General terms and conditions

1.1 These terms and conditions apply to all offers made by a member of Koninklijke Metaalunie, to all agreements concluded by such member, and to all agreements resulting therefrom, insofar as the Metaalunie member is the supplier.

1.2 The Metaalunie member applying these terms and conditions is referred to as the contractor. The other party is referred to as the client.

1.3 In the event of any 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 prevail.

1.4 These terms and conditions may only be used by members of Koninklijke Metaalunie.

2.1 All offers are non-binding.

2.2 If the client provides the contractor with data, drawings, and the like, the contractor may rely on their accuracy and completeness and base its offer on them.

2.3 The prices stated in the offer are based on delivery ex works, contractor’s place of establishment, in accordance with Incoterms 2010. Prices are exclusive of VAT and packaging.

2.4 If the client does not accept the contractor’s offer, the contractor is entitled to charge the client for all costs incurred in making the offer.

3.1 Unless otherwise agreed in writing, the contractor retains the copyrights and all industrial property rights to the offers made, designs provided, illustrations, drawings, (test) models, software, and the like.

3.2 The rights to the data referred to in paragraph 1 remain the property of the contractor, regardless of whether the client has been charged for their production. These data may not be copied, used, or disclosed to third parties without the contractor’s prior express written consent. For each violation of this provision, the client owes the contractor an immediately payable penalty of €25,000. This penalty is in addition to any damages under the law.

3.3 The client must return the data referred to in paragraph 1 upon the contractor’s first request within the period specified by the contractor. For each day the client fails to comply, the client owes the contractor an immediately payable penalty of €1,000. This penalty is in addition to any damages under the law.

4.1 The client cannot derive any rights from advice and information provided by the contractor if they do not relate to the assignment.

4.2 If the client provides the contractor with data, drawings, and the like, the contractor may rely on their accuracy and completeness in executing the agreement.

4.3 The client indemnifies the contractor against any claims from third parties relating to the use of advice, drawings, calculations, designs, materials, samples, models, and the like provided by or on behalf of the client.

5.1 The delivery time and/or execution period are estimated by the contractor.

5.2 In determining the delivery time and/or execution period, the contractor assumes that it can execute the assignment under the circumstances known to it at that time.

5.3 The delivery time and/or execution period commence only after all commercial and technical details have been agreed upon, all necessary data, final and approved drawings, and the like are in the contractor’s possession, the agreed (installment) payment has been received, and the necessary conditions for executing the assignment have been met.

5.4 a. If circumstances differ from those known to the contractor when determining the delivery time and/or execution period, the contractor may extend the delivery time and/or execution period by the time necessary to execute the assignment under these circumstances. If the work cannot be scheduled, it will be performed as soon as the contractor’s schedule permits.

b. In the event of additional work, the delivery time and/or execution period will be extended by the time necessary to deliver or have delivered the materials and parts required for the additional work and to perform the additional work. If the additional work cannot be scheduled, it will be performed as soon as the contractor’s schedule permits.

c. If the contractor’s obligations are suspended, the delivery time and/or execution period will be extended by the duration of the suspension. If resumption of the work cannot be scheduled, it will be performed as soon as the contractor’s schedule permits.

d. In the event of unworkable weather, the delivery time and/or execution period will be extended by the resulting delay.

5.5 The client is obliged to pay all costs incurred by the contractor due to a delay in the delivery time and/or execution period as mentioned in paragraph 4 of this article.

5.6 Exceeding the delivery time and/or execution period does not entitle the client to compensation or dissolution.

6.1 Delivery takes place ex works, contractor’s place of establishment, in accordance with Incoterms 2010. The risk of the item transfers at the moment the contractor makes it available to the client.

6.2 Notwithstanding paragraph 1, the client and contractor may agree that the contractor arranges transport. In that case, the risk of storage, loading, transport, and unloading lies with the client. The client may insure against these risks.

6.3 If there is a trade-in and the client retains the item to be traded in pending delivery of the new item, the risk of the item to be traded in remains with the client until it is in the contractor’s possession. If the client cannot deliver the item to be traded in in the condition it was in when the agreement was concluded, the contractor may dissolve the agreement.

7.1 The contractor may pass on to the client any increase in cost-determining factors that occurs after the agreement is concluded.

7.2 The client is obliged to pay the price increase referred to in paragraph 1 at the contractor’s discretion at one of the following times:

a. when the price increase occurs;

b. simultaneously with payment of the principal sum;

c. at the next agreed payment term.

8.1 The contractor has the right to suspend the fulfilment of his obligations if he is temporarily prevented from fulfilling his contractual obligations towards the client due to force majeure.​

8.2 Force majeure includes, among other things, the circumstance that suppliers, subcontractors of the contractor, or transporters engaged by the contractor do not or do not timely fulfil their obligations; weather conditions; earthquakes; fire; power failure; loss, theft, or loss of tools or materials; road blockades; strikes or work stoppages; and import or trade restrictions.​

8.3 The contractor is no longer entitled to suspension if the temporary impossibility of performance has lasted more than six months. The client and contractor may terminate the agreement with immediate effect after this period, but only for the part of the obligations that has not yet been fulfilled.​

8.4 If there is a case of force majeure and performance becomes permanently impossible, both parties are entitled to terminate the agreement with immediate effect for the part of the obligations that has not yet been fulfilled.​

8.5 The parties are not entitled to compensation for damages suffered or to be suffered as a result of the suspension or termination within the meaning of this article.

9.1 The client must ensure that all permits, exemptions, and other decisions necessary to carry out the work are obtained in time. The client is obliged to send the contractor a copy of the aforementioned documents upon first request.​

9.2 The price of the work does not include:​

a. the costs for ground, pile-driving, chopping, breaking, foundation, masonry, carpentry, plastering, painting, wallpapering, repair work, or other construction work;​

b. the costs for connection of gas, water, electricity, or other infrastructural facilities;​

c. the costs to prevent or limit damage to items present at or near the work;​

d. the costs for removal of materials, building materials, or waste;​

e. travel and accommodation expenses.

10.1 Changes to the work result in additional or reduced work if:​

a. there is a change in the design, specifications, or contract;​

b. the information provided by the client does not correspond to reality;​

c. estimated quantities deviate by more than 10%.​

10.2 Additional work is calculated based on the price-determining factors applicable at the time the additional work is performed. Reduced work is settled based on the price-determining factors that applied at the time of concluding the agreement.​

10.3 The client is obliged to pay the price of the additional work as referred to in paragraph 1 of this article at one of the following times, at the contractor’s choice:​

a. when the additional work occurs;​

b. simultaneously with payment of the principal sum;​

c. at the next agreed payment term.​

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

11.1 The client ensures that the contractor can perform his work undisturbed and at the agreed time and that he has access to the necessary facilities during the execution of his work, such as:​

a. gas, water, and electricity;​

b. heating;​

c. lockable dry storage space;​

d. facilities prescribed under the Working Conditions Act and regulations.​

11.2 The client bears the risk and is liable for damage related to loss, theft, burning, and damage to items of the contractor, client, and third parties, such as tools, materials intended for the work, or equipment used at the work site or another agreed location.​

11.3 The client is obliged to adequately insure against the risks mentioned in paragraph 2 of this article. The client must also ensure insurance of the work risk of the equipment to be used. The client must send the contractor a copy of the relevant insurance(s) and proof of premium payment upon first request. In case of damage, the client is obliged to report this immediately to his insurer for further handling and settlement.​

11.4 If the client fails to fulfil his obligations as described in the previous paragraphs of this article and this causes a delay in the execution of the work, the work will be carried out once the client has fulfilled all his obligations and the contractor’s schedule allows it. The client is liable for all damages resulting from the delay for the contractor.

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 Client. 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.

13.1. In the event of an attributable failure, the contractor is obliged to fulfil his contractual obligations.​

13.2. The obligation to compensate damages by the contractor, on any legal basis whatsoever, is limited to the damage against which the contractor is insured under an insurance policy taken out by or on behalf of him, but is never higher than the amount paid out under this insurance in the relevant case.​

13.3. If, for any reason, the contractor cannot invoke the limitation in paragraph 2 of this article, the obligation to compensate damages is limited to a maximum of 15% of the total contract amount (excluding VAT). If the agreement consists of parts or partial deliveries, the obligation to compensate damages is limited to a maximum of 15% (excluding VAT) of the contract amount of that part or partial delivery.​

13.4. The following are not eligible for compensation:​

a. consequential damages. Consequential damages include, among other things, stagnation damages, production loss, lost profits, transport costs, and travel and accommodation expenses. The client can insure against these damages if possible;​

b. property damage. Property damage includes, among other things, damage caused during or as a result of the execution of the work to items being worked on or to items located near the place where work is being carried out. The client can insure against these damages if desired;​

c. damage caused by intent or deliberate recklessness of auxiliary persons or non-executive subordinates of the contractor.​

13.5. The contractor is not liable for damage to materials 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 delivered by the client to a third party and which (partly) consisted of products and/or materials supplied by the contractor. The client is obliged to compensate all damages suffered by the contractor in this context, including the (full) costs of defence.

14.1. In the event of an attributable failure, the Contractor is obliged to perform its contractual obligations as yet.

14.2 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.

14.3. 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.

14.4. 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.

14.5. 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.

14.6 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.

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.

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.

17.1. Payment must be made at the contractor’s place of business or to an account designated by the contractor.

17.2. Unless otherwise agreed, payment must be made as follows:
a. in the case of counter sales, payment must be made in cash;
b. in the case of instalment payments:
– 40% of the total price upon order;
– 50% of the total price after delivery of the materials, or if material delivery is not part of the contract, after commencement of the work;
– 10% of the total price upon completion;
c. in all other cases within thirty days of the invoice date.

17.3. If the client fails to meet his payment obligation, he is required, instead of paying the agreed sum, to comply with a request by the contractor for payment in kind.

17.4. The client’s right to offset or suspend claims against the contractor is excluded, unless the contractor is declared bankrupt or statutory debt restructuring applies to the contractor.

17.5. Regardless of whether the contractor has fully performed the agreed service, all amounts payable by the client under the agreement become immediately due and payable if:
a. a payment term has been exceeded;
b. the client has applied for bankruptcy or suspension of payments;
c. an attachment is levied on the client’s assets or claims;
d. the client (a company) is dissolved or liquidated;
e. the client (a natural person) applies for statutory debt restructuring, is placed under guardianship, or has passed away.

17.6. If payment has not been made within the agreed payment term, the client is immediately liable for interest to the contractor. This interest amounts to 12% per annum, but is equal to the statutory interest if this is higher. For interest calculation, part of a month is considered a full month.

17.7. The contractor is entitled to offset his debts to the client against claims of affiliated companies against the client. Additionally, the contractor is entitled to offset his claims against the client with debts of affiliated companies to the client. The contractor is also entitled to offset his debts to the client against claims on companies affiliated with the client. Affiliated companies are defined as those belonging to the same group, as referred to in Article 2:24b of the Dutch Civil Code, and participations as defined in Article 2:24c of the Dutch Civil Code.

17.8. If payment has not been made within the agreed payment term, the client owes the contractor all extrajudicial collection costs, with a minimum of €75. These costs are calculated based on the following table (principal sum including interest):
– 15% on the first €3,000;
– 10% on the excess up to €6,000;
– 8% on the excess up to €15,000;
– 5% on the excess up to €60,000;
– 3% on the excess over €60,000.
If the actual extrajudicial costs are higher than calculated, the client owes the actual costs.

17.9. If the contractor is successful in legal proceedings, all costs incurred in connection with the proceedings will be borne by the client.

18.1. Regardless of the agreed payment terms, 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 time, he is immediately in default. In that case, the contractor is entitled to dissolve the agreement and recover his damages from the client.

18.2. The contractor remains the owner of the delivered goods as long as the client:
a. fails or will fail to fulfil his obligations under this or other agreements;
b. has not paid claims arising from non-fulfilment of the above agreements, such as damages, penalties, interest, and costs.

18.3. As long as there is retention of title on delivered goods, the client may not encumber or dispose of these goods outside the normal course of business.

18.4. Once the contractor invokes his retention of title, he may retrieve the delivered goods. The client is obliged to fully cooperate with this.

18.5. The contractor has a right of pledge and a right of retention on all goods he has or will receive under any agreement for all claims he has or might obtain against the client.

18.6. If the client, after the goods have been delivered according to the agreement by the contractor, fulfils his obligations, the retention of title on these goods revives if the client fails to meet his obligations under a later agreement.

If the client wishes to terminate the agreement without the contractor being in default, and the contractor agrees, the agreement is terminated by mutual consent. In this case, the contractor is entitled to compensation for all financial losses, such as suffered losses, lost profits, and incurred costs.

20.1. Dutch law applies.

20.2. The Vienna Sales Convention (CISG) does not apply, nor does any other international regulation that may be excluded.

20.3. Only the Dutch civil court with jurisdiction in the contractor’s place of business has competence over disputes, unless mandatory law prescribes otherwise. The contractor may deviate from this rule and apply the statutory rules of jurisdiction.