General Conditions

Terms and Conditions of the Metaalunie

1 January 2019

General Terms and Conditions issued by Koninklijke Metaalunie (the employers’ organisation for small and medium-sized enterprises in the metal industry) referred

to as TERMS AND CONDITIONS OF THE METAALUNIE, filed with the Registry of the Court of Rotterdam on 1 January 2019.

Publication of the Koninklijke Metaalunie, P.O. Box 2600, 3430 GA, Nieuwegein.

© Koninklijke Metaalunie

Article 1: Scope of application

1.1. These Terms and Conditions apply to all offers made by a

Metaalunie member, to all agreements that it enters into and

to all agreements arising from this, all of which insofar as the

Metaalunie member is the supplier or the contractor.

1.2. Metaalunie members who apply these Terms and Conditions

are referred to as the Contractor. The other party is referred

to as the Client.

1.3. In the event of conflicts between the agreement entered into

by the Client and the Contractor and these Terms and Conditions,

the provisions of the agreement will prevail.

1.4. These Terms and Conditions may only be applied by Metaalunie

members.

 

Article 2: Offers

2.1. All offers are without obligation. The Contractor is entitled to

revoke its offer up to two working days after it has received

the acceptance.

2.2. If the Client provides the Contractor with information, the

Contractor may assume that it is accurate and complete and

will base its offer on this information.

2.3. The prices stated in the offer are denominated in euros, excluding

VAT and other government levies or taxes. The prices

do not include travel, accommodation, packaging, storage

and transport costs, nor do they include costs for loading,

unloading and cooperating with customs formalities.

 

Article 3: Confidentiality

3.1. All information provided to the Client by or on behalf of the

Contractor, such as offers, designs, images, drawings and

know-how, of whatever nature and in whatever form are confidential,

and the Client will not use it for any purpose other

than for the implementation of the agreement.

3.2. The Client will not disclose or reproduce the information referred

to in paragraph 1 of this article.

3.3. If the Client infringes one of the obligations referred to in paragraphs

1 and 2 of this article, it will owe an immediately payable

penalty of € 25,000 for each infringement. This penalty

can be claimed in addition to compensation by virtue of the

law.

3.4. The Client must return or destroy the information referred to

in paragraph 1 of this article immediately on request, within a

period set at the discretion of the Contractor. If this provision

is infringed, the Client will owe the Contractor an immediately

payable penalty of € 1,000 per day. This penalty can be

claimed in addition to compensation by virtue of the law.

 

Article 4: Advice and information provided

4.1. The Client cannot derive any rights from advice and information

provided by the Contractor that is not directly related to

the contract.

4.2. If the Client provides the Contractor with information, the

Contractor may assume that it is accurate and complete

when implementing the agreement.

4.3. The Client indemnifies the Contractor against any third-party

claims related to the use of advice, drawings, calculations,

designs, materials, brands, samples, models and the like provided

by or on behalf of the Client. The Client will compensate

the Contractor for all damage suffered by the Contractor, including

all costs incurred for defence against these claims.

 

Article 5: Delivery time/implementation period

5.1. Delivery times or implementation periods specified are indicative.

5.2. The delivery time or implementation period only commences

once an agreement has been reached on all commercial and

technical details, once all the 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 the other conditions for the contract have been

met.

5.3. If:

  1. there are circumstances other than those known to the

Contractor at the time it set the delivery period or implementation

period, the delivery period or implementation

period may be extended by the time the Contractor needs

– taking into account its planning – to implement the contract

under these circumstances;

  1. there are contract extras, the delivery period or implementation

period may be extended by the time the Contractor

needs – taking into account its planning – to have the materials

and parts delivered and to carry out the contract

extras;

  1. the Contractor suspends its obligations, the delivery period

or implementation period may be extended by the time the

Contractor needs – taking into account its planning – to

implement the contract after the reason for the suspension

no longer applies.

Unless the Client has evidence to the contrary, the duration of

the extension of the delivery period or implementation period

is presumed to be necessary and to be the result of a situation

as referred to above in a to c.

5.4. The Client is obliged to pay all costs that the Contractor incurs

or damages that the Contractor suffers as a result of a

delay in the delivery or implementation period as stated in

paragraph 3 of this article.

5.5. Under no circumstances does exceeding the agreed delivery

or implementation period give the Client the right to compensation

or to terminate the agreement. The Client indemnifies

the Contractor against any third-party claims due to exceeding

the delivery or implementation period.

 

Article 6: Delivery and risk transfer

6.1. Delivery takes place when the Contractor, at its business

location, makes the good available to the Client and has informed

the Client that the good is at its disposal. From that

time onwards, the Client bears the risk of the good in terms of

storage, loading, transport and unloading among others.

6.2. The Client and the Contractor may agree that the Contractor

will be responsible for the transport. In that case too, the Client

bears the risk of, inter alia, storage, loading, transport and

unloading. The Client can insure itself against these risks.

6.3. If a good is exchanged and the Client retains the good to be

exchanged pending delivery of the new good, the risk of the

good to be exchanged remains with the Client until the time

that it hands over the good to the Contractor. If the Client is

unable to deliver the good to be exchanged in the condition

in which it was when the agreement was concluded, the Contractor

may terminate the agreement.

 

Article 7: Price changes

The Contractor may pass on to the Client an increase in

cost-determining factors that occurs after entering into the

agreement. The Client is obliged to pay the price increase

immediately on the Contractor’s request.

 

Article 8: Force majeure

8.1. If the Contractor fails to fulfil its obligations, this cannot be attributed

to the Contractor if this failure is due to force majeure.

8.2. Force majeure includes, inter alia, if third parties engaged by

the Contractor – such as suppliers, subcontractors and transporters,

or other parties that the Client is dependent on – do

not meet their obligations at all or on time, or circumstances

due to weather conditions, natural disasters, terrorism,

cybercrime, disruption of digital infrastructure, fire, power

failures, loss, theft or loss of tools, materials or information,

roadblocks, strikes or work interruptions and import or trade

restrictions.

8.3. The Contractor is entitled to suspend fulfilment of its obligations

if it is temporarily prevented from fulfilling its obligations

to the Client due to force majeure. Once the force majeure

circumstances no longer apply, the Contractor will fulfil its

obligations as soon as its planning permits.

8.4. If it concerns force majeure and fulfilment is or becomes permanently

impossible, or the temporary force majeure circumstances

have lasted for more than six months, the Contractor

is entitled to terminate the agreement with immediate effect

either entirely or in part. In those cases, the Client is entitled

to terminate the agreement with immediate effect, but only

for that part of the obligations that the Contractor has not yet

fulfilled.

8.5. The parties are not entitled to compensation for the damages

suffered or to be suffered as a result of the force majeure,

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 decisions that are necessary to carry out the work are

obtained in good time. The Client is obliged to send the Contractor

a copy of the aforementioned documents immediately

on the Contractor’s request.

9.2. Unless otherwise agreed in writing, the work does not include:

  1. groundwork, pile driving, cutting, breaking, foundation

work, masonry, carpentry, plastering, painting, wallpapering,

repair work or other construction work;

  1. making connections to gas, water, electricity, internet or

other infrastructural facilities;

  1. measures to prevent or limit damage to, of theft or loss of

goods present at or near the workplace;

  1. removing equipment, building materials or waste;
  2. vertical and horizontal transport.

 

Article 10: Contract extras

10.1. Changes in the work will in any event lead to contract extras

if:

  1. it concerns changes in the design, the specifications or the

contract documents;

  1. the information provided by the Client does not correspond

with reality;

  1. the estimated quantities deviate by more than 5%.

10.2. Contract extras are calculated on the basis of the price-determining

factors that apply at the time the extra work is performed.

The Client is obliged to pay the price for the contract

extras immediately on the Contractor’s request.

 

Article 11: Implementation of the work

11.1. The Client will ensure that the Contractor can carry out its

work undisturbed and at the agreed time and that it is given

the necessary facilities for the implementation of its work,

such as:

  1. gas, water, electricity and internet;
  2. heating;
  3. lockable dry storage space;
  4. the facilities prescribed under the Dutch Working Conditions

Act [Arbowet].

11.2. The Client bears the risk and is liable for damage to and theft

or loss of goods belonging to the Contractor, Client and third

parties, such as tools, material or equipment intended for the

work or used for the work, located at or near the place where

the work is carried out or at another agreed location.

11.3. Notwithstanding the provisions in paragraph 2 of this article,

the Client is obliged to take out adequate insurance against

the risks referred to in that paragraph. In addition, the Client

must take out insurance for the risk of work-related damage

with regard to the equipment to be used. The Client must

send the Contractor a copy of the relevant insurance(s) and

proof of payment of the premium immediately on request. In

the event of damages, the Client is obliged to report this immediately

to its insurer for further processing and settlement.

 

Article 12: Delivery of the work

12.1. The work is considered to be delivered in the following cases:

  1. once the Client has approved the work;
  2. if the Client has put the work into operation. If the Client

puts part of the work into operation, then that part is considered

to have been delivered;

  1. if the Contractor has notified the Client in writing that the

work has been completed, and the Client fails to inform the

Contractor in writing that the work has not been approved

within 14 days of the day of the notification;

  1. 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 hinder the commissioning

of the work.

12.2. If the Client does not approve the work, it is obliged to inform

the Contractor of this in writing, stating the reasons. The Client

must give the Contractor the opportunity to deliver the

work at a later date.

12.3. The Client indemnifies the Contractor against third-party

claims concerning damage to parts of the work not delivered

due to the use of parts of the work that have already been

delivered.

 

Article 13: Liability

13.1. In the event of an attributable failure, the Contractor is still

obliged to fulfil its contractual obligations, with due observance

of Article 14.

13.2. The Contractor’s obligation to compensate damages – regardless

of the grounds – is limited to the damage against

which the Contractor is covered under an insurance policy

taken out by it or on its behalf. However, the scope of this

obligation is never greater than the amount paid out under

this insurance in the case in question.

13.3. If, for whatever reason, the Contractor does not have the

right to invoke paragraph 2 of this article, the obligation to

compensate damage is limited to a maximum of 15% of the

total contract amount (excluding VAT). If the agreement consists

of parts or partial deliveries, this obligation is limited to

a maximum of 15% (excluding VAT) of the contract amount

for that part or that partial delivery. If it concerns continuing

performance contracts, the obligation to compensate damage

is limited to a maximum of 15% (excluding VAT) of the

contract amount owed over the last twelve months prior to the

loss-causing event.

13.4. The following do not qualify for compensation:

  1. consequential damages. Consequential damages include

inter alia business interruption losses, loss of production,

loss of profit, penalties, transport costs and travel and subsistence

expenses;

  1. damage to property in the care, custody or control of, but

not owned by the insured party. Among other things, this

damage includes damage caused by or during the performance

of the work to goods that are being worked on or to

goods that are located in the vicinity of the place where the

work is being carried out;

  1. damage as a result of intent or wilful recklessness by the

Contractor’s auxiliary staff or non-managerial subordinates.

The Client can take out insurance for these damages if possible.

13.5. The Contractor is not obliged to compensate damage to

material supplied by or on behalf of the Client as a result of

improper processing.

13.6. The Client indemnifies the Contractor against all third-party

claims due to product liability as a result of a defect in a product

that has been delivered by the Client to a third party and

of which the products or materials supplied by the Contractor

are a part. The Client is obliged to reimburse all the damages

suffered by the Contractor in this respect, including the (full)

costs of the defence.

 

Article 14: Guarantee and other claims

14.1. Unless otherwise agreed in writing, the Contractor guarantees

the proper execution of the agreed performance for a

period of six months after delivery or completion, as detailed

in the following paragraphs.

14.2. If the parties have agreed to deviating guarantee conditions,

the provisions of this article will remain in full force, unless

this is in conflict with those deviating guarantee conditions.

14.3. If the agreed performance has not been executed properly,

the Contractor will decide within a reasonable period of time

whether it will still perform the work properly or credit the Client

for a proportionate part of the contract amount.

14.4. If the Contractor opts to still execute the performance properly,

it will determine the manner and time of execution. The

Client must in all cases offer the Contractor the opportunity to

do so. If the agreed performance (also) included the processing

of material provided by the Client, the Client must supply

new material at its own expense and risk.

14.5. The Client is responsible for sending parts or materials that

are to be repaired or replaced by the Contractor to the Contractor’s

business location.

14.6. The following are for the Client’s account:

  1. all transport or shipping costs;
  2. costs for dismantling and assembly;
  3. travel and subsistence expenses and travel time.

14.7. The Contractor is only obliged to implement the guarantee if

the Client has fulfilled all its obligations.

14.8. a. The guarantee does not cover defects that are the result

of:

- normal wear and tear;

- improper use;

- lack of maintenance or maintenance carried out incorrectly;

- installation, assembly, modification or repairs carried out

by the Client or third parties;

- faulty or unsuitable goods originating from or prescribed by

the Client;

- faulty or unsuitable materials or tools used by the Client.

  1. No guarantee is given for:

- goods delivered that were not new at the time of delivery;

- inspections and repairs carried out on goods owned by the

Client;

- parts that are subject to a manufacturer’s guarantee.

14.9. The provisions of paragraphs 3 to 8 of this article apply by

analogy to any of the Client’s claims based on breach of contract,

non-conformity or any other basis whatsoever.

 

Article 15: Obligation to complain

15.1. The Client no longer has the right to invoke a defective performance

if it has not complained to the Contractor in writing

within fourteen days after it discovered or should reasonably

have discovered the defect.

15.2. The Client must have filed complaints about the invoice with

the Contractor in writing and within the payment term, subject

to forfeiture of all rights. If the payment term is longer than

thirty days, the Client must have filed its complaint in writing

within thirty days of the invoice date at the latest.

 

Article 16: Failure to take possession of goods

16.1. The Client is obliged to take actual possession of the goods

that are the subject of the agreement at the agreed location

at the end of the delivery or implementation period.

16.2. The Client must cooperate fully and free of charge to enable

the Contractor to deliver the goods.

16.3. Goods not taken into possession are stored at the Client’s

expense and risk.

16.4. If the provisions of paragraph 1 or 2 of this article are infringed,

the Client will owe the Contractor a penalty for each

infringement of € 250 per day up to a maximum of € 25,000,

after the Contractor has given notice of default. This penalty

can be claimed in addition to compensation by virtue of the

law.

 

Article 17: Payment

17.1. Payment is made at the Contractor’s business address or

into an account to be designated by the Contractor.

17.2. Unless otherwise agreed, payments must be made within 30

days of the invoice date.

17.3. If the Client fails to fulfil its payment obligation, it is obliged

to comply with a request from the Contractor for a tender of

payment instead of the agreed amount.

17.4. The Client’s right to offset its claims against the Contractor or

to suspend the fulfilment of its obligations is excluded, unless

the Contractor has been granted a suspension of payments

or is bankrupt or the statutory debt adjustment scheme applies

to the Contractor.

17.5. Irrespective of whether the Contractor has fully executed the

agreed performance, everything that the Client owes or will

owe it under the agreement is immediately due and payable

if:

  1. a payment term has been exceeded;
  2. the Client does not fulfil its obligations under Article 16;
  3. the Client has filed for bankruptcy or suspension of payments;
  4. the Client’s goods or claims have been attached;
  5. the Client (a company) is dissolved or wound up;
  6. the Client (a natural person) files a application to be admitted

to the statutory debt adjustment scheme, is placed

under a guardianship order or has died.

17.6. If payment is delayed, the Client will owe interest on that sum

to the Contractor with effect from the day following the day

agreed as the final day of payment up to and including the

day on which the Client settles the amount in question. If the

parties have not agreed on the final day of payment, the interest

is due from 30 days after the sum has become due and

payable. The interest is 12% per year, but is equal to the statutory

interest if this is higher. For the interest calculation, a

part of the month is considered to be a full month. At the end

of each year, the amount on which the interest is calculated

will be increased by the interest due for that year.

17.7. The Contractor is entitled to offset its debts to the Client

against claims that companies affiliated to the Contractor

have against the Client. In addition, the Contractor is entitled

to offset its claims to the Client against debts that companies

affiliated to the Contractor have against the Client. Furthermore,

the Contractor is entitled to offset its debts to the Client

against claims against companies affiliated to the Client.

‘Affiliated companies’ means all companies belonging to the

same group, within the meaning of Book 2, Section 24b of

the Dutch Civil Code, and a participation within the meaning

of Book 2, Section 24c of the Dutch Civil Code.

17.8. For late payments, the Client owes the Contractor all extrajudicial

costs with a minimum of € 75.

These costs are calculated on the basis of the following table,

i.e., the principal sum plus 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 or more 3%

The extrajudicial costs actually incurred are due if they are

higher than the calculation given above.

17.9. If judgment is rendered in favour of the Contractor in legal

proceedings, either entirely or for the most part, the Client will

bear all costs incurred in connection with these proceedings.

 

Article 18: Securities

18.1. Irrespective of the agreed payment terms, the Client is

obliged to provide sufficient security for payment immediately

on the Contractor’s request and at its discretion. If the Client

does not comply with this provision within the set time limit,

it will immediately be in default. In that case, the Contractor

has the right to terminate the agreement and to recover its

damages from the Client.

18.2. The Contractor remains the owner of the delivered goods as

long as the Client:

  1. has not fulfilled its obligations under any agreement with

the Contractor;

  1. claims arising from non-fulfilment of the aforementioned

agreements, such as damage, penalties, interest and

costs, have not been settled.

18.3. As long as the delivered goods are subject to retention of

title, the Client may not encumber or dispose of these goods

other than in the course of its normal business operations.

This provision has effect under property law.

18.4. After the Contractor has invoked its retention of title, it may

take back the delivered goods. The Client will cooperate fully

with this.

18.5. If the Client has fulfilled its obligations after the Contractor

has delivered the goods to it in accordance with the agreement,

the retention of title with respect to these goods is

revived if the Client does not fulfil its obligations under an

agreement entered into subsequently.

18.6. The Contractor has a right of pledge and a right of retention

on all goods that it has or may receive from the Client on any

grounds whatsoever and for all claims that it has or might

have against the Client.

 

Article 19: Intellectual property rights

19.1. The Contractor is considered to be the maker, designer or

inventor of the works, models or inventions created in the

context of the agreement. The Contractor therefore has the

exclusive right to apply for a patent, trademark or model.

19.2. The Contractor will not transfer any intellectual property rights

to the Client in the implementation of the agreement.

19.3. If the performance to be delivered by the Contractor (also)

includes providing computer software, the source code will

not be handed over to the Client. The Client will only acquire

a non-exclusive, worldwide and perpetual licence for use for

the computer software solely for the purpose of the normal

use and proper functioning of the good. The Client is not permitted

to transfer the licence or to issue a sub-licence. When

the Client sells the good to a third party, the licence transfers

by operation of law to the acquirer of the good.

19.4. The Contractor disclaims liability for damages that the Client

suffers as a result of an infringement of third-party intellectual

property rights. The Client indemnifies the Contractor against

any third-party claims related to an infringement of intellectual

property rights.

 

Article 20: Assignment of rights or obligations

The Client may not assign or pledge any rights or obligations

pursuant to any article in these General Terms and Conditions

or the underlying agreement(s), unless it has the prior

written consent of the Contractor. This provision has effect

under property law.

 

Article 21: Cancellation or termination of the agreement

21.1. The Client is not entitled to cancel or terminate the agreement,

unless the Contractor agrees to this. If the Contractor

agrees, the Client will owe the Contractor an immediately due

and payable compensation equal to the agreed price, less the

savings for the Contractor as a result of the termination. The

compensation will be at least 20% of the agreed price.

21.2. If the price depends on the actual costs to be incurred by

the Contractor (on a cost-plus basis), the compensation as

referred to in the first paragraph of this article is estimated

based on the sum of the costs and labour and the profit that

the Contractor would have made for the entire contract.

 

Article 22: Applicable law and competent court

22.1. Dutch law applies.

22.2. The Vienna Sales Convention (CISG) does not apply, nor

does any other international regulation that may be excluded.

22.3. The Dutch civil court with jurisdiction in the Contractor’s place

of business is authorised to take cognisance of any disputes.

The Contractor may deviate from this rule governing jurisdiction

and rely on the statutory rules governing jurisdiction

instead.

These Terms and Conditions constitute a comprehensive

translation of the Dutch version of the Terms and Conditions

of the Metaalunie as filed with the Registry of the Court of

Rotterdam on 1 January 2019. The Dutch version will prevail

in the explanation and interpretation of this text.

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