Metal Union terms and conditions January 1, 2019

1.1. These terms and conditions apply to all offers made by a Metaalunie member, to all agreements entered into by such member, and to all agreements resulting therefrom, insofar as the Metaalunie member acts as the supplier and/or contractor.

1.2. The 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 provisions 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 Metaalunie members.

2.1. All offers are without obligation. The contractor has the right to withdraw their offer up to two business days after acceptance has reached them.

2.2. If the client provides information to the contractor, the contractor may assume that this information is accurate and complete, and will base their offer on it.

2.3. The prices stated in the offer are expressed in euros, excluding VAT and other government-imposed levies or taxes. The prices also exclude travel, accommodation, packaging, storage, and transport costs, as well as costs for loading, unloading, and assisting with customs formalities.

3.1. All information provided to the client by or on behalf of the contractor (such as offers, designs, images, drawings, and know-how), of any kind and in any form, is confidential and shall not be used by the client for any purpose other than the performance of the agreement.

3.2. The information referred to in paragraph 1 of this article shall not be disclosed or reproduced by the client.

3.3. If the client breaches any of the obligations referred to in paragraphs 1 and 2 of this article, they shall owe an immediately payable penalty of €25,000 for each violation. This penalty may be claimed in addition to any compensation to which the contractor is entitled under the law.

3.4. The client must, at the first request and within a period set by the contractor, either return or destroy the information referred to in paragraph 1 of this article, at the contractor’s discretion. In the event of a breach of this provision, the client shall owe the contractor an immediately payable penalty of €1,000 per day. This penalty may be claimed in addition to any compensation to which the contractor is entitled under the law.

4.1. The client cannot derive any rights from advice or information provided by the contractor that does not directly relate to the assignment.

4.2. If the client provides information to the contractor, the contractor may rely on its accuracy and completeness when performing the agreement.

4.3. The client shall indemnify the contractor against any claims from third parties relating to the use of advice, drawings, calculations, designs, materials, trademarks, samples, models, and similar items provided by or on behalf of the client. The client shall compensate the contractor for all damages suffered, including all costs incurred in defending against such claims.

5.1. Any stated delivery time or execution period is indicative.

5.2. The delivery time or execution period shall commence only once agreement has been reached on all commercial and technical details, all information—including final and approved drawings, etc.—is in the possession of the contractor, the agreed (partial) payment has been received, and all other conditions for the performance of the assignment have been met.

5.3. If there are:
a. circumstances other than those known to the contractor at the time the delivery period or execution period was specified, the delivery period or execution period shall be extended by the time the contractor, taking into account his planning, requires to carry out the assignment under these circumstances;
b. In the case of additional work, the delivery time or execution period shall be extended by the time the contractor, taking their planning into account, requires to (have) deliver(ed) the materials and components and to perform the additional work;
c. In the event of a suspension of obligations by the contractor, the delivery time or execution period shall be extended by the time the contractor, taking their planning into account, requires to complete the assignment once the reason for the suspension has ceased to exist.

Unless proven otherwise by the client, the duration of the extension of the delivery time or execution period is presumed to be necessary and to result from a situation as referred to above under points a through c.

5.4. The client is obliged to pay all costs incurred by the contractor or compensate any damages suffered by the contractor as a result of a delay in the delivery time or execution period, as referred to in paragraph 3 of this article.

5.5. Exceeding the delivery time or execution period shall in no case entitle the client to compensation or termination of the agreement. The client shall indemnify the contractor against any claims from third parties resulting from the exceeding of the delivery time or execution period.

6.1. Delivery takes place at the moment the contractor makes the item available to the client at the contractor’s business location and has informed the client that the item is at their disposal. From that moment, the client bears, among other things, the risk of the item during storage, loading, transport, and unloading.

6.2. The client and the contractor may agree that the contractor arranges transportation. Even in that case, the risk of storage, loading, transport, and unloading rests with the client. The client may insure against these risks.

6.3. In the case of a trade-in, if the client retains possession of the item to be traded in while awaiting delivery of the new item, the risk of the trade-in item remains with the client until it has been handed over to the contractor. If the client cannot deliver the trade-in item in the condition it was in when the agreement was concluded, the contractor may terminate the agreement.

The contractor may pass on any increase in cost-determining factors that occurs after the conclusion of the agreement to the client. The client is obliged to pay the price increase at the contractor’s first request.

8.1. A failure to fulfill its obligations cannot be attributed to the contractor if this failure is the result of force majeure.

8.2. Force majeure is understood to include, among other things, circumstances in which third parties engaged by the contractor—such as suppliers, subcontractors, and carriers—or other parties on whom the client depends, fail to fulfill their obligations or do so late, as well as weather conditions, natural disasters, terrorism, cybercrime, disruption of digital infrastructure, fire, power outages, loss, theft or misplacement of tools, materials, or information, road blockages, strikes or work stoppages, and import or trade restrictions.

8.3. The contractor has the right to suspend the performance of its obligations if it is temporarily prevented from fulfilling them due to force majeure. Once the force majeure situation has ceased, the contractor shall resume its obligations as soon as its schedule allows.

8.4. If force majeure occurs and performance becomes permanently impossible, or if the temporary force majeure situation lasts more than six months, the contractor is entitled to terminate the agreement in whole or in part with immediate effect. In such cases, the client is entitled to terminate the agreement with immediate effect, but only for the portion of the obligations that have not yet been performed by the contractor.

8.5. Neither party is entitled to compensation for any damage suffered or to be suffered as a result of force majeure, suspension, or termination as referred to in this article.

9.1. The client must ensure that all permits, exemptions, and other authorizations necessary to carry out the work are obtained in a timely manner. The client is obliged, at the contractor’s first request, to provide a copy of the aforementioned documents.

9.2. Unless otherwise agreed in writing, the work does not include:
a. earthworks, piling, cutting, breaking, foundation work, masonry, carpentry, plastering, painting, wallpapering, repair work, or any other construction-related work;
b. the realization of connections for gas, water, electricity, internet, or other infrastructural facilities;
c. measures to prevent or limit damage to, theft of, or loss of items present at or near the work site;
d. the removal of materials, building materials, or waste;
e. vertical and horizontal transport.

10.1. Changes to the work shall in any case result in additional work if:
a. there is a change in the design, specifications, or scope of work;
b. the information provided by the client does not correspond with reality;
c. estimated quantities deviate by more than 5%.

10.2. Additional work is charged based on the cost-determining factors applicable at the time the additional work is performed. The client is obliged to pay the price of the additional work at the contractor’s first request.

11.1. The client shall ensure that the contractor can carry out his work बिना interruption and at the agreed time, and that he has access to the necessary facilities for the execution of his work, such as:
a. gas, water, electricity, and internet;
b. heating;
c. a lockable dry storage space;
d. facilities required under the Working Conditions Act and related regulations.

11.2. The client bears the risk and is liable for any damage to, theft of, or loss of items belonging to the contractor, the client, or third parties such as tools, materials intended for the work, or equipment used during the work located at or near the site where the work is performed or at any other agreed location.

11.3. Without prejudice to the provisions of paragraph 2 of this article, the client is obliged to adequately insure against the risks mentioned in that paragraph. In addition, the client must ensure insurance coverage for the operational risks of any equipment used. The client shall provide the contractor, upon first request, with a copy of the relevant insurance policy(ies) and proof of payment of the premium. In the event of damage, the client is obliged to report it to their insurer without delay for further handling and settlement.

12.1. The work shall be deemed completed in the following cases:
a. if the client has approved the work;
b. if the client has put the work into use. If the client uses part of the work, that part shall be deemed completed;
c. if the contractor has notified the client in writing that the work has been completed and the client has not, within 14 days after the date of the notification, informed the contractor in writing that the work is not approved;
d. if the client does not approve the work due to minor defects or missing parts that can be remedied or delivered within 30 days and that do not prevent the use of the work.

12.2. If the client does not approve the work, they are obliged to notify the contractor in writing, stating the reasons. The client must allow the contractor the opportunity to complete the work.

12.3. The client shall indemnify the contractor against claims from third parties for damage to parts of the work not yet completed, caused by the use of parts of the work that have already been completed.

13.1. In the event of a attributable failure, the contractor is obliged to still fulfill its contractual obligations, taking Article 14 into account.

13.2. The contractor’s obligation to compensate for any damage, on any legal basis, is limited to damage covered by insurance taken out by or for the benefit of the contractor. However, the extent of this obligation shall never exceed the amount paid out under the relevant insurance policy in the specific case.

defects in or unsuitability of materials or tools used by the client.
b. No warranty is provided for:
goods supplied that were not new at the time of delivery;
the inspection and repair of the client’s items;
components for which a manufacturer’s warranty has been granted.

14.1. Unless otherwise agreed in writing, the contractor guarantees the proper performance of the agreed service for a period of six months after (completion of) delivery, as further elaborated in the following paragraphs.

14.2. If the parties have agreed on different warranty conditions, the provisions of this article shall remain in effect, unless they conflict with those agreed-upon warranty conditions.

14.3. If the agreed service has not been properly performed, the contractor shall, within a reasonable period, choose either to properly perform it or to credit the client for a proportionate part of the contract price.

14.4. If the contractor chooses to properly perform the service, they shall determine the manner and timing of execution. In all cases, the client must provide the contractor with the opportunity to do so. If the agreed service included processing materials supplied by the client, the client must provide new materials at their own expense and risk.

14.5. Parts or materials that are to be repaired or replaced by the contractor must be sent to them by the client.

14.6. The following costs shall be borne by the client:
a. all transport or shipping costs;
b. costs for disassembly and assembly;
c. travel and accommodation expenses and travel hours.

14.7. The contractor is only obliged to perform the warranty if the client has fulfilled all of their obligations.

14.8. a. Warranty is excluded for defects resulting from:
normal wear and tear.

14.9. The provisions set out in paragraphs 3 through 8 of this article shall apply mutatis mutandis to any claims by the client based on breach of contract, non-conformity, or any other grounds whatsoever.
improper use;
maintenance that has not been carried out or has been carried out incorrectly;
installation, assembly, modification, or repair carried out by the client or by third parties;
defects in or unsuitability of items supplied by, or prescribed by, the client.

15.1. The client can no longer invoke a defect in the service if they have not submitted a written complaint to the contractor within fourteen days after discovering the defect or after they reasonably should have discovered it.

15.2. The client must submit any complaints regarding the invoice in writing to the contractor within the payment term, under penalty of forfeiting all rights. If the payment term exceeds thirty days, the client must submit a written complaint no later than thirty days after the invoice date.

16.1. The client is obliged, after the expiration of the delivery time or execution period, to physically take delivery of the item or items that are the subject of the agreement at the agreed location.

16.2. The client must provide all cooperation free of charge to enable the contractor to complete the delivery.

16.3. Goods not taken delivery of shall be stored at the client’s expense and risk.

16.4. In the event of a breach of the provisions of paragraphs 1 or 2 of this article, the client shall, after the contractor has given notice of default, owe the contractor a penalty of €250 per day per violation, with a maximum of €25,000. This penalty may be claimed in addition to any compensation to which the contractor is entitled under the law.

17.1. Payment shall be made at the contractor’s place of business or to 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 fulfill their payment obligation, they are required, instead of paying the agreed sum, to comply with a request from the contractor to make the payment.

17.4. The client’s right to set off their claims against the contractor or to suspend the performance of their obligations is excluded, unless the contractor is granted a suspension of payments, declared bankrupt, or subject to statutory debt restructuring.

17.5. Regardless of whether the contractor has fully performed the agreed services, all amounts that the client owes or will owe under the agreement shall become immediately due and payable if:
a. a payment term has been exceeded;
b. the client fails to comply with their obligations under Article 16;
c. the client has applied for bankruptcy or a suspension of payments;
d. an attachment is levied on the client’s assets or claims;
e. the client (legal entity) is dissolved or liquidated;
f. the client (natural person) applies for statutory debt restructuring, is placed under guardianship, or has passed away.

17.6. In the event of a delay in payment, the client shall owe interest on the outstanding amount to the contractor from the day following the agreed due date until the day the client has paid the amount in full. If no due date has been agreed, interest shall be payable from 30 days after the amount becomes due. The interest rate shall be 12% per year, unless the statutory interest rate is higher. For the purpose of calculating interest, any part of a month shall be 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 is entitled to set off its debts to the client against claims of affiliated companies of the contractor on the client. In addition, the contractor is entitled to set off its claims on the client against debts owed to affiliated companies of the contractor by the client. Furthermore, the contractor is entitled to set off its debts to the client against claims on 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 any participation within the meaning of Article 2:24c of the Dutch Civil Code.

17.8. If payment has not been made on time, the client shall owe the contractor all extrajudicial collection costs, with a minimum of €175.
These costs are calculated based on the following scale (principal amount including interest):
15% on the first €3,000;
10% on the amount exceeding €3,000 up to €6,000;
8% on the amount exceeding €6,000 up to €15,000;
5% on the amount exceeding €15,000 up to €60,000;
3% on the amount exceeding €60,000.
The actual extrajudicial costs incurred shall be payable if they exceed the amount calculated above.

17.9. If the contractor is wholly or largely successful in a legal proceeding, all costs incurred by the contractor in connection with that proceeding shall be borne by the client.

18.1. Regardless of the agreed payment terms, the client is obliged, at the contractor’s first request and to the contractor’s satisfaction, to provide adequate security for payment. If the client fails to comply within the stipulated period, they shall be in default immediately. In that case, the contractor has the right to terminate the agreement and recover any damages from the client.

18.2. The contractor shall retain ownership of the delivered goods as long as the client:
a. has not fulfilled their obligations under any agreement with the contractor;
b. has not settled claims arising from the failure to comply with the aforementioned agreements, such as damages, penalties, interest, and costs.

18.3. As long as delivered goods are subject to a retention of title, the client may not encumber or dispose of them outside the normal course of business. This provision has property law effect.

18.4. Once the contractor has invoked their retention of title, they are entitled to reclaim the delivered goods. The client shall provide all necessary cooperation to facilitate this.

18.5. If the client has fulfilled his obligations after the contractor has delivered the goods to him in accordance with the agreement, the retention of title with respect to these goods will be revived if the client fails to fulfil his obligations under a subsequently concluded agreement.

19.1. The contractor is considered the creator, designer, or inventor of the works, models, or inventions created under the agreement. Therefore, the contractor has the exclusive right to apply for a patent, trademark, or model.

19.2. When performing the agreement, the contractor does not transfer any intellectual property rights to the Client.

19.3. If the service to be provided by the contractor consists (partly) of the delivery of computer software, the source code will not be transferred to the client. The client obtains a non-exclusive, worldwide, and perpetual user license to the computer software solely for the normal use and proper functioning of the item. The client is not permitted to transfer the license or grant a sublicense. Upon sale of the item by the client to a third party, the license automatically transfers to the acquirer of the item.

19.4. The contractor is not liable for any damages suffered by the client as a result of an infringement of third-party intellectual property rights. The client indemnifies the contractor against any third-party claims relating to an infringement of intellectual property rights.

The client may not transfer or pledge any rights or obligations under any article of these terms and conditions or the underlying agreement(s) without the prior written consent of the contractor. This clause has effect under property law.

21.1. The client is not authorised to terminate or cancel the agreement unless the contractor agrees to this. If the contractor agrees, the client owes the contractor an immediately due compensation equal to the agreed price, minus the savings resulting from the termination for the contractor. The compensation amounts to at least 20% of the agreed price.

21.2. If the price is dependent on the actual costs to be incurred by the contractor (on a cost-plus basis), the compensation referred to in the first paragraph of this article will be estimated at the sum of the costs, working hours and profit that the contractor would have expected to have made on the entire assignment.

22.1. Dutch law applies.

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 with jurisdiction in the place of business of the contractor shall have jurisdiction over disputes. The contractor may deviate from this jurisdiction rule and apply the statutory jurisdiction rules.