Metal Union Terms

January 1, 2019

General terms and conditions issued by Koninklijke Metaalunie (entrepreneurial organization for small and medium-sized metal companies)
referred to as METAALUNIE TERMS AND CONDITIONS, filed with the registry of the District Court of Rotterdam on January 1, 2019.
Published by Koninklijke Metaalunie, PO Box 2600, 3430 GA Nieuwegein.
© Royal Metal Union

Article 1: Applicability

1.1. These terms and conditions apply to all offers made by a Metaalunie member, to all agreements that it concludes and to all agreements arising therefrom, insofar as the Metaalunie member is a supplier or contractor.

1.2. The Metaalunie member who uses these terms and conditions is referred to as the contractor. The other party is referred to as the client.

1.3. In the event of a conflict between the content 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 and conditions may only be used by Metaalunie members.

Article 2: Offers

2.1. All offers are without obligation. The Contractor has the right to revoke his offer up to two working days after the acceptance has reached him.

2.2. If the client provides the contractor with information, the contractor may assume its correctness and completeness and will base its offer on this.

2.3. The prices stated in the offer are expressed in euros, exclusive of turnover tax 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 cooperation with customs formalities.

Article 3: Confidentiality

3.1. All information provided to the client by or on behalf of the contractor (such as offers, designs, images, drawings and know-how) of whatever nature and in whatever form, are confidential and will not be used by the client for any purpose other than to carry out the agreement.

3.2. The information referred to in paragraph 1 of this article will not be made public or multiplied by the client.

3.3. If the client violates one of the obligations referred to in paragraphs 1 and 2 of this article, he will owe an immediately due and payable fine of 1 25,000 for each violation. This fine can be claimed in addition to compensation on the basis of 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 term set by the Contractor, at the Contractor’s discretion. In the event of violation of this provision, the client will owe the contractor an immediately due and payable penalty of 1 1,000.– per day. This fine can be claimed in addition to compensation 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 are not directly related to the assignment.

4.2. If the client provides the contractor with information, the contractor may assume its correctness and completeness in the performance of the agreement.

4.3. The client indemnifies the contractor against any claim by third parties with regard 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 all damage to be suffered by the Contractor, including full costs incurred to defend against these claims.

Article 5: Delivery time / implementation period

5.1. A specified delivery time or implementation period is indicative.

5.2. The delivery period or implementation period only commences when agreement has been reached on all commercial and technical details, all information, including final and approved drawings and the like, are in the possession of the contractor, the agreed payment or installment has been received and the other conditions for the execution of the assignment has been fulfilled.

5.3. If there is:

a. circumstances other than those known to the contractor when it stated the delivery time or execution period, the delivery time or performance period will be extended by the time that the contractor needs, taking into account its planning, to perform the assignment under these circumstances;

b. additional work, the delivery time or implementation period is extended by the time that the contractor needs, taking into account its planning, to deliver the materials and parts for this (or have them delivered) and to perform the additional work;

c. suspension of obligations by the contractor, the delivery time or implementation period will be extended by the time it needs, taking into account its planning, to perform the assignment after the reason for the suspension has lapsed. Unless the client proves otherwise, the duration of the extension of the delivery time or implementation period is presumed to be necessary and to be the result of a situation as referred to under a to c above.

5.4. The Client is obliged to pay all costs incurred by the Contractor or damage suffered by the Contractor as a result of a delay in the delivery or implementation period, as stated in paragraph 3 of this article.

5.5. Exceeding the delivery time or execution period does not under any circumstances entitle the client to compensation or dissolution. The client indemnifies the contractor against any claims from third parties as a result of exceeding the delivery time or implementation period.

Article 6: Delivery and transfer of risk

6.1. Delivery takes place at the moment that the contractor makes the good available to the client at its business location and has informed the client that the good is available to him. From that moment on, the client bears, among other things, the risk of the good for storage, loading, transport and unloading.

6.2. The client and the contractor can agree that the contractor will take care of the transport. The risk of, inter alia, storage, loading, transport and unloading rests with the client in that case as well. The Client can insure itself against these risks.

6.3. If there is a trade-in and the client holds 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 moment that he has placed it in the possession of the contractor. 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: Price change

The Contractor may pass on to the Client an increase in cost-determining factors that occurred after the agreement was concluded. The client is obliged to pay the price increase at the contractor’s first request.

Article 8: Force majeure

8.1. A shortcoming in the fulfillment of its obligations cannot be attributed to the contractor if this shortcoming is the result of force majeure.

8.2. Force majeure includes, among other things, the circumstance that third parties engaged by contractors, such as suppliers, subcontractors and transporters, or other parties on which the client depends, do not or not timely fulfill their obligations, weather conditions, natural disasters, terrorism, cybercrime, disruption of digital infrastructure, fire, power failure, loss, theft or loss of tools, materials or information, roadblocks, strikes or work stoppages and import or trade restrictions.

8.3. The contractor has the right to suspend the fulfillment of his obligations if he is temporarily prevented from fulfilling his obligations towards the client due to force majeure. If the force majeure situation has lapsed, the contractor will fulfill its obligations as soon as its schedule allows.

8.4. If there is a case of force majeure and fulfillment is or becomes permanently impossible, or if the temporary force majeure situation has lasted more than six months, the contractor is entitled to dissolve the agreement in whole or in part with immediate effect. In those cases, the client is authorized to dissolve the agreement with immediate effect, but only for that part of the obligations that has not yet been fulfilled by the contractor.

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 dissolution within the meaning of this article.

Article 9: Scope of the work

9.1. The Client must ensure that all permits, exemptions and other decisions necessary to perform the work are obtained in a timely manner. The Client is obliged to send it a copy of the aforementioned documents at the Contractor’s first request.

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

a. earth, pile driving, cutting, breaking, foundation work, masonry, carpentry, plastering, painting, wallpapering, repair or other construction work;

b. the realization of connections for gas, water, electricity, internet or other infrastructural facilities;

c. measures to prevent or limit damage to, theft or loss of items present at or near the workplace;

d. disposal of materials, building materials or waste;

e. vertical and horizontal transport;

Article 10: Additional work

10.1. Changes to the work will in any case result in additional work if:

a. there is a change in the design, specifications or specifications;

b. the information provided by the client does not correspond to reality;

c. estimated quantities differ by more than 5%.

10.2. Additional work is calculated on the basis of the price-determining factors that apply at the time the additional work is performed. The client is 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 carry out its activities undisturbed and at the agreed time and that it is provided with the necessary facilities during the performance of its activities, such as:

a. gas, water, electricity and internet;

b. heating;

c. lockable dry storage space;

d. facilities prescribed on the basis of the Working Conditions Act and regulations.

11.2. The client bears the risk and is liable for damage to, theft or loss of items belonging to the contractor, client and third parties, such as tools, materials intended for the work or equipment used during the work, which are located at or near the place where the activities are carried out. performed or at another agreed place.

11.3. Without prejudice to the provisions of 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 ensure insurance of the work risk of the equipment to be used. The Client must send the Contractor a copy of the relevant insurance policy(s) and proof of payment of the premium on first request. In the event of damage, the client is obliged to report this immediately to its insurer for further processing and settlement.

Article 12: Delivery of the work

12.1. The work is considered completed in the following cases:

a. if the client has approved the work;

b. if the work has been put into use by the client. If the client takes part of the work into use, that part is considered 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 in writing within 14 days of the date of notification that the work has not been approved;

d. if the client does not approve the work on the basis 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.

12.2. If the client does not approve the work, he is obliged to inform the contractor of this in writing, stating the reasons. The client must give the contractor the opportunity to still deliver the work.

12.3. The client indemnifies the contractor against claims from third parties 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 is still obliged to fulfill its contractual obligations, with due observance of Article 14.

13.2. The Contractor’s obligation to compensate damage on whatever basis is limited to that damage against which the Contractor is insured under an insurance policy taken out by or on behalf of it. However, the scope of this obligation will never exceed the amount that is paid out under this insurance in the relevant case.

13.3. If, for whatever reason, the contractor cannot 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. In the case of continuing performance contracts, the obligation to compensate damage is limited to a maximum of 15% (excluding VAT) of the contract sum due over the last twelve months prior to the event that caused the damage.

13.4. Not eligible for reimbursement:

a. consequential damage. Consequential damage includes, among other things, stagnation damage, production loss, lost profit, fines, transport costs and travel and accommodation costs;

b. visual damage. Visual damage is understood to mean, among other things, damage caused by or during the execution of the work to items that are being worked on or to items that are located in the vicinity of the place where the work is being done;

c. damage caused by intent or willful recklessness on the part of auxiliary persons or non-executive subordinates of the contractor. If possible, the Client can insure itself against these damages.

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 claims from third parties 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 part. The Client is obliged to compensate all damage suffered by the Contractor in this regard, including the (full) costs of defence.

Article 14: Warranty and other claims

14.1. Unless otherwise agreed in writing, the contractor guarantees the proper performance of the agreed performance for a period of six months after delivery or completion, as is further elaborated in the following paragraphs.

14.2. If the parties have agreed on deviating warranty conditions, the provisions of this article apply in full, unless this is in conflict with those deviating warranty conditions.

14.3. If the agreed performance has not been properly performed, the contractor will make a choice within a reasonable period of time whether to perform it properly or to credit the client for a proportional part of the contract amount.

14.4. If the contractor opts for the proper execution of the performance after all, he himself determines the manner and time of execution. The Client must in all cases give the Contractor the opportunity to do so. If the agreed performance consisted (partly) of the processing of material supplied by the client, the client must supply new material at its own expense and risk.

14.5. Parts or materials that are repaired or replaced by the contractor must be sent to him by the client.

14.6. At the expense of the client: a. all transport or shipping costs; b. costs for disassembly and assembly; c. travel and accommodation costs and travel hours.

14.7. The Contractor is only obliged to implement the guarantee if the Client has fulfilled all its obligations.

14.8. a. Warranty is excluded for defects that are the result of: – normal wear and tear; – improper use; – not or incorrectly performed maintenance; – installation, assembly, modification or repair by the client or by third parties; – defects in or unsuitability of goods originating from or prescribed by the client; – defects in or unsuitability of materials or aids used by the client.

b. No guarantee is given on: – delivered goods that were not new at the time of delivery; – inspecting and repairing goods of the client; – parts covered by the manufacturer’s warranty.

14.9. The provisions of paragraphs 3 to 8 of this article apply mutatis mutandis to any claims by the client on the basis of breach of contract, non-conformity or any other basis whatsoever.

Article 15: Complaint obligation

15.1. The Client can no longer invoke a defect in the performance if it has not complained in writing to the Contractor within fourteen days after it has discovered or should reasonably have discovered the defect.

15.2. The Client must submit complaints about the invoice to the Contractor in writing within the payment term, on pain of forfeiture of all rights. If the payment term is longer than thirty days, the client must complain in writing no later than thirty days after the invoice date.

Article 16: Goods not purchased

16.1. At the end of the delivery period or implementation period, the client is obliged to actually take delivery of the item or items that are the subject of the agreement at the agreed location.

16.2. The client must provide full cooperation free of charge to enable the contractor to deliver.

16.3. Goods not accepted are stored at the expense and risk of the client.

16.4. In the event of a violation of the provisions of paragraph 1 or 2 of this article, after the contractor has given him notice of default, the client will owe the contractor a fine of EUR 1 250 per day with a maximum of EUR 1 25,000. This fine can be claimed in addition to compensation on the basis of the law.

Article 17: Payment

17.1. Payment is made at the place of establishment of the contractor or into an account to be designated by the contractor.

17.2. Unless otherwise agreed, payment will be made within 30 days of the invoice date.

17.3. If the client fails to fulfill his payment obligation, he is obliged to comply with a request from the contractor for payment in lieu of payment of the agreed sum of money.

17.4. The right of the client to set off its claims against the contractor or to suspend the fulfillment of its obligations is excluded, unless the contractor has been granted a moratorium or bankruptcy or if statutory debt restructuring applies to the contractor.

17.5. Regardless of whether the contractor has fully performed the agreed performance, everything that the client owes or will owe to him under the agreement is immediately due and payable if:

a. a payment term has been exceeded;

b. the client does not comply with its obligations under Article 16;

c. the bankruptcy or suspension of payment of the client has been requested;

d. attachment is levied on goods or claims of the client;

e. the client (company) is dissolved or liquidated;

f. the client (natural person) requests to be admitted to statutory debt rescheduling, is placed under guardianship or has died.

17.6. In the event of delay in the payment of a sum of money, the Client owes the Contractor interest on that sum of money with effect from the day following the day that has been agreed as the latest date for payment, up to and including the day on which the Client has paid the sum of money. If the parties have not agreed on a final date for payment, the interest is due from 30 days after due date. The interest is 12% per year, but is equal to the statutory interest if it is higher. In the interest calculation, part of the month is regarded as a full month. Each time after the end of a year, the amount on which the interest is calculated is increased by the interest owed for that year.

17.7. The Contractor is authorized to set off its debts to the Client against claims against the Client by companies affiliated with the Contractor. In addition, the contractor is authorized to set off its claims against the client against debts that companies affiliated with the contractor have to the client. Furthermore, the contractor is authorized to set off its debts to the client with claims on companies affiliated with the client. Affiliated companies are understood to mean: all companies belonging to the same group within the meaning of Section 2:24b of the Dutch Civil Code and a participating interest within the meaning of Section 2:24c of the Dutch Civil Code.

17.8. If payment has not been made on time, 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 (principal amount incl. 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.– 3% The extrajudicial costs actually incurred are due if they are higher than follows from the above calculation.

17.9. If the contractor is wholly or largely successful in legal proceedings, all costs incurred in connection with these proceedings will be borne by the client.

Article 18: Collateral

18.1. Regardless of the agreed payment conditions, the client is obliged to provide sufficient security for payment at the contractor’s first request, in the opinion of the contractor. 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 dissolve the agreement and to recover his damage 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-compliance with the above agreements, such as damage, fine, interest and costs.

18.3. As long as the delivered goods are subject to retention of title, the client may not encumber or alienate them outside of its normal business operations. This clause has effect under property law.

18.4. After the contractor has invoked his retention of title, he may take back the delivered goods. The Client will provide full cooperation to this end.

18.5. If the client has fulfilled its obligations after the goods have been delivered to him by the contractor in accordance with the agreement, the retention of title with regard to these goods is revived if the client fails to fulfill its obligations under a later agreement.

18.6. The contractor has a right of pledge and a right of retention on all items that it has or will receive from the client for whatever reason and for all claims that it has or may acquire against the client.

Article 19: Intellectual property rights

19.1. The Contractor is regarded as respectively 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 design.

19.2. The Contractor does not transfer any intellectual property rights to the Client in the performance of the agreement.

19.3. If the performance to be delivered by the contractor (also) consists of the delivery of computer software, the source code will not be transferred to the client. The Client obtains a non-exclusive, worldwide and perpetual user license for the computer software solely for the purpose of normal use and proper functioning of the item. The client is not permitted to transfer the license or to issue a sublicense. When the client sells the item to a third party, the license is transferred by operation of law to the acquirer of the item.

19.4. The Contractor is not liable for damage suffered by the Client as a result of an infringement of the intellectual property rights of third parties. The client indemnifies the contractor against any claim by third parties with regard to an infringement of intellectual property rights.

Article 20: Transfer of rights or obligations The client cannot 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 the contractor. This clause has effect under property law.

Article 21: Termination or cancellation of the agreement

21.1. The client is not authorized to terminate or cancel the agreement, unless the contractor agrees. If the contractor agrees, the client will owe the contractor an immediately due and payable compensation in the amount of the agreed price, minus the savings for the contractor resulting from the termination. The compensation is at least 20% of the agreed price.

21.2. If the price is made dependent on the actual costs to be incurred by the contractor (direction basis), the compensation as referred to in the first paragraph of this article is estimated at the sum of the costs, labor hours and profit that the contractor is expected to have over the entire contract. would have made.

Article 22: Applicable law and competent court

22.1. Dutch law applies.

22.2. The Vienna Sales Convention (CISG) does not apply, nor does any other international regulation from which exclusion is allowed.

22.3. The Dutch civil court with jurisdiction in the contractor’s place of business takes cognizance of disputes. The Contractor may deviate from this jurisdiction rule and apply the statutory rules of jurisdiction.

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