General Terms and Conditions
Article 1: Scope
1.1. These conditions apply to all offers made by a Metaalunie member, to all agreements concluded by him and to all agreements resulting from those offers, all to the extent that the Metaalunie member is a provider or contractor.
1.2. The Metaalunie member using these conditions is referred to as the contractor. The other party shall be referred to as client.
1.3. In the event of a conflict between the contents of the agreement concluded between the customer and the contractor and these terms and conditions, the provisions of the agreement shall take priority.
1.4. These conditions may only be used by Metaalunie members.
Article 2: Offers
2.1. All offers are without commitment. The contractor has the right to revoke his offer up to two working days after the acceptance has reached him.
2.2. If the customer provides information to the contractor, the contractor may assume its accuracy and completeness and shall base its offer on this.
2.3. The prices stated in the offer are expressed in euros, excluding turnover tax and other government levies or taxes. Prices are further excluding travel, accommodation, packaging, storage and transport costs as well as costs for loading, unloading and assistance with customs formalities.
Article 3: Confidentiality
3.1. All information (such as offers, designs, images, drawings and know-how) of whatever nature and in whatever 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 for the performance of the Agreement.
3.2. The information mentioned in paragraph 1 of this article will not be disclosed or multiplied by the client.
3.3. If the client violates any of the obligations mentioned in paragraphs 1 and 2 of this article, he shall owe an immediately chargeable fine of 1 25,000 for each violation. 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 this provision is violated, the customer shall owe the contractor an immediately chargeable fine of 1 1,000 per day. This penalty may be claimed in addition to damages under 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 directly relate to the order.
4.2. If the customer provides information to the contractor, the contractor may assume its accuracy and completeness in the performance of the agreement.
4.3. The Client shall safeguard the Contractor against any claims by third parties relating 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 shall compensate all damage to be suffered by the Contractor, including all costs incurred for the defence of such claims.
Article 5: Delivery time / implementation period
5.1. A stated delivery time or execution period is indicative.
5.2. The delivery period or execution period will not commence until all commercial and technical details have been agreed, all information, including final and approved drawings and the aforementioned are in the Contractor's possession, the agreed (installment) payment has been received and the other conditions for the execution of the order have been met.
5.3. In the event of: A. circumstances that were not known to the Supplier when the delivery deadline or work period was specified, the delivery deadline or work period will be extended by the time that the Supplier, with due observance of the Supplier's planning schedule, needs to perform the engagement under those circumstances; B. additional work, the delivery deadline or work period will be extended by the time that the Supplier, with due observance of the Supplier's planning schedule, needs to additional work, the delivery deadline or work period will be extended by the time that the Supplier needs, with due observance of the Supplier's work schedule, to supply (or arrange for the supply of) the materials and parts necessary for that purpose and to carry out the additional work; C. suspension of obligations by the Supplier, the delivery deadline or work period will be extended by the time that the Supplier needs, with due observance of the Supplier's work schedule, to carry out the engagement after the reason for the suspension has lapsed. Barring evidence to the contrary from the Client, the duration of the extension of the delivery period or work period will be presumed to be necessary and to be the result of a situation as referred to above under A to C.
5.4. The Principal is obliged to pay all costs incurred or damage suffered by the Contractor as a result of a delay in the delivery time or execution period, as mentioned in paragraph 3 of this article.
5.5. Exceeding the delivery time or work period will under no circumstances entitle the Principal to compensation or dissolution. The Client shall safeguard the Supplier against any third-party claims as a result of the delivery time or work period being exceeded.
Article 6: Delivery and transfer of risk
6.1. Delivery shall take place at the moment when the contractor makes the item available to the customer at his business location and has notified the customer that the item is at his disposal. From that moment, the Client shall bear the risk of the item, including storage, loading, transport and unloading.
6.2. The Principal and the Contractor may agree that the Contractor shall arrange for transport. The risks of, for instance, storage, loading, transport and unloading shall in that case also be borne by the Client. The customer may insure himself against these risks.
6.3. If there is a trade-in and the customer keeps the good to be traded in pending delivery of the new good, the risk in respect of the good to be traded in shall remain with the customer until he has placed it in the possession of the contractor. If the customer cannot deliver the exchangeable item 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 customer any increase in cost-determining factors that occurred after the conclusion of the agreement. The client is obliged to pay the price increase at the first request of the contractor.
Article 8: Force Majeure
8.1. A failure to fulfill 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 Contractors, such as suppliers, subcontractors and carriers, or other parties on which the Principal depends, fail to meet their obligations or fail to meet them on time, weather conditions, natural disasters, terrorism, cybercrime, 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 shall be entitled to suspend the fulfillment of its obligations if it is temporarily prevented from fulfilling its obligations to the customer due to force majeure. Once the force majeure situation has lapsed, the contractor shall fulfill its obligations as soon as its schedule permits.
8.4. If there is a situation of force majeure and performance is or becomes permanently impossible, or the temporary situation of force majeure has lasted for more than six months, the contracted party will be entitled to dissolve the agreement in full or in part with immediate effect. In such cases, the customer will be authorized to dissolve 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 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 work
9.1. The Client must ensure that all permits, exemptions and other decisions necessary to carry out the work are obtained in good time. The Principal shall be obliged to send a copy of the above-mentioned documents to the Contractor on first request.
9.2. Unless otherwise agreed in writing, the work does not include: A. earthwork, pile driving, demolition, foundation work, masonry, carpentry, plastering, painting, wallpapering, repairs or other construction work; B. the installation of gas, water, electricity, Internet or other infrastructural facilities; C. measures to prevent or limit damage to or the theft or loss of goods present at or near the work site; D. the removal 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 specifications; B. the information provided by the customer does not correspond to reality; C. estimated quantities deviate by more than 5%.
10.2. Additional work will be calculated on the basis of the price-determining factors applicable at the time the additional work is carried out. The Client is obliged to pay the price of the additional work at the Contractor's first request.
Article 11: Implementation of the work
11.1. The Client shall ensure that the Contractor can carry out its work undisturbed and at the agreed time, and that in carrying out its work it has access to the necessary facilities, such as: A. gas, water, electricity and internet; B. heating; C. lockable dry storage space; D. facilities prescribed under the Working Conditions Act and regulations.
11.2. The Client shall bear the risk and be liable for damage to and theft or loss of property of the Contractor, the Client and third parties, such as tools, materials intended for the work or equipment used in the work, which are located at or near the place where the work is performed or at any other agreed place.
11.3. Without prejudice to the provisions of paragraph 2 of this article, the Principal shall be obliged to take out adequate insurance against the risks mentioned in that paragraph. In addition, the Client must arrange insurance for the working risk of the equipment to be used. The principal shall send the contractor on first request a copy of the relevant insurance policy or policies and proof of payment of the premium. If there is any damage, the Client shall be obliged to report this immediately to his insurer for further handling and settlement.
Article 12: Delivery of the work
12.1. The work will be deemed to have been completed in the following instances: A. if the customer has approved the work; B. if the customer has put the work into use. If the Client puts part of the work into use, that part will be deemed to have been completed; C. if the Supplier has notified the Client in writing that the work is finished and the Client has not communicated, within 14 days after the date of notification, that the work has not been approved; D. if the Client does not approve the work on grounds of minor defects or missing parts that can be repaired or provided within 30 days and that do not prevent the work from being put into use.
12.2. If the customer does not approve the work, he shall be obliged to inform the contractor of this in writing, giving reasons. The Client should give the Supplier the opportunity to complete the work.
12.3. The Client shall safeguard the Contractor against third-party claims for damage to parts of the work not completed caused by the use of parts of the work already completed.
Article 13: Liability
13.1. In the event of an accountable shortcoming, the contractor shall still be obliged to fulfill its contractual obligations, subject to Article 14.
13.2. The Contractor's obligation to compensate damage on whatever basis is limited to that damage for which the Contractor is insured under an insurance policy taken out by or on behalf of the Contractor. However, the extent of this obligation shall never exceed the amount paid out under this insurance policy in the case in question.
13.3. If, for whatever reason, the Contractor is not entitled to invoke paragraph 2 of this article, the obligation to compensate damages 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 the case of continuing performance contracts, the obligation to pay damages shall be limited to a maximum of 15% (exclusive of VAT) of the contract price due over the last twelve months prior to the event causing the damage.
13.4. The following are not eligible for compensation: A. consequential damage. Consequential damage is understood to include stagnation damage, loss of production, loss of profit, fines, transport costs and travel and accommodation expenses; B. supervision damage. Supervision damage is 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 intent or deliberate recklessness on the part of helpers or non-management employees of the Contractor. The Client may take out insurance to cover such damages, if possible.
13.5. The Contractor shall not be obliged to compensate for damage to material supplied by or on behalf of the Client as a result of improper processing.
13.6. The Client shall safeguard 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 part. The customer shall be obliged to compensate all damage suffered by the contractor in this connection, 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 detailed in the following paragraphs.
14.2. If the parties have agreed different warranty terms, the provisions of this article shall apply without prejudice, unless this is contrary to those different warranty terms.
14.3. If the agreed performance has not been properly performed, the contractor shall, within a reasonable period of time, choose whether to still perform it properly or to credit the customer for a proportionate part of the order price.
14.4. If the Supplier opts to perform the work properly after all, it shall determine the manner and time of performance. The customer must in all cases 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 provide new materials at his own expense and risk.
14.5. Parts or materials to be repaired or replaced by the contractor must be sent to it by the customer.
14.6. The following shall be charged to the customer: A. all transport or shipping costs; B. costs of disassembly and assembly; C. travel and accommodation costs and travel time.
14.7. The Contractor shall not be obliged to perform the warranty until 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; - maintenance not carried out or 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 is given for - 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 of paragraphs 3 to 8 of this article shall apply accordingly in the event of any claims by the Client based on non-performance, non-conformity or any other basis whatsoever.
Article 15: Complaint duty
15.1. The Principal may no longer invoke a defect in the performance if he has not reported this to the Contractor in writing within fourteen days of discovering or reasonably supposed to have discovered the defect.
15.2. The Client must have submitted complaints about the invoice to the Contractor in writing within the payment period, under penalty of forfeiting all rights. If the payment period is longer than thirty days, the Client must have reported complaints in writing no later than thirty days after the invoice date.
Article 16: Unacquired business
16.1. Client is obliged to actually take delivery of the item or items that are the subject of the agreement at the agreed place after the delivery time or execution period has expired.
16.2. The Principal shall provide all cooperation free of charge to enable the Contractor to deliver.
16.3. Uncollected goods shall be stored at the client's expense and risk.
16.4. If the provisions of paragraph 1 or 2 of this article are violated, the Client, after the Contractor has given him notice of default, shall owe the Contractor a penalty of 1 250 per day for each violation with a maximum of 1 25,000. 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 to 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 customer fails to fulfill his payment obligation, he shall be obliged, instead of paying the agreed sum of money, to comply with a request by the contractor for payment in installments.
17.4 The Client's right to set off its claims against the Contractor or to suspend performance of its obligations is excluded, unless there is a suspension of payments or bankruptcy of the Contractor or statutory debt cancellation applies to the Contractor.
17.5. Regardless of whether the contractor has fully performed the agreed performance, everything that the customer owes or will owe to it under the agreement will be immediately due and payable if: A. a payment term has been exceeded; B. the customer fails to fulfill his obligations under article 16; C. the customer's bankruptcy or client's bankruptcy or suspension of payments has been applied for; D. any goods or claims of client are attached; E. client (company) is dissolved or liquidated; F. client (legal person) applies for admission to statutory debt rescheduling, is placed under guardianship or has passed away.
17.6. In the event of a delay in the payment of a sum of money, the Principal owes the Contractor interest on that sum of money from the day following the day agreed as the final day for payment up to and including the day on which the Principal has paid the sum of money. If the parties have not agreed on a final day for payment, the interest shall be due from 30 days after it falls due. The interest rate shall be 12% per year, but shall be equal to the statutory interest rate if higher. In calculating interest, part of a month is considered a full month. At the end of each year, the amount on which interest is calculated shall be increased by the interest due for that year.
17.7. The Contractor shall be entitled to set off its debts to the Client against debts owed to the Client by companies affiliated with the Contractor. The Contractor shall also be entitled to set off its debts to the Client against debts owed to the Client by companies affiliated with the Contractor. Furthermore, the Contractor is authorised to set off its debts to the Client against claims on companies affiliated with the Client. Affiliated companies are understood to mean all companies belonging to the same group, within the meaning of Article 2:24b of the Dutch Civil Code and a participating interest within the meaning of Article 2:24c of the Dutch Civil Code.
17.8. If payment has not been made in time, the Principal will owe the Contractor all out-of-court costs with a minimum of 1 75. These costs will be calculated on the basis of the following table (principal sum incl. interest): over the first 1 3,000,- 15% over the amount up to 1 6,000,- 10% over the amount up to 1 15,000,- 8% over the amount up to 1 60,000,- 5% over the amount from 1 60,000,- 3% The actual out-of-court costs incurred will be payable 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 by it in connection with those proceedings shall be charged to the Client.
Article 18: Securities
18.1. Regardless of the agreed payment conditions, the Client is obliged to provide adequate security for payment at the Contractor's first request, at the Contractor's discretion. If the Client fails to do so within the specified period, he shall immediately be in default. The contractor shall in that case be entitled to dissolve the agreement and to recover its loss from the customer.
18.2. The contractor shall remain the owner of delivered goods as long as the customer: A. has not fulfilled his obligations under any agreement with the contractor; B. has not paid claims resulting from non-fulfillment of the above-mentioned agreements, such as damages, penalties, interest and costs.
18.3 As long as goods delivered are subject to retention of title, the customer may not encumber or alienate them outside the scope of his normal business operations. This clause has effect under property law.
18.4 After the contractor has invoked his reservation of title, he may recover the delivered goods. The Client shall cooperate fully to this end.
18.5. If, after the goods have been delivered to him by the contractor in accordance with the agreement, the customer has fulfilled his obligations, the retention of title in respect of these goods shall revive if the customer fails to fulfill his obligations under a subsequent agreement.
18.6. The Contractor shall have a right of pledge and a right of retention in respect of all goods in his possession or to be in his possession from the Client for whatever reason and in respect of all claims which he has or may have against the Client.
Article 19: Intellectual property rights
19.1. The Contractor shall be regarded as creator, designer or inventor, respectively, of the works, models or inventions created under the Agreement. The Contractor therefore has the exclusive right to apply for a patent, trademark or model.
19.2. The Contractor does not transfer intellectual property rights to the Client in the performance of the Agreement.
19.3. If the performance to be delivered by the Contractor consists (partly) of the delivery of computer software, the source code will not be transferred to the Client. The Client will acquire a non-exclusive, worldwide and perpetual user license to the computer software exclusively for the normal use and proper functioning of the case. The principal is not permitted to transfer the license or to issue a sublicense. If the client sells the item to a third party, the license shall pass to the acquirer of 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 intellectual property rights of third parties. The Client shall safeguard the Contractor against any claim by third parties regarding an infringement of intellectual property rights.
Article 20: Transfer of rights or obligations
Client cannot transfer or pledge any rights or obligations under any article of these general terms and conditions or the underlying agreement(s), except with the prior written consent of the contractor. This clause has property law effect.
Article 21: Termination or cancellation of the agreement
21.1. The Client shall not be entitled to terminate or cancel the Agreement, unless the Contractor consents. If the Contractor consents, the Client shall owe the Contractor an immediately due and payable compensation in the amount of the agreed price, less any savings for the Contractor resulting from the termination. The compensation shall be at least 20% of the agreed price.
21.2 Where the price is dependent on the actual costs to be incurred by the Contractor (" subcontractor basis"), the fee referred to in the first paragraph of this article shall be estimated at the sum of the costs, working hours and profit that the Contractor would be expected to have incurred over the entire order.
Article 22: Applicable law and jurisdiction
22.1 Dutch law shall be applicable.
22.2 The Vienna Sales Convention (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 competent in the place of establishment of the contractor shall take notice of disputes. The Contractor may deviate from this rule of jurisdiction and apply the statutory rules of jurisdiction.