METAALUNIE TERMS AND CONDITIONS
General Terms and Conditions issued by Koninklijke Metaalunie (the Dutch organization for small and medium-sized enterprises in the metal industry), referred to as the METAALUNIE TERMS AND CONDITIONS, filed at the Registry of the Rotterdam District Court on 1 January 2014.
Issued by Koninklijke Metaalunie, P.O. Box 2600, 3430 GA Nieuwegein, the Netherlands.
Article 1: Applicability
1.1. These Terms and Conditions apply to all offers made by members of Koninklijke Metaalunie, all agreements they con-clude and all agreements that may result therefrom, all this in so far as the Metaalunie member is offeror or supplier.
1.2. A Metaalunie member using 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 any conflict between the substance of the agreement concluded between the Contractor and the Client and these Terms and Conditions, the provisions of the agree-ment will prevail.
1.4. These Terms and Conditions may only be used by Metaalunie members.
Article 2: Offers
2.1. All offers are without obligation.
2.2. If the Client provides the Contractor with data, drawings and the like, the Contractor may rely on their accuracy and com-pleteness and will base its offer on the same.
2.3. The prices stated in the offer are based on delivery ex works, Contractor’s place of establishment, in accordance with the Incoterms 2010. Prices are exclusive of VAT and packaging.
2.4. If the Client does not accept the Contractor’s offer, the Con-tractor is entitled to charge the Client for all costs incurred by the Contractor in making the offer to the Client.
Article 3: Intellectual property rights
3.1. Unless otherwise agreed in writing, the Contractor retains the copyright and all industrial property rights in the offers made by it and in the designs, pictures, drawings, models (including trial models), software and the like provided by it.
3.2. The rights in the data referred to in paragraph 1 of this article will remain the property of the Contractor irrespective of whether the costs of their production have been charged to the Client. These data may not be copied, used or shown to third parties without the Contractor’s prior express written consent. The Client will owe the Contractor an immediately payable penalty of € 25,000 for each breach of this provision. This penalty may be claimed in addition to damages pursuant to the law.
3.3. On the Contractor’s first demand, the Client must return the data provided to it as referred to in paragraph 1 of this Article within the time limit set by the Contractor. Upon breach of this provision, the Client will owe the Contractor an immediately payable penalty of € 1,000 per day. This penalty may be claimed in addition to damages pursuant to the law.
Article 4: Advice and information provided
4.1. The Client cannot derive any rights from advice or information it obtains from the Contractor if this does not relate to the as-signment.
4.2. If the Client provides the Contractor with data, drawings and the like, the Contractor may rely on their accuracy and com-pleteness in the performance of the agreement.
4.3. The Client indemnifies the Contractor from and against all lia-bility to third parties relating to use of the advice, drawings, calculations, designs, materials, samples, models and the like provided by or on behalf of the Client.
Article 5: Delivery period / performance period
5.1. The delivery period and/or performance period will be set by the Contractor on an approximate basis.
5.2. In setting the delivery period and/or performance period, the Contractor will assume that it will be able to perform the as-signment under the conditions known to it at that time.
5.3. The delivery period and/or performance period will only com-mence once agreement has been reached on all commercial and technical details, all necessary data, final and approved drawings and the like are in the Contractor’s possession, the agreed payment or instalment has been received and the nec-essary conditions for performance of the assignment have been satisfied.
5.4. a. In the event of circumstances that differ from those that were known to the Contractor when it set the delivery peri-od and/or performance period, it may extend the delivery period and/or performance period by such period as it needs to perform the assignment under such circumstanc-es. If the work cannot be incorporated into the Contrac-tor’s schedule, it will be performed as soon as the Contrac-tor’s schedule so permits.
b. In the event of any contract addition, the delivery period and/or performance period will be extended by such period as the Contractor needs to (cause to) supply the materials and parts for such work and to perform the contract addi-tion. If the contract addition cannot be incorporated into the Contractor’s schedule, the work will be performed as soon as the Contractor’s schedule so permits.
c. If the Contractor suspends its obligations, the delivery pe-riod and/or performance period will be extended by the du-ration of the suspension. If the continuation of the work cannot be incorporated into the Contractor’s schedule, the work will be performed as soon as the Contractor’s sched-ule so permits.
d. In the event of inclement weather, the delivery period and/or performance period will be extended by the resulting delay.
5.5. The Client is required to pay all costs incurred by the Contrac-tor as a result of delay affecting the delivery period and/or per-formance period as referred to in Article 5.4.
5.6. If the delivery period and/or performance period is/are exceed-ed, this will in no event entitle to damages or termination.
Article 6: Transfer of risk
6.1. Delivery will be made ex works, Contractor’s place of estab-lishment, in accordance with the Incoterms 2010. The risk at-tached to the good passes to the Client at the time the Con-tractor makes the good available to the Client.
6.2. Notwithstanding the provisions in paragraph 1 of this article, the Client and Contractor may agree that the Contractor will arrange for transport. In that event, the risk of storage, load-ing, transport and unloading will be borne by the Client. The Client may insure itself against these risks.
6.3. In the event of a purchase in which a good is exchanged (inruil) and the Client retains the good to be exchanged pending delivery of the new good, the risk attached to the good to be exchanged remains with the Client until it has placed this good in the possession of the Contractor. If the Client cannot deliv-er the good to be exchanged in the condition that it was in when the agreement was concluded, the Contractor may ter-minate the agreement.
Article 7: Price change
7.1. The Contractor may pass on to the Client any increase in costing factors occurring after conclusion of the agreement.
7.2. The Client will be obliged to pay the price increase as referred to in paragraph 1 of this article on any of the occasions below, such at the discretion of the Contractor:
a. upon the occurrence of the price increase;
b. at the same time as payment of the principal sum;
c. on the next agreed payment deadline.
Article 8: Force majeure
8.1. The Contractor is entitled to suspend performance of its obli-gations if it is temporarily prevented from performing its con-tractual obligations to the Client due to force majeure.
8.2. Force majeure is understood to mean, inter alia, the circum-stance of failure by suppliers, the Contractor’s subcontractors or transport companies engaged by the Contractor to perform their obligations or perform them in good time, weather condi-tions, earthquakes, fire, power failure, loss, theft or destruc-tion of tools or materials, road blocks, strikes or work stop-pages and import or trade restrictions.
8.3. If the Contractor’s temporary inability to perform lasts for more than six months, it will no longer be entitled to suspend performance. On expiry of this deadline, the Client and the Contractor may terminate the agreement with immediate ef-fect, but only as regards such part of the obligations that has not yet been performed.
8.4. In the event of force majeure where performance is or be-comes permanently impossible, both parties are entitled to terminate the agreement with immediate effect as regards such part of the obligations that has not yet been performed.
8.5. The parties will not be entitled to compensation for damage suffered or to be suffered as a result of suspension or termi-nation as referred to in this article.
Article 9: Scope of the work
9.1. The Client must ensure that all licences, exemptions and other administrative decisions necessary to carry out the work are obtained in good time. The Client is required upon the Contrac-tor’s first demand to send the Contractor a copy of the docu-ments mentioned above.
9.2 The price of the work does not include:
a. the costs of earthwork, pile driving, cutting, breaking, foundation work, cementing, carpentry, plastering, painting, wallpapering, repair work or other construction work;
b. the costs of connecting gas, water, electricity or other in-frastructural facilities;
c. the costs of preventing or limiting damage to any goods present on or near the work site.
d. the costs of removal of materials, building materials or waste;
e. travel and accommodation expenses.
Article 10: Changes to the work
10.1. Changes to the work will in any event result in contract varia-tions work if:
a. the design, specifications or contract documents are changed;
b. the information provided by the Client is not factually accu-rate;
c. quantities diverge by more than 10% from the estimates.
10.2. Contract additions will be charged on the basis of the pricing factors applicable at the time the contract addition is per-formed.
Contract deductions will be charged on the basis of the pricing factors applicable at the time the agreement was concluded.
10.3. The Client will be obliged to pay the price of the contract addi-tion as referred to in paragraph 1 of this article on any of the occasions below, such at the discretion of the Contractor:
a. when the contract addition arises;
b. at the same time as payment of the principal sum;
c. on the next agreed payment deadline.
10.4. If the sum of the contract deduction exceeds that of the con-tract addition, in the final settlement the Contractor may charge the Client 10% of the difference. This provision does not apply to contract deductions that result from a request by the Contractor.
Article 11: Performance of the work
11.1. The Client will ensure that the Contractor can carry out its activities without interruption and at the agreed time and that the requisite facilities are made available to it when carrying out its activities, such as:
a. gas, water and electricity;
b. heating;
c. lockable and dry storage space;
d. facilities required pursuant to the Working Conditions Act and Working Conditions Regulations.
11.2. The Client bears the risk of and is liable for any damage con-nected with loss, theft, burning and damage to goods belong-ing to the Contractor, the Client and third parties, such as tools, materials intended for the work or material used in the work, that are located on the work site or at another agreed location.
11.3. The Client is obliged to adequately insure itself against the risks referred to in paragraph 2 of this article. In addition, the Client must procure insurance of work-related damage as re-gards the material to be used. Upon the Contractor first de-mand, the Client must send it a copy of the relevant insurance policy/policies and proof of payment of the premium. In the event of any damage, the Client is required to report this to its insurer without delay for further processing and settlement.
11.4. If the Client fails to perform its obligations as described in the previous paragraphs and this results in delayed performance of the activities, the activities will be carried out as soon as the Client performs its obligations as yet and the Contractor’s schedule so permits. The Client is liable for all damage suf-fered by the Contractor as a result of the delay.
Article 12: Completion of the work
12.1. The work is deemed to be completed in the following events:
a. when the Client has approved the work;
b. when the work is been taken into commission by the Cli-ent. If the Client takes part of the work into commission, that part will be deemed to be completed;
c. if the Contractor notifies the Client in writing that the work has been completed and the Client does not inform it in writing as to whether or not the work is approved within 14 days of such notification having been made;
d. if the Client does not approve the work due to minor de-fects or missing parts that can be rectified or subsequently delivered within 30 days and that do not prevent the work from being taken into commission.
12.2. If the Client does not approve the work, it is required to inform the Contractor of this in writing, stating reasons. The Client must provide the Contractor with the opportunity to complete the work as yet.
12.3. The Client indemnifies the Contractor from and against any claims by third parties for damage to non-completed parts of the work caused by 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 is obliged to perform its contractual obligations as yet.
13.2 The Contractor’s obligation to pay damages, irrespective of the legal basis, is limited to damage for which the Contractor is insured under an insurance policy taken out by it or on its behalf, but will never exceed the amount paid out under this insurance in the relevant case.
13.3. If, for any reason whatsoever, the Contractor cannot invoke the limitation in paragraph 2 of this article, the obligation to pay damages will be limited to a maximum of 15% of the total as-signment amount (excluding VAT). If the agreement compris-es parts or partial deliveries, the obligation to pay damages is limited to a maximum of 15% (excluding VAT) of the assign-ment amount of that part or that partial delivery.
13.4. The following does not qualify for compensation:
a. consequential loss, including business interruption loss, production loss, loss of profit, transport costs and travel and accommodation expenses. The Client may insure itself against this damage if possible;
b. damage to goods in or under its care, custody or control. Such damage includes damage caused as a result of or during the performance of the work to goods on which work is being performed or to goods situated in the vicinity of the work site. The Client may insure itself against such damage if it so desires;
c. damage caused by the intent or wilful recklessness of agents or non-management employees of the Contractor.
13.5. The Contractor is not liable for damage to material provided by or on behalf of the Client where that damage is the result of improper processing.
13.6 The Client indemnifies the Contractor from and against all claims by third parties on account of product liability as a re-sult of a defect in a product supplied by the Client to a third party and that consisted, entirely or partially, of products and/or materials supplied by the Contractor. The Client is obliged to compensate all damage suffered by the Contractor in this respect, including the full costs of defence.
Article 14: Warranty and other claims
14.1. Unless otherwise agreed in writing, the Contractor warrants the proper execution of the agreed performance for a period of six months after delivery/completion. In the event that a dif-ferent warranty period is agreed, the other paragraphs of this article are also applicable.
14.2. If the agreed performance was not properly executed, the Contractor will decide whether to properly execute it as yet or to credit the Client for a proportionate part of the invoice amount. If the Contractor chooses to properly execute the performance as yet, it will determine the manner and time of execution itself. If the agreed performance consisted (entirely or partially) of the processing of material provided by the Cli-ent, the Client must provide new material at its own risk and expense.
14.3. Parts or materials that are repaired or replaced by the Con-tractor must be sent to the Contractor by the Client.
14.4. The Client bears the expense of:
a. all costs of transport or dispatch;
b. costs of disassembly and assembly;
c. travel and accommodation expenses.
14.5. The Client must in all cases offer the Contractor the oppor-tunity to remedy any defect or to perform the processing again.
14.6. The Client may only invoke the warranty once it has satisfied all its obligations to the Contractor.
14.7. a. No warranty is given if the defects result from:
– normal wear and tear;
– improper use;
– lack of maintenance or improper maintenance;
– installation, fitting, modification or repair by the Client or third parties;
– defects in or unsuitability of goods originating from, or prescribed by, the Client;
– defects in or unsuitability of materials or auxiliary mate-rials used by the Client.
b. No warranty is given in respect of:
– goods supplied that were not new at the time of deliv-ery;
– the inspection and repair of goods of the Client;
– parts for which a manufacturer’s warranty has been provided.
14.8. The provisions of paragraphs 2 to 7 of this article apply muta-tis mutandis to any claims by the Client based on breach of contract, non-conformity or on any other basis whatsoever.
14.9. The Client cannot assign any rights under this article.
Article 15: Obligation to complain
15.1. The Client can no longer invoke a defect in performance if it does not make a written complaint to the Contractor in re-spect thereof within fourteen days of the date it discovered, or should reasonably have discovered, the defect.
15.2 On pain of forfeiture of all rights, the Client must submit com-plaints regarding the amount invoiced to the Contractor in writ-ing within the payment deadline. If the payment deadline is longer than thirty days, the Client must complain no later than thirty days after the date of the invoice.
Article 16: Failure to take delivery of goods
16.1. Upon expiry of the delivery period and/or performance period, the Client is obliged to take delivery of the good or goods forming the subject of the agreement.
16.2. The Client must lend all cooperation that can be reasonably expected from it to enable the Contractor to make the deliv-ery.
16.3. If the Client does not take delivery of goods, such goods will be stored at the risk and expense of the Client.
16.4. Upon breach of the provisions in paragraphs 1 and/or 2 of this article, the Client will owe the Contractor a penalty of € 250 per day, to a maximum of € 25,000. This penalty may be claimed in addition to damages pursuant to the law.
