Terms and Conditions

1.1. These Terms and Conditions apply to all offers made by a Metaalunie member, to all agreements that it enters into and to all agreements arising from this, all of which insofar as the Metaalunie member is the supplier or the contractor.

1.2. Metaalunie members who apply these Terms and Conditions are referred to as the Contractor. The other party is referred to as the Client.

1.3. In the event of conflicts between the agreement entered into by the Client and the Contractor and these Terms and Conditions, the provisions of the agreement will prevail.

1.4. These Terms and Conditions may only be applied by Metaalunie members.

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 whatever nature and in whatever form are confidential, and the Client will not use it for any purpose other than for the implementation of the agreement.

3.2. The Client will not disclose or reproduce the information referred to in paragraph 1 of this article.

3.3. If the Client infringes one of the obligations referred to in paragraphs 1 and 2 of this article, it will owe an immediately payable penalty of 1 25,000 for each infringement. This penalty can be claimed in addition to compensation by virtue of the law.

3.4. The Client must return or destroy the information referred to in paragraph 1 of this article immediately on request, within a period set at the discretion of the Contractor. If this provision is infringed, the Client will owe the Contractor an immediately payable penalty of 1 1,000 per day. This penalty can be claimed in addition to compensation by virtue of the law.

5.1. Delivery times or implementation periods specified are indicative.

5.2. The delivery time or implementation period only commences once an agreement has been reached on all commercial and technical details, once all the information, including final and approved drawings and the like, is in the possession of the Contractor, the agreed payment (or instalment) has been received, and the other conditions for the contract have been met.

5.3. If:

• a. there are circumstances other than those known to the Contractor at the time it set the delivery period or implementation period, the delivery period or implementation period may be extended by the time the Contractor needs – taking into account its planning – to implement the contract under these circumstances;

• b. there are contract extras, the delivery period or implementation period may be extended by the time the Contractor needs – taking into account its planning – to have the materials and parts delivered and to carry out the contract extras;

• c. the Contractor suspends its obligations, the delivery period or implementation period may be extended by the time the Contractor needs – taking into account its planning – to implement the contract after the reason for the suspension no longer applies. Unless the Client has evidence to the contrary, the duration of the extension of the delivery period or implementation period is presumed to be necessary and to be the result of a situation as referred to above in a to c.

5.4. The Client is obliged to pay all costs that the Contractor incurs or damages that the Contractor suffers as a result of a delay in the delivery or implementation period as stated in paragraph 3 of this article.

5.5. Under no circumstances does exceeding the agreed delivery or implementation period give the Client the right to compensation or to terminate the agreement. The Client indemnifies the Contractor against any third-party claims due to exceeding the delivery or implementation period.

The Contractor may pass on to the Client an increase in cost-determining factors that occurs after entering into the agreement. The Client is obliged to pay the price increase immediately on the Contractor’s request.

9.1. The Client must ensure that all licences, exemptions and other decisions that are necessary to carry out the work are obtained in good time. The Client is obliged to send the Contractor a copy of the aforementioned documents immediately on the Contractor’s request.

9.2. Unless otherwise agreed in writing, the work does not include:

• a. groundwork, pile driving, cutting, breaking, foundation work, masonry, carpentry, plastering, painting, wallpapering, repair work or other construction work;

• b. making connections to gas, water, electricity, internet or other infrastructural facilities;

• c. measures to prevent or limit damage to, of theft or loss of goods present at or near the workplace;

• d. removing equipment, building materials or waste;

• e. vertical and horizontal transport.

11.1. The Client will ensure that the Contractor can carry out its work undisturbed and at the agreed time and that it is given the necessary facilities for the implementation of its work, such as:

• a. gas, water, electricity and internet;
• b. heating;
  
• c. lockable dry storage space;
  
• d. the facilities prescribed under the Dutch Working Conditions Act [Arbowet].

11.2. The Client bears the risk and is liable for damage to and theft or loss of goods belonging to the Contractor, Client and third parties, such as tools, material or equipment intended for the work or used for the work, located at or near the place where the work is carried out or at another agreed location.

11.3. Notwithstanding the provisions in paragraph 2 of this article, the Client is obliged to take out adequate insurance against the risks referred to in that paragraph. In addition, the Client must take out insurance for the risk of workrelated damage with regard to the equipment to be used. The Client must send the Contractor a copy of the relevant insurance(s) and proof of payment of the premium immediately on request. In the event of damages, the Client is obliged to report this immediately to its insurer for further processing and settlement.

13.1. In the event of an attributable failure, the Contractor is still obliged to fulfil its contractual obligations, with due observance of Article 14.

13.2. The Contractor’s obligation to compensate damages – regardless of the grounds – is limited to the damage against which the Contractor is covered under an insurance policy taken out by it or on its behalf. However, the scope of this obligation is never greater than the amount paid out under this insurance in the case in question.

13.3. If, for whatever reason, the Contractor does not have the right to invoke paragraph 2 of this article, the obligation to compensate damage is limited to a maximum of 15% of the total contract amount (excluding VAT). If the agreement consists of parts or partial deliveries, this obligation is limited to a maximum of 15% (excluding VAT) of the contract amount for that part or that partial delivery. If it concerns continuing performance contracts, the obligation to compensate damage is limited to a maximum of 15% (excluding VAT) of the contract amount owed over the last twelve months prior to the losscausing event.

13.4. The following do not qualify for compensation:

• a. consequential damages. Consequential damages include inter alia business interruption losses, loss of production, loss of profit, penalties, transport costs and travel and subsistence expenses;
• b. damage to property in the care, custody or control of, but not owned by the insured party. Among other things, this damage includes damage caused by or during the performance of the work to goods that are being worked on or to goods that are located in the vicinity of the place where the work is being carried out;
• c. damage as a result of intent or wilful recklessness by the Contractor’s auxiliary staff or non-managerial subordinates.

The Client can take out insurance for these damages if possible.

13.5. The Contractor is not obliged to compensate damage to material supplied by or on behalf of the Client as a result of improper processing.

13.6. The Client indemnifies the Contractor against all third-party claims due to product liability as a result of a defect in a product that has been delivered by the Client to a third party and of which the products or materials supplied by the Contractor are a part. The Client is obliged to reimburse all the damages suffered by the Contractor in this respect, including the (full) costs of the defence.

15.1. The Client no longer has the right to invoke a defective performance if it has not complained to the Contractor in writing within fourteen days after it discovered or should reasonably have discovered the defect.

15.2. The Client must have filed complaints about the invoice with the Contractor in writing and within the payment term, subject to forfeiture of all rights. If the payment term is longer than thirty days, the Client must have filed its complaint in writing within thirty days of the invoice date at the latest.

17.1. Payment is made at the Contractor’s business address or into an account to be designated by the Contractor.

17.2. Unless otherwise agreed, payments must be made within 30 days of the invoice date.

17.3. If the Client fails to fulfil its payment obligation, it is obliged to comply with a request from the Contractor for a tender of payment instead of the agreed amount.

17.4. The Client’s right to offset its claims against the Contractor or to suspend the fulfilment of its obligations is excluded, unless the Contractor has been granted a suspension of payments or is bankrupt or the statutory debt adjustment scheme applies to the Contractor.

17.5. Irrespective of whether the Contractor has fully executed the agreed performance, everything that the Client owes or will owe it under the agreement is immediately due and payable if:

• a. a payment term has been exceeded;
• b. the Client does not fulfil its obligations under Article 16;
  
• c. the Client has filed for bankruptcy or suspension of payments;
  
• d. the Client’s goods or claims have been attached;
  
• e. the Client (a company) is dissolved or wound up;
  
• f. the Client (a natural person) files a application to be admitted to the statutory debt adjustment scheme, is placed under a guardianship order or has died. 

17.6. If payment is delayed, the Client will owe interest on that sum to the Contractor with effect from the day following the day agreed as the final day of payment up to and including the day on which the Client settles the amount in question. If the parties have not agreed on the final day of payment, the interest is due from 30 days after the sum has become due and payable. The interest is 12% per year, but is equal to the statutory interest if this is higher. For the interest calculation, a part of the month is considered to be a full month. At the end of each year, the amount on which the interest is calculated will be increased by the interest due for that year.

17.7. The Contractor is entitled to offset its debts to the Client against claims that companies affiliated to the Contractor have against the Client. In addition, the Contractor is entitled to offset its claims to the Client against debts that companies affiliated to the Contractor have against the Client. Furthermore, the Contractor is entitled to offset its debts to the Client against claims against companies affiliated to the Client. ‘Affiliated companies’ means all companies belonging to the same group, within the meaning of Book 2, Section 24b of the Dutch Civil Code, and a participation within the meaning of Book 2, Section 24c of the Dutch Civil Code.

17.8. For late payments, the Client owes the Contractor all extrajudicial costs with a minimum of € 75. These costs are calculated on the basis of the following table, i.e., the principal sum plus interest:

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 from € 60,000 or more 3%

The extrajudicial costs actually incurred are due if they are higher than the calculation given above.

17.9. If judgment is rendered in favour of the Contractor in legal proceedings, either entirely or for the most part, the Client will bear all costs incurred in connection with these proceedings.

19.1. The Contractor is considered to be the maker, designer or inventor of the works, models or inventions created in the context of the agreement. The Contractor therefore has the exclusive right to apply for a patent, trademark or model.

19.2. The Contractor will not transfer any intellectual property rights to the Client in the implementation of the agreement.

19.3. If the performance to be delivered by the Contractor (also) includes providing computer software, the source code will not be handed over to the Client. The Client will only acquire a non-exclusive, worldwide and perpetual licence for use for the computer software solely for the purpose of the normal use and proper functioning of the good. The Client is not permitted to transfer the licence or to issue a sub-licence. When the Client sells the good to a third party, the licence transfers by operation of law to the acquirer of the good.

19.4. The Contractor disclaims liability for damages that the Client suffers as a result of an infringement of third-party intellectual property rights. The Client indemnifies the Contractor against any third-party claims related to an infringement of intellectual property rights.

21.1. The Client is not entitled to cancel or terminate the agreement, unless the Contractor agrees to this. If the Contractor agrees, the Client will owe the Contractor an immediately due and payable compensation equal to the agreed price, less the savings for the Contractor as a result of the termination. The compensation will be at least 20% of the agreed price.

21.2. If the price depends on the actual costs to be incurred by the Contractor (on a cost-plus basis), the compensation as referred to in the first paragraph of this article is estimated based on the sum of the costs and labour and the profit that the Contractor would have made for the entire contract.

These Terms and Conditions constitute a comprehensive translation of the Dutch version of the Terms and Conditions of the Metaalunie as filed with the Registry of the Court of Rotterdam on 1 January 2019. The Dutch version will prevail in the explanation and interpretation of this text.