General terms & conditions
Article 1: Applicability
These terms and conditions apply to all offers made by members of the Koninklijke Metaalunie, to all agreements that they conclude and to all agreements that may result from this.
The provider / supplier is the Metaalunie member who uses these conditions. This is referred to as the contractor. The other party is referred to as the client.
In the event of conflict between the content of the agreement concluded between the client and the contractor and these general terms and conditions, the provisions of the agreement apply.
These conditions may only be used by members of the Koninklijke Metaalunie.
Article 2: Offers
2.1. All offers are non-binding.
2.2. If the client provides the contractor with data, drawings, etc., the contractor may assume that these are correct and shall base his offer on this.
2.3. The prices stated in the offer are based on ex-works delivery, "ex works", in accordance with Incoterms 2000. The prices are exclusive of sales tax and packaging.
2.4. If his offer is not accepted, the contractor has the right to charge the client all costs that he has had to incur to make his offer.
Article 3: Intellectual Property Rights
3.1. Unless otherwise agreed in writing, the contractor retains the copyright and all industrial property rights to the offers made, provided designs, images, drawings, (test) models, software, etc.
3.2. The rights to the data referred to in paragraph 1 remain the property of the contractor irrespective of whether costs have been charged to the client for the production thereof. This data may not be copied, used or shown to third parties without the express prior written consent of the contractor. Client is liable to the contractor for a violation of this provision a fine of € 25,000. In addition to compensation under the law, this fine can be claimed.
3.3. The client must return the information provided to him as referred to in paragraph 1 at the first request within the period set by the contractor. If this provision is violated, the client will owe the contractor a penalty of € 1,000 per day. In addition to compensation under the law, this fine can be claimed.
Article 4: Advice, designs and materials
4.1. The client cannot derive any rights from advice and information that he receives from the contractor if they do not relate directly to the assignment.
4.2. Client is responsible for the drawings, calculations, designs made by or on behalf of him and for the functional suitability of materials prescribed by or on behalf of him.
4.3. The client indemnifies the contractor against any claim by third parties with regard to 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 examine the materials that the contractor wishes to use before they are processed for its own account or have them examined. If the contractor suffers damage as a result, this will be borne by the client.
Article 5: Delivery time
5.1. The delivery time and / or execution period are set by the contractor approximately.
5.2. When determining the delivery time and / or execution period, the contractor assumes that he can perform the assignment under the circumstances known to him at that time.
5.3. The delivery time and / or execution period only starts when 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 (installment) payment has been received and the necessary conditions are met. for the execution of the assignment have been met.
5.4. a. If there are circumstances other than those known to the contractor when he established the delivery time and / or execution period, the contractor may extend the delivery time and / or execution period by the time required to perform the assignment under these circumstances. If the work cannot be fitted into the contractor's planning, they will be carried out as soon as his planning permits.
b. If there is additional work, the delivery time and / or execution period will be extended by the time required to deliver the materials and parts for that (and have them delivered) and to perform the additional work. If the additional work cannot be fitted into the contractor's planning, the work will be carried out as soon as the planning permits.
c. If there is a suspension of obligations by the contractor, the delivery time and / or execution period will be extended by the duration of the suspension. As a continuation of the work not in
the contractor's schedule can be fitted, the work will be carried out as soon as the planning permits.
d. If there is unworkable weather, the delivery time and / or execution period will be extended by the resulting delay.
5.5. Exceeding the agreed delivery time and / or execution period will under no circumstances entitle you to compensation, unless this has been agreed in writing.
Article 6: Transfer of risk
6.1. Delivery takes place ex works, "ex works", in accordance with Incoterms 2000; the risk of the item transfers as soon as the contractor makes it available to the client.
6.2. Irrespective of the provisions in the previous paragraph, the client and the contractor may agree that the contractor shall provide for the transport. The risk of storage, loading, transport and unloading also rests on the client in that case. Client can insure itself against these risks.
6.3. If there is a trade-in and the client continues to use the goods to be exchanged pending delivery of the new item, the risk of the item to be exchanged remains with the client until the moment he has placed it in the possession of the contractor.
Article 7: Price change
7.1. An increase in cost-determining factors that arise after the conclusion of the agreement may be charged by the contractor to the client if the fulfillment of the agreement has not yet been completed at the time of the increase.
7.2. Client is obliged to pay the price increase as referred to in paragraph 1 at the same time as payment of the principal sum or the next agreed payment term.
7.3. If goods are supplied by the client and the contractor is prepared to use them, the contractor may charge a maximum of 20% of the market price of the delivered goods.
Article 8: Unfeasibility of the assignment
8.1. The contractor has the right to suspend the fulfillment of his obligations if, due to circumstances that were not expected at the conclusion of the agreement and that are outside his sphere of influence, he is temporarily prevented from fulfilling his obligations.
8.2. Circumstances that could not be expected by the contractor and that are outside its sphere of influence include the circumstance that suppliers and / or subcontractors of the contractor do not meet their obligations, weather conditions, earthquakes, fire or not in a timely manner. loss or theft of tools, loss of materials to be processed, road blocks, strikes or work interruptions and import or trade restrictions.
8.3. Contractor is no longer authorized to suspend if the temporary impossibility to comply has lasted more than six months. The agreement can only be terminated after this period and only for that part of the obligations that has not yet been fulfilled. In that case, the parties are not entitled to compensation for the 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 that are necessary to perform the work have been obtained in time.
9.2 The price of the work does not include:
the costs for earthworks, pile-driving, chopping, breaking, foundation work, brickwork, joinery, plastering, painting, wallpapering, repair or other construction work;
b. the costs for connecting gas, water, electricity or other infrastructure facilities;
c. the costs for preventing or limiting damage to items present at or near the work;
d. the costs for disposal of materials, building materials or waste;
e. travel and accommodation.
Article 10: Changes to the work
10.1. Changes to the work will in any case result in additional or reduced work if:
a. there has been a change in the design, specifications or specifications;
b. the information provided by the client does not correspond to the
reality;
c. from estimated quantities by more than 10%.
10.2. Additional work is calculated based on the value of the price-determining factors that apply at the time the additional work is performed.
Less work is settled on the basis of the value of the price-determining factors that applied at the time of the conclusion of the agreement.
10.3. If the balance of the contract deductions exceeds that of the contract extras, the contractor may charge the client 10% of the difference in the balances. This provision does not apply to less work that is the result of a request from the contractor.
Article 11: Execution of the work
11.1. The client ensures that the contractor can carry out his work undisturbed and at the agreed time and that he is provided with the necessary facilities during the execution of his work, such as:
- gas, water and electricity;
- heating;
- lockable dry storage space;
- provisions prescribed on the basis of the Working Conditions Act and legislation.
11.2. Client is liable for all damage, including as a result of loss, theft, incineration or damage, to goods of contractor, client and / or third parties, such as tools and materials intended for the work, which are located on the site where the work is being performed or at another agreed place.
11.3. If the client does not meet his obligations as described in the previous paragraphs and this causes a delay in the execution of the work, the work will be carried out as soon as the client still meets all his obligations and the planning of the contractor permits this. The client is liable for all damage resulting from the delay for the contractor.
Article 12: Completion of the work
12.1. The work is considered completed when:
the client has approved the work;
b. the work has been put into use by the client. If the client takes part of the work into use, that part will be considered as completed;
c. the contractor has informed the client in writing that the work has been 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 supplied within 30 days and that do not prevent the work from being put into use.
12.2. If the client does not approve the work, he is obliged to make this known to the contractor in writing, stating the reasons.
12.3. If the client does not approve the work, he will give the contractor the opportunity to deliver the work again. The provisions of this article apply to this again.
12.4. The client indemnifies the contractor against claims from third parties for damage to non-completed parts of the work caused by the use of parts that have already been delivered.
Article 13: Liability
13.1. The contractor is liable for damage suffered by the client and which is the direct and exclusive consequence of a shortcoming attributable to the contractor. Reimbursement, however, only qualifies for damage for which the contractor is insured or should have been reasonably insured.
13.2. If at the time of entering into the agreement it is not possible for the contractor to take out insurance as referred to in paragraph 1 or not to extend it at reasonable conditions thereafter, the compensation for the damage is limited to the amount due by contractor for the present agreement (excluding VAT) has been charged.
13.3. The following are not eligible for reimbursement:
business damage including, for example, stagnation damage and lost profit. The client must insure itself against this damage if required;
b. visible damage. Supervision damage is understood to include damage caused by or during the execution of the work to items being worked on or to items that are located in the vicinity of the place where work is being carried out. Client must insure itself against this damage if desired;
c. damage caused by intent or deliberate recklessness of auxiliaries 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 request of the client, the contractor will carry out the processing again with new material supplied by the client at the client's expense.
13.5 The client indemnifies the contractor against all claims from third parties for product liability as a result of a defect in a product that was delivered by the client to a third party and that (partly) consisted of products and / or materials supplied by the contractor.
Article 14: Warranty
14.1. The contractor is responsible for the proper execution of the agreed performance for a period of six months after delivery.
14.2. If the agreed performance consists of contracting work, the contractor guarantees the soundness of the delivered construction and the material used for the period referred to in paragraph 1, provided that he was free to choose it.
If it appears that the construction supplied and / or the material used is not sound, the contractor will repair or replace it. 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 costs incurred are for the account of the client
r.
14.3. If the agreed performance consists (in part) of the processing of material supplied by the client, the contractor guarantees the soundness of the performed work for the period referred to in paragraph 1.
If it appears that an operation has not been performed properly, the contractor will make the choice whether he:
- perform the operation again. In that case, the client must supply new material for its own account;
- repair the defect. In that case, the client must return the material carriage paid to the contractor;
- credit the client for a proportional part of the invoice.
14.4. If the agreed performance consists of the delivery of a good, the contractor guarantees the soundness of the good delivered during the period referred to in paragraph 1.
If it appears that the delivery has not been sound, the item must be returned carriage paid to the contractor. The contractor will then make the choice whether he:
- the case recovers;
- replaces the case;
- credit the client for a proportional part of the invoice.
14.5. If the agreed performance (partly) consists of the installation and / or assembly of a delivered item, the contractor guarantees the soundness of the installation and / or assembly for the period referred to in paragraph 1.
If it appears that the installation and / or assembly has not been carried out properly, the contractor will rectify this. Any travel and accommodation costs incurred are for the account of the client.
14.6. The manufacturer's warranty applies to those parts for which the client and contractor have expressly agreed this in writing. If the client has had the opportunity to become acquainted with the contents of the factory warranty, it will take the place of a warranty under this article.
14.7. The client must in all cases offer the contractor the opportunity to repair any defect and / or perform the operation again.
14.8. The client can only appeal to the guarantee after he has all his obligations towards the contractor
met.
14.9. a. No guarantee is given as soon as defects are the result of:
- normal wear and tear;
- improper use;
- maintenance not performed or performed incorrectly;
- installation, assembly, modification or repair by the client or by third parties.
b. No guarantee is given on delivered goods that were not new at the time of delivery or on items that were prescribed by the client or that were supplied by or on behalf of him;
c. No guarantee is given on the inspection and / or repair of goods of the client.
Article 15: Complaints
The client can no longer rely on a defect in the performance if he has not complained in writing to the contractor within fourteen days after he has discovered the defect or should reasonably have discovered it.
Article 16: Goods not purchased
If goods have not been purchased after the delivery time has expired, they will remain available to the client. Items that have not been purchased are stored for the account and risk of the client. The contractor may always make use of the authority in Article 6:90 of the Dutch Civil Code.
Article 17: Payment
17.1. Payment is made at the contractor's place of business or into an account designated by the contractor.
17.2. Unless otherwise agreed, payment takes place as follows:
a. at counter sales in cash;
b. with payment in installments:
- 40% of the total contract price;
- 50% of the total price after the material has been supplied or if the delivery of material is not included in the order after the commencement of the work;
- 10% of the total price upon completion;
c. in all other cases within thirty days after the invoice date.
17.3. Irrespective of the agreed payment conditions, the client is obliged to provide a payment that is sufficient for payment at the request of the contractor. If the client does not comply with this within the specified period, he will immediately be in default. In that case, the contractor has the right to dissolve the agreement and to recover its damage from the client.
17.4. The right of the client to settle his claims against the contractor is excluded, unless the contractor has been declared bankrupt or the debt restructuring is applicable to the contractor.
17.5. The full claim for payment is immediately due and payable if:
a. a payment term has been exceeded;
b. client has gone bankrupt or requests suspension of payment;
c. seizure of goods or claims of the client is made;
d. client (company) is dissolved or liquidated;
e. the client (natural person) requests to be admitted to the judicial debt restructuring, is placed under guardianship or dies.
17.6. If payment has not been made within the agreed amount
payment term, the client immediately owes interest to the contractor. The interest is 12% per year, but is equal to the statutory interest if it is higher. With the interest calculation, part of the month is seen as a full month.
17.7. If payment has not been made within the agreed payment term, the client owes the contractor all extrajudicial costs with a minimum of € 75.
The costs are calculated based on the following table:
over 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 from € 60,000 = 3%
If the extrajudicial costs actually incurred are higher than follows from the above calculation, the actual costs incurred will be due.
17.8. If the contractor is found to be in the right in legal proceedings, all costs that he has incurred in connection with these proceedings will be borne by the client.
Article 18: Retention of title and pledge
18.1. After delivery, the contractor remains the owner of the goods delivered as long as the client:
a. fails or will fail to fulfill its obligations under this agreement or other similar agreements;
b. does not pay or will pay for work performed or to be performed under such agreements;
c. has not paid claims that result from non-compliance with the aforementioned agreements, such as damage, penalties, interest and costs.
18.2. As long as there is a retention of title on the delivered goods, the client may not encumber them outside his normal business operations.
18.3. After the contractor has invoked his retention of title, he may recover the goods delivered. Client allows the contractor to enter the place where these goods are located.
18.4. If the contractor cannot invoke his retention of title because the goods delivered have been mixed, distorted or traced, the client is obliged to pledge the newly formed goods to the contractor.
Article 19: Termination
If the client wishes to dissolve the agreement without there being a shortcoming on the part of the contractor and the contractor agrees, the agreement will be terminated by mutual consent. In that case, the contractor is entitled to compensation for all financial loss such as loss suffered, loss of 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 from which exclusion is permitted.
20.3. Only the Dutch civil court that has jurisdiction at the place of establishment of the contractor takes cognizance of disputes, unless this is contrary to mandatory law. The contractor may deviate from this jurisdiction rule and apply the statutory jurisdiction rules.
20.4. Parties can agree on another form of dispute resolution such as, for example, arbitration or mediation.
METAL UNION CONDITIONS
General terms and conditions of delivery and payment issued by the Koninklijke Metaalunie (Dutch organization of small and medium-sized businesses in the metal sector) referred to as METAL UNION CONDITIONS formerly as SMECOMA CONDITIONS,
Filed at the registry of the court in Rotterdam on January 1, 2008.
Publication of the Koninklijke Metaalunie, Postbus 2600, 3430 GA Nieuwegein.
© Royal Metal Union