Terms and
conditions of Metaalunie
1 January 2025
General terms and conditions of delivery issued by Koninklijke Metaalunie,
filed with the Registry of the Court of Rotterdam.
Article 1:
Applicability
1.1. The
Metaalunie member who applies these terms and conditions is referred to as the
contractor. The other party is referred to as the client.
1.2. 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 contractor.
1.3. In the
event of a conflict between a provision of the concluded agreement and these
terms and conditions, the provision of the agreement shall prevail.
1.4. Only
Metaalunie members may use these terms and conditions.
Article 2:
Offers
2.1. All
offers made by the contractor are without obligation and revocable, including
offers that include a term for acceptance. The contractor is entitled to revoke
its offer up to two working days after it has received the acceptance.
2.2. The
prices stated by the contractor in the offer are expressed in euros, excluding
VAT and other government levies or taxes. In addition, the prices do not
include travel, accommodation, packaging, storage and transport costs or costs
for loading, unloading and cooperating with customs formalities.
2.3. Unless
otherwise specified, the offer does not include:
a.
groundwork, pile driving, cutting, breaking, foundation work, masonry,
carpentry, plastering, painting, wallpapering, repair work or any other
construction work;
b. making
connections to gas, water, electricity, internet or other infrastructural
facilities;
c. measures
to prevent or limit damage to, of theft or loss of, goods present at or near the
workplace;
d. removal
of materials, soil, building materials or waste;
e. vertical
and horizontal transport.
Article 3:
Confidentiality
3.1. 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. The client will only use this information for
the execution of the agreement. The client will not disclose or reproduce the
information.
3.2. If the
client breaches an obligation under paragraph 1, it will owe an immediately
payable penalty of € 25,000 per breach. The contractor may claim this penalty
in addition to damages under the law.
3.3. The
client must return the information referred to in paragraph 1 upon first
request, within a period set by the contractor, at the contractor’s discretion,
or destroy it in a manner to be determined by the contractor, without being
allowed to retain a copy in any form whatsoever. In the event of a breach of
this provision, the client shall owe the contractor an immediately payable
penalty of € 1,000 per day. The client can claim this penalty in addition to
compensation under 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 related to the contract.
4.2. If the
client provides information to the contractor, the contractor may assume the
accuracy and completeness of this information when making an offer and
performing the agreement.
4.3. The
contractor is not obliged to warn of, or to independently investigate, any
inaccuracies in the order, defects and unsuitability of goods originating from
the client and errors or defects in plans, drawings, calculations,
specifications or implementation instructions provided by the client.
4.4. The
client indemnifies the contractor against any third-party claim in connection
with (the use of) information provided by or on behalf of the client. This
includes advice, instructions, drawings, calculations, designs, materials,
brands, samples and models. The client shall compensate the contractor for all
damage suffered. This includes the full cost of legal defence.
Article 5:
Delivery time
5.1. All
delivery times, which includes in these conditions a delivery date, week,
month, term or implementation period, are indicative. If these are exceeded,
the client must issue the contractor at all times with a notice of default.
5.2. The
delivery time shall apply only when the client and the contractor have reached
timely agreement on all commercial and technical details, all information,
including final and approved drawings and the like, is in the possession of the
contractor, all items to be made available by the client have been received by
the contractor, the agreed (instalment) payment has been received in time and
the other conditions for the execution of the order have been fulfilled. If the
delivery time no longer applies, the contractor may determine a new delivery
time taking into account the contractor’s schedule.
5.3. The
delivery time no longer applies if there are circumstances other than those
known to the contractor when it specified the delivery time and those
circumstances are at the expense and risk of the client, including changes to
the order, contract variations or suspension by the contractor. If the delivery
time no longer applies, the contractor may determine a new delivery time taking
into account the contractor’s schedule.
5.4. The
client must reimburse the contractor for all costs, damage and loss incurred or
suffered by the contractor as a result of a change in the delivery time as
referred to in paragraphs 2 and 3, without the need for a notice of default.
5.5.
Exceeding the delivery time does not entitle the client to compensation or full
or partial termination. The client indemnifies the contractor against claims
from third parties as a result of exceeding the delivery time.
Article 6:
Delivery and risk transfer
6.1.
Delivery takes place at the time the contractor makes the item available to the
client at its premises and has notified the client accordingly. From that
moment on, the item is at the client’s risk.
6.2. If,
after the conclusion of the agreement, the contractor nevertheless arranges the
transport in whole or in part at the request of the client or assists the
client in this regard (such as storage, loading, stowage or unloading), this
will be at the expense and risk of the client. The client can insure itself
against these risks.
6.3. If
after delivery, transport is carried out by or on behalf of the client and the
contractor must have access to (transport) documents that are in the client’s
possession, the client must make those documents available to the contractor
free of charge upon first request.
6.4. If an
item is exchanged and the client retains the item to be exchanged pending
delivery of the new item, the risk of the item to be exchanged remains with the
client until the time that it hands over the item to the contractor. If the
client is unable to deliver the item to be exchanged in the condition in which
it was when the agreement was concluded, the contractor may terminate the
agreement wholly or in part.
Article 7:
Price change
The
contractor may pass on to the client any increase in cost-determining factors
that occurred after the conclusion of the agreement. The client must pay the
price increase at the contractor’s first request.
Article 8:
Force majeure
8.1. If the
contractor cannot fulfil its obligations due to a circumstance beyond its
actual control, this cannot be attributed to the contractors and results in
force majeure. In that event, the contractor shall not be liable for any damage
suffered by the client as a result. Except as provided in the fourth paragraph
of this article, the client is in that event also not entitled to terminate the
agreement in whole or in part.
8.2. The
circumstances referred to in the first paragraph of this article include in any
case (civil) war (threat), terrorism, riots, outbreaks of infectious diseases
and the resulting government measures or advice, natural disasters, extreme
weather conditions, import or trade restrictions, explosion, fire, water
damage, sabotage, cybercrime, disruption of digital infrastructure, disruptions
in the supply of energy, (partial) loss, theft or loss of tools, materials or
information, defects in machines, roadblocks, blockades of railways and
waterways or airports, strikes or work stoppages, staff shortages and the
circumstance that third parties engaged by the contractor, such as suppliers,
subcontractors and transporters, or other parties on which the contractor is
dependent, do not or do not timely fulfil their obligations.
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 situation has ended, the contractor shall
fulfil its obligations as soon as its schedule permits.
8.4. If
there is force majeure and compliance is or becomes permanently impossible, or
the temporary force majeure situation has lasted for more than six months, the
contractor is authorised to terminate the agreement wholly or in part with
immediate effect. 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 damage suffered or to be
suffered as a result of the force majeure, suspension or termination as
referred to in this article.
Article 9:
Contract extras
Contract
extras are calculated on the basis of the prices applicable at the contractor
at the time the additional work is carried out. The client must pay the price
for the contract extras on the contractor’s first request.
Article 10:
Execution of the work
10.1. The
client shall ensure that the contractor can perform its work safely,
undisturbed, uninterrupted and at the agreed time. The client shall ensure at
its own expense and risk that:
a. all
permits, exemptions and other decisions necessary to carry out the work have
been obtained in a timely manner. The client is obliged to provide the
contractor with a copy of the aforementioned documents on the contractor’s
first request;
b. the
client informs the contractor in writing and in a timely manner of all (safety)
regulations applicable at the location;
c. the
contractor is provided with the necessary auxiliary personnel, tools and
facilities (such as gas, water, electricity, internet, suitable access roads
for any necessary transport, lifting and hoisting cranes, sanitary facilities
and a lockable dry storage space) when carrying out its work;
d. all
activities necessary for the execution of the work and not included in the
agreement have been carried out on time.
10.2. The
client bears the risk and is liable for damage to and theft or loss of all
items located at or near the place where the work is carried out or at any
other agreed place, such as the item delivered or to be delivered, tools,
materials intended for the work or equipment used in the performance of the
work. This does not apply if the client proves that the damage, theft or loss
was caused by the contractor itself.
10.3.
Without prejudice to the provisions of paragraph 2 of this article, the client
must take out adequate insurance against the risks mentioned in that paragraph.
In the event of damage, the client is obliged to report this immediately to its
insurer for further processing and settlement.
Article 11:
Delivery of the work
11.1. The
work is deemed to be delivered if:
a. the
client has approved the work;
b. the work
has been put into use. If part of the work has been put into use, that part is
considered to be delivered;
c. the
contractor has notified the client in writing that the work has been completed
and the client has not notified the contractor in writing within 14 days of the
date of such notification that the work has not been approved;
d. 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.
11.2. The
contractor is not obliged to provide the client with a document within the
meaning of Section 7:757a of the Dutch Civil Code regarding the construction
work that has been completed and is to be delivered (a ‘transfer or delivery
file’).
11.3. 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
Article 12:
Liability
12.1. If
the contractor is liable for whatever reason, such liability shall at all times
be limited as stipulated in the following paragraphs.
12.2. If
the contractor has any insurance taken out by it or on its behalf that provides
cover, the contractor’s obligation to compensate for damage shall be limited to
the amount paid out under such insurance in the relevant case.
12.3. If
the contractor has no insurance as referred to in the previous paragraph or no
amount is paid out under such insurance for whatever reason, the obligation to
compensate for damage is limited to a maximum of 15% of the order price
(excluding VAT). If the agreement consists of parts or partial deliveries, this
obligation is limited to a maximum of 15% (excluding VAT) of the order price of
the part or partial delivery in connection with which the contractor’s
liability has arisen. If it concerns continuing performance contracts, the
obligation to compensate for damage is limited to a maximum of 15% (excluding
VAT) of the contract price owed over the last twelve months prior to the
damage-causing event.
12.4. The
following do not qualify for compensation:
a.
consequential damage. Consequential damage includes, but is not limited to:
business interruption loss, loss of production, loss of profit, missed savings
and subsidies, tax disadvantages, costs incurred in vain, internal costs of the
client, reduced goodwill and damage to reputation, penalties, damage resulting
from liability of the client towards third parties, loss in connection with
damage, destruction or loss of data or documents, transport costs and travel
and accommodation expenses, storage costs, costs for replacement equipment and
labour and costs in connection with recall actions;
b. damage
to goods 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 (opzichtschade);
c. damage
to or caused by or with equipment provided to the contractor;
d. damage
as a result of intent or wilful recklessness by the contractor’s auxiliary
staff or non-managerial subordinates.
e. damage
to material supplied by or on behalf of the client, including as a result of
improperly executed processing, assembly, mounting or installation. The client
may insure itself against these types of damage if possible.
12.5. The
client indemnifies the contractor against all claims from third parties
resulting from 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 must compensate for all damage suffered by the contractor in this
regard, including the full costs of legal defence.
12.6. Any
claim for damages by the client shall lapse after a period of twenty-four
months from the date it arose unless the client has brought the claim before
the competent court before the expiry of that period.
Article 13:
Guarantee and other claims
13.1.
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.
13.2. If
the parties have agreed to deviating guarantee conditions, the provisions of
this article will remain in full force, unless and insofar as this is in
conflict with those deviating guarantee conditions.
13.3. The
client must lend all cooperation free of charge to the investigation by or on
behalf of the contractor of a complaint by the client about the performance
carried out, failing which all rights of the client in connection with that
complaint shall lapse.
13.4. If
the contractor has rejected a complaint about the performed service on good
grounds, the client must reimburse all costs reasonably incurred in connection
with investigating the complaint.
13.5. If
the agreed performance has not been properly executed, the contractor will
choose whether to perform it properly, replace the delivered item in whole or
in part, or credit the client for a reasonable part of the order amount.
13.6. If
the contractor chooses to properly perform the service or to replace the
delivered item in whole or in part, the client will in all cases offer the
contractor the opportunity to do so. The contractor determines the method and
time of execution. 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.
13.7. Items
to be repaired or replaced by the contractor must be sent to the contractor by
the client. Transport, shipping, disassembly and assembly are at the expense
and risk of the client. In addition, travel, accommodation and travel hours are
for the account of the client. The contractor is authorised to require security
or advance payment for these costs.
13.8. The
contractor is not required to implement the guarantee until the client has fulfilled
all its obligations.
13.9. a.
The guarantee does not cover defects that are the result of:
– normal
wear and tear;
– improper
use;
– lack of
maintenance, or incorrectly performed maintenance;
–
installation, assembly, disassembly, change or repair by the client or by third
parties;
– defects
in or unsuitability of items, materials or tools originating from, or
prescribed by, the client.
b. No
guarantee is given for:
– items
delivered that were not new at the time of delivery;
–
inspecting, repairing and overhauling items;
– items
under manufacturer’s warranty;
– items for
which a guarantee has been granted to the client by third parties.
13.10. 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 14:
Obligation to complain
14.1. In
any case, 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.
14.2. The
client must have submitted 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 submitted its
complaint in writing within thirty days of the invoice date at the latest.
Article 15:
Failure to take possession of goods
15.1. 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 period.
15.2. The
client must cooperate fully and free of charge to enable the contractor to
deliver the goods.
15.3. Goods
not taken into possession are stored at the client’s expense and risk.
15.4. In
the event of a breach of the provisions of paragraph 1 or 2 of this article,
the client shall, after the contractor has given notice of default, owe the
contractor a penalty of € 250 per day for each breach, with a maximum of €
25,000. This penalty can be claimed in addition to damages by virtue of the
law.
Article 16:
Payment
16.1.
Payment is made at the contractor’s business address or into an account to be
designated by the contractor.
16.2. Unless
otherwise agreed, payment is made within 30 days of the invoice date.
16.3. If
the client fails to fulfil its payment obligation, it is obliged to comply with
a request from the contractor for a benefit in kind instead of the agreed
amount.
16.4. 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.
16.5.
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:
a. a
payment term has been exceeded;
b. the
client fails to fulfil its obligations under article 15;
c. the
client has not provided security upon first request under Article 17 of these
terms and conditions;
d. the
client has filed for bankruptcy or suspension of payments;
e.
attachment is levied on goods or claims of the client; f. the client (company)
is dissolved or wound up; g. the client (a natural person) files an application
to be admitted to the statutory debt adjustment scheme, is placed under a
guardianship order or has passed away.
16.6. In
the event of late payment, the client shall owe interest on the amount payable
to the contractor from the day following the day agreed as the final day for
payment until and including the day on which the client makes payment. 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 will be 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.
Article 18:
Intellectual Property Rights
18.1. The
contractor shall be regarded as creator, designer, deviser or inventor,
respectively, of the works, models, signs or inventions created under the
agreement. The contractor has the exclusive right to apply for a patent,
trademark or model.
18.2. The
contractor will not transfer any intellectual property rights to the client in
the performance of the agreement.
18.3. 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 item.
18.4. The
client is not permitted to transfer the licence or to issue a sub-licence. This
provision has effect under property law. Only in the event of resale of the
item in connection with which the contractor has supplied the computer software
shall the licence pass to the acquirer of the item under the same conditions
and restrictions as set out in this article, provided that the purchaser of the
item has accepted these conditions in writing.
18.5. The
contractor is not liable for damage that the client suffers as a result of an
infringement of third-party intellectual property rights.
18.6. The
client indemnifies the contractor against any third-party claims related to an
infringement of intellectual property rights.
Article 19:
Transfer of rights or obligations
The client
may not transfer 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 20:
Termination or cancellation of the agreement
20.1. The
client is not entitled to terminate or cancel the agreement in whole or in
part.
20.2. The
contractor may agree to a request to terminate the agreement. In that case, the
client shall owe a payment of at least 20% of the agreed or budgeted price. The
contractor is entitled to demand a higher payment or to impose further
conditions for its consent.
Article 21:
Applicable law and competent court
21.1. Dutch
law applies. The Vienna Sales Convention (C.I.S.G.) or any other international
regulation, the exclusion of which is permitted, shall not apply.
21.2. The
Dutch civil court with jurisdiction in the place of establishment of the
contractor shall have exclusive jurisdiction over disputes arising from or
related to the agreement. These terms and conditions constitute an integral
translation of the Dutch version of the Metaalunie terms and conditions as
filed with the Registry of the Court of Rotterdam on 1 January 2025. The Dutch
version will prevail in the explanation and interpretation of this text.
16.7. 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 on companies affiliated with the client. Affiliated companies
are all companies that belong to the same group within the meaning of Section
2:24b of the Dutch Civil Code and a participation within the meaning of Section
2:24c of the Dutch Civil Code.
16.8. In
the event of late payments, the client owes the contractor all extrajudicial
costs with a minimum of € 75. These costs are calculated on the principal
amount based on the following table:
– 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.
16.9. If
the contractor is wholly or largely vindicated in legal proceedings, all costs
incurred in connection with such proceedings shall be borne by the client.
Article 17:
Securities
17.1. The
client is obliged to provide adequate security, at the contractor’s first
request, at the contractor’s discretion, for all payments owed by the client to
the contractor under the agreement. If the client fails to comply with this
provision within the set time limit, it shall immediately be in default. In
that case, the contractor has the right to terminate the agreement and to
recover its loss from the client.
17.2. The
contractor shall remain the owner of delivered goods until the client has
fulfilled its obligations under any agreement with the contractor, including
claims for damages, penalties, interest and costs.
17.3. 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.
17.4. 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.
17.5. After
the contractor has invoked its retention of title, it may recover the delivered
goods. The client will cooperate fully with this.
17.6. In
the event of a breach of the provisions of paragraph 5 of this article, the
client shall, after the contractor has issued notice of default, owe the
contractor a penalty of € 250 per day for each breach, with a maximum of €
25,000. This penalty can be claimed in addition to damages by virtue of the
law.
17.7. 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.
