Article 1: Applicability
1.1. These conditions apply to all tenders
made by a Metaalunie member, to all agreements concluded by him and
and to all agreements ensuing therefrom, all of the above
insofar as the Metaalunie member is a supplier or contractor.
contractor.
1.2. The Metaalunielid using these conditions shall be
referred to as the contractor. The other party is
referred to as customer.
1.3. In the event of any conflicts between the substance of the agreement concluded between the Client
and the contractor and these
conditions, the provisions of the agreement shall prevail.
1.4. These Terms and Conditions may be used exclusively by
Metaalunie members.
Article 2: Offers.
2.1. All offers are without obligation. The Supplier is entitled
right to withdraw its offer up to two working days after the offer has been
acceptance has reached him.
2.2. If the client provides information to the contractor,
the Supplier may rely on the accuracy and completeness
and shall base its offer on this information.
2.3. The prices stated in the offer are expressed in euros,
exclusive of turnover tax and other government levies or taxes.
by the government. The prices are further exclusive of travel,
accommodation, packaging, storage and transport costs as well as costs
for loading, unloading and assistance with
customs formalities.
Article 3: Confidentiality
3.1. All information provided by or on behalf of the Contractor to the Principal
information (such as offers, designs
images, drawings and know-how) of whatever nature and in whatever form
any form whatsoever are confidential and shall not be used by the
Client for any other purpose than for the
performance of the agreement.
3.2. The information mentioned in paragraph 1 of this article will not be
client shall not be made public or reproduced.
multiplied.
3.3. If the client violates any of the obligations mentioned in paragraphs 1 and 2 of this article
Article, he shall be liable for an immediately payable penalty of
immediately payable penalty of €25,000 for each violation. This
penalty may be claimed in addition to damages pursuant to the law.
be claimed.
3.4. The Client must provide the information referred to in paragraph 1 of this article
information on first request, within a period set by the contractor
set by the contractor, at the contractor's discretion, return
or destroy it. If this provision is violated, the
Client owes the Commissionee an immediately
immediately payable penalty of €1,000 per day. This
penalty may be claimed in addition to damages pursuant to the law.
be claimed on the basis of 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 does not relate directly to the
to the assignment.
4.2. If the client provides information to the contractor,
If the Client provides the Supplier with information
performance of the agreement, the Supplier may rely on its accuracy and completeness.
4.3. The Client indemnifies the Contractor against any claims
The Client indemnifies the Supplier against any claims from third parties arising in connection with the use of advice, drawings
The Client indemnifies the Supplier against any claims from third parties arising in connection with the use of advice, drawings
calculations, designs, materials, trademarks, samples, models
and the like. The customer shall compensate the contractor for all
damage, including all costs incurred for
defence of such claims.
Article 5: Delivery period / performance period
5.1. Any stated delivery time or work period is indicative.
5.2. The delivery time or execution period will single start when
all commercial and technical details have been agreed
agreed, all information, including final and approved
drawings and the like are in the Supplier's possession,
the agreed payment or instalment has been received and the
other conditions for the performance of the engagement have been fulfilled.
fulfilled.
5.3. If there are:
a. circumstances other than those known to the Contractor
were known to the Supplier when the delivery deadline or work period was issued, the delivery deadline or work period will be extended by the
delivery deadline or work period will be extended by the time that the Supplier, with due observance of the Supplier's planning schedule, needs to
to carry out the engagement under the circumstances
circumstances;
b. additional work, the delivery deadline or work period will be extended
by the time that the Contractor, taking into account the
schedule, to deliver the materials and parts required
(or have them supplied) and to carry out the additional work
c. suspension of obligations by the Supplier, the delivery deadline or work period
the delivery time or work period will be extended by the time that he,
with due observance of his schedule, to carry out the
perform the engagement after the reason for the suspension has
has lapsed.
Barring evidence to the contrary from the Client, the duration
of the extension of the delivery period or work period is presumed to be
necessary and resulting from a situation as meant above under a through c.
under a to c above.
5.4. The Client is obliged to pay all costs incurred by the Supplier or
5.4 The Client is obliged to pay all costs incurred by or damage suffered by the Supplier as a result of a delay in the delivery deadline or work period.
delay in the delivery period or work period, as referred
in paragraph 3 of this article, to be paid.
5.5. If the delivery deadline or work period is exceeded, the
Under no circumstances will the Client be entitled to damages or to dissolution.
dissolution. The Client indemnifies the Supplier against
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 will be effected at the moment that the Contractor makes the
the Client at its farm premises and has notified the Client that the object is at the Client's disposal.
is at the Client's disposal. The Client will bear the risk
that moment, the risk of the matter for storage, loading
loading, transport and unloading.
6.2. The Principal and the Contractor may agree that
the Contractor shall arrange for transport. The risk of, inter alia
storage, loading, transport and unloading shall in that case also be borne by the
customer. The customer may insure himself against these risks.
insurance.
6.3. In the event of exchange and if the principal is keeping
If there is a trade-in and the principal keeps the good to be exchanged in
If there is a trade-in and the principal is keeping the good to be traded in pending delivery, the risk in respect of the good to be traded in shall remain with the principal
until such time as he has placed it in the possession of the contractor.
contractor. If the principal is unable to
to be exchanged in the condition it was in when the agreement was
agreement was concluded, the contractor may dissolve the
agreement.
Article 7: Price changes
The contractor may adjust an increase in cost-determining
factors, which has occurred after the conclusion of the agreement, to the
the client. The Client shall be obliged
pay the price increase at the contractor's first request.
payment.
Article 8: Force majeure
8.1. A failure to fulfil its obligations cannot be attributed to the
contractor cannot be attributed to the contractor if this
failure is the result of force majeure.
8.2. Force majeure includes the circumstance
that third parties engaged by the contractor, such as
suppliers, subcontractors and carriers, or other parties on which the
parties on which the Client is dependent, fail to meet their
meet their obligations, weather conditions,
natural disasters, terrorism, cyber crime, disruption of
digital infrastructure, fire, power failure, loss, theft or
loss of tools, materials or information,
roadblocks, strikes or work stoppages, and import or
trade restrictions.
8.3. The Contractor shall be entitled to suspend the performance of its obligations if it is temporarily
prevented from fulfilling its obligations to the Client.
fulfilment. Once the force majeure situation has lapsed, the Contractor shall fulfill its obligations as soon as its schedule permits.
8.4. If there is force majeure and performance is or becomes permanently impossible, or the temporary force majeure situation has lasted more than six months, the
has lasted for more than six months, the Supplier will be entitled to dissolve the agreement in whole or in part with immediate effect.
Agreement with immediate effect in whole or in part.
immediate effect. In such cases the Client will be entitled to dissolve the
dissolve the agreement with immediate effect, but single
for that part of the obligations not yet fulfilled by
contractor.
8.5. The parties will not be entitled to compensation for any losses incurred as a result of
the force majeure, suspension or dissolution within the meaning of this article
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 Contractor's first request.
aforementioned documents to him at his first request.
9.2. Unless otherwise agreed in writing, the work shall not include:
a. earthwork, pile driving, demolition, foundation work, masonry, carpentry,
plastering, painting, wallpapering, repairs or other construction work.
construction work;
b. the realization of connections of gas, water, electricity
internet or other infrastructural facilities;
c. measures to prevent or limit damage to or the
theft or loss of items present at or near the work site;
d. disposal 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, specifications
or the specifications;
b. the information provided by the Client does not correspond with reality;
c. estimated quantities deviate by more than 5%.
10.2. Additional work will be calculated on the basis of the price-determining
factors applicable at the time when the extra work is carried out.
performed. The Client shall be obliged to pay the price of the additional work
payable on the Contractor's first demand.
Article 11: Performance of the work
11.1. The Client shall ensure that the Contractor can carry out its work without interruption and at the agreed time
11.1 The Client shall ensure that the Contractor can carry out its activities without interruption and at the agreed time, and that in the performance of its activities it
access to the necessary facilities, such as:
a. gas, water, electricity and internet;
b. heating;
c. lockable dry storage space;
d. facilities prescribed under the Working Conditions Act and regulations.
facilities.
11.2. The Client shall bear the risk and be liable for damage
to and theft or loss of items belonging to the Contractor,
Client and third parties, such as tools, materials intended for
materials intended for the work or equipment used in the work, which are
are located at or near the place where the work is being
to be 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 take out adequate insurance against the
Without prejudice to the provisions of paragraph 2 of this article, the principal shall be obliged to take out adequate insurance against the risks mentioned in that paragraph. Client must also
In addition, the principal shall be responsible for insuring the work risk of the equipment to be used.
equipment to be used. The Client must also take out insurance to cover the
request, a copy of the relevant insurance policy or policies and proof of
proof of payment of the premium. In the event of
damage, the client is obliged to report this immediately to his
insurer for further processing and settlement.
Article 12: Completion of the work
12.1. The work will be considered completed in the following
cases:
a. if the customer has approved the work;
b. if the customer has put the work into use. If
If the customer puts part of the work into use
part of the work shall be deemed to have been completed;
c. if the contractor has notified the customer in writing that
(c) if the contractor has notified the customer in writing that the work is finished and the customer has not
within 14 days of the day of notification that the work has not been
has given written notice that the work has not been approved;
d. if the customer does not approve the work on grounds of minor
faults or missing parts that can be
can be repaired or supplied within 30 days and which do not prevent the work from being put into
of the work.
12.2. If the customer does not approve the work, he shall be obliged
If the customer does not approve the work, he shall be obliged to inform the contractor of this in writing, stating the reasons.
Contractor. The customer shall give the contractor the opportunity
opportunity to complete the work.
12.3. The Client shall indemnify the Contractor against claims from
The Client shall indemnify the Supplier against third-party claims for damage to parts of the work that have not been delivered
caused by the use of parts of the work that have already been completed.
the work.
Article 13: Liability
13.1. In the event of an attributable failure, the Contractor is
In the event of a culpable breach the contractor shall be bound to fulfil his contractual obligations
Article 14, to still fulfill his contractual obligations.
13.2. The obligation of the contractor to compensate for damages
13.2 The Contractor's obligation to compensate for damages on any basis whatsoever is limited to those damages
against which the contractor is insured under an insurance policy taken out by him or on his behalf.
insurance taken out by or on behalf of him. The extent
of this obligation shall, however, never exceed the amount paid in the
case concerned is paid out under this insurance policy.
13.3. If, for whatever reason, the Contractor is not entitled to invoke
paragraph 2 of this article, the obligation to pay compensation for
of damages shall be limited to a maximum of 15% of the total contract sum
(excluding VAT). If the agreement consists of parts or
partial deliveries, this obligation shall be limited to a maximum of 15%
(excluding VAT) of the order price of that part or that
partial delivery. In the case of continuing performance agreements, the obligation to
to compensate damages shall be limited to a maximum of 15% of the
(excluding VAT) of the purchase price due over the twelve months
twelve months prior to the event
loss-causing event.
13.4. The following are not eligible for compensation:
a. consequential damage. Consequential loss is understood to include
means stagnation damage, loss of production, loss of profit,
fines, transport costs and travel and accommodation costs;
b. supervision damage. Supervision damage is understood to include
supervision damage' includes damage caused by or during the performance of the work to objects
to objects on which work is being carried out or to objects
objects that are in the vicinity of the place where the work is being
where the work is being carried out;
c. any damage caused intentionally or through wilful recklessness on the part of
of helpers or non-management employees of the Contractor.
of the Contractor.
If possible, the Client may take out insurance to cover such damages.
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
as a result of improper processing.
13.6. The Client shall indemnify the Contractor against all claims
The Client indemnifies the Supplier against all claims from third parties for product liability stemming from
a defect in a product supplied by the Client to a third party
third party and of which the products or materials
products or materials supplied by the contractor form part of.
The Client shall be obliged to pay all damage
connection, including the (full) costs of defence.
costs of defence.
Article 14: Warranty and other claims
14.1. Unless otherwise agreed in writing, the Supplier guarantees, for a period of six months after delivery or completion
the proper performance of the agreed performance, as further
the following paragraphs of this article.
14.2. If the parties have agreed different warranty terms, the provisions of this article shall apply without prejudice,
unless this is contrary to those deviating warranty conditions.
14.3. If the agreed performance has not been properly performed,
If the agreed performance has not been properly carried out, the contractor shall within a reasonable term choose whether
still perform it properly or credit the Client for a proportionate part of the
a proportionate part of the contract price.
14.4. If the contractor chooses to execute the performance
If the contractor chooses to execute the work properly after all, he shall determine the manner and time of execution.
The Client must in all cases give the Supplier the opportunity to do so.
opportunity to do so. If the agreed performance
(partly) consisted in the processing of material
the customer, the customer must supply new material at his own expense and risk.
new material at his own expense and risk.
14.5. Parts or materials that are repaired or replaced by the
repaired or replaced must be sent to him by the customer.
to him.
14.6 For the Client's account are:
a. all transportation or shipping costs;
b. costs of disassembly and assembly;
c. travel and accommodation expenses and travel time.
14.7. The Contractor shall not be obliged to perform the
guarantee when the Client has fulfilled all his obligations.
fulfilled.
14.8. a. Warranty is excluded for faults resulting from:
- normal wear and tear;
- injudicious use;
- improper or non-executed maintenance;
- installation, assembly, modification or repair by the client
or by third parties;
- faults to or unsuitability of goods originating from or prescribed by
prescribed by the client;
- faults in or unsuitability of materials or aids used by
materials or resources used by the principal.
b. No warranty is given on
- delivered items that were not new at the time of
delivery;
- the inspection and repair of items belonging to the client;
- parts for which a manufacturer's warranty has been issued.
14.9. The provisions of paragraphs 3 to 8 inclusive of this article shall apply mutatis mutandis to any claims by the Client on the grounds of non-performance, non-conformity or on any other basis whatsoever.
any other basis whatsoever.
Article 15: Obligation to complain
15.1. The client cannot invoke a defect in the performance
The client may no longer invoke a defect in the performance if he fails to do so within fourteen days after he has discovered or reasonably should have discovered the defect.
discovered or reasonably should have discovered the defect,
he has complained to the Supplier in writing within fourteen days after he has discovered or could reasonably have discovered the defect.
15.2. The Client must complain about the invoice, on pain of forfeiting
of all rights, within the payment period in writing to the
contractor within the payment period. If the payment period
is longer than thirty days, the Client must have complained in writing no later than within
thirty days after the invoice date.
Article 16: Uncollected goods
16.1. Upon expiry of the delivery time or execution period, the principal is obliged to actually take delivery of the item or items that are the subject of the
contract at the agreed location.
16.2. The Principal shall cooperate fully, free of charge, to enable the
16.2 The Client must lend every assistance free of charge to enable the Supplier to make the delivery.
16.3. Uncollected goods will be stored at the Client's expense and risk.
uncollected goods will be stored at the Client's expense and risk.
16.4. Should the provisions of paragraph 1 or 2 of this article be violated, the
16.4 In the event of any infringement of the provisions of paragraphs 1 or 2 of this article, the Client shall be liable to pay the
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 Supplier a penalty for each infringement of €250 per day, to a maximum of €25,000.
This penalty may be claimed in addition to damages pursuant to the law.
This penalty may be claimed in addition to damages pursuant to the law.
Article 17: Payment
17.1. Payment shall be made at the Supplier's place of farm or into an account to be designated by the Supplier.
account to be designated by the contractor.
17.2. Unless otherwise agreed, payment shall be made within 30
days after the invoice date.
17.3. If the client fails to meet his payment obligation, he is
If the Client fails to fulfil his payment obligations, instead of paying the agreed
sum of money, to comply with a request by the contractor for
remittance.
17.4 The customer's right to set off his claims against the contractor or to suspend the fulfilment of his obligations is
17.4. The Client's right to set off claims against the Contractor or to suspend performance of its obligations shall be excluded, unless the Contractor has been granted a moratorium
of payment or bankruptcy of the contractor or statutory
debt restructuring applicable to the contractor.
17.5. Regardless of whether the contractor has
has been performed in full, everything that the Client owes or will owe to the Contractor under
the agreement is or will be due to him immediately
due and payable if:
a. a payment period has been exceeded;
b. the customer fails to meet his obligations under article 16;
c. bankruptcy or suspension of payment has been filed for the principal;
d. attachment is levied on goods or claims of client; e. if the
seized;
e. client (company) is dissolved or liquidated;
f. client (natural person) requests to be admitted to the
be admitted to statutory debt rescheduling, is placed under
receivership or dies.
17.6. In the event of delay in the payment of
In the event of any delay in the payment of a sum of money, the Client shall owe the Supplier interest on
In the event of late payment of a sum of money, the Client shall owe the Supplier interest on that sum from the day following the date on which payment is due
day following the day agreed as the latest date for payment up to and including the day
on which the principal has paid the sum of money. If the parties
have not agreed on a latest date for payment, the
interest shall be due from 30 days after due date. The
interest shall be 12% per year, but shall be equal to the statutory
interest rate, whichever is higher. In calculating interest, a
part of the month is considered a full month. Each time
after the end of a year, the amount on which the interest is calculated shall be
increased by the interest due over that year.
interest.
17.7. The contractor is entitled to set off its debts to
Client against claims of companies affiliated with the
17.7. The Contractor shall be entitled to set off its debts to the Client against claims of companies affiliated with the Contractor against the Client.
The Contractor is also entitled to set off its claims on the
In addition, the Contractor shall be entitled to set off its claims on the Client against debts owed to the
Contractor's affiliated companies to the
customer. Furthermore, the Contractor is entitled to offset its
debts to the customer with debts
on companies affiliated with the principal. By
Affiliated companies are understood to mean
enterprises belonging to the same group, within the meaning of
Article 2:24b BW and a participation within the meaning of Article 2:24c
BW.
17.8. If payment is not made in good time, the Client is liable to pay the Supplier all extrajudicial costs, subject to a minimum of €75.
owed by the Client to the Supplier, subject to a minimum of €75.
These costs shall be calculated on the basis of the following
table (principal sum incl. interest):
over the first € 3,000,- 15%
over the amount up to € 6.000,- 10%.
over the amount up to € 15.000,- 8%.
over the amount up to € 60.000,- 5%.
over the amount exceeding € 60.000,- 3%.
The actual extrajudicial costs incurred are
payable if they are higher than the above calculation
calculation above.
17.9. If in legal proceedings the contractor is wholly or largely successful
If the contractor is wholly or mainly successful in legal proceedings, all costs incurred by him in
incurred in connection with those proceedings shall be borne by the
customer.
Article 18: Securities
18.1. Regardless of the agreed payment conditions
The customer shall be obliged, at the first request of
Contractor, to the Contractor's satisfaction, sufficient security for payment.
payment. If the Client fails to do so
complies within the set time limit, he shall immediately be in
default. The contractor shall in that case be entitled to dissolve the
agreement and to recover his damages from the customer.
from the customer.
18.2. The Contractor shall remain the owner of delivered goods as long as
Client:
a. has not fulfilled his obligations under any
agreement with the contractor;
b. claims arising from non-compliance with
aforementioned agreements, such as damages
penalty, interest and costs.
18.3. As long as title to delivered goods is retained by the
As long as title to delivered goods is retained, the customer may not encumber or
As long as there is a retention of title on delivered goods, the customer may not encumber or alienate them outside the scope of his normal farm operations. This clause
has effect under the law of property.
After the contractor has invoked his reservation of title, he may
After the contractor has invoked his reservation of title, he may recover the delivered goods.
The Client shall cooperate fully to this end.
18.5. If the customer, after the goods have been
18.5 If, after the Supplier has delivered the goods to the Client in accordance with the Agreement
If the Client has fulfilled his obligations
Retention of title in respect of these goods will revive if the
The customer fails to fulfil his obligations under a subsequent
agreement concluded at a later date.
18.6. The Contractor has retained title to all goods that
18.6. The Contractor has retained title to all the goods that he has or will have in his possession from the Client for whatever reason and to all
claims which he has or may have against the Client, a right of
right of lien and right of retention.
Article 19: Intellectual property rights
19.1. The Contractor shall be considered the creator, respectively,
designer or inventor of the works, models or inventions created
Agreement.
The Contractor therefore has the exclusive right to apply for a
patent, trademark or model.
19.2. The Contractor, in the performance of the Agreement
Contractor does not transfer any intellectual property rights to
Client.
19.3. If the performance to be delivered by the Contractor consists (in part)
comprises the supply of computer software, the source code will not be
source code will not be transferred to the Client.
The Client will acquire a non-exclusive licence exclusively for the
normal use and proper operation of the case, the Client will acquire a non-exclusive, worldwide and perpetual user licence to the computer software.
to the computer software. Client is not
permitted to transfer the license or to sublicense it.
sublicense. In case of sale of the object by
Client to a third party, the license passes by
by operation of law to the acquirer of the object.
19.4. The Contractor shall not be liable for damage which
Client suffers 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 regarding
relating to an infringement of intellectual property rights.
Article 20: Transfer of rights or obligations
Client may transfer rights or obligations under
any article of these general conditions or the
underlying agreement(s) may not transfer or pledge any rights or obligations
except with the prior written consent of
contractor. This clause shall have the effect of property law.
Article 21: Termination or cancellation of the agreement
21.1. The Principal will not be entitled to cancel or
Cancel or annul the agreement, unless the contractor agrees
consent. If the contractor consents, the principal shall
owe the Contractor an immediately payable compensation
amount of the agreed price, minus the
savings resulting for the contractor from the termination
result. The compensation shall be at least 20% of the
agreed price.
21.2 If the price is made dependent on the actual costs to be incurred by the
costs to be incurred by the contractor (cost-plus basis), the compensation
compensation as referred to in the first paragraph of this article is estimated at the sum of the
sum of the costs, working hours and profit which the contractor would
would be expected to have incurred for the entire order.
incurred.
Article 22: Applicable law and competent court
22.1 Dutch law shall apply.
22.2 The Vienna Sales Convention (C.I.S.G.) shall not apply,
nor any other international regulation the exclusion of which is permitted.
is permitted.
22.3. The Dutch civil court that has jurisdiction in the
place of farm of the contractor shall take cognizance of
disputes. The contractor may deviate from this
rule of jurisdiction and apply the statutory
rules of jurisdiction.
