METAALUNIE CONDITIONS 1 January 2019 General terms and conditions issued by Koninklijke Metaalunie (entrepreneurs' organization for small and medium-sized enterprises in the metal industry) referred to as METAALUNIE CONDITIONS, filed with the registry of the Rotterdam District Court on January 1, 2019. Published by Koninklijke Metaalunie, Postbus 2600, 3430 GA Nieuwegein. © Koninklijke Metaalunie
Article 1: Applicability
1.1. These terms and conditions apply to all offers that a Metaalunie member does, on all agreements he concludes and on all agreements arising therefrom, a and other insofar as the Metaalunie member is the provider or contractor.
1.2. The Metaalunie member who uses these terms and conditions is referred to as the contractor. The other party is indicated as 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 will prevail.
1.4. These Terms may only be used by Metaalunie members.
Article 2: Offers
2.1. All offers are without obligation. Contractor has it right to revoke its offer up to two working days after the acceptance has reached him.
2.2. If the client provides information to the contractor, may assume the correctness and completeness of this and will base his 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 otherwise exclusive travel, accommodation, packaging, storage and transport costs as well as costs for loading, unloading and providing cooperation to 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 any nature and in any form, are confidential and will not pass client be used for any purpose other than ter performance of 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 is liable for each violation. an immediately due and payable penalty of € 25,000. In addition to compensation under the law are advanced.
3.4. The Client must provide the information referred to in paragraph 1 of this article upon first request, within a period specified by the Contractor period, at the discretion of the contractor or destroy. In the event of a violation of this provision, the client will owe the contractor an immediately due and payable penalty payable of € 1,000 per day. This fine can be added compensation 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 is not directly related to the assignment.
4.2. If the client provides information to the contractor, may the contractor in the performance of the agreement assume its correctness and completeness.
4.3. The client indemnifies the contractor against any claim from 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 pay all costs incurred by the Contractor damage to be suffered, including fully incurred costs for defense against these claims.
Article 5: Delivery time / performance period
5.1. A specified delivery time or execution period is indicative.
5.2. The delivery time or execution period only starts when it is over all commercial and technical details are in agreement has been reached, all information, including definitive and approved drawings and the like are in the possession of the contractor, the agreed (instalment) payment has been received and to the other conditions for the execution of the order has been fulfilled.
5.3. If there is:
a. Circumstances other than those known to the contractor when he stated the delivery time or performance period, will be the delivery time or performance period is extended by the time the contractor, with due observance of its planning, to award the contract under these circumstances to feed;
b. additional work, the delivery time or execution period will be extended with the time that the contractor, with due observance of his planning, needs to get the materials and parts to deliver or have delivered for this purpose and to perform the additional work;
c. suspension of obligations by the contractor the delivery time or performance period is extended by the time he, subject to his schedule, needs to order to be executed after the reason for the suspension has expired. Subject to proof to the contrary by the client, the duration will be of the extension of the delivery time or performance period is suspected to be necessary and to be the result of a situation such as referred to above under a to c.
5.4. The client is liable for all costs incurred by the contractor incurs or damage that the contractor suffers as a result of a delay in the delivery time or performance period, as stated in paragraph 3 of this article.
5.5. Exceeding the delivery time or implementation period the client is in no case entitled to compensation or dissolution. The client indemnifies the contractor against any claims from third parties as a result of exceeding the delivery time or performance period.
Article 6: Delivery and risk transfer
6.1. Delivery takes place at the time that the contractor has received the makes the item available to the client at its business location and has informed the client that the item available to him. Client bears from at that time include the risk of the item for storage, loading, transport and unloading.
6.2. Client and contractor can agree that the contractor takes care of the transport. The risk of storage, loading, transport and unloading, among other things, also rest in that case on client. The Client can oppose this insure risks.
6.3. If there is a trade-in and the client is pending delivery of the new item the item to be exchanged in its possession the risk of the good to be exchanged remains with the client until the moment that he has put it in his possession of contractor. As the client, the item to be exchanged cannot deliver in the condition it was in when the agreement was concluded, the contractor may terminate the agreement.
Article 7: Price change
The Contractor may not allow an increase in cost-determining factors that occurred after the conclusion of the agreement. charge to client. The Client is obliged to pay the price increase at the Contractor's first request to fulfil.
Article 8: Force majeure
8.1. A shortcoming in the fulfillment of his obligations is possible not be attributed to the contractor, if these failure is the result of force majeure.
8.2. Force majeure is understood to mean, among other things, the circumstance that third parties engaged by contractors such as suppliers, subcontractors and carriers, or others parties on which the client depends do not or do 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 its obligations if it is temporarily unable to perform due to force majeure prevented from fulfilling its obligations towards the client come. If the force majeure situation has lapsed, the contractor will fulfill its obligations as soon as its schedule allows.
8.4. In the event of force majeure and fulfillment is or becomes permanently impossible, or the temporary force majeure situation has lasted more than six months, is the contractor authorized to terminate the agreement in its entirety with immediate effect or partially dissolve. In those cases, the Client is authorized to cancel the agreement with immediate effect dissolve, 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 result of force majeure, suspension or dissolution within the meaning of this item suffered or to be suffered damage.
Article 9: Scope of the work
9.1. The Client must ensure that all permits, exemptions and other decisions that are necessary to perform the work have been obtained in a timely manner. The Client is obliged at the Contractor's first request copy of the aforementioned documents to him to send.
9.2. Unless otherwise agreed in writing, the work includes not:
a. earthworks, piling, chopping, breaking, foundations, masonry, carpentry, plastering, painting, wallpapering, repair work or other architectural work;
b. realizing connections for gas, water, electricity, internet or other infrastructural facilities;
c. measures to prevent or limit damage to or theft or loss of those present at or near the workplace Affairs;
d. removal of materials, building materials or waste;
e. vertical and horizontal transport;
Article 10: Additional work
10.1. Changes in 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 deviate 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 becomes conducted. The client is obliged to pay the price of the additional work at the contractor's first request.
Article 11: Execution of the work
11.1. The Client will ensure that the Contractor carries out its work undisturbed and at the agreed time can perform and that he has access to the necessary facilities for the performance of his work, such as:
a. gas, water, electricity and internet;
c. lockable dry storage space;
d. prescribed on the basis of the Working Conditions Act and regulations Services.
11.2. The Client bears the risk and is liable for damage to and theft or loss of goods belonging to the contractor, client and third parties, such as tools, materials intended for the work or used in the work equipment, which are located at or near the place where the activities are performed or at another agreed location.
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 that the work risk is insured use equipment. The client serves the contractor first request a copy of the relevant insurance(s) and send proof of payment of the premium. If there If there is any damage, the client is obliged to report this immediately to his insurer for further processing and settlement.
Article 12: Completion of the work
12.1. The work is considered completed in the following fallen:
a. if the client has approved the work;
b. if the work has been put into use by the client. The client takes part of the work into use then that part is considered delivered;
c. if the contractor has written to the client informed that the work has been completed and the client has not within 14 days after the day of the notification in writing has indicated 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 contained within 30 days can be repaired or re-delivered and that not hinder the commissioning of the work.
12.2. If the client does not approve the work, he is obliged to make this known in writing, stating the reasons to contractor. Client submits contractor the opportunity to deliver the work.
12.3. The client indemnifies the contractor against claims from third parties for damage to undelivered parts of the work caused by the use of already delivered parts of the work.
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 obligation of the contractor to reimburse damages on any basis whatsoever are limited to those damage against which the contractor under a contract by or insurance taken out on his behalf is insured. The however, the size of this obligation never exceeds it amount covered by this insurance in the relevant case is paid out.
13.3. As a contractor, for whatever reason, no appeal accrues to paragraph 2 of this article, the obligation to compensate damage is limited to a maximum of 15% of the total contract sum (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 of that part or that partial delivery. In the case of long-term contracts, the obligation to compensate damage is limited up to a maximum of 15% (excluding VAT) of the contract sum due over the last twelve months prior to the damaging event.
13.4. Not eligible for reimbursement: a. consequential damages. Consequential damage includes: means stagnation damage, loss of production, loss profits, fines, transport costs and travel and accommodation costs; b. damage. Supervisory damage includes, among other things means damage caused by or during the performance of the work is inflicted on things being worked on or to things that are located in the vicinity of the place where work is done; c. damage caused by intent or deliberate recklessness of auxiliary persons or non-executive subordinates of contractor. If possible, the Client can defend itself against these damages to ensure.
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 supplied by the client a third party has been delivered and of which the contractor products or materials supplied are part of it. The Client is obliged to do all for the Contractor in this related damage including the (full) costs of defence.
Article 14: Guarantee and other claims
14.1. Unless agreed otherwise in writing, the contractor guarantees a period of six months after delivery for the proper execution of the agreed performance, as further elaborated in the following paragraphs.
14.2. If the parties have agreed on deviating guarantee conditions, the provisions of this article shall apply without prejudice apply, unless this is in conflict with those deviating warranty conditions.
14.3. If the agreed performance has not been performed properly, the contractor will make the choice within a reasonable period of time determine whether he still performs these properly or the client credits for a proportionate part of the assignment sum.
14.4. Chooses the contractor for proper execution of the performance, he himself determines the manner and time of performance. The Client must in all cases offer the Contractor the opportunity to do so. If the agreed performance (partly) consisted of the processing of material supplied by the client, the client shall submit to supply new material at his own expense and risk.
14.5. Parts or materials supplied by the contractor repaired or replaced by the client to him be sent.
14.6. At the expense of the client:
a. all transportation 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 his obligations met.
a. Warranty is excluded for defects that are the result by: - normal wear and tear; - improper use; - maintenance that has not been carried out or has been carried out incorrectly; - 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 by the client used materials or tools.
b. No warranty is given on: - delivered goods that were not new at the time of delivery; - inspecting and repairing the client's goods; - parts for which a manufacturer's warranty has been granted.
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.
Article 15: Complaint obligation
15.1. The Client can no longer invoke a defect in the performance if it does not report this within fourteen days after he has discovered the defect or should reasonably have discovered it, has complained to the contractor in writing.
15.2. Client must make complaints about the invoice, under penalty of forfeiture of all rights, within the payment term in writing submitted to the contractor. If the payment term is longer than thirty days, the client must have submitted a written complaint within thirty days of the invoice date at the latest.
Article 16: Uncollected items
16.1. The client is obliged to return the item or items that are the subject of the delivery or performance period after the end of the delivery period actually complete the agreement at the agreed place to take.
16.2. The Client must provide all cooperation free of charge to enable the contractor to deliver.
16.3. Goods that have not been purchased will be at the expense and risk of client saved.
16.4. In the event of a violation of the provisions of paragraph 1 or 2 of this article, the client is, after the contractor has given him notice of default. a fine to the contractor for each violation payable of € 250 per day with a maximum of €25,000. This fine can be added to compensation required by law.
Article 17: Payment
17.1. Payment is made at the location of the contractor or at a location to be designated by the contractor bill.
17.2. Unless otherwise agreed, payment will be made within 30 days after invoice date.
17.3. If the client does not fulfill his payment obligation, he is obliged to, instead of payment of the agreed sum of money, to comply with a request from the contractor to payment.
17.4. The right of the client to set off its claims against the contractor or to enforce its obligations to suspend obligations is excluded, unless there is is of suspension of payment or bankruptcy of the contractor or the statutory debt restructuring of the contractor applicable.
17.5. Irrespective of whether the contractor has fully performed the agreed performance, everything is up to the client is or will be owed to him under the agreement are immediately due and payable if: a. a payment term has been exceeded; b. the client does not fulfill its obligations under Article 16; c. the bankruptcy or suspension of payment of the client has been applied for; d. seizure of goods or receivables of the client laid; e. the client (company) is dissolved or liquidated; f. client (natural person) makes the request be admitted to statutory debt rescheduling, under is placed under guardianship or has died.
17.6. The Client is in default in payment interest on that sum of money to the contractor payable with effect from the day following the day that has been agreed as the final day for payment up to and including the day on which the client has paid the sum of money. If parties have not agreed on a final date for payment the interest is due from 30 days after it became due and payable. The interest is 12% per annum, but is equal to the statutory interest if this is higher. When calculating interest, a part of the month counted as a full month. Every time after the end of one year, the amount is subject to interest is calculated plus the interest due for that year.
17.7. The contractor is authorized to set off its debts to the client against receivables from the contractor affiliated companies to the client. In addition the contractor is entitled to his claims against the client to be set off against debts that companies affiliated with the contractor have towards the client. Furthermore the contractor is authorized to pay its debts to the client offset against receivables from affiliates of the client enterprises. Affiliated companies are understood to mean: all companies that belong to the same group, in within the meaning of Section 2:24b of the Dutch Civil Code and a participation within the meaning of article 2:24c Dutch Civil Code.
17.8. If payment has not been made on time, the client shall owe the contractor all extrajudicial costs payable with a minimum of € 75.00. These charges are calculated based on the following table (principal sum incl. interest): on the first € 3,000 15% on the excess up to € 6,000 10% on the excess up to € 15,000 8% on the excess up to € 60,000 5% on the excess from € 60,000 3% The extrajudicial costs actually incurred are due if they are higher than follows from the above calculation.
17.9. As a contractor in legal proceedings wholly or is largely in the right, all costs will come he has made in connection with this procedure at the expense of the client.
Article 18: Security
18.1. Irrespective of the agreed payment conditions, the client is obliged, at the first request of the contractor, in his opinion, to provide sufficient security for payment. If the client does not comply with this within the set term, it will immediately be in default. Contractor in that case 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 for as long as client: a. has not fulfilled its obligations under any agreement with the contractor; b. claims arising from non-compliance with the aforementioned agreements, such as damages, fines, interest and costs, has not paid.
18.3. As long as there is a retention of title on the delivered goods rest, the client may not encumber or alienate them outside its normal business operations. This clause has property law effect.
18.4. After the contractor has invoked his retention of title, he may retrieve the delivered goods. The Client will fully cooperate in this respect.
18.5. If the client, after the goods have been delivered to him by the contractor in accordance with the agreement, has fulfilled its obligations, the retention of title with regard to these goods will be revived if the client does not fulfill its obligations under an agreement concluded at a later date.
18.6. The contractor has on all matters that he receives from the client for whatever reason has or will have under it and for all claims it has or may acquire against the client are subject to a right of pledge and a right of retention.
Article 19: Intellectual property rights
19.1. The Contractor is regarded as the creator, designer or inventor of the works, models or inventions created within the framework of the agreement. The Contractor therefore has the exclusive right to apply for a patent, trademark or model.
19.2. The Contractor contributes to the implementation of the agreement does not transfer any intellectual property rights to the client.
19.3. If the performance to be delivered by the contractor (partly) consists of the supply of computer software the source code has not been transferred to the client. The client obtains exclusively for the benefit of the normal use and proper functioning of the thing is subject to a non-exclusive, worldwide and perpetual user license the computer software. The client is not allowed to transfer the license or to apply for a sub-licence to deliver. When the business is sold by the client to a third party, the license is transferred by operation of law to the transferee of the thing.
19.4. The contractor is not liable for damage suffered by the client as a result of an infringement of intellectual property rights proprietary rights of third parties. The client indemnifies the contractor against any third-party claims in this regard to an infringement of intellectual property rights.
Article 20: Transfer of rights or obligations Client may have rights or obligations under not transfer or pledge any article of these general terms and conditions or the underlying agreement(s), subject to 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 is not authorized to terminate or cancel the agreement, unless the contractor agrees to this. With the consent of the contractor, the client owes the contractor an immediately payable fee to the amount of the agreed price, minus the savings resulting for the contractor from the termination. The compensation is at least 20% of the agreed price.
21.2. When the price depends on the actual price costs to be incurred by the contractor (cost-based basis), the reimbursement 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 was expected to incur over the entire contract made.
Article 22: Applicable law and competent court 22.1. Dutch law applies.
22.2. The Vienna Sales Convention (C.I.S.G.) does not apply, nor any other international regulation of which exclusion is allowed.
22.3. The Dutch civil court with jurisdiction in the place of business of the contractor takes cognizance of disputes. The Contractor may use this jurisdiction rule