General terms and conditions of delivery and payment issued by Koninklijke Metaalunie (the Dutch organisation of small and medium-sized enterprises in the metal industry), referred to as METAALUNIE CONDITIONS, formerly SMECOMA CONDITIONS, filed at the Registry of the District Court in Rotterdam on 1 January 2008. Issued by Koninklijke Metaalunie, P.O. Box 2600, 3430 GA Nieuwegein. © Koninklijke Metaalunie
Article 1: Applicability
1.1. These conditions apply to all offers made by members of Koninklijke Metaalunie, to all agreements concluded by them, and to all agreements that may result therefrom.
1.2. The offeror/supplier is the Metaalunie member using these conditions. This party is referred to as the contractor. The other party is referred to as the client.
1.3. In the event of a conflict between the contents of the agreement concluded between the client and the contractor and these general terms and conditions, the provisions of the agreement shall prevail.
1.4. These conditions may only be used by members of Koninklijke Metaalunie.
Article 2: Offers
2.1. All offers are without obligation.
2.2. If the client provides data, drawings, etc. to the contractor, the contractor may assume the accuracy thereof and shall base its offer on them.
2.3. The prices stated in the offer are based on delivery ex works, "Ex Works", in accordance with Incoterms 2000. Prices are exclusive of value-added tax (VAT) and packaging.
2.4. If its offer is not accepted, the contractor has the right to charge the client for all costs incurred in order to make its offer.
Article 3: Intellectual Property Rights
3.1. Unless agreed otherwise in writing, the contractor retains the copyrights and all industrial property rights in the offers made, designs provided, illustrations, drawings, (test) models, software, etc., provided by it.
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 costs for their creation. These data may not be copied, used, or shown to third parties without the prior express written consent of the contractor. The client shall owe the contractor a penalty of €25,000 per violation of this provision. This penalty may be claimed in addition to compensation pursuant to the law.
3.3. The client must return the data provided to it as referred to in paragraph 1 upon first request within the period set by the contractor. In the event of a violation of this provision, the client shall owe the contractor a penalty of €1,000 per day. This penalty may be claimed in addition to compensation pursuant to the law.
Article 4: Advice, Designs, and Materials
4.1. The client cannot derive any rights from advice and information received from the contractor if this does not directly relate to the order.
4.2. The client is responsible for the drawings, calculations, and designs made by or on its behalf, as well as for the functional suitability of materials prescribed by or on its behalf.
4.3. The client indemnifies the contractor against any third-party claim regarding the use of drawings, calculations, designs, materials, samples, models, and the like provided by or on behalf of the client.
4.4. The client may, at its own expense, examine (or have examined) the materials that the contractor wishes to use before they are processed. If the contractor suffers damage as a result, this shall be for the account of the client.
Article 5: Delivery Time
5.1. The delivery time and/or execution period shall be determined approximately by the contractor.
5.2. In determining the delivery time and/or execution period, the contractor assumes that it can execute the order under the circumstances known to it at that time.
5.3. The delivery time and/or execution period only commences once agreement has been reached on all commercial and technical details, all necessary data, final, approved drawings, etc., are in the possession of the contractor, the agreed (instalment) payment has been received, and the necessary conditions for the execution of the order have been met.
5.4.
a. If circumstances other than those known to the contractor when setting the delivery time and/or execution period occur, the contractor may extend the delivery time and/or execution period by the time required to execute the order under these circumstances. If the work cannot be fitted into the contractor's planning, it shall be carried out as soon as its planning permits.
b. In the event of additional work, the delivery time and/or execution period shall be extended by the time needed to deliver (or have delivered) the materials and parts required for this and to perform the additional work. If the additional work cannot be fitted into the contractor's planning, the work shall be carried out as soon as its planning permits.
c. In the event of suspension of obligations by the contractor, the delivery time and/or execution period shall be extended by the duration of the suspension. If continuation of the work cannot be fitted into the contractor's planning, the work shall be carried out as soon as its planning permits.
d. In the event of unworkable weather, the delivery time and/or execution period shall be extended by the delay caused thereby.
5.5. Exceeding the agreed delivery time and/or execution period does not under any circumstances entitle the client to compensation, unless agreed otherwise in writing.
Article 6: Transfer of Risk
6.1. Delivery takes place ex works, "Ex Works", in accordance with Incoterms 2000; the risk in the goods passes at the moment the contractor makes them available to the client.
6.2. Notwithstanding the provisions of the preceding paragraph, the client and the contractor may agree that the contractor shall arrange for transport. The risk of storage, loading, transport, and unloading remains with the client in that case as well. The client may insure itself against these risks.
6.3. In the event of a trade-in and the client continues to use the item to be traded in pending delivery of the new item, the risk in the item to be traded in remains with the client until it has placed it in the possession of the contractor.
Article 7: Price Changes
7.1. An increase in cost-determining factors arising after the conclusion of the agreement may be passed on by the contractor to the client if performance of the agreement has not been completed at the time of the increase.
7.2. The client is obliged to pay the price increase as referred to in paragraph 1 simultaneously with payment of the principal sum or the next agreed payment instalment.
7.3. If goods are delivered by the client and the contractor is willing to use them, the contractor may charge a maximum of 20% of the market price of the delivered goods.
Article 8: Impracticability of the Order
8.1. The contractor has the right to suspend performance of its obligations if it is temporarily prevented from fulfilling its obligations due to circumstances that could not be expected upon concluding the agreement and that are beyond its control.
8.2. Circumstances that could not be expected by the contractor and that are beyond its control include, among other things, failure by suppliers and/or subcontractors of the contractor to meet their obligations or to do so on time, weather conditions, earthquakes, fire, loss or theft of tools, destruction of materials to be processed, road blockades, strikes or work stoppages, and import or trade restrictions.
8.3. The contractor is no longer authorized to suspend performance if the temporary impossibility to perform has lasted for more than six months. The agreement may only be dissolved after the expiry of this period and exclusively for that part of the obligations that has not yet been performed. In that case, the parties shall not be entitled to compensation for damage suffered or to be suffered as a result of the dissolution.
Article 9: Scope of the Work
9.1. The client must ensure that all permits, exemptions, and other decisions required to perform the work are obtained in a timely manner.
9.2. The price of the work does not include:
a. costs for excavation, pile-driving, demolition, breaking, foundation, masonry, carpentry, plastering, painting, paperhanging, repair, or other construction work;
b. costs for connection of gas, water, electricity, or other infrastructural facilities;
c. costs to prevent or limit damage to property located at or near the work;
d. costs for the disposal of materials, building materials, or waste;
e. travel and accommodation expenses.
Article 10: Changes in the Work
10.1. Changes in the work shall in any case result in additional or reduced work if:
a. there is a change in the design, specifications, or contract documents;
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 on the basis of the value of the price-determining factors applying at the time the additional work is performed. Reduced work is settled on the basis of the value of the price-determining factors applying at the time the agreement was concluded.
10.3. If the balance of reduced work exceeds that of additional work, the contractor may charge the client 10% of the difference in the balances in the final settlement. This provision does not apply to reduced work resulting from a request by the contractor.
Article 11: Execution 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 performing its work it is provided with the necessary facilities, such as:
gas, water, and electricity;
heating;
lockable dry storage space;
facilities prescribed under the Working Conditions Act (Arbowet) and regulations.
11.2. The client is liable for all damage, including as a result of loss, theft, fire, or damage, to property of the contractor, the client, and/or third parties, such as tools and materials intended for the work, located at the place where the work is performed or at another agreed place.
11.3. If the client fails to meet its obligations as described in the preceding paragraphs and delay occurs in the execution of the work as a result, the work shall be carried out as soon as the client meets all its obligations after all and the contractor's planning permits this. The client is liable for all damage suffered by the contractor arising from the delay.
Article 12: Completion of the Work
12.1. The work shall be considered completed when:
a. the client has approved the work;
b. the work has been taken into use by the client. If the client takes part of the work into use, that part shall be considered completed;
c. the contractor has notified the client in writing that the work is completed and the client has not made known in writing within 14 days after the notification whether or not the work has been approved;
d. the client does not approve the work on the grounds of minor defects or missing parts that can be repaired or delivered within 30 days and which do not prevent the work from being taken into use.
12.2. If the client does not approve the work, it is obliged to notify the contractor of this in writing, stating reasons.
12.3. If the client does not approve the work, it shall give the contractor the opportunity to deliver the work again. The provisions of this article shall apply again thereto.
12.4. The client indemnifies the contractor against claims from third parties for damage to uncompleted parts of the work caused by the use of parts of the work that have already been completed.
Article 13: Liability
13.1. The contractor is liable for damage suffered by the client that is the direct and sole consequence of an attributable failure by the contractor. However, only damage against which the contractor is insured, or reasonably should have been insured, is eligible for compensation.
13.2. If it is not possible for the contractor to take out insurance as referred to in paragraph 1 at the time of entering into the agreement or to renew it thereafter on reasonable terms, compensation for damage is limited to the amount charged by the contractor for the agreement in question (excluding VAT).
13.3. The following are not eligible for compensation:
a. consequential loss, including for example business interruption loss and lost profit. The client should insure itself against this loss if desired;
b. damage to property in the custody of the contractor (opzichtschade). This includes damage caused by or during the execution of the work to items being worked on or items located in the vicinity of the workplace. The client should insure itself against this damage if desired;
c. damage caused by intent or deliberate recklessness of auxiliary persons or non-managerial subordinates of the contractor.
13.4. The contractor is not liable for damage to material supplied by or on behalf of the client as a result of improper processing. At the client's request, the contractor will repeat the processing using new material supplied by the client at the client's expense.
13.5. The client indemnifies the contractor against all third-party claims for product liability as a result of a defect in a product delivered by the client to a third party that consisted (in part) of products and/or materials supplied by the contractor.
Article 14: Guarantee
14.1. The contractor guarantees the proper performance of the agreed service for a period of six months after delivery/completion.
14.2. If the agreed service consists of contracting work, the contractor guarantees the soundness of the structure delivered and the material used for the period referred to in paragraph 1, provided it was free to choose them. If it turns out that the delivered structure and/or used material are not sound, the contractor shall repair or replace them. The parts that are repaired or replaced by the contractor must be sent carriage paid to the contractor. Disassembly and assembly of these parts and any travel and accommodation expenses incurred shall be for the account of the client.
14.3. If the agreed service consists (in part) of processing material supplied by the client, the contractor guarantees the soundness of the processing performed for the period referred to in paragraph 1. If it turns out that processing was not properly performed, the contractor shall choose whether to:
repeat the processing. In that case, the client must supply new material at its own expense;
repair the defect. In that case, the client must return the material carriage paid to the contractor;
credit the client for a proportionate part of the invoice.
14.4. If the agreed service consists of the delivery of a good, the contractor guarantees the soundness of the delivered good during the period referred to in paragraph 1. If it turns out that the delivery was not sound, the good must be returned carriage paid to the contractor. The contractor shall then choose whether to:
repair the good;
replace the good;
credit the client for a proportionate part of the invoice.
14.5. If the agreed service consists (in part) of the installation and/or assembly of a delivered good, the contractor guarantees the soundness of the installation and/or assembly for the period referred to in paragraph 1. If it turns out that the installation and/or assembly was not properly performed, the contractor shall repair it. Any travel and accommodation expenses incurred shall be for the account of the client.
14.6. Factory warranty applies to those parts for which the client and contractor have explicitly agreed in writing. If the client has had the opportunity to take note of the contents of the factory warranty, this shall replace warranty under this article.
14.7. The client must in all cases afford the contractor the opportunity to repair any defect and/or repeat the processing.
14.8. The client can only invoke a warranty after it has fulfilled all its obligations towards the contractor.
14.9.
a. No warranty is given if defects are the result of:
normal wear and tear;
improper use;
lack of or incorrectly performed maintenance;
installation, assembly, alteration, or repair by the client or by third parties.
b. No warranty is given on delivered items that were not new at the time of delivery or on items prescribed by the client or supplied by or on its behalf;
c. No warranty is given on the inspection and/or repair of items belonging to the client.
Article 15: Complaints
The client can no longer invoke a defect in performance if it has not complained in writing to the contractor within fourteen days after it discovered or reasonably should have discovered the defect.
Article 16: Uncollected Items
If items have not been collected after the expiry of the delivery period, they shall remain at the disposal of the client. Uncollected items shall be stored at the expense and risk of the client. The contractor may at all times exercise the power under Article 6:90 of the Dutch Civil Code.
Article 17: Payment
17.1. Payment shall be made at the place of business of the contractor or to an account designated by the contractor.
17.2. Unless agreed otherwise, payment shall be made as follows:
a. over-the-counter sales: cash;
b. instalment payments:
40% of the total price upon order;
50% of the total price after delivery of the material or, if delivery of material is not included in the order, after commencement of work;
10% of the total price upon completion;
c. in all other cases: within thirty days of the invoice date.
17.3. Regardless of the agreed payment terms, the client is obliged, at the request of the contractor, to provide security for payment deemed sufficient by the contractor. If the client fails to do so within the set period, it shall immediately be in default. In that case, the contractor has the right to dissolve the agreement and recover its damage from the client.
17.4. The client's right to set off its claims against the contractor is excluded, unless the contractor is bankrupt or statutory debt restructuring applies to the contractor.
17.5. The full claim for payment is immediately due and payable if:
a. a payment deadline has been exceeded;
b. the client has gone bankrupt or applies for a suspension of payments;
c. attachment is levied on property or claims of the client;
d. the client (company) is dissolved or liquidated;
e. the client (natural person) applies to be admitted to statutory debt restructuring, is placed under guardianship, or dies.
17.6. If payment has not taken place within the agreed payment period, the client shall immediately owe interest to the contractor. The interest rate is 12% per annum, but equal to the statutory interest rate if this is higher. In calculating interest, part of a month is considered a full month.
17.7. If payment has not taken place within the agreed payment period, the client shall owe the contractor all extrajudicial collection costs with a minimum of €75. The costs are calculated based on the following table:
on the first €3,000: 15%
on the excess up to €6,000: 10%
on the excess up to €15,000: 8%
on the excess up to €60,000: 5%
on the excess over €60,000: 3%
If the actual extrajudicial costs incurred are higher than follows from the above calculation, the actual costs incurred shall be due.
17.8. If the contractor is held to be in the right in legal proceedings, all costs incurred by it in connection with these proceedings shall be borne by the client.
Article 18: Retention of Title and Pledge
18.1. After delivery, the contractor remains the owner of delivered items as long as the client:
a. fails or will fail in the performance of its obligations under this agreement or other similar agreements;
b. does not pay or will not pay for work performed or still to be performed under such agreements;
c. has not settled claims arising from non-performance of the above-mentioned agreements, such as damage, penalty, interest, and costs.
18.2. As long as delivered items are subject to retention of title, the client may not encumber them outside its normal business operations.
18.3. After the contractor has invoked its retention of title, it may repossess the delivered items. The client shall allow the contractor to enter the place where these items are located.
18.4. If the contractor cannot invoke its retention of title because the delivered items have been mixed, converted, or accessioned, the client is obliged to pledge the newly formed items to the contractor.
Article 19: Termination
If the client wishes to dissolve the agreement without there being any failure on the part of the contractor and the contractor agrees to this, the agreement shall be terminated by mutual consent. In that case, the contractor shall be entitled to compensation for all financial loss, such as loss suffered, lost profit, and costs incurred.
Article 20: Applicable Law and Competent Court
20.1. Dutch law applies.
20.2. The Vienna Sales Convention (C.I.S.G.) does not apply, nor does any other international regulation whose exclusion is permitted.
20.3. Only the Dutch civil court having jurisdiction in the contractor's place of business shall take cognizance of disputes, unless this conflicts with mandatory law. The contractor may deviate from this rule of jurisdiction and apply the statutory rules of jurisdiction.
20.4. The parties may agree on another form of dispute resolution, such as arbitration or mediation.
