Terms of delivery

METAL UNION TERMS
General Terms and Conditions issued by Koninklijke Metaalunie (entrepreneurs’ organisation for small and medium-sized enterprises in the metal industry), referred to as METAL UNION TERMS, filed with the Court 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 tenders issued by a member of metal union, to all agreements concluded by that member and to all agreements that may result therefrom, insofar as the member of metal union is a provider or contractor.
1.2. The metal union member who uses these conditions is referred to as the contractor. The other party shall be referred to as the principal.
1.3. In the event of conflict between the content of the agreement concluded between the client and the contractor and these terms and conditions, the provisions of the agreement shall take precedence.
1.4. These conditions may only be used by Metal Union members.
Article 2: Offers
2.1. All offers are non-binding. The Contractor shall be entitled to withdraw his offer up to two working days after the acceptance has reached him.
2.2. If the customer provides information to the contractor, the contractor may assume that this is correct and complete and will base his offer on this information.
2.3. The prices stated in the offer are in euros, exclusive of turnover tax and other government levies or taxes. The prices are also 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 (such as offers, designs, images, drawings and know-how) of any nature and in any form whatsoever provided to the Client by or on behalf of the Contractor shall be confidential and shall not be used by the Client for any purpose other than for the execution of the Agreement.
3.2. The information referred to in paragraph 1 of this article shall not be made public or reproduced by the client.
3.3. If the client breaches one of the obligations referred to in paragraphs 1 and 2 of this article, he shall be liable for an immediately payable penalty of €25,000 for each breach. This fine can be claimed in addition to damages under the law.
3.4. The customer must return or destroy the information referred to in paragraph 1 of this article at the contractor’s first request, within a period set by the contractor. In the event of infringement of this provision, the Client shall be liable to pay the Supplier an immediately due and payable penalty of €1,000 per day. This fine can 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 order.
4.2. If the customer provides information to the contractor, the contractor may assume the accuracy and completeness of this information for the performance of the agreement.
4.3. The client indemnifies the contractor against any claim 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. Client shall compensate all damages suffered by Contractor, including all costs incurred to defend against such claims.
Article 5: Delivery time / implementation period
5.1. A stated delivery time or implementation period is indicative.
5.2. The delivery period or work period only begins when agreement has been reached on all commercial and technical details, all information, including final and approved drawings and the like are in the Supplier’s possession, the payment or instalment agreed has been received and the other conditions necessary for the performance of the engagement have been met.
5.3. If there are any:
a. circumstances other than those known to the contractor
If the circumstances prevailing at the time when the Contractor indicated the delivery period or work period were different, the delivery period or work period will be extended by the time which the Contractor needs, having regard to his planning, to complete the order in these circumstances;en;
b. Additional work, the delivery period or work period will be extended by the time that the Supplier, in accordance with the Supplier’s planning, requires to deliver or arrange for the delivery of the materials and parts concerned and to carry out the additional work;
c. In the event that the Supplier’s obligations are suspended, the delivery deadline or work period will be extended by the time that the Supplier needs, bearing in mind his work schedule, to complete the order after the reason for the suspension no longer applies.
Subject to evidence to the contrary from the Client, the duration of the extension of the delivery period or implementation period shall be presumed to be necessary and to be the result of a situation as referred to above under a to c.
5.4. The Client must pay all costs incurred by the Contractor or damages sustained by the Contractor as a result of a delay in the delivery period or work period as referred to in paragraph 3 of this Article.
5.5. Exceeding the delivery time or implementation period does not in any case entitle Client to compensation or dissolution. The Client indemnifies the Supplier for any claims from third parties as a result of the delivery period or work period being exceeded.
Article 6: Delivery and transfer of risk
6.1. Delivery shall be deemed to have taken place at the moment that the Contractor makes the item available to the Principal at its business location and informs the Principal that the item is at its disposal. From that moment on, Client shall bear the risk of the item for storage, loading, transport and unloading, among other things.
6.2. The customer and the contractor may agree that the contractor shall arrange for transport. The risk of storage, loading, transport and unloading, among other things, shall be borne by the client in that case as well. Client can insure himself against these risks.
6.3. If there is a trade-in and the Client retains the item to be traded in while awaiting delivery of the new item, the risk in relation to the item to be traded in shall remain with the Client until such time as the Client has placed it in the Supplier’s possession. If the customer cannot deliver the item to be exchanged in the condition it was in when the agreement was concluded, the contracted party may dissolve the agreement.
Article 7: Price changes
The Contractor is entitled to pass on to the Client any increases in cost-determining factors that occur after the Agreement has been concluded. The Client is obliged to pay the price increase at the Contractor’s first request.
Article 8: Force majeure
8.1. A failure in the performance of his obligations cannot be attributed to the contractor if this 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 Principal depends, fail to fulfil their obligations or fail to do so in good time, weather conditions, acts of nature, terrorism, cybercrime, disruption of the digital infrastructure, fire, power failure, loss, theft or loss of tools, materials or information, road blocks, strikes or work stoppages and import or trade restrictions.
8.3. The Contractor shall be entitled to suspend the fulfillment of his obligations if he is temporarily prevented from fulfilling his obligations towards the Client due to force majeure. If the situation of force majeure has ceased to exist, the Contractor shall fulfil his obligations as soon as his schedule permits.
8.4. If there is a situation of force majeure and performance is or becomes permanently impossible, or if the temporary situation of force majeure has lasted for more than six months, the contracted party will be authorised to dissolve all or part of the agreement with immediate effect. In such cases, the Client is authorised to dissolve the Agreement with immediate effect, but only in respect of that part of the obligations not yet fulfilled by the Contractor.
8.5. The parties shall not be entitled to compensation for damage suffered or to be suffered as a result of the force majeure, suspension or dissolution within the meaning of this Article.
Article 9: Scope of work
9.1. The Client must ensure that all permits, exemptions and other decisions necessary to carry out the work are obtained in good time. The Client shall be obliged to send the Contractor a copy of the aforementioned documents at the latter’s first request.
9.2. Unless otherwise agreed in writing, the work does not include
a. earth moving, pile driving, demolition, foundation work, masonry, carpentry, plastering, painting, wallpapering, repair or other
construction work;
b. providing connections for gas, water, electricity,
Internet or other infrastructural facilities;
Internet or other infrastructural facilities;
theft or loss of items present at or near the workplace; or
d. removal of materials, building materials or waste;
e. vertical and horizontal transport;
Article 10: Additional work
10.1. Changes to the work shall in any case result in additional work if: a. there is a change in the design, the specifications
or the specifications;
b. the information provided by the customer does not correspond to the information that was provided by the customer.
corresponds to 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 when the additional work is carried out. The Client is obliged to pay the price of the additional work at the Contractor’s first request.
Article 11: Execution of the work
11.1. The Client shall ensure that the Contractor can perform his work without interruption and at the agreed time and that he has access to the necessary facilities for the performance of his work, such as:
a. gas, water, electricity and internet;
b. heating;
c. lockable dry storage space;
d. prescribed on the basis of the Working Conditions Act and regulations
facilities.
11.2. The Client bears the risk and is liable for damage to and theft or loss of property of the Contractor, the Client and third parties, such as tools, materials intended for the work or materials used in the work, which are located at or near the location 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 is obliged to take out adequate insurance against the risks referred to in that paragraph. In addition, the client must ensure that the equipment to be used is insured against the work risk. The Principal shall send the Contractor a copy of the relevant insurance policy or policies and proof of payment of the premium upon first request. If there is any damage, the client is obliged to report this immediately to his insurer for further treatment and settlement.
Article 12: Completion of the work
12.1. The work is considered completed in the following cases:
a. if the client has approved the work;
b. if the work is put into use by the customer. If the client puts part of the work into use, then that part will be charged to the client.
part is considered delivered;
c. if the contractor has notified the customer in writing that he is
that the work has been completed and the client has not communicated in writing within 14 days after the day of the communication that the work has not been approved;
d. if the Client does not approve the work on account of minor defects or missing parts which can be repaired or provided within 30 days and which do not prevent the work from being put into use.
12.2. If the Principal does not approve the work, he shall be obliged to inform the Contractor thereof in writing, stating the reasons. The Client must give the Contractor the opportunity to complete the work as yet.
12.3. The Client indemnifies the Supplier against claims from third parties for damage to parts of the work that have not yet been completed that are 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 be obliged to fulfil its contractual obligations with due observance of Article 14.
13.2. The obligation of the Contractor to compensate damage on any grounds whatsoever shall be limited to the damage for which the Contractor is insured under an insurance policy taken out by or on behalf of the Contractor. However, the extent of this obligation shall never exceed the amount paid out under this insurance in the relevant case.
13.3. If, for whatever reason, the contractor is unable to invoke paragraph 2 of this article, the obligation to pay compensation for damages shall be limited to a maximum of 15% of the total order sum (excluding VAT). If the agreement consists of parts or partial deliveries, this obligation shall be limited to a maximum of 15% (exclusive of VAT) of the order price of that part or partial delivery. In the case of continuing contracts, the obligation to compensate damage shall be limited to a maximum of 15% (exclusive of VAT) of the purchase price payable in the twelve months preceding the event causing the damage.
13.4. Not eligible for reimbursement:
a. consequential loss. Consequential damages include
This is understood to mean damage caused by stagnation, loss of production, loss of profit, fines, transport costs and travel and accommodation costs;
b. property damage. The term ‘supervision damage’ includes damage caused, during or as a result of the performance of the work, to objects on which work is being carried out or to objects situated in the vicinity of the work site;
c. damages caused by intent or gross negligence on the part of helpers or non-management employees of the contractor.
Client can insure himself against these damages if possible.
13.5. The Contractor is not 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 indemnifies 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 and of which the products or materials supplied by the contractor are a part. The Client shall be obliged to compensate all damage suffered by the Contractor in this connection, including the (full) costs of defence.
Article 14: Guarantee and other claims
14.1. Unless otherwise agreed in writing, the Contractor shall guarantee 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 on different guarantee conditions, the provisions of this Article shall apply in full, unless this is in conflict with those different guarantee conditions.
14.3. If the agreed performance has not been carried out in a sound manner, the contractor shall choose within a reasonable period whether to carry out the performance in a sound manner or to credit the principal for a proportionate part of the order.
14.4. If the Contractor chooses to carry out the performance in a proper manner as yet, he shall determine the manner and time of performance. The Client must in all cases give the Contractor the opportunity to do so. If the agreed performance (partly) consists of the processing of material supplied by the client, the client shall supply new material at his own expense and risk.
14.5. Parts or materials which are to be repaired or replaced by the Contractor must be sent to him by the Client.
14.6 The following shall be for the account of the Principal: a. all transport or shipping costs;
b. costs for disassembly and assembly; c. travel and subsistence costs and travelling time.
14.7. The Contractor shall only be obliged to perform the guarantee if the Client has fulfilled all its obligations.
14.8. a. Guarantee is excluded for defects that are the result of – normal wear and tear;
– improper use;
– maintenance not carried out or carried out incorrectly;
– installation, assembly, modification or repair by the client
or by third parties;
– defects in or unsuitability of goods originating from, or
prescribed by the client;
-defects in or unsuitability of the equipment used by the client;
materials or aids used.
b. No guarantee is given on:
– delivered which were not new at the time of
delivery;
– parts for which a manufacturer’s warranty has been granted.
14.9. The provisions of paragraphs 3 to 8 of this Article shall apply accordingly to any claims by the Commissioning Party based on breach of contract, non-conformity or any other grounds whatsoever.
Article 15: Duty to complain
15.1. The Client may not invoke defects in the product or service unless a written complaint has been submitted to the Supplier within fourteen days after the defect was detected or should, within reason, have been detected.
15.2. The Client must submit complaints about the invoice to the Contractor in writing within the payment period, on pain of forfeiture of all rights. If the term of payment is longer than thirty days, the client must have complained in writing within thirty days of the invoice date.
Article 16: Uncollected goods
16.1. After the delivery period or implementation period has elapsed, the Customer is obliged to actually take delivery of the item(s) which is (are) the subject of the agreement at the agreed location.
16.2. The Client must cooperate in every way, free of charge, to enable the Supplier to effect the delivery.
16.3. Uncollected goods shall be stored at the expense and risk of the client.
16.4. In the event of an infringement of the provisions of paragraphs 1 or 2 of this Article, the Client will be liable to pay the Contractor, after the Contractor has given him notice of default, a penalty of €250 for each day of infringement, subject to a maximum of €25,000. This fine can 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 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 fulfil its payment obligation, it shall be obliged, instead of paying the agreed amount of money, to comply with the Contractor’s request for payment in instalments.
17.4. The Client’s right to set off claims against the Contractor or to suspend the performance of its obligations is excluded, unless the Contractor has been granted a suspension of payments or been declared bankrupt or is subject to statutory debt rescheduling.
17.5. Regardless of whether the Contractor has fully performed the agreed performance, everything that the Client owes or will owe under the Agreement will be immediately due and payable if:
a. a payment deadline has been exceeded;
b. the client does not comply with his obligations under article 16; c. the bankruptcy or suspension of payments of the company’s
The client has applied for it;
d. seizure of goods or claims of client is made
laid;
e. the client (company) is dissolved or liquidated
quipped;
f. the client (natural person) requests that the
is admitted to legal debt rescheduling, is placed under guardianship or has died.
17.6. In the event of late payment of a sum of money, the Client shall owe the Supplier interest on that sum of money with effect from the day following the date agreed as the last 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 date for payment, the interest shall be due from 30 days after the due date. The interest rate is 12% per annum, but is equal to the statutory interest rate if this is higher. In the interest calculation, a part of the 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 on the Client. In addition, the Contractor shall be entitled to set off its claims on the Client against debts which companies affiliated with the Contractor have to the Client. Furthermore, the Contractor shall be entitled to set off his debts to the Client against claims on companies affiliated with the Client. Affiliated companies shall mean all companies belonging to the same group as defined in Article 2:24b of the Dutch Civil Code and a participation as defined in Article 2:24c of the Dutch Civil Code.
17.8. If payment is not made on time, the Client is liable to pay the Supplier all extrajudicial costs, to a minimum of €75.
These costs are calculated on the basis of the following table (principal amount including interest):
about the first
Over and above the over and above the over and above the over and above the over and above the over and above the over and above
€ 3.000,- 15% € 6.000,- 10% € 15.000,- 8% € 60.000,- 5% € 60.000,- 3%
The actual extrajudicial costs incurred shall be due, if they are higher than those resulting from the above calculation.
17.9. If the contractor is fully or largely successful in legal proceedings, all costs incurred by him in connection with those proceedings shall be borne by the customer.
Article 18: Securities
18.1. Regardless of the agreed payment conditions, the Client shall be obliged, at the Supplier’s first request, to provide sufficient security for payment, at the Supplier’s discretion. If the client fails to do so within the set period, he shall be immediately in default. In that case, the Contractor shall 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 customer:
a. has not fulfilled his obligations under any agreement with the Contractor;
b. has not paid claims arising from the non-fulfilment of the above agreements, such as damages, penalties, interest and costs.
18.3. As long as any goods delivered are subject to retention of title, Client may not encumber or dispose of them other than in the normal course of its business. This clause has effect on the law of property.
18.4. After the contractor has invoked his reservation of title, he may take back the delivered goods. Client shall render all assistance in this respect.
18.5. If, after the goods have been delivered to the contractor in accordance with the agreement, the customer has fulfilled his obligations, the retention of title in respect of these goods shall revive if the customer fails to 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 which it has or will have in its possession, for whatever reason, and in respect of all claims which it has or may have on the Client.
Article 19: Intellectual property rights
19.1. The Contractor shall be regarded as the maker, designer or inventor of the works, models or inventions created within the scope of the Agreement. The Contractor therefore has the exclusive right to apply for a patent, trademark or design.
19.2. The Contractor does not transfer any intellectual property rights to the Client during the performance of the Agreement.
19.3. If the performance to be provided by the Contractor consists of or includes the supply of computer software, the source code shall not be transferred to the Client. Customer shall acquire a non-exclusive, worldwide and perpetual user’s licence to the computer software solely for the purpose of normal use and proper functioning of the item. The client is not permitted to transfer the licence or to issue a sublicense. If the Client sells the item to a third party, the licence shall pass to the acquirer of the item by operation of law.
19.4. The Contractor is not liable for any 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 in respect of an infringement of intellectual property rights.
Article 20: Transfer of rights or obligations
The Client may not transfer or pledge rights or obligations under any article of these General Terms and Conditions or the underlying agreement(s), except with the Supplier’s prior written consent. This clause has effect on the law of property.
Article 21: Termination or cancellation of the agreement
21.1. The customer is not authorised to cancel or terminate the agreement, unless the contractor agrees. In the event that the contractor agrees, the client shall owe the contractor an immediately payable fee in the amount of the agreed price, minus the savings resulting for the contractor from the termination. The compensation shall amount to at least 20% of the agreed price.
21.2. If the price is made dependent on the costs actually incurred by the contractor (cost-plus basis), the payment as referred to in the first paragraph of this article shall be estimated at the sum of the costs, working hours and profit which the contractor would be expected to incur for the entire order.
Article 22: Applicable law and competent court
22.1. Dutch law shall apply.
22.2. The Vienna Convention on Contracts for the International Sale of Goods (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 that has jurisdiction in the place of establishment of the contractor will take cognisance of any disputes. The Contractor may deviate from this rule of authority and apply the statutory rules of authority.