METAALUNIE TERMS AND CONDITIONS
January 1, 2025
General terms and conditions of delivery issued by Koninklijke Metaalunie,
filed with the registry of the Rotterdam District Court.
Article 1: Applicability
1.1. The Metaalunie member using these terms and conditions is referred to as the contractor. The other party is referred to as the principal.
1.2. These terms and conditions apply to all offers made by a Metaalunie member, to all agreements concluded by the member and to all agreements resulting therefrom, all 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 from the contractor are without obligation and revocable, including offers in which a term for acceptance is included. The contractor has the right to revoke his offer up to two working days after the day on which the acceptance has reached him.
2.2. The prices that the contractor mentions in the offer are expressed in euros, excluding sales tax and other government levies or taxes. The prices are further exclusive of travel, accommodation, packaging, storage and transport costs, costs for loading, stowing, unloading and cooperation with customs formalities.
2.3. Unless otherwise specified, the offer does not include:
a. earthworks, pile driving, cutting, breaking, foundation work, masonry, carpentry, plastering, painting, wallpapering, repair work or any other construction work;
b. realizing connections for gas, water, electricity, internet or other infrastructure facilities;
c. measures to prevent or limit damage to or theft or loss of items 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 performance of the agreement. He will not make the information public or reproduce it.
3.2. If the client violates an obligation under paragraph 1, he shall owe an immediately claimable fine of € 25,000 per violation. The contractor may claim this fine in addition to damages under the law.
3.3. The Client must return the information from paragraph 1 at the 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 violation of this provision, the Client shall owe the Contractor an immediately claimable fine of € 1,000 per day. The Contractor may claim this fine in addition to compensation for damages on the basis of the law
Article 4: Advice and information provided
4.1. The Client cannot derive any rights from advice and information from the Contractor that does not relate to the assignment.
4.2. If the client provides information to the contractor, the contractor may assume that this information is correct and complete when making an offer and executing 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 items originating from the Client and errors or defects in plans, drawings, calculations, specifications or implementation instructions provided by the Client.
4.4. The Client shall indemnify the Contractor against any third-party claims 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 damages suffered. This also includes the full costs of defence.
Article 5: Delivery time
5.1. All delivery times, including in these conditions a delivery date, week, month, term or implementation period, are indicative. If they are exceeded, the client must at all times put the contractor in default.
5.2. The delivery time shall only apply when the client and 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 on time and the other conditions for the execution of the order have been met. If the delivery time no longer applies, the contractor may determine a new delivery time, taking into account his planning.
5.3. The delivery time no longer applies if there are circumstances other than those known to the contractor when he specified the delivery time and those circumstances are at the expense and risk of the client, including changes to the order, additional or reduced work or suspension by the contractor. If the delivery time no longer applies, the contractor may determine a new delivery time taking into account his planning.
5.4. The Client must reimburse the Contractor for all costs and damages 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 transfer of risk
6.1. Delivery takes place at the moment that the contractor makes the item available to the client at his business location and has notified him of this. 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 (such as storage, loading, stowage or unloading), this is 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 a trade-in is involved and the client retains the trade-in item pending delivery of the new item, the risk of the trade-in item remains with the client until the moment that he has placed it in the possession of the contractor. If the client cannot deliver the trade-in item in the condition in which it was when the agreement was concluded, the contractor may terminate the agreement in whole or in part.
Article 7: Price change
Contractor may pass on to client any increase in cost-determining factors that occurred after the conclusion of the agreement. Client must pay the price increase at first request of contractor.
Article 8: Force Majeure
8.1. If the contractor cannot meet its obligations due to a circumstance beyond its actual control, this cannot be attributed to it and force majeure applies. In that case, the contractor is not liable for any damage suffered by the client as a result. The client is also not authorised to terminate the agreement in whole or in part in that case, except as provided in the fourth paragraph of this article.
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 shall have the right to suspend the fulfilment of its obligations if it is temporarily prevented from fulfilling its obligations to the Client due to force majeure. If the force majeure situation has ended, the Contractor shall fulfil its obligations as soon as its planning permits.
8.4. If there is force majeure and compliance is or becomes permanently impossible, or if the temporary force majeure situation has lasted more than six months, the contractor is entitled to terminate the agreement with immediate effect, in whole or in part. In such cases, the client is entitled to terminate the agreement with immediate effect, but only for that part of the obligations that have not yet been fulfilled by the contractor.
8.5. The parties shall not be entitled to compensation for any damage suffered or to be suffered as a result of force majeure, suspension or dissolution within the meaning of this article.
Article 9: Additional work
Additional work will be calculated based on the prices that apply to the contractor at the time the additional work is performed. The client must pay the price of the additional work at the first request of the contractor.
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 good time. The client is obliged to provide the contractor with a copy of the aforementioned documents at the first request;
b. he 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 his work;
d. all work necessary for the execution of the work and not included in the agreement has been carried out on time.
10.2. The Client shall bear the risk and be liable for damage to and theft or loss of all items located at or near the location where the work is performed or at another agreed location, 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 shall not apply if the Client demonstrates 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 insure himself sufficiently against the risks mentioned in that paragraph. If there is any damage, the client is obliged to report this immediately to his insurer for further processing and settlement.
Article 11: Delivery of the work
11.1. The work is considered to have been completed 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 have been delivered;
c. the contractor has notified the client in writing that the work has been completed and the client has not notified in writing within 14 days after the date of this 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 file within the meaning of Article 7:757a of the Dutch Civil Code with regard to 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, he is obliged to notify the contractor of this in writing, stating the reasons. The client must give the contractor the opportunity to deliver the work at a later date.
Article 12: Liability
12.1. If the Contractor is liable for any reason whatsoever, such liability shall at all times be limited as determined in the following articles.
12.2. If the Contractor has any insurance taken out by or on behalf of him that provides cover, the Contractor's obligation to compensate for damages is limited to the amount paid out under this insurance in the relevant case.
12.3. If the contractor does not have insurance as referred to in the previous article or if 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 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 order amount of the part or partial delivery in connection with which the contractor's liability arose. In the case of a continuing agreement, the obligation to compensate for damage is limited to a maximum of 15% (excluding VAT) of the order amount over the last twelve months prior to the event causing the damage.
12.4. The following are not eligible for reimbursement:
a. consequential damage. Consequential damage includes, but is not limited to: stagnation damage, 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, fines, damage resulting from liability of the client towards third parties, damage 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 recalls;
b. supervisory damage. Supervisory damage is understood to mean damage caused by or during the execution of the work to items being worked on or to items located in the vicinity of the place where the work is being carried out;
c. damage to or caused by or with equipment made available to the contractor;
d. damage caused by intent or deliberate recklessness of assistants or non-managerial subordinates of the contractor;
e. damage to material supplied by or on behalf of the client, including as a result of improper processing, assembly or installation.
If possible, the client can insure himself against these damages.
12.5. The Client shall indemnify 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 shall compensate the Contractor for all damages suffered in this regard, including the full costs of 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: Warranty and other claims
13.1. Unless otherwise agreed in writing, the contractor shall be responsible for the proper execution of the agreed performance for a period of six months after delivery, as further elaborated in the following articles.
13.2. If the parties have agreed on different warranty conditions, the provisions of this article shall apply, unless and to the extent that this is in conflict with those different warranty conditions.
13.3. The Client must cooperate fully and free of charge with the investigation by or on behalf of the Contractor of a complaint from the Client regarding the performance performed, 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 performance performed on good grounds, the client must reimburse all reasonable costs incurred in connection with investigating the complaint.
13.5. If the agreed performance has not been properly performed, 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 still properly perform the service or to replace the delivered item in whole or in part, the client will in all cases offer him the opportunity to do so. The contractor himself determines the manner and time of performance. If the agreed service consisted (partly) of editing material supplied by the client, the client must supply new material at his own expense and risk.
13.7. Items that are repaired or replaced by the contractor must be sent to him by the client. The transport, shipping and disassembly and assembly are at the expense and risk of the client. In addition, the travel, accommodation and travel hours are at the expense of the client. The contractor is entitled to request 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 warranty is excluded for defects resulting from:
– normal wear and tear;
– improper use;
– no or incorrect maintenance;
– installation, (dis)assembly, modification or repair by the client or by third parties;
– defects in or unsuitability of items, materials or resources originating from or prescribed by the client.
b. No warranty is given on:
– delivered goods that were not new at the time of delivery;
– the inspection, repair and overhaul of items;
– items for which a manufacturer's warranty has been provided;
– matters for which a guarantee has been provided to the client by third parties.
13.10. The provisions of paragraphs 3 to 8 of this article apply accordingly to any claims by the client on the grounds of default, non-conformity or any other basis whatsoever.
Article 14: Obligation to complain
14.1. In any case, the Client can no longer invoke a defect in the performance if he has not complained to the Contractor in writing about this within fourteen days after he discovered the defect or should reasonably have discovered it.
14.2. The client must, under penalty of forfeiture of all rights, have complained in writing to the contractor about the invoice within the payment term. If the payment term is longer than thirty days, the client must have complained in writing within thirty days after the invoice date.
Article 15: Items not collected
15.1. The Client is obliged to take actual delivery of the item that is the subject of the agreement at the agreed location after the delivery time has expired.
15.2. The Client shall provide all cooperation free of charge to enable the Contractor to deliver.
15.3. Items not collected will be stored at the expense and risk of the client.
15.4. In the event of a violation 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 fine of €250 per day for each violation, with a maximum of €25,000. This fine may be claimed in addition to damages under the law.
Article 16: Payment
16.1. Payment shall be made at the place of business of the contractor or into an account to be designated by the contractor.
16.2. Unless otherwise agreed, payment shall be made within 30 days of the invoice date.
16.3. If the client fails to meet his payment obligation, he is obliged to comply with a request from the contractor for payment in lieu of payment of the agreed price.
16.4. The right of the client to offset its claims against the contractor or to suspend the fulfillment of its obligations is excluded, unless the contractor is granted a suspension of payments or is bankrupt or the statutory debt restructuring applies to the contractor.
16.5. Regardless of whether the Contractor has fully performed the agreed performance, everything that the Client owes or will owe him under the agreement is immediately due and payable if:
a. a payment term has been exceeded;
b. the client does not comply with his obligations under Article 15;
c. the client has not provided security upon first request in accordance with Article 17 of these terms and conditions;
d. the bankruptcy or suspension of payments of the client has been requested;
e. an attachment is made on the client's assets or claims;
f. the principal (company) is dissolved or liquidated;
g. the client (natural person) requests to be admitted to statutory debt restructuring, is placed under guardianship or has died.
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 of payment up to and including the day on which the Client has made the payment. If the parties have not agreed on a final day of payment, the interest shall be payable from 30 days after the due date. The interest amounts to 12% per year, but is equal to the statutory interest if this is higher. When calculating interest, a part of a month is considered a full month. Each time after the end of a year, the amount on which the interest is calculated is increased by the interest due for that year.
16.7. The Contractor is authorized to offset its debts to the Client against claims of companies affiliated with the Contractor against the Client. In addition, the Contractor is authorized to offset its claims against the Client against debts that companies affiliated with the Contractor have against the Client. Furthermore, the Contractor is authorized 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 article 2:24b BW and a participation within the meaning of article 2:24c BW.
16.8. In the event of late payment, the client shall owe 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,- 3%
The actual extrajudicial costs incurred are due if they are higher than those resulting from the above calculation.
16.9. If the Contractor is wholly or largely proven right in legal proceedings, all costs incurred by him in connection with these proceedings shall be borne by the Client.
Article 17: Collateral
17.1. The Client is obliged, at the first request of the Contractor, to provide sufficient security, in the Contractor's opinion, for all payments that the Client owes the Contractor under the agreement. If the Client does not comply with this within the set term, he will immediately be in default. In that case, the Contractor has the right to terminate the agreement and recover his damages from the Client.
17.2. The Contractor shall remain the owner of delivered goods as long as the Client has not fulfilled its obligations under any agreement with the Contractor, including claims such as damages, fines, interest and costs.
17.3. If the client has fulfilled his obligations after the goods have been delivered to him by the contractor in accordance with the agreement, the retention of title with respect to these goods will revive if the client fails to fulfil his obligations under a subsequently concluded agreement.
17.4. As long as the delivered goods are subject to retention of title, the client may not encumber or alienate them outside of his normal business operations. This provision has effect under property law.
17.5. After the contractor has invoked his retention of title, he may retrieve the delivered goods. The client will provide all cooperation to this end.
17.6. In the event of a violation of the provisions of paragraph 5 of this article, the client shall, after the contractor has given notice of default, owe the contractor a fine of €250 per day for each violation, with a maximum of €25,000. This fine may be claimed in addition to damages under the law.
17.7. The Contractor has a lien and a right of retention on all items that he has or will receive from the Client for whatever reason and for all claims that he has or may have on the Client.
Article 18: Intellectual property rights
18.1. The Contractor shall be deemed to be the maker, designer, creator or inventor of the works, models, signs or inventions created within the framework of the agreement. The Contractor shall have the exclusive right to apply for a patent, trademark or model.
18.2. When performing the agreement, the Contractor does not transfer any intellectual property rights to the Client.
18.3. If the service to be provided by the contractor (also) consists of the delivery of computer software, the source code will not be transferred to the client. The client will obtain a non-exclusive, worldwide and perpetual user license to the computer software solely for the purpose of normal use and proper functioning of the matter.
18.4. The client is not permitted to transfer the license or to issue a sublicense. 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, the license is transferred to the purchaser of the item under the same conditions and restrictions as included in this article, on condition that the purchaser of the item has accepted these conditions in writing.
18.5. The Contractor shall not be liable for any damage suffered by the Client as a result of an infringement of the intellectual property rights of third parties.
18.6. The Client shall indemnify the Contractor against any claim by third parties relating to an infringement of intellectual property rights.
Article 19: Transfer of rights or obligations
Client may not transfer or pledge any rights or obligations under any article of these general terms and conditions or the underlying agreement(s) without the prior written consent of contractor. This provision has effect under property law.
Article 20: Termination or cancellation of the agreement
20.1. The Client is not authorised to terminate or cancel the agreement in whole or in part.
20.2. Contractor may agree to a request to terminate the agreement. In that case, Client shall owe compensation of at least 20% of the agreed or estimated price. Contractor shall be entitled to demand higher compensation or to impose additional conditions on its agreement.
Article 21: Applicable law and competent court
21.1. Dutch law applies. The Vienna Sales Convention (CISG) or any other international regulation the exclusion of which is permitted, does 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.
