GENERAL TERMS & CONDITIONS
TERMS & CONDITIONS OF THE ROYAL METAL UNION
General Terms & Conditions issued by Koninklijke Metaalunie (an organisation for small and medium-sized enterprises in the metal industry) referred to hereinafter as the METAALUNIE’S TERMS & CONDITIONS, as deposited with the Registry of the District Court of Rotterdam on 1 January 2019. Published by Koninklijke Metaalunie, PO Box 2600, 3430 GA Nieuwegein (The Netherlands). © Koninklijke Metaalunie.
Article 1: Scope of applicability
1.1. These Terms & Conditions apply to all tenders made by a member of
Metaalunie, to all agreements concluded by it, and to all agreements arising
therefrom, insofar as the member of Metaalunie is a provider or
contractor.
1.2. The member of Metaalunie relying on these conditions shall be referred to as the Contractor. The other party shall be referred to as the Client.
1.3. In the event of any conflicts between the provisions of the Agreement concluded between the Client and the Contractor and these Terms and Conditions, the provisions of the Agreement shall prevail.
1.4. These Terms & Conditions may only be used by members of Metaalunie.
Article 2: Quotes
2.1. All quotes are without obligation. The Contractor has the right to
withdraw its quote up to two working days after receipt of acceptance.
2.2. If the Client provides information to the Contractor, the Contractor may reasonably assume that such information is accurate and complete and shall base its quote on this information.
2.3. The prices stated in the quote are expressed in euros, excluding turnover and other government levies or taxes. The prices are also exclusive of travel, accommodation, packaging, storage, and transport costs, as well as costs for loading, unloading, and customs formalities.
Article 3: Confidentiality
3.1. All information (such as quotes, designs, images, drawings, and know-how)
of any nature and in any form, provided by or on behalf of the Contractor to
the Client are confidential and shall not be used by the Client for any purpose
other than the performance of the Agreement.
3.2. The information referred to in Paragraph 1 of this Article shall not be disclosed or reproduced by the Client.
3.3. If the Client violates any of the obligations specified in Paragraphs 1 and 2 of this Article, it shall owe a penalty of €25,000 for each violation that is immediately payable. This penalty may be claimed in addition to damages under the law.
3.4. The Client must return or destroy the information referred to in Paragraph 1 of this Article on first request, within a period set by the Contractor, at the Contractor's discretion. If the Client violates this provision, it shall owe the Contractor a penalty of €1,000 per day that is immediately payable. This penalty may be claimed in addition to damages under the law.
Article 4: Advice and information
4.1. The Client cannot derive any rights from advice and information provided
by the Contractor that do not directly relate to the work.
4.2. If the Client provides information to the Contractor, the Contractor may reasonably assume that such information is accurate and complete and shall rely on this for the performance of the Agreement.
4.3. The Client shall indemnify the Contractor against any third-party claims relating to the use of advice, drawings, calculations, designs, materials, brands, samples, models and such, provided by or on behalf of the Client. The Client shall compensate all damages incurred by the Contractor, including fully incurred costs for defending itself against such claims.
Article 5: Delivery/implementation
period
5.1. Any delivery period/implementation period specified in any quote is merely
indicative.
5.2. The delivery period or implementation period shall not commence until the Client and the Contractor have reached an agreement on all commercial and technical details, all information, including final and approved drawings, etc., are in the Contractor's possession, the agreed payment or instalment has been received, and the other conditions for performance of the work have been met.
5.3. In the event of:
a. circumstances other than those known to the Contractor when it quoted the
delivery deadline or implementation period, the delivery deadline or
implementation period shall be extended by the time that the Contractor needs,
with due observance of its planning schedule, to perform the agreement under
those circumstances;
b. additional work, the delivery deadline or implementation period shall be
extended by the time that the Contractor needs, with due observance of its
schedule, to deliver (or arrange for the delivery of) the materials and parts
for this purpose, and to carry out the additional work
c. suspension of obligations by the Contractor, the delivery deadline or
implementation period shall be extended by the time that the Contractor needs,
with due observance of its schedule, to perform the work after the reason for
the suspension lapses. Except for evidence to the contrary from the Client, the
duration of the extension of the delivery period or implementation period shall
be presumed to be necessary and to be the consequence of a situation as
referred to above under a to c.
5.4. The Client is obliged to pay all costs incurred or damages suffered by the Contractor as a result of a delay in the delivery deadline or implementation period, as referred to in Paragraph 3 of this Article.
5.5. Exceedance of the delivery deadline or implementation period shall under no circumstances entitle the Client to compensation or cancellation. The Client shall indemnify the Contractor against any third-party claims as a result of any exceedance of the delivery deadline or implementation period.
Article 6: Delivery and transfer of risk
6.1. Delivery shall take place at such time when the Contractor makes the item
available to the Client at its premises and notifies the Client that the item
is at the Contractor's disposal. From that moment on, the Client shall bear the
risk of the goods, including storage, loading, transport and unloading.
6.2. The Client and the Contractor may agree that the Contractor shall arrange for transport. The risks of storage, loading, transport and unloading, among other things, shall also be borne by the Client in that case. The Client may insure itself against these risks.
6.3. In the event that goods are to be exchanged and the Client retains the goods to be exchanged pending delivery of the new goods, the risk in respect of the goods to be exchanged shall reside with the Client until such time that it has placed them in the Contractor’s possession. If the Client cannot deliver the item to be exchanged in the condition it was in when the Agreement was concluded, the Contractor may dissolve the Agreement.
Article 7: Change in price
The Contractor may pass on any increase in cost-determining factors that
occurred after the Agreement was concluded to the Client. The Client is obliged
to pay the price increase at the Contractor’s first request.
Article 8: Force majeure
8.1. The Contractor’s failure to fulfil its obligations cannot be
attributed to the Contractor if such failure is the result of force
majeure.
8.2. Force majeure shall include the circumstance that third parties engaged by the Contractor, such as suppliers, subcontractors, and carriers, or other parties on which the Client is dependent, fail to meet their obligations or fail to meet them on time, weather conditions, natural disasters, terrorism, cyber crime, disruption of digital infrastructure, fire, power failure, loss, theft or loss of tools, materials or information, road blocks, strikes or work stoppages, and import or trade restrictions.
8.3. The Contractor may suspend the performance of its obligations if it is temporarily prevented from performing its obligations to the Client due to force majeure. As soon as the force majeure situation has lapsed, the Contractor shall fulfil its obligations as soon as its schedule permits this.
8.4. In the event of force majeure and if performance is or becomes permanently impossible or if the temporary situation of force majeure has lasted for more than six months, the Contractor may dissolve the Agreement in whole or in part with immediate effect. In such case, the Client shall be entitled to terminate the Agreement with immediate effect, but only in respect of the part of the obligations that have not yet been fulfilled by the Contractor.
8.5. The Parties are not entitled to compensation for any damage suffered or to be suffered as a result of the force majeure, suspension, or termination within the meaning of this article.
Article 9: Scope of the work
9.1. The Client shall ensure that all permits, exemptions, and other decisions
necessary to carry out the work are obtained in good time. The Client shall be
obliged to send the Contractor a copy of the aforementioned documents at the
Contractor's first request.
9.2. Unless otherwise agreed in writing,
the work shall not include:
a. earthwork, pile driving, demolition, foundation work, masonry, carpentry,
plastering, painting, wallpapering, repairs, or other construction work;
b. the realisation of connections of gas, water, electricity, internet, or
other infrastructural facilities;
c. measures to prevent or limit damage to, or theft or loss of items present at
or near the work site;
d. disposal of materials, building materials, or waste;
e. vertical and horizontal transport;
Article 10: Additional work
10.1. Changes to the work shall in any case result in additional work if:
a. there is a change in the design, the specifications, or the tender;
b. the information provided by the Client does not correspond with reality;
c. estimated quantities deviate by more than 5%.
10.2. Additional work is calculated on the basis of the price-determining factors applicable at the time that the additional work is performed. The Client shall be obliged to pay the price of the additional work at the Contractor's first request.
Article 11: Performance of the work
11.1. The Client shall ensure that the Contractor can perform its work
undisturbed and at the agreed time and that it has access to the necessary
facilities for the performance of its work, such as:
a. gas, water, electricity, and internet;
b. heating;
c. lockable dry storage space;
d. facilities prescribed under the Dutch Working Conditions Act and
regulations.
11.2. The Client shall bear the risk and is liable for damage to and theft or loss of items belonging to the Contractor, the Client, and third parties, such as tools, materials intended for the work, or equipment used for the work, which are located at or near the location where the work is performed or at another agreed location.
11.3. Without prejudice to the provisions of Paragraph 2 of this Article, the Client shall be obliged to take out adequate insurance against the risks mentioned in that paragraph. The Client must also take out insurance to cover the working risk of the equipment to be used. The Client shall send the Contractor a copy of the relevant insurance policy or policies and proof of payment of the premium on request. If any damage occurs, the Client shall be obliged to report this to its insurer without delay for further processing and settlement.
Article 12: Completion of the work
12.1. The work shall be considered completed in the following cases:
a. if the Client has approved the work;
b. if the Client commissions the work. If the Client commissions part of the
work, that part shall be deemed to have been completed;
c. if the Contractor has notified the Client in writing that the work has been
completed and the Client has not notified the Contractor, within 14 days after
the date of this notification, that the work has not been approved; and
d. if the Client does not approve the work on account of minor defects or
missing parts that can be repaired or supplied within 30 days and which do not
prevent the work from being commissioned.
12.2. If the Client does not approve the work, it must inform the Contractor of this in writing, stating the reasons for this. The Client must give the Contractor the opportunity to complete the work.
12.3. The Client shall indemnify the Contractor against third-party claims for damage to parts of the work that have not been completed, caused by the use of parts of the work that have already been completed.
Article 13: Liability
13.1. In the event of an attributable shortcoming, the Contractor shall still
be obliged to fulfil its contractual obligations, with due observance of
Article 14.
13.2. The Contractor’s obligation to compensate the Client for damage on any basis whatsoever is limited to the damage for which the Contractor is insured under an insurance policy taken out by or on behalf of it. However, the extent of this obligation shall never exceed the amount paid out under this insurance policy in this case.
13.3. If, for whatever reason, the Contractor is not entitled to invoke paragraph 2 of this Article, the obligation to compensate the Client for damage shall be limited to a maximum of 15% of the total contract sum (excluding VAT). If the Agreement consists of parts or partial deliveries, this obligation shall be limited to a maximum of 15% (excluding VAT) of the order price for that part or partial delivery. In case of continuing performance contracts, the obligation to compensate damage shall be limited to a maximum of 15% (excluding VAT) of the purchase price due over the last twelve months prior to the event causing damage.
13.4. The following are not eligible for
compensation:
a. consequential damage. Consequential damage shall be understood to include
stagnation damage, production loss, loss of profit, penalties or fines,
transport costs and travel and accommodation costs;
b. supervision damage. Supervision damage shall be understood to mean, among
other things, damage caused by or during the performance of the work to objects
on which work is being carried out or to objects situated in the vicinity of
the work site;
c. damage caused by gross negligence or intentionally on the part of helpers or
non-management employees of the Contractor. The Client may take out insurance
against such damages if possible.
13.5. The Contractor shall not be obliged to compensate the Client for damage to materials supplied by or on behalf of the Client as a result of improper processing.
13.6. The Client shall indemnify the Contractor against all third-party claims for product liability resulting from a defect in a product supplied by the Client to a third party of which the products or materials supplied by the Contractor form a part. The Client shall be obliged to compensate all damage suffered by the Contractor in this respect, including the (full) costs of defence.
Article 14: Warranty and other claims
14.1. Unless otherwise agreed in writing, the Contractor shall provide
performance guarantees or warranties about the proper performance of the agreed
services for a period of six months after delivery or completion, as specified
in the following paragraphs.
14.2. If the Parties have agreed different warranty conditions, the provisions of this Article shall apply in full, unless this is contrary to these different warranty conditions.
14.3. If the agreed performance has not been carried out properly, the Contractor shall choose whether to carry it out properly or to credit the Client for a proportionate part of the contract price within a reasonable period of time.
14.4. If the Contractor chooses to perform the work properly, it shall determine the manner and time of performance itself. In all cases, the Client must give the Contractor the opportunity to do so. If the agreed performance consisted (in part) in the processing of materials provided by the Client, the Client must supply new materials at its own expense and risk.
14.5. Parts or materials to be repaired or replaced by the Contractor must be sent to it by the Client.
14.6 The following shall be for the Client's account: a. all transport or shipping costs; b. costs of disassembly and assembly; c. travel and accommodation costs and travelling time.
14.7. The Contractor shall not be obliged to execute the guarantee until such time that the Client has fulfilled all its obligations.
14.8. a. Warranty is excluded for defects
arising from: − normal wear and tear; − injudicious use; − maintenance that was
not carried out or has been carried out incorrectly; − installation, assembly,
modification or repair by the Client or by third parties; − defects to or
unsuitability of items originating from or prescribed by the Client; − defects
to or unsuitability of materials or tools used by the Client. b.
No guarantee shall be given on: −
delivered items that were not new at the time of delivery; − the inspection and
repair of items belonging to Client; − parts for which a manufacturer's
warranty has been issued.
14.9. The provisions in paragraphs 3 to 8 of this Article apply accordingly to any claims by the Client based on non-performance, non-conformity, or any other basis whatsoever.
Article 15: Duty to complain
15.1. The Client may no longer invoke a defect in the performance if it has not
complained to the Contractor in writing about it within fourteen days after it
has discovered the defect or reasonably ought to have discovered it.
15.2. The Client must have submitted complaints about the invoice to the Contractor in writing within the payment period, on pain of forfeiting all rights. If the payment period exceeds thirty days, the Client must have complained in writing no later than thirty days after the invoice date.
Article 16: Uncollected goods
16.1. At the end of the delivery period or performance period, the Client shall
be obliged to take delivery of the item or items that are the subject of the
Agreement at the agreed location.
16.2. The Client shall cooperate fully and free of charge to enable the Contractor to deliver the items.
16.3. Uncollected goods shall be stored at the Client's expense and risk.
16.4. In the event of infringement on the provisions of paragraphs 1 or 2 of this Article, the Client shall owe the Contractor a penalty of €250 per day, subject to a maximum of €25,000, for each infringement after the Contractor has given notice of default. This penalty may be claimed in addition to damages under the law.
Article 17: Payment
17.1. Payment shall be made at the Contractor's place of business or into an
account specified by the Contractor.
17.2. Unless otherwise agreed, payment shall be made within 30 days of the invoice date.
17.3. If the Client fails to fulfil its payment obligation, it shall be obliged, to comply with a request by the Contractor for payment in instalments instead of paying the agreed sum of money.
17.4. The Client's right to set off its claims against the Contractor or to suspend the fulfilment of its obligations is excluded, unless there is a suspension of payments or in the event of the Contractor’s bankruptcy, or if a legal debt restructuring arrangement applies to the Contractor.
17.5. Regardless of whether the Contractor
has fully performed the agreed services, everything that the Client owes or
shall owe to the Contractor under this Agreement shall be immediately due and
payable if:
a. a payment term has been exceeded;
b. the Client fails to fulfil its obligations under Article 16;
c. if the Client has applied for bankruptcy or suspension of payment;
d. goods or claims of the Client have been seized;
e. the Client (company) is dissolved or liquidated; f. the Client (natural
person) applies for legal debt rescheduling, is placed under guardianship, or
dies.
17.6. In the event of delay in payment of a sum of money, the Client shall owe interest on that sum of money to the Contractor from the day following the day agreed as the final day for payment until the day on which the Client has paid this sum of money. If the Parties have not agreed on a final day for payment, the interest shall be due starting 30 days after it falls due. The interest rate shall be 12% per annum, but shall be equal to the statutory interest rate if higher. When calculating interest, part of a month shall be considered a full month. At the end of each year, the amount on which interest is calculated shall be increased by the interest due over that year.
17.7. The Contractor is authorised to set off any debts it owes to the Client against claims of companies affiliated with the Contractor on the Client. In addition, the Contractor is entitled to set off its claims on the Client against debts owed to the Client by companies affiliated with the Contractor. In addition, the Contractor is authorised to set off its debts to the Client against debts owed by companies affiliated with the Client. Affiliated companies shall be understood to mean: all companies belonging to the same group within the meaning of Article 2:24b of the Dutch Civil Code and a participation within the meaning of Article 2:24c of the Dutch Civil Code.
17.8. If payment has not been made on time, the Client shall owe the Contractor all extrajudicial costs with a minimum of €75. These costs shall be calculated on the basis of the following table (principal incl. interest): 15% on the first €3,000, 10% on the remainder up to €6,000, 8% on the remainder up to €15,000, 5% on the remainder up to €60,000, 3% on the remainder from €60,000. The actual extrajudicial costs incurred shall be payable if they exceed the costs resulting from the above calculation.
17.9. If the Contractor is wholly or largely successful in legal proceedings, all costs incurred in relation to those proceedings shall be borne by the Client.
Article 18: Securities
18.1. Regardless of the agreed payment conditions, the Client is obliged to
provide sufficient security for payment at the Contractor's first request, at
its discretion. If the Client fails to do so within the specified period, the
Client shall immediately be deemed to be in default. In such case, the
Contractor will be entitled to dissolve the agreement and recover its losses
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. has not paid claims arising from non-fulfilment of the aforementioned
agreements, such as damages, penalties, interest and costs.
18.3. As long as goods that have been delivered are subject to a retention of title, the Client may not encumber or alienate them outside the scope of its normal business operations. This clause is considered to be a stipulation with effect under property law.
18.4. After the Contractor has invoked its retention of title, it may recover the delivered goods. The Client shall cooperate fully to this end.
18.5. If the Client has fulfilled its obligations after the goods have been delivered to it by the Contractor in accordance with the Agreement, the retention of title with regard to these goods shall revive if the Client fails to fulfil its obligations under a subsequent Agreement.
18.6. The Contractor has a right of lien and a right of retention on all goods from the Client in its possession or which shall be in its possession for whatever reason and on all claims that it has or may have against the Client.
Article 19: Intellectual property rights
19.1. The Contractor shall be regarded as respectively the creator, designer,
or inventor of the work, models, or inventions created under the Agreement.
Consequently, the Contractor shall have the exclusive right to apply for a
patent, trademark or model.
19.2. The Contractor shall not transfer any intellectual property rights to the Client when performing the Agreement.
19.3. If the service to be performed by the Contractor consists (in part) of the delivery of computer software, the source code shall not be transferred to the Client. The Client shall acquire a non-exclusive, worldwide, and perpetual user licence to the computer software, solely for the purposes of normal use and proper functioning of the item. The Client may not transfer the licence or issue a sub-licence. If the Client sells the item to a third party, the licence passes to the Party acquiring the item by operation of law.
19.4. The Contractor shall not be liable for damage suffered by the Client as a result of an infringement of the intellectual property rights of third parties. The Client shall indemnify the Contractor against any third-party claims regarding an infringement of intellectual property rights.
Article 20: Transfer of rights or obligations
The Client may not transfer or pledge rights or obligations under any Article
of these general terms and conditions or the underlying Agreement(s), except
with the Contractor’s prior written consent. This clause is considered to be a
stipulation with effect under property law.
Article 21: Termination or cancellation of the Agreement
21.1. The Client is not authorised to terminate or cancel the Agreement, unless
the Contractor agrees to this. Subject to the Contractor’s consent, the Client
shall owe the Contractor immediately payable compensation to the amount of the
agreed price, less the savings for the Contractor, resulting from the
termination. The compensation owed shall amount to at least 20% of the agreed
price.
21.2. If the price depends on the actual costs to be incurred by the Contractor (cost-plus basis), the compensation referred to in the first paragraph of this Article shall be estimated to be the sum of the costs, working hours and profit that the Contractor would have expected to have made for the entire order.
Article 22: Applicable law and competent
court
22.1. This Agreement is governed by Dutch law.
22.2. The United Nations Convention on Contracts for the International Sale of Goods (C.I.S.G.) shall not apply, nor shall any other international regulation the exclusion of which is permitted.
22.3. The Dutch civil court having sole jurisdiction in the Contractor's place of business shall take cognisance of disputes. The Contractor may deviate from this rule of jurisdiction and apply the statutory rules of jurisdiction.