and results from such a situation.
The client shall pay all costs or damage suffered by the contractor as a result of the delay referred to in paragraph 3.
Exceeding the delivery time or performance period does not entitle the client to compensation or termination. The client indemnifies the contractor against claims by third parties resulting from such exceeding.
Article 6, Delivery and transfer of risk
Delivery takes place when the contractor makes the item available to the client at its business location and notifies the client that the item is available. From that moment, the client bears the risk for storage, loading, transport and unloading.
If the parties agree that the contractor shall arrange transport, the risk of storage, loading, transport and unloading shall also remain with the client. The client may insure itself against this risk.
In the event of a trade in and where the client retains possession of the item to be traded in pending delivery of the new item, the risk remains with the client until the item has been handed over to the contractor. If the client is unable to deliver the item in the condition it was in when the agreement was concluded, the contractor may terminate the agreement.
Article 7, Price changes
The contractor may pass on to the client any increase in cost determining factors that has occurred after conclusion of the agreement. The client shall pay the price increase at the contractor’s first request.
Article 8, Force majeure
A failure on the part of the contractor cannot be attributed to it if it is the result of force majeure.
Force majeure includes, among other things, failure by third parties engaged by the contractor, such as suppliers, subcontractors and carriers, to fulfil their obligations, or to do so on time, weather conditions, natural disasters, terrorism, cybercrime, disruption of digital infrastructure, fire, power failure, loss or theft of tools, materials or information, road blockades, strikes or work stoppages, and import or trade restrictions.
The contractor may suspend performance of its obligations for as long as it is temporarily prevented from performing them due to force majeure. Once the force majeure situation has ended, the contractor shall resume performance as soon as its schedule permits.
In the event of permanent force majeure, or if temporary force majeure lasts longer than six months, the contractor may terminate the agreement in whole or in part with immediate effect. In that case, the client may also terminate the agreement, but only for the part that has not yet been performed.
The parties are not entitled to compensation for damage suffered as a result of force majeure, suspension or termination as referred to in this article.
Article 9, Scope of the work
The client shall ensure that all permits, exemptions and other decisions necessary to perform the work are obtained in good time. At the contractor’s first request, the client is obliged to send a copy thereof.
Unless otherwise agreed in writing, the work does not include ground work, piling, chopping, demolition, foundation work, masonry, carpentry, plastering, painting, wallpapering, repair work or other construction work, arranging connections for gas, water, electricity, internet or other infrastructure, measures to prevent damage, theft or loss of items present at or near the workplace, removal of materials or waste, and vertical or horizontal transport.
Article 10, Additional work
Changes in the work shall in any case result in additional work if there is a change in the design, specifications or bill of quantities, if the information provided does not correspond with reality, or if estimated quantities deviate by more than 5%.
Additional work shall be calculated on the basis of the cost determining factors applicable at the time the additional work is carried out. The client shall pay the price of the additional work at the contractor’s first request.
Article 11, Performance of the work
The client shall ensure that the contractor can work without interruption and at the agreed time, and has access to the required facilities, such as gas, water, electricity and internet, heating, dry lockable storage space, and the facilities prescribed under health and safety legislation and regulations.
The client bears the risk and is liable for damage to, theft of, or loss of items belonging to the contractor, the client and third parties, such as tools, materials and equipment, located at or near the workplace or at another agreed location.
Without prejudice to paragraph 2, the client is obliged to take out adequate insurance against the risks referred to therein. The client shall also ensure insurance of the operational risk of the equipment to be used and shall provide a copy of the policy and proof of payment at the contractor’s first request. In the event of damage, the client shall report this immediately to its insurer.
Article 12, Completion of the work
The work shall be deemed completed if the client has approved the work, if the work has been put into use, in whole or in part, for that part, if the contractor has notified the client in writing that the work has been completed and the client does not state in writing within 14 days that the work has not been approved, or if the client does not approve the work due to minor defects or missing parts that can be remedied or delivered within 30 days and that do not prevent the work from being used.
If the client does not approve the work, it shall state the reasons in writing. The client shall give the contractor the opportunity to still complete the work properly.
The client indemnifies the contractor against claims by third parties for damage to parts not yet completed caused by the use of parts already completed.
Article 13, Liability
In the event of an attributable failure, the contractor is obliged to still perform its contractual obligations, subject to article 14.
The obligation to compensate damage is limited to the damage for which the contractor is insured under an insurance policy, and shall never exceed the amount paid out under that policy.
If paragraph 2 cannot be invoked, the obligation to compensate damage is limited to a maximum of 15% of the total contract price excluding VAT, in the case of parts or partial deliveries to a maximum of 15% of the value of that part or partial delivery, and in the case of continuing performance contracts to a maximum of 15% of the contract amount due over the twelve months preceding the event causing the damage.
The following are not eligible for compensation: consequential damage, such as business interruption, production loss, loss of profit, fines, transport costs, travel and accommodation costs, supervisory damage, meaning damage to items being worked on or to items located near the place where work is being carried out, and damage caused by intent or deliberate recklessness of assistants or non managerial subordinates. The client may, where possible, insure itself against such damage.
The contractor shall not compensate damage to material supplied by or on behalf of the client as a result of improper processing.
The client indemnifies the contractor against claims by third parties based on product liability as a result of a defect in a product supplied by the client to a third party and of which the products or materials supplied by the contractor form part. The client shall compensate all damage suffered by the contractor, including the full costs of defence.
Article 14, Warranty and other claims
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.
If different warranty conditions have been agreed, this article shall remain applicable unless it conflicts with those conditions.
In the event of defective performance, the contractor shall, within a reasonable period, choose either to perform properly after all or to credit a proportional part of the contract price.
If the contractor chooses to remedy the defect, it shall determine the manner and timing of this remedy. The client shall provide the opportunity for such remedy. If the agreed performance also consisted of processing material supplied by the client, the client shall supply new material at its own expense and risk.
Repaired or replaced parts or materials shall be sent to the contractor by the client.
The following costs are for the account of the client: transport or shipping costs, costs of dismantling and assembly, travel and accommodation costs, and travel hours.
The contractor is only obliged to perform under the warranty if the client has fulfilled all its obligations.
The warranty does not apply to defects resulting from normal wear and tear, improper use, lack of maintenance or incorrect maintenance, installation, assembly, modification or repair by the client or third parties, defects in or unsuitability of goods originating from or prescribed by the client, or defects in or unsuitability of materials or auxiliary materials used. No warranty is given on goods that were not new at the time of delivery, on the inspection and repair of goods belonging to the client, or on parts covered by a manufacturer’s warranty.
Paragraphs 3 through 8 apply correspondingly to claims based on breach of contract, non conformity or any other legal basis.
Article 15, Obligation to complain
The client can no longer invoke a defect if it has not complained about it in writing within 14 days after it discovered the defect or reasonably should have discovered it.
Complaints regarding the invoice must be submitted in writing within the payment term. If the payment term exceeds 30 days, the complaint must be submitted no later than 30 days after the invoice date.
Article 16, Goods not accepted
The client is obliged to take actual delivery of the goods at the agreed place upon expiry of the delivery time or performance period.
The client shall provide all cooperation required, free of charge, to enable the contractor to deliver the goods.
Goods not accepted shall be stored at the expense and risk of the client.
If the client breaches paragraph 1 or 2, then after the contractor has given notice of default, the client shall owe a penalty of €250 per day per breach, up to a maximum of €25,000. This penalty may be claimed in addition to damages under the law.
Article 17, Payment
Payment shall be made at the contractor’s place of business or to an account designated by the contractor.
Unless otherwise agreed, payment shall be made within 30 days after the invoice date.
If the client fails to fulfil its payment obligation, it is obliged, instead of paying the agreed sum of money, to comply with a request by the contractor for payment in kind.
The client is not entitled to set off or suspend payment, unless the contractor has been granted a suspension of payments, has been declared bankrupt, or the statutory debt restructuring scheme applies to the contractor.
All amounts owed or to become owed by the client become immediately due and payable if a payment term is exceeded, the client fails to fulfil obligations under article 16, bankruptcy or suspension of payments has been applied for, attachment is levied, the client is dissolved or liquidated, the client, being a natural person, applies for admission to the statutory debt restructuring scheme, is placed under guardianship, or dies.
If payment is late, the client shall owe interest from the day following the final payment date up to and including the day of full payment. If no final payment date has been agreed, interest is due from 30 days after the amount became payable. The interest rate is 12% per year, or the statutory interest rate if that is higher. Part of a month shall count as a full month. After each year, the amount on which interest is calculated shall be increased by the interest due over that year.
The contractor may set off debts and claims within affiliated companies as described by law, being a group within the meaning of article 2:24b of the Dutch Civil Code and a participating interest within the meaning of article 2:24c of the Dutch Civil Code.
If payment is not made on time, the client shall owe extrajudicial collection costs with a minimum of €75. These costs are calculated on the principal sum including interest:
15% on the first €3,000
10% on the excess up to €6,000
8% on the excess up to €15,000
5% on the excess up to €60,000
3% on the excess above €60,000
The actual extrajudicial costs incurred are payable if these exceed the amount resulting from the above calculation.
If the contractor is found wholly or largely in the right in legal proceedings, all costs of those proceedings shall be borne by the client.
Article 18, Security
Regardless of the agreed payment conditions, the client is obliged at the contractor’s first request to provide sufficient security for payment. If the client fails to do so in time, it shall immediately be in default. In that case, the contractor may terminate the agreement and recover its damage.
The contractor remains the owner of the delivered goods as long as the client has not fulfilled its obligations under any agreement and has not paid claims arising from non performance, such as damage, penalties, interest and costs.
As long as a retention of title rests on the delivered goods, the client may not encumber or dispose of them outside the normal course of its business. This clause has property law effect.
After invoking the retention of title, the contractor may recover the goods. The client shall provide all necessary cooperation.
If, after delivery, the client has fulfilled its obligations, the retention of title with respect to these goods shall revive if the client fails to fulfil obligations under a later concluded agreement.
The contractor has a right of pledge and a right of retention on all goods that it has received or will receive from the client, for all claims that it has or will acquire against the client.
Article 19, Intellectual property rights
The contractor shall be regarded as the maker, designer or inventor of works, models or inventions created in the performance of the agreement and has the exclusive right to apply for a patent, trademark or design registration.
In performing the agreement, the contractor does not transfer any intellectual property rights to the client.
If the performance also consists of the supply of computer software, the source code shall not be transferred. The client only obtains a non exclusive, worldwide and perpetual user licence for normal use and proper operation. Transfer or sublicensing is not permitted. If the item is sold to a third party, the licence shall pass by operation of law to the acquirer.
The contractor is not liable for damage caused by infringement of intellectual property rights of third parties. The client indemnifies the contractor against claims by third parties relating to such infringement.
Article 20, Transfer of rights or obligations
The client may not transfer or pledge any rights or obligations arising under any provision of these general terms and conditions or the underlying agreement or agreements without the contractor’s prior written consent. This clause has property law effect.
Article 21, Termination or cancellation of the agreement
The client is not entitled to terminate or cancel the agreement unless the contractor agrees to this. In that case, the client shall owe an immediately payable compensation equal to the agreed price minus the savings resulting for the contractor from the termination. This compensation shall amount to at least 20% of the agreed price.
If the price depends on the actual costs to be incurred, meaning on a cost plus basis, the compensation shall be estimated at the sum of costs, labour hours and profit that the contractor would reasonably have expected to make over the entire assignment.
Article 22, Governing law and competent court
Dutch law applies.
The Vienna Sales Convention (C.I.S.G.) does not apply, nor does any other international regulation the exclusion of which is permitted.
The Dutch civil court with jurisdiction in the place of business of the contractor shall have jurisdiction to hear disputes. The contractor may deviate from this rule and apply the statutory rules on jurisdiction.