Terms and Conditions

METAALUNIE TERMS AND CONDITIONS
General Terms and Conditions issued by Koninklijke Metaalunie (the Dutch organization for small and medium-sized enterprises in the metal industry), referred to as the METAALUNIE TERMS AND CONDITIONS, filed at the Registry of the Rotterdam District Court on 1 January 2014. Issued by Koninklijke Metaalunie, P.O. Box 2600, 3430 GA Nieuwegein, the Netherlands.
Koninklijke Metaalunie
Article 1: Applicability
1.1. These Terms and Conditions apply to all offers made by
members of Koninklijke Metaalunie, all agreements they
conclude and all agreements that may result therefrom, all
this in so far as the Metaalunie member is offeror or supplier.
1.2. A Metaalunie member using 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 any conflict between the substance of the
agreement concluded between the Contractor and the Client
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.
2.2. If the Client provides the Contractor with data, drawings and
the like, the Contractor may rely on their accuracy and
completeness and will base its offer on the same.
2.3. The prices stated in the offer are based on delivery ex
works, Contractor’s place of establishment, in accordance
with the Incoterms 2010. Prices are exclusive of VAT 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
by the Contractor in making the offer to the Client.
Article 3: Intellectual property rights
3.1. Unless otherwise agreed in writing, the Contractor retains
the copyright and all industrial property rights in the offers
made by it and in the designs, pictures, drawings, models
(including trial models), software and the like provided by it.
3.2. The rights in the data referred to in paragraph 1 of this article
will remain the property of the Contractor irrespective of
whether the costs of their production have been charged to
the Client. These data may not be copied, used or shown to
third parties without the Contractor’s prior express written
consent. The Client will owe the Contractor an immediately
payable penalty of € 25,000 for each breach of this provision.
This penalty may be claimed in addition to damages
pursuant to the law.
3.3. On the Contractor’s first demand, the Client must return the
data provided to it as referred to in paragraph 1 of this Article
within the time limit set by the Contractor. Upon breach
of this provision, the Client will owe the Contractor an immediately
payable penalty of € 1,000 per day. This penalty
may be claimed in addition to damages pursuant to the law.
Article 4: Advice and information provided
4.1. The Client cannot derive any rights from advice or information
it obtains from the Contractor if this does not relate
to the assignment.
4.2. If the Client provides the Contractor with data, drawings and
the like, the Contractor may rely on their accuracy and
completeness in the performance of the agreement.
4.3. The Client indemnifies the Contractor from and against all
liability to third parties relating to use of the advice, drawings,
calculations, designs, materials, samples, models and
the like provided by or on behalf of the Client.
Article 5: Delivery period / performance period
5.1. The delivery period and/or performance period will be set by
the Contractor on an approximate basis.
5.2. In setting the delivery period and/or performance period, the
Contractor will assume that it will be able to perform the assignment
under the conditions known to it at that time.
5.3. The delivery period and/or performance period will only
commence once agreement has been reached on all commercial
and technical details, all necessary data, final and
approved drawings and the like are in the Contractor’s possession,
the agreed payment or instalment has been received
and the necessary conditions for performance of the
assignment have been satisfied.
5.4. a. In the event of circumstances that differ from those that
were known to the Contractor when it set the delivery
period and/or performance period, it may extend the delivery
period and/or performance period by such period
as it needs to perform the assignment under such circumstances.
If the work cannot be incorporated into the
Contractor’s schedule, it will be performed as soon as
the Contractor’s schedule so permits.
b. In the event of any contract addition, the delivery period
and/or performance period will be extended by such period
as the Contractor needs to (cause to) supply the
materials and parts for such work and to perform the
contract addition. If the contract addition cannot be incorporated
into the Contractor’s schedule, the work will
be performed as soon as the Contractor’s schedule so
permits.
c. If the Contractor suspends its obligations, the delivery
period and/or performance period will be extended by
the duration of the suspension. If the continuation of the
work cannot be incorporated into the Contractor’s
schedule, the work will be performed as soon as the
Contractor’s schedule so permits.
d. In the event of inclement weather, the delivery period
and/or performance period will be extended by the resulting
delay.
5.5 The Client is required to pay all costs incurred by the Contractor
as a result of delay affecting the delivery period
and/or performance period as referred to in Article 5.4.
5.6 If the delivery period and/or performance period is/are exceeded,
this will in no event entitle to damages or termination.
Article 6: Transfer of risk
6.1. Delivery will be made ex works, Contractor’s place of establishment,
in accordance with the Incoterms 2010. The risk
attached to the good passes to the Client at the time the
Contractor makes the good available to the Client.
6.2. Notwithstanding the provisions in paragraph 1 of this article,
the Client and Contractor may agree that the Contractor will
arrange for transport. In that event, the risk of storage, loading,
transport and unloading will be borne by the Client. The
Client may insure itself against these risks.
6.3. In the event of a purchase in which a good is exchanged
(inruil) and the Client retains the good to be exchanged
pending delivery of the new good, the risk attached to the
good to be exchanged remains with the Client until it has
placed this good in the possession of the Contractor. If the
Client cannot deliver the good to be exchanged in the condition
that it was in when the agreement was concluded, the
Contractor may terminate the agreement.
Article 7: Price change
7.1. The Contractor may pass on to the Client any increase in
costing factors occurring after conclusion of the agreement.
7.2. The Client will be obliged to pay the price increase as referred
to in paragraph 1 of this article on any of the occasions
below, such at the discretion of the Contractor:
a. upon the occurrence of the price increase;
b. at the same time as payment of the principal sum;
c. on the next agreed payment deadline.
Article 8: Force majeure
8.1. The Contractor is entitled to suspend performance of its
obligations if it is temporarily prevented from performing its
contractual obligations to the Client due to force majeure.
8.2 Force majeure is understood to mean, inter alia, the circumstance
of failure by suppliers, the Contractor’s subcontractors
or transport companies engaged by the Contractor
to perform their obligations or perform them in good time,
weather conditions, earthquakes, fire, power failure, loss,
theft or destruction of tools or materials, road blocks, strikes
or work stoppages and import or trade restrictions.
8.3 If the Contractor’s temporary inability to perform lasts for
more than six months, it will no longer be entitled to suspend
performance. On expiry of this deadline, the Client
and the Contractor may terminate the agreement with immediate
effect, but only as regards such part of the obligations
that has not yet been performed.
8.4 In the event of force majeure where performance is or becomes
permanently impossible, both parties are entitled to
terminate the agreement with immediate effect as regards
such part of the obligations that has not yet been performed.
8.5. The parties will not be entitled to compensation for damage
suffered or to be suffered as a result of suspension or termination
as referred to in this article.
Article 9: Scope of the work
9.1. The Client must ensure that all licences, exemptions and
other administrative decisions necessary to carry out the
work are obtained in good time. The Client is required upon
the Contractor’s first demand to send the Contractor a copy
of the documents mentioned above.
9.2 The price of the work does not include:
a. the costs of earthwork, pile driving, cutting, breaking,
foundation work, cementing, carpentry, plastering, painting,
wallpapering, repair work or other construction
work;
b. the costs of connecting gas, water, electricity or other infrastructural
facilities;
c. the costs of preventing or limiting damage to any goods
present on or near the work site.
d. the costs of removal of materials, building materials or
waste;
e. travel and accommodation expenses.
Article 10: Changes to the work
10.1. Changes to the work will in any event result in contract variations
work if:
a. the design, specifications or contract documents are
changed;
b. the information provided by the Client is not factually accurate;
c. quantities diverge by more than 10% from the estimates.
10.2. Contract additions will be charged on the basis of the pricing
factors applicable at the time the contract addition is
performed.
Contract deductions will be charged on the basis of the pricing
factors applicable at the time the agreement was concluded.
10.3. The Client will be obliged to pay the price of the contract
addition as referred to in paragraph 1 of this article on any
of the occasions below, such at the discretion of the Contractor:
a. when the contract addition arises;
b. at the same time as payment of the principal sum;
c. on the next agreed payment deadline.
10.4. If the sum of the contract deduction exceeds that of the contract
addition, in the final settlement the Contractor may
charge the Client 10% of the difference. This provision does
not apply to contract deductions that result from a request
by the Contractor.
Article 11: Performance of the work
11.1. The Client will ensure that the Contractor can carry out its
activities without interruption and at the agreed time and
that the requisite facilities are made available to it when carrying
out its activities, such as:
a. gas, water and electricity;
b. heating;
c. lockable and dry storage space;
d. facilities required pursuant to the Working Conditions
Act and Working Conditions Regulations.
11.2. The Client bears the risk of and is liable for any damage
connected with loss, theft, burning and damage to goods
belonging to the Contractor, the Client and third parties,
such as tools, materials intended for the work or material
used in the work, that are located on the work site or at another
agreed location.
11.3. The Client is obliged to adequately insure itself against the
risks referred to in paragraph 2 of this article. In addition,
the Client must procure insurance of work-related damage
as regards the material to be used. Upon the Contractor
first demand, the Client must send it a copy of the relevant
insurance policy/policies and proof of payment of the premium.
In the event of any damage, the Client is required to
report this to its insurer without delay for further processing
and settlement.
11.4. If the Client fails to perform its obligations as described in
the previous paragraphs and this results in delayed performance
of the activities, the activities will be carried out as
soon as the Client performs its obligations as yet and the
Contractor’s schedule so permits. The Client is liable for all
damage suffered by the Contractor as a result of the delay.

Article 12: Completion of the work
12.1. The work is deemed to be completed in the following
events:
a. when the Client has approved the work;
b. when the work is been taken into commission by the
Client. If the Client takes part of the work into commission,
that part will be deemed to be completed;
c. if the Contractor notifies the Client in writing that the
work has been completed and the Client does not inform
it in writing as to whether or not the work is approved
within 14 days of such notification having been made;
d. if the Client does not approve the work due to minor defects
or missing parts that can be rectified or subsequently
delivered within 30 days and that do not prevent
the work from being taken into commission.
12.2. If the Client does not approve the work, it is required to inform
the Contractor of this in writing, stating reasons. The
Client must provide the Contractor with the opportunity to
complete the work as yet.
12.3. The Client indemnifies the Contractor from and against any
claims by third parties for damage to non-completed parts
of the work caused by use of parts of the work that have already
been completed.
Article 13: Liability
13.1. In the event of an attributable failure, the Contractor is
obliged to perform its contractual obligations as yet.
13.2 The Contractor’s obligation to pay damages, irrespective of
the legal basis, is limited to damage for which the Contractor
is insured under an insurance policy taken out by it or on
its behalf, but will never exceed the amount paid out under
this insurance in the relevant case.
13.3. If, for any reason whatsoever, the Contractor cannot invoke
the limitation in paragraph 2 of this article, the obligation to
pay damages will be limited to a maximum of 15% of the total
assignment amount (excluding VAT). If the agreement
comprises parts or partial deliveries, the obligation to pay
damages is limited to a maximum of 15% (excluding VAT)
of the assignment amount of that part or that partial delivery.
13.4. The following does not qualify for compensation:
a. consequential loss, including business interruption loss,
production loss, loss of profit, transport costs and travel
and accommodation expenses. The Client may insure
itself against this damage if possible;
b. damage to goods in or under its care, custody or control.
Such damage includes damage caused as a result of or
during the performance of the work to goods on which
work is being performed or to goods situated in the vicinity
of the work site. The Client may insure itself
against such damage if it so desires;
c. damage caused by the intent or wilful recklessness of
agents or non-management employees of the Contractor.
13.5. The Contractor is not liable for damage to material provided
by or on behalf of the Client where that damage is the result
of improper processing.
13.6 The Client indemnifies the Contractor from and against all
claims by third parties on account of product liability as a
result of a defect in a product supplied by the Client to a
third party and that consisted, entirely or partially, of products
and/or materials supplied by the Contractor. The Client
is obliged to compensate all damage suffered by the Contractor
in this respect, including the full costs of defence.
Article 14: Warranty and other claims
14.1. Unless otherwise agreed in writing, the Contractor warrants
the proper execution of the agreed performance for a period
of six months after delivery/completion. In the event that a
different warranty period is agreed, the other paragraphs of
this article are also applicable.
14.2. If the agreed performance was not properly executed, the
Contractor will decide whether to properly execute it as yet
or to credit the Client for a proportionate part of the invoice
amount. If the Contractor chooses to properly execute the
performance as yet, it will determine the manner and time of
execution itself. If the agreed performance consisted (entirely
or partially) of the processing of material provided by
the Client, the Client must provide new material at its own
risk and expense.
14.3. Parts or materials that are repaired or replaced by the Contractor
must be sent to the Contractor by the Client.
14.4. The Client bears the expense of:
a. all costs of transport or dispatch;
b. costs of disassembly and assembly;
c. travel and accommodation expenses.
14.5. The Client must in all cases offer the Contractor the opportunity
to remedy any defect or to perform the processing
again.
14.6. The Client may only invoke the warranty once it has satisfied
all its obligations to the Contractor.
14.7. a. No warranty is given if the defects result from:
– normal wear and tear;
– improper use;
– lack of maintenance or improper maintenance;
– installation, fitting, modification or repair by the Client
or third parties;
– defects in or unsuitability of goods originating from,
or prescribed by, the Client;
– defects in or unsuitability of materials or auxiliary
materials used by the Client.
b. No warranty is given in respect of:
– goods supplied that were not new at the time of delivery;
– the inspection and repair of goods of the Client;
– parts for which a manufacturer’s warranty has been
provided.
14.8 The provisions of paragraphs 2 to 7 of this article apply mutatis
mutandis to any claims by the Client based on breach
of contract, non-conformity or on any other basis whatsoever.
14.9 The Client cannot assign any rights under this article.
Article 15: Obligation to complain
15.1 The Client can no longer invoke a defect in performance if it
does not make a written complaint to the Contractor in respect
thereof within fourteen days of the date it discovered,
or should reasonably have discovered, the defect.
15.2 On pain of forfeiture of all rights, the Client must submit
complaints regarding the amount invoiced to the Contractor
in writing within the payment deadline. If the payment deadline
is longer than thirty days, the Client must complain no
later than thirty days after the date of the invoice.
Article 16: Failure to take delivery of goods
16.1 Upon expiry of the delivery period and/or performance period,
the Client is obliged to take delivery of the good or
goods forming the subject of the agreement.
16.2 The Client must lend all cooperation that can be reasonably
expected from it to enable the Contractor to make the delivery.
16.3 If the Client does not take delivery of goods, such goods will
be stored at the risk and expense of the Client.
16.4 Upon breach of the provisions in paragraphs 1 and/or 2 of
this article, the Client will owe the Contractor a penalty of
€ 250 per day, to a maximum of € 25,000. This penalty may
be claimed in addition to damages pursuant to the law.
Article 17: Payment
17.1. Payment will be made at the Contractor’s place of establishment
or to an account to be designated by the Contractor.
17.2. Unless agreed otherwise, payment will be made as follows:
a. in cash where sale is at the service desk;
b. in the case of payments in instalments:
– 40% of the total price upon assignment;
– 50% of the total price after supply of the material or,
if delivery of the material is not included in the assignment,
after commencement of the work;
– 10% of the total price upon completion;
c. in all other cases, within thirty days of the date of the invoice.
17.3. If the Client fails to comply with its payment obligation, instead
of paying the sum of money agreed it will be obliged
to comply with a request by the Contractor for payment in
kind (inbetalinggeving).
17.4. The right of the Client to set off or suspend amounts it is
owed by the Contractor is excluded, save in the event of the
Contractor’s bankruptcy or if statutory debt rescheduling
applies to the Contractor.
17.5 Irrespective of whether the Contractor has fully executed
the agreed performance, everything that is or will be owed
to it by the Client under the agreement is immediately due
and payable if:
a. deadline for payment has been exceeded;
b. an application has been made for the Client’s bankruptcy
or suspension of payments;
c. attachment is levied on the Client’s goods or claims;
d. the Client (a company) is dissolved or wound up.
e. the Client (a natural person) requests to be admitted to
statutory debt rescheduling, is placed under guardianship
or dies.
17.6 If payment is not made within the agreed payment deadline,
the Client will immediately owe interest to the Contractor.
The interest rate is 12% per annum, but is equal to the statutory
interest rate if the latter rate is higher. When calculating
interest, part of a month is regarded as a whole month.
17.7 The Contractor is authorised to set off its debts to the Client
with amounts owed by the Client to companies affiliated
with the Contractor. In addition, the Contractor is authorised
to set off amounts owed to it by the Client with debts to the
Client of companies affiliated with the Contractor. Further,
the Contractor is authorised to set off its debts to the Client
with amounts owed to the Contractor by companies affiliated
with the Client. Affiliated companies are understood to
mean the companies belonging to the same group, within
the meaning of Article 2:24b Dutch Civil Code, and participating
interests within the meaning of Article 2:24c Dutch
Civil Code.
17.8 If payment is not made within the agreed payment deadline,
the Client will owe the Contractor all extrajudicial costs, with
a minimum of € 75.
These costs will be calculated on the basis of the following
table (principal sum plus interest):
on the first € 3,000 15%
on any additional amount up to € 6,000 10%
on any additional amount up to € 15,000 8%
on any additional amount up to € 60,000 5%
on any additional amount from € 60,000 3%
The extrajudicial costs actually incurred will be owed if
these are higher than they would be according to the above
calculation.
17.9 If judgment is rendered in favour of the Contractor in legal
proceedings, all costs that it has incurred in relation to these
proceedings will be borne by the Client.
Article 18: Security
18.1. Irrespective of the agreed payment conditions, upon the first
demand of the Contractor the Client is obliged to provide
such security for payment as the Contractor deems sufficient.
If the Client does not comply with such demand within
the period set, it will immediately be in default. In that event,
the Contractor is entitled to terminate the agreement and to
recover its damage from the Client.
18.2. The Contractor will retain ownership of any goods delivered
as long as the Client:
a. fails or will fail in the performance of its obligations under
this agreement or other agreements;
b. has not paid debts that have arisen due to nonperformance
of the aforementioned agreements, such
as damage, penalties, interest and costs.
18.3. As long the goods delivered are subject to retention of title,
the Client may not encumber or alienate the same other
than in the ordinary course of its business.
18.4. Once the Contractor has invoked its retention of title, it may
take possession of the goods delivered. The Client will lend
its full cooperation to this end.
18.5. The Contractor has a right of pledge and a right of retention
in respect of all goods that are or will be held by it for any
reason whatsoever and for all claims it has or might acquire
against the Client in respect of anyone seeking their surrender.
18.6. If, after the goods have been delivered to the Client by the
Contractor in accordance with the agreement, the Client
has met its obligations, the retention of title will be revived
with regard to such goods if the Client does not meet its obligations
under any agreement subsequently concluded.
Article 19: Termination of the Agreement
If the Client wishes to terminate the agreement without the Contractor
being in default, 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.
Article 20: Applicable law and competent court
20.1. Dutch law applies.
20.2. The Vienna Sales Convention (C.I.S.G.) does not apply, nor
do any other international regulations the exclusion of which
is permitted.
20.3. Disputes will be heard exclusively by the Dutch civil court
with jurisdiction over the Contractor’s place of establishment,
unless this is contrary to mandatory law. The Contractor
may deviate from this rule of jurisdiction and apply
the statutory rules of jurisdiction. These conditions are a full translation of the Dutch version of the
‘METAALUNIE-VOORWAARDEN’ as deposited with the Registry
of the District Court in Rotterdam on 1 January 2014. Explanation
and interpretation of the text of these Conditions shall be based on
the Dutch text.