Terms and Conditions

METAALUNIE TERMS AND CONDITIONS - January 1, 2014

General terms and conditions issued by Koninklijke Metaalunie (a trade association for small and medium-sized enterprises in the metal industry), referred to as the METAALUNIE TERMS AND CONDITIONS, filed with the clerk of the court in Rotterdam on January 1, 2014.
Published by Koninklijke Metaalunie, P.O. Box 2600, 3430 GA Nieuwegein.
Koninklijke Metaalunie
 

Article 1: Applicability
 

1.1. These terms and conditions apply to all offers made by a member of Koninklijke Metaalunie, to all agreements it enters into, and to all agreements that may result therefrom, insofar as the Metaalunie member is the offeror or supplier.
 
1.2. The Metaalunie member applying 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 terms 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 be used exclusively by Metaalunie members.
 

Article 2: Offers
 

2.1. All offers are non-binding.
 
2.2. If the client provides the contractor with data, drawings, and the like, the contractor may assume that such information is accurate and complete and shall base its offer on it.
 
2.3. The prices stated in the offer are based on delivery ex works from the contractor’s place of business, in accordance with Incoterms 2010. The prices do not include sales tax or packaging. 
 
2.4. If the client does not accept the contractor’s offer, the contractor has the right to charge the client for all costs incurred in preparing the offer.  
 
 

Article 3: Intellectual Property
Rights 

3.1. Unless otherwise agreed in writing, the contractor retains the copyrights and all industrial property rights to the offers it has made, as well as to the designs, images, drawings, (prototype) models, software, and the like that it has provided. 
 
3.2. The rights to the materials referred to in paragraph 1 of this article remain the property of the Contractor, regardless of whether the Client was charged for their production. These materials may not be copied, used, or shown to third parties without the Contractor’s prior express written consent. For each violation of this provision, the client shall owe the contractor an immediately payable penalty of €25,000. This penalty may be claimed in addition to damages under the law.
 
3.3. The Client must return the information provided to it as referred to in paragraph 1 of this article upon first request and within a period specified by the Contractor. In the event of a violation of this provision, the Client shall owe the Contractor an immediately payable penalty of €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 may not derive any rights from advice and information received from the contractor if such advice and information do not pertain to the assignment.
 
4.2. If the Client provides the Contractor with data, drawings, and the like, the Contractor may assume their accuracy and completeness when performing the agreement.
 
4.3. The Client shall indemnify the Contractor against any claims by third parties relating to the use of advice, drawings, calculations, designs, materials, samples, models, and the like provided by or on behalf of the Client.
 

Article 5: Delivery Time / Performance Period
 

5.1. The delivery time and/or performance period are determined by the contractor on an approximate basis.  
 
5.2. When determining the delivery time and/or execution period, the Contractor assumes that it can carry out the assignment under the circumstances known to it at that time.
 
5.3. The delivery time and/or execution period do not commence until agreement has been reached on all commercial and technical details, all necessary information, final and approved drawings, and the like are in the contractor’s possession, the agreed-upon (installment) payment has been received, and the necessary conditions for the performance of the contract have been met.  
 
5.4. If circumstances arise that were not known to the contractor when it determined the delivery time and/or performance period, it may extend the delivery time and/or performance period by the time it needs to perform the order under these circumstances. If the work cannot be accommodated within the contractor’s schedule, it will be performed as soon as the contractor’s schedule permits.

If additional work is required, the delivery time and/or performance period will be extended by the time the contractor needs to have the necessary materials and parts delivered and to perform the additional work. If the additional work cannot be accommodated in the contractor’s schedule, the work will be performed as soon as the contractor’s schedule permits.

If the contractor suspends its obligations, the delivery time and/or performance period will be extended by the duration of the suspension. If resuming the work cannot be accommodated within the contractor’s schedule, the work will be performed as soon as the contractor’s schedule permits.

In the event of inclement weather, the delivery time and/or performance period shall be extended by the resulting delay.
 
The client is obligated to reimburse the contractor for all costs incurred as a result of a delay in the delivery time and/or performance period as specified in paragraph 4 of this article.
 
Exceeding the delivery time and/or performance period shall under no circumstances entitle the client to compensation or termination of the contract.
 

Article 6: Transfer of Risk

6.1. Delivery takes place ex works from the Contractor’s place of business, in accordance with Incoterms 2010. The risk of loss or damage to the goods passes to the client at the moment the contractor makes them available to the client.
 
6.2. Notwithstanding the provisions of paragraph 1 of this article, the client and the contractor may agree that the contractor will arrange for transportation. In that case, the risk associated with storage, loading, transportation, and unloading rests with the client. The client may insure against these risks.
 
6.3. In the event of a trade-in, if the client retains possession of the item to be traded in while awaiting delivery of the new item, the risk of the item to be traded in remains with the client until the client has placed it in the contractor’s possession. If the client is unable to deliver the item to be traded in the same condition it was in when the agreement was concluded, the contractor may terminate the agreement.
 

Article 7: Price
Changes 

7.1. The contractor may pass on to the client any increase in cost-determining factors that has occurred after the conclusion of the agreement.   
        
7.2. The client is obligated to pay the price increase referred to in paragraph 1 of this article, at the contractor’s discretion, at one of the following times:

• when the price increase occurs;
• at the same time as payment of the principal amount;
• at the next agreed-upon payment due date.

Article 8: Force Majeure

8.1. The Contractor has the right to suspend the performance of its obligations if it is temporarily prevented by force majeure from fulfilling its contractual obligations toward the Client.
 
8.2. Force majeure includes, among other things, circumstances in which the Contractor’s suppliers, subcontractors, or carriers engaged by the Contractor fail to fulfill their obligations or fail to do so in a timely manner, as well as weather conditions, earthquakes, fire, power outages, loss, theft or loss of tools or materials, roadblocks, strikes or work stoppages, and import or trade restrictions.
 
8.3. The Contractor is no longer entitled to suspend performance if the temporary inability to perform has lasted for more than six months. The Client and the Contractor may terminate the agreement with immediate effect upon the expiration of this period, but only with respect to that portion of the obligations that has not yet been fulfilled. 
 
8.4. If a force majeure event exists and performance is or becomes permanently impossible, both parties are entitled to terminate the agreement with immediate effect for that portion of the obligations that has not yet been fulfilled.
 
8.5. The parties are not entitled to compensation for any damages suffered or to be suffered as a result of the suspension or termination within the meaning of this article.
 

Article 9: Scope of Work

9.1. The Client must ensure that all permits, exemptions, and other authorizations necessary to perform the work are obtained in a timely manner. The Client is obligated to send the Contractor a copy of the aforementioned documents upon the Contractor’s first request. 
 
9.2. The price of the work does not include:

• the costs of earthwork, pile driving, cutting, demolition, foundation work, masonry, carpentry, plastering, painting, wallpapering, repair work, or other construction work;
• the costs of connecting gas, water, electricity, or other infrastructure services;
• the costs of preventing or limiting damage to property present on or near the work site;
• the costs of removing materials, building materials, or waste;
• travel and lodging expenses.

Article 10: Changes to the Work
 

10.1. Changes to the work shall in any case result in additional or reduced work if:

• there is a change in the design, specifications, or contract documents;
• the information provided by the client does not correspond to reality;
• estimated quantities deviate by more than 10 percent.

 
10.2. Additional work is calculated based on the price-determining factors in effect at the time the additional work is performed.
Reduced work is settled based on the price-determining factors in effect at the time the agreement was entered into.
 
10.3. The client is obligated to pay the price of the additional work as referred to in paragraph 1 of this article, at the contractor’s discretion, at one of the following times:

• when the additional work occurs;
• at the same time as payment of the principal amount;
• on the next agreed-upon payment date.

 
10.4. If the total amount of reduced work exceeds that of the additional work, the contractor may charge the client 10% of the difference in the final settlement. This provision does not apply to reduced work resulting from a request by the contractor. 
    

Article 11: Performance of the Work

11.1. The Client shall ensure that the Contractor can perform its work undisturbed and at the agreed-upon time and that, in the performance of its work, the Contractor has access to the necessary utilities, such as: 

• gas, water, and electricity;
• heating;
• lockable, dry storage space;
• facilities required under the Occupational Safety and Health Act and regulations.

 
11.2. The Client bears the risk and is liable for damage related to loss, theft, fire, and damage to property belonging to the Contractor, the Client, and third parties, such as tools, materials intended for the work, or equipment used in the work, located at the site where the work is performed or at another agreed-upon location.
 
11.3. The Client is obligated to obtain adequate insurance against the risks mentioned in paragraph 2 of this article. The client must also ensure that the equipment to be used is insured against operational risks. The Client must send the Contractor, upon first request, a copy of the relevant insurance policy or policies and proof of payment of the premium. In the event of damage, the Client is obligated to report this immediately to its insurer for further handling and settlement.
 
11.4. If the Client fails to fulfill its obligations as described in the preceding paragraphs of this article and this results in a delay in the performance of the work, the work will be performed as soon as the Client fulfills all its obligations and the Contractor’s schedule permits. The client is liable for all damages incurred by the contractor as a result of the delay.
 

Article 12: Acceptance of the Work
 

12.1. The work shall be deemed delivered in the following cases:

• if the client has approved the work;
• if the Client has taken the work into use. If the Client takes a portion of the work into use, that portion shall be deemed to have been delivered;
• if the contractor has notified the client in writing that the work has been completed and the client has not indicated in writing within 14 days of such notification whether or not the work has been approved;
• if the client does not approve the work due to minor defects or missing parts that can be repaired or supplied 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, the Client is obligated to notify the Contractor 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 shall indemnify the contractor against claims by third parties for damage to undelivered parts of the work caused by the use of parts of the work that have already been delivered.
 

Article 13: Liability
 

13.1. In the event of an attributable failure to perform, the Contractor is obligated to subsequently fulfill its contractual obligations.
 
13.2. The Contractor’s obligation to pay damages, on whatever legal basis, is limited to those damages against which the Contractor is insured under an insurance policy taken out by or on its behalf, but shall never exceed the amount paid out by such insurance in the relevant case. 
 
13.3. If, for any reason whatsoever, the contractor is not entitled to invoke the limitation set forth in paragraph 2 of this article, the obligation to pay damages is limited to a maximum of 15% of the total contract amount (excluding VAT). If the agreement consists of components or partial deliveries, the obligation to pay damages is limited to a maximum of 15% (excluding VAT) of the contract price for that component or partial delivery.
 
13.4. The following are not eligible for compensation:

• consequential damages. Consequential damages include, among other things, downtime damages, loss of production, lost profits, transportation costs, and travel and accommodation expenses. The Client may, if possible, insure itself against such damages;
• damage to property in the vicinity. Damage to property in the vicinity includes, among other things, damage caused by or during the performance of the work to items being worked on or to items located in the vicinity of the work site. The Client may, if desired, insure itself against such damage;
• damage caused by willful misconduct or deliberate recklessness on the part of the Contractor’s agents or non-supervisory subordinates.

 
13.5. The Contractor is not liable for damage to materials supplied by or on behalf of the Client resulting from improper processing.
 
13.6. The Client shall indemnify the Contractor against all third-party claims arising from product liability due to a defect in a product supplied by the Client to a third party and which consisted (in part) of products and/or materials supplied by the Contractor. The Client is obligated to reimburse the Contractor for all damages incurred by the Contractor in this regard, including the (full) costs of defense.
 

Article 14: Warranty and Other Claims

14.1. Unless otherwise agreed in writing, the contractor guarantees the proper performance of the agreed-upon work for a period of six months following delivery. If a different warranty period has been agreed upon, the remaining provisions of this article shall also apply.
 
14.2. If the agreed-upon service has not been performed properly, the Contractor shall decide whether to perform it properly after all or to issue a credit to the Client for a proportionate portion of the invoice. If the contractor chooses to perform the service properly at a later time, it shall determine the manner and timing of performance. If the agreed-upon service consisted (in part) of processing materials supplied by the client, the client must supply new materials at its own expense and risk.   
        
14.3. Parts or materials that are repaired or replaced by the Contractor must be sent to the Contractor by the Client.
 
14.4. The following are at the Client’s expense:

• all transportation or shipping costs;
• costs for disassembly and assembly;
• travel and lodging expenses.

 
14.5. The client must, in all cases, give the contractor the opportunity to repair any defect or to repeat the work.
 
14.6. The client may only invoke the warranty after fulfilling all of its obligations toward the contractor.
 
14.7. a. No warranty is provided if defects result from:

• normal wear and tear;
• improper use;
• maintenance that was not performed or was performed incorrectly;
• installation, assembly, modification, or repair by the Client or by third parties;
• defects in or unsuitability of items supplied by or specified by the Client;
• defects in or unsuitability of materials or tools used by the client.

           b. No warranty is provided for:

• goods delivered that were not new at the time of delivery;
• the inspection and repair of the client’s goods;
• parts covered by a manufacturer’s warranty.

 
14.8. The provisions of paragraphs 2 through 7 of this article apply mutatis mutandis to any claims by the Client based on breach of contract, non-conformity, or any other grounds whatsoever. 
 
14.9. The client may not assign any rights under this article.
 

Article 15: Obligation
  to File a Complaint

15.1. The Client may no longer rely on a defect in performance if it has not submitted a written complaint to the Contractor within fourteen days after it discovered the defect or reasonably should have discovered it.
 
15.2. The Client must submit complaints regarding the amount of the invoice to the Contractor in writing within the payment term, on pain of forfeiture of all rights. If the payment term exceeds thirty days, the Client must have submitted a written complaint no later than thirty days after the invoice date.

Article 16: Unaccepted Goods
 

16.1. Upon expiration of the delivery period and/or performance period, the Client is obligated to accept the item or items that are the subject of the agreement at the agreed-upon location.
 
16.2. The client must provide all cooperation that can reasonably be expected of them in order to enable the contractor to make delivery.
 
16.3. Goods not accepted will be stored at the client’s expense and risk.
 
16.4. In the event of a breach of the provisions of paragraphs 1 and/or 2 of this article, the Client shall owe the Contractor a penalty of €250 per day, up to a maximum of €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 designated by the contractor.
 
17.2. Unless otherwise agreed, payment shall be made as follows:

       a. in cash for over-the-counter sales;
       b. for installment payments:

• 40% of the total price upon placing the order;
• 50% of the total price upon delivery of the materials or, if the delivery of materials is not included in the order, upon commencement of the work;
• 10% of the total price upon completion;

        c. in all other cases, within thirty days of the invoice date.
 
17.3. If the client fails to fulfill its payment obligation, it is required, in lieu of payment of the agreed-upon sum, to comply with a request from the contractor for set-off.
 
17.4 The client’s right to set off its claims against the contractor or to suspend payment is excluded, unless the contractor is in bankruptcy or statutory debt restructuring applies to the contractor.
 
17.5. Regardless of whether the contractor has fully performed the agreed-upon services, everything the client owes or will owe the contractor under the agreement becomes immediately due and payable if:

• a payment deadline has been exceeded;
• a petition for the client’s bankruptcy or suspension of payments has been filed;
• an attachment is levied on the Client’s property or claims;
• the client (corporation) is dissolved or liquidated;
• the client (a natural person) applies for admission to a statutory debt restructuring program, is placed under guardianship, or has died.

 
17.6. If payment has not been made within the agreed payment term, the client shall immediately owe interest to the contractor. The interest rate is 12% per year, but is equal to the statutory interest rate if the latter is higher. For the purpose of calculating interest, a partial month is counted as a full month.
 
17.7. The contractor is authorized to set off its debts to the client against claims that companies affiliated with the contractor have against the client. In addition, the contractor is authorized to set off its claims against the client against debts that companies affiliated with the contractor owe to the client. Furthermore, the Contractor is authorized to set off its debts to the Client against claims against companies affiliated with the Client. “Affiliated companies” are defined as companies that belong 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 within the agreed payment term, the client shall owe the contractor all extrajudicial costs, with a minimum of €75.00.
 
These costs are calculated based on the following table (principal amount including interest):

• on the first € 3,000.00; 15%
• on the amount exceeding that up to €6,000.00; 10%
• on the amount exceeding that up to €15,000.00; 8%
• on the amount exceeding €60,000.00; 5%
• on the amount in excess of €60,000.00; 3%

 
The actual out-of-court costs incurred are payable if they exceed the amount resulting from the above calculation.
 
17.9. If the contractor prevails in legal proceedings, all costs incurred by the contractor in connection with such proceedings shall be borne by the client.
 

Article 18: Security

 
18.1. Regardless of the agreed-upon payment terms, the client is obligated, upon the contractor’s first request, to provide security for payment that the contractor deems sufficient. If the client fails to comply within the specified period, the client is immediately 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 retains ownership of the delivered goods as long as the Client:
fails or will fail to fulfill its obligations under this or other agreements;
has not settled claims arising from the failure to fulfill the aforementioned agreements, such as damages, penalties, interest, and costs.
 
18.3. As long as the delivered goods are subject to a retention of title, the Client may not encumber or dispose of them outside the course of its normal business operations.
 
18.4. After the Contractor has invoked its retention of title, it may reclaim the delivered goods. The client shall cooperate fully to this end.
 
18.5. The Contractor has a security interest and a right of retention in all goods that it holds or will come to hold for any reason whatsoever, and in all claims it has or may have against the Client, vis-à-vis anyone who demands their surrender.
 
18.6. If, after the Contractor has delivered the goods to the Client in accordance with the agreement, the Client has fulfilled its obligations, the retention of title with respect to these goods shall be reinstated if the Client fails to fulfill its obligations under a subsequently concluded agreement.
 

Article 19: Termination of the Agreement
 

If the client wishes to terminate the agreement without any breach on the part of the contractor and the contractor agrees to this, the agreement shall be terminated by mutual consent. In that case, the contractor is entitled to compensation for all financial losses, such as losses incurred, lost profits, and costs incurred.
 

Article 20: Governing Law and Jurisdiction
 

20.1. Dutch law applies.
 
20.2. The Vienna Convention on Contracts for the International Sale of Goods (CISG) does not apply, nor does any other international regulation whose exclusion is permitted.
 
20.3. Only the Dutch civil court with jurisdiction in the contractor’s place of business shall hear disputes, unless this conflicts with mandatory law. The contractor may deviate from this rule of jurisdiction and apply the statutory rules of jurisdiction.