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
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.
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.
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 1 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 1,000 per day. This penalty can be claimed
in addition to compensation by virtue of the law.
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.
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:
a. 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;
b. 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;
c. 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.
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.
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.
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:
a. groundwork, pile driving, cutting, breaking, foundation work, masonry,
carpentry, plastering, painting, wallpapering, repair work or 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. removing equipment, building materials or waste;
e. vertical and horizontal transport.
10.1.
Changes in the work will in any event lead to contract extras if:
a. it concerns changes in the design, the specifications or the contract
documents;
b. the information provided by the Client does not correspond with reality;
c. 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.
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:
a. gas, water, electricity and internet;
b. heating;
c. lockable dry storage space;
d. 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 workrelated
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.
12.1.
The work is considered to be delivered in the following cases:
a. once the Client has approved the work;
b. 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;
c. 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;
d. 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.
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 losscausing
event.
13.4.
The following do not qualify for compensation:
a. consequential damages. Consequential damages include inter alia
business interruption losses, loss of production, loss of profit, penalties,
transport costs and travel and subsistence expenses;
b. 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;
c. 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.
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:
a. all transport or shipping costs;
b. costs for dismantling and assembly;
c. 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.
b. 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.
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.
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 1 250 per day up to a
maximum of 1 25,000, after the Contractor has given notice of default. This
penalty can be claimed in addition to compensation by virtue of the law.
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:
a. a payment term has been exceeded;
b. the Client does not fulfil its obligations under Article 16;
c. the Client has filed for bankruptcy or suspension of payments;
d. the Client’s goods or claims have been attached;
e. the Client (a company) is dissolved or wound up;
f. 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 1 75.
These costs are calculated on the basis of the following table, i.e., the principal
sum plus interest:
on the first 1 3,000 15%
on the excess up to 1 6,000 10%
on the excess up to 1 15,000 8%
on the excess up to 1 60,000 5%
on the excess from 1 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.
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:
a. has not fulfilled its obligations under any agreement with the Contractor;
b. 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.
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.
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.
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.
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.