General conditions

Metaalunie Conditions
January 1, 2019

General conditions issued by Koninklijke Metaalunie (entrepreneurial organization for small and medium-sized enterprises in the metal industry) referred to as METAALUNIE CONDITIONS, filed at the Registry of the District Court of Rotterdam on 1 January 2019. Published by Koninklijke Metaalunie, PO Box 2600, 3430 GA Nieuwegein.
© Koninklijke Metaalunie

Article 1: Applicability
1.1. These conditions apply to all offers made by a Metaalunie member, to all agreements concluded by him and to all agreements resulting therefrom, all this insofar as the Metaalunie member is a provider or contractor.
1.2. The Metaalunielid using these conditions shall be referred to as contractor. The other party shall be referred to as the Client.
1.3. In the event of any conflicts between the substance of the agreement concluded between the Client and the Supplier and these Terms and Conditions, the provisions of the agreement shall take precedence.
1.4. These conditions may only be used by Metaalunie members.

Article 2: Offers.
2.1. All offers are without obligation. 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 information to the Contractor, the Contractor may assume its accuracy and completeness and shall base its offer on this information.
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 further 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 by or on behalf of the Contractor to the Client (such as offers, designs, images, drawings and know-how) of any nature and in any form whatsoever 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 shall not be disclosed or reproduced by the Client.
3.3. If Client violates any of the obligations mentioned in paragraphs 1 and 2 of this article, he shall be liable for an immediately payable 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 upon first request, within a period set by the Contractor, at the Contractor's discretion. If this provision is violated, the Client shall owe the Supplier an immediately payable penalty of 1 1,000.00 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 provided by the contractor that is not directly related to the assignment.
4.2. If the Client provides information to the Contractor, the Contractor may assume the accuracy and completeness thereof in the performance of 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, brands, samples, models and the like provided by or on behalf of the Client. The Client shall compensate all damages to be suffered by the Contractor, including all costs incurred in defending such claims.

Article 5: Delivery period / execution period
5.1. A stated delivery time or execution period is indicative.
5.2. The delivery period or work period will commence only when agreement has been reached on all commercial and technical details, all information, including final and approved drawings, etc., are in the Supplier's possession, the agreed payment or instalment has been received and the other conditions necessary for the performance of the engagement have been met.
5.3. If there are:
a. circumstances other than those known to the Contractor when he quoted the delivery deadline or work period, the delivery deadline or work period will be extended by the time required by the Contractor, with due observance of his schedule, to perform the engagement under those circumstances;
b. additional work, the delivery deadline or work period will be extended by the time that the Contractor requires, with due observance of his 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, with due observance of its schedule, needs to perform the engagement after the reason for the suspension lapses.
Barring evidence to the contrary from the Principal, 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 through c.
5.4. The Client is obliged to pay all costs incurred or damage suffered by the Supplier as a result of a delay in the delivery time or work period, as referred to in paragraph 3 of this Article.
5.5. Exceeding the delivery time or work period will under no circumstances entitle the Client to damages or dissolution. The Client shall indemnify the Supplier against any third-party claims resulting from failure to meet the delivery deadline or work period.

Article 6: Delivery and transfer of risk
6.1. Delivery shall take place at the moment when the Supplier makes the item available to the Client at its business location and has notified the Client that the item is at the Client's disposal. The Client shall bear the risk of the item from that moment on, including storage, loading, transport and unloading.6.2. The principal and the contractor may agree that the contractor shall arrange for transport. The risk of, inter alia, storage, loading, transport and unloading shall in that case also rest with the Client. The principal may insure himself against these risks.
6.3. If there is a trade-in and the customer keeps the goods to be traded in pending delivery of the new goods, the risk in respect of the goods to be traded in shall remain with the customer until he has placed them in the possession of the contractor. If the customer 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 changes
The Contractor may pass on to the Client any increase in cost-determining factors that occurred after the Agreement was concluded. 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 Contractor, such as suppliers, subcontractors and transporters, or other parties on which the Client is dependent, fail to meet their obligations or fail to meet them on time, weather conditions, natural disasters, terrorism, 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 performance of its obligations if it is temporarily prevented from performing its obligations to the Client 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 contractor shall be entitled to dissolve the agreement in whole or in part with immediate effect. In such cases the Client shall be entitled to dissolve the agreement with immediate effect, but only in respect of that part of the obligations which 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 a timely manner. The Principal shall be obliged to send a copy of the aforementioned documents to the Contractor at the Contractor's first request.
9.2. Unless otherwise agreed in writing, the work shall not include:
a. earthwork, pile driving, demolition, foundation work, masonry, carpentry, plastering, painting, wallpapering, repairs or other construction work;
b. the realization of connections of gas, water, electricity, internet or other infrastructural facilities;
c. measures to prevent or limit damage to or theft or loss of items present at or near the work site;
d. disposal of materials, building materials or waste;
e. vertical and horizontal transportation;

Article 10: Additional work
10.1. Changes in 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 Client does not correspond with reality;
c. estimated quantities deviate by more than 5%.
10.2. Additional work shall be calculated on the basis of the price-determining factors applicable at the time the additional work is performed. The Client shall be obliged to pay the price of the additional work at the Contractor's first request.

Article 11: Performance of the work
11.1. The Client shall ensure that the Contractor can perform its work undisturbed and at the agreed time, and that in the performance of 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 items belonging to 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 another agreed location.
11.3. Without prejudice to the provisions of paragraph 2 of this article, the Client shall be obliged to take out adequate insurance against the risks mentioned in that paragraph. The Client must also 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 insurance policy or policies concerned 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 treatment and settlement.

Article 12: Completion of the work
12.1. The work shall be considered completed in the following cases:
a. if the customer has approved the work;
b. if the customer puts 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 has been completed and the Client has not communicated, within 14 days after the date of such communication, that the work
approved;
d. if the customer does not approve the work on account of minor defects or missing parts which can be repaired or supplied within 30 days and which do not prevent the work from being put into use
stand in the way.
12.2. If the Client does not approve the Work, the Client shall be required to notify the Contractor in writing, giving reasons. The Client must give the Supplier the opportunity to complete the work.
12.3. The Client shall indemnify the Contractor against third-party claims for damage to parts of the work that have not yet been completed that is 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 failure, the Contractor shall still be bound to fulfill its contractual obligations, subject to Article 14.
13.2. The Contractor's obligation to compensate damages on any basis whatsoever is limited to those damages for which the Contractor is insured under an insurance policy taken out by or on behalf of the Contractor. The extent of this obligation shall, however, never exceed the amount paid out under this insurance 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 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 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 compensate damage shall be limited to a maximum of 15% (excluding VAT) of the order price due over the last twelve months preceding the event causing the damage.
13.4. Not eligible for compensation are:
a. consequential damage. Consequential damage includes stagnation damage, production loss, loss of profit, fines, transport costs and travel and accommodation costs;
b. supervision damage. This 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; b. supervision damage.
in the vicinity of the place where the work is being carried out;
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 against such damages, if possible.
13.5. The Supplier 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 indemnify the Contractor against all third-party claims for product liability as a result of a defect in a product supplied by the Client to a third party of which the products or materials supplied by the Contractor form a part. The Client shall be obliged to compensate all damage suffered by the Contractor in this connection, including the (full) costs of defense.

Article 14: Warranty and other claims
14.1. Unless otherwise agreed in writing, the Contractor warrants 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 make a choice within a reasonable period of time as to whether he will still perform it properly or credit the Client for a proportionate part of the contract price.
14.4. If the contractor chooses to perform the work properly after all, he shall determine the manner and time of performance. The Client must in all cases give the Supplier the opportunity to do so. If the agreed performance consisted (in part) in the processing of material supplied by the Client, the Client must supply new material at his own expense and risk.
14.5. Parts or materials to be repaired or replaced by the Supplier must be sent to him by the Client.
14.6. At the Client's expense are:
a. all transportation or shipping costs;
b. costs of disassembly and assembly;
c. travel and accommodation expenses and travelling time.
14.7. The Contractor shall not be obliged to perform the warranty until the Client has fulfilled all his obligations.
14.8. a. Warranty is excluded for defects resulting from:
- normal wear and tear;
- injudicious use;
- improper or non-executed maintenance;
- installation, assembly, modification or repair by 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 Client.
b. No warranty is given on
- delivered items that were not new at the time of delivery;
- the inspection and repair of items belonging to client;
- parts for which a manufacturer's warranty has been issued.
14.9. The provisions of paragraphs 3 to 8 of this article shall apply mutatis mutandis to any claims by the Client based on non-performance, non-conformity or any other basis whatsoever.

Article 15: Obligation to complain
15.1. The Principal may no longer invoke a defect in the performance if he has not complained to the Contractor in writing about it within fourteen days after he discovered or reasonably should have discovered the defect.
15.2. The Client must, on pain of forfeiting all rights, have submitted complaints about the invoice to the Contractor in writing within the payment period. If the payment period is longer than thirty days, the Client must have complained in writing no later than thirty days after the invoice date.

Article 16: Uncollected items
16.1. The Client shall be obliged to actually take delivery of the item or items that are the subject of the agreement at the agreed location after the delivery time or execution period has expired.
16.2. The Principal shall lend every assistance free of charge to enable the Contractor to make delivery.
16.3. Uncollected goods will 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 shall, after the Supplier has given notice of default, be liable to pay the Supplier a penalty for each violation of 1 250 per day, 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 place of business of the contractor or into an account to be designated by the contractor.
17.2. Unless otherwise agreed, payment shall be made within 30 days of the invoice date.
17.3. If the Client fails to meet his payment obligation, he shall be obliged, instead of paying the agreed sum of money, to comply with a request by the Supplier for payment in lieu.
17.4. The Client's right to set off his claims against the Contractor or to suspend performance of his obligations is excluded, unless there is a suspension of payments or bankruptcy of the Contractor or statutory debt rescheduling 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 the contractor under the agreement shall be immediately due and payable if:
a. a payment term has been exceeded;
b. the customer fails to meet his obligations under article 16;
c. the bankruptcy or suspension of payments of client has been applied for;
d. goods or claims of client are seized;
e. client (company) is dissolved or liquidated;
f. the customer (natural person) applies for admission to statutory debt rescheduling, is placed under guardianship or dies.
17.6. If payment of a sum of money is delayed, the Client shall owe 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 Client 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 becomes due. The interest rate shall be 12% per annum, but shall be equal to the statutory interest rate, whichever is 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 claims of companies affiliated with the Contractor against the Client. In addition, 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. Furthermore, the Contractor is authorized to set off its debts to the Client against receivables from 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 is not made in time, the Client shall owe the Supplier all extrajudicial costs, to a minimum of €75,-.
These costs shall be calculated on the basis of the following table (principal sum incl. interest):
over the first €3.000,- 15%
over the amount up to €6.000,- 10%
over the amount up to €15.000,- 8%
over the amount up to €60.000,- 5%
over the amount from €60.000,- 3%
The actual extrajudicial costs incurred shall be 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 those proceedings shall be borne by the Principal.

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, 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 losses from the Client.
18.2. The Contractor shall remain the owner of delivered goods as long as the Client:
a. has not fulfilled his obligations under any agreement with the contractor;
b. has not paid claims arising from non-compliance with the above-mentioned agreements, such as damages, penalties, interest and costs.
18.3. As long as any goods delivered are subject to retention of title, the Client may not encumber or dispose of them outside the scope of his normal business operations. This clause shall have the effect of property law.
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 the customer has fulfilled his obligations after the goods have been delivered to him by the contractor in accordance with the agreement, the retention of title in respect of these goods shall revive if the customer fails to fulfil 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 any intellectual property rights to the Client in the performance of the Agreement.
19.3. If the performance to be delivered by the Contractor consists (in part) of the delivery of computer software, the source code shall not be transferred to the Client. The Client will acquire a non-exclusive, worldwide and perpetual user license to the computer software solely for the purposes of normal use and proper operation of the case. Client 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 by operation of law to the transferee of the item.
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 indemnify the Contractor against any claim by third parties regarding an infringement of intellectual property rights.

Article 20: Transfer of rights or obligations
Client may not transfer or pledge rights or obligations under any article of these general conditions or the underlying agreement(s), except with the prior written consent of the Contractor. This clause has the effect of property law.

Article 21: Termination or cancellation of the agreement.
21.1. The Principal shall not be authorized to cancel or terminate the Agreement unless the Contractor consents thereto. If the Contractor agrees, the Client shall 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 shall be at least 20% of the agreed price.
21.2 If the price is contingent on the actual costs to be incurred by the Contractor (cost-plus basis), the compensation referred to in the first paragraph of this article shall be estimated at the sum of the costs, labor hours and profit that the Contractor would be expected to incur for the entire engagement.

Article 22: Applicable law and competent court
22.1 Dutch law shall apply.
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 having jurisdiction in the Contractor's place of business shall take cognizance of disputes. The Contractor may deviate from this rule of jurisdiction and apply the statutory rules of jurisdiction.