Terms and Conditions
GENERAL TERMS AND CONDITIONS WEBSITE AND WEBSHOP (B2C)
Table of contents:
- Article 1 - Definitions
- Article 2 - Identity of the entrepreneur
- Article 3 - Applicability
- Article 4 - The offer
- Article 5 - The agreement
- Article 6 - Right of withdrawal
- Article 7 - Costs in case of withdrawal
- Article 8 - Exclusion of the right of withdrawal
- Article 9 - The price
- Article 10 - Compliance and Warranty
- Article 11 - Delivery and execution
- Article 12 - Continuing performance: duration, termination and extension
- Article 13 - Payment
- Article 14 - Complaints procedure
- Article 15 - Final consumer clause
- Article 16 - Premature termination of the agreement
- Article 17 - Disputes
- Article 18 - Additional or different provisions
Article 1 - Definitions
In these terms and conditions the following terms shall have the following meanings:
- Reflection period: The period within which the consumer can make use of his right of withdrawal;
- Consumer: the natural person who is not acting in the exercise of a profession or business and who enters into a distance contract with the entrepreneur;
- Day: calendar day;
- Extended duration transaction: a remote agreement related to a series of products and/or services, of which the obligation to supply and/or purchase is spread over a period of time;
- Durable data carrier: every means that enables the consumer or entrepreneur to store information that is addressed to him personally, in a way that allows for future consultation and unaltered reproduction of the stored information.
- Right of withdrawal: the possibility for the consumer to waive the distance contract within the cooling-off period;
- Model form: the model form for withdrawal which the entrepreneur makes available and which a consumer can fill in when he wants to make use of his right of withdrawal.
- Entrepreneur: the natural or legal person who offers products and/or services to consumers from a distance;
- Distance contract: an agreement whereby sole use is made of one or more techniques for distance communication within the framework of a system organised by the entrepreneur for the distance sale of products and/or services, up to and including the moment that the agreement is concluded;
- Technique for distance communication: means that can be used for concluding an agreement, without the consumer and entrepreneur being together in the same room at the same time.
- General Terms and Conditions: the present General Terms and Conditions of the entrepreneur.
Article 2 - Identity of the entrepreneur
Kennedylaan 14 te 5466 AA Veghel;
Telephone number: 0413-342275
Opening hours: from Monday till Thursday from 08.30 till 17.00 hrs; on Friday till 16.00 hrs.
Chamber of Commerce number: 16028008
Article 3 - Applicability
- These general terms and conditions apply to every offer made by the entrepreneur and to every distance contract and order that is concluded between the entrepreneur and the consumer.
- Before the remote agreement is concluded, the text of these general conditions will be made available to the consumer. If this is not reasonably possible, then before concluding the distance contract, the consumer will be informed that the general terms and conditions are available for perusal at the entrepreneur's premises and that they will be sent to the consumer free of charge as soon as possible, at the consumer's request.
- If the distance contract is concluded electronically, then, contrary to the previous paragraph, and before the distance contract is concluded, the text of these general terms and conditions will be made available to the consumer in electronic form in such a way that the consumer can easily store them on a durable data carrier. If this is not reasonably possible, before the agreement at a distance is concluded, it shall be indicated where the general conditions can be consulted electronically and that they will be sent to the consumer free of charge, at his request, either electronically or in some other way.
- In case specific product- or service conditions apply in addition to these general conditions, the second and third paragraph applies accordingly and the consumer can always rely on the applicable provision that is most favorable to him in case of contradictory general conditions.
- If one or more provisions in these general terms and conditions are null and void or annulled in part or in full at any time, the remaining provisions of the agreement and these terms and conditions shall remain in force and the provision in question shall be replaced without delay, in mutual consultation, by a provision that approximates the scope of the original provision as closely as possible.
- Situations not covered by these general terms and conditions must be assessed 'in the spirit' of these general terms and conditions.
- Uncertainty about the interpretation or content of one or more provisions of our terms and conditions must be interpreted 'in the spirit' of these general terms and conditions.
Article 4 - The offer
- If an offer has a limited period of validity or is made subject to conditions, this shall be explicitly stated in the offer.
- The offer is without obligation. The entrepreneur is entitled to change and adapt the offer.
- The offer contains a complete and accurate description of the products and/or services offered. The description is sufficiently detailed to allow the consumer to make a proper assessment of the offer. If the entrepreneur uses images, these are a true reflection of the products and / or services offered. Obvious mistakes or obvious errors in the offer are not binding on the entrepreneur.
- All images, specifications and data in the offer are indicative and can not lead to compensation or dissolution of the agreement.
- Images of products are a true representation of the products on offer. The Company cannot guarantee that the colours shown will exactly match the real colours of the products.
- Each offer contains such information that it is clear to the consumer what rights and obligations are attached to accepting the offer. This concerns in particular:
- the price including taxes;
- any costs of shipment;
- The way in which the agreement will be concluded and which actions are required for this;
- whether or not the right of withdrawal is applicable;
- the method of payment, delivery and implementation of the agreement;
- the period for accepting the offer, or the period within which the trader guarantees the price;
- the size of the tariff for distance communication if the costs of using the technology for distance communication are calculated on a basis other than the regular basic tariff for the means of communication used;
- whether the agreement is filed after its conclusion, and if so, how it can be consulted by the consumer;
- the manner in which the consumer, before concluding the contract, can check the data provided by him in the context of the contract and, if desired, correct them;
- any other languages besides Dutch in which the agreement can be concluded;
- the codes of conduct to which the trader is subject and the way in which the consumer can consult these codes of conduct electronically; and
- the minimum duration of the distance contract in the event of an extended transaction.
Article 5 - The agreement
- The agreement comes into being, subject to that which is stipulated in paragraph 4, at the moment at which the consumer accepts the offer and the conditions thereby stipulated have been fulfilled.
- If the consumer has accepted the offer electronically, the entrepreneur will immediately confirm receipt of electronic acceptance of the offer. As long as the receipt of this acceptance has not been confirmed by the entrepreneur, the consumer may dissolve the agreement.
- If the agreement is created electronically, the entrepreneur will take appropriate technical and organizational measures to protect the electronic transfer of data and he will ensure a safe web environment. If the consumer is able to pay electronically, the entrepreneur will observe appropriate safety measures.
- The entrepreneur may - within legal limits - obtain information about the consumer's ability to fulfil his payment obligations, as well as about all those facts and factors which are important for a responsible conclusion of the distance contract. If, on the basis of this investigation, the entrepreneur has good reason not to enter into the agreement, he is entitled to refuse an order or request while giving reasons, or to attach special conditions to the implementation.
- The entrepreneur will, together with the product or service, send the consumer the following information, in writing or in such a way that the consumer can store it in an accessible way on a durable data carrier:
- the visiting address of the Entrepreneur's business establishment where the Consumer may lodge complaints;
- the conditions on which and the way in which the Consumer may exercise the right of withdrawal, or a clear statement regarding the exclusion of the right of withdrawal;
- the information on guarantees and existing after-sales service;
- the data included in article 4, paragraph 3 of these conditions, unless the entrepreneur has already provided the consumer with these data before the implementation of the agreement;
- the requirements for cancelling the agreement if the agreement has a duration of more than one year or is indefinite.
- In the event of a long-term transaction, the provision of the previous paragraph shall apply only to the first delivery.
- Each agreement is entered into under the suspensive conditions of sufficient availability of the products concerned.
Article 6 - Right of withdrawal
- When purchasing products, the consumer has the option of dissolving the agreement without giving reasons for a period of 14 days. This cooling off period commences on the day after receipt of the product by the consumer or a previously designated by the consumer and the entrepreneur announced representative.
- During the cooling-off period the consumer will handle the product and packaging with care. He will only unpack or use the product to the extent necessary to judge whether he wishes to keep the product. If he exercises his right of withdrawal, he will be the product with all accessories and - if reasonably possible – in the original condition and packaging to the entrepreneur, in accordance with the reasonable and clear instructions provided by the entrepreneur.
- If the consumer wishes to make use of his right of withdrawal, he is obliged to inform the entrepreneur of this within 14 days after receiving the product. The consumer must make this known by means of the model form. After the consumer has made known that he wishes to make use of his right of withdrawal, the customer must return the product within 14 days. The consumer must prove that the delivered goods have been returned on time, for example by means of a proof of posting.
- If, at the end of the periods specified in paragraphs 2 and 3, the customer has not indicated that he wishes to exercise his right of withdrawal or has not returned the product to the entrepreneur, the purchase is a fact.
Article 7 - Costs in case of withdrawal
- If the consumer makes use of his right of withdrawal, he shall be liable for the costs of return shipment at most.
- If the consumer has paid an amount, the entrepreneur will refund this amount as soon as possible, but at the latest within 14 days after the withdrawal. This is subject to the condition that the product has already been received by the merchant or that conclusive proof of the return can be provided.
Article 8 - Exclusion of the right of withdrawal
- The entrepreneur can exclude the consumer from the right of withdrawal for products as described in paragraph 2 and 3. The exclusion of the right of withdrawal is only valid if the entrepreneur has clearly stated this in the offer or at least in good time before concluding the agreement.
- Exclusion of the right of withdrawal is only possible for products
- that have been created by the entrepreneur in accordance with the specifications of the consumer;
- that are clearly of a personal nature
- that cannot be returned due to their nature
- that spoil or age quickly;
- whose price depends on fluctuations in the financial market on which the entrepreneur has no influence;
- for single newspapers and magazines
- audio and video recordings and computer software of which the consumer has broken the seal
- for hygienic products of which the consumer has broken the seal.
- Exclusion of the right of withdrawal is only possible for services:
- concerning accommodation, transport, restaurant business or leisure activities to be performed on a certain date or during a certain period;
- of which the delivery has started with the express consent of the consumer before the period for reflection has expired;
- relating to betting and lotteries.
Article 9 - The prize
- During the validity period mentioned in the offer, the prices of the products and/or services offered will not be increased, except for price changes due to changes in VAT rates.
- Contrary to the previous paragraph, the entrepreneur may offer products or services whose prices are subject to fluctuations in the financial market that are beyond the entrepreneur's control, at variable prices. The offer shall state this link with fluctuations and the fact that any prices mentioned are recommended prices.
- Price increases within 3 months after the conclusion of the agreement are only allowed if they are the result of statutory regulations or provisions.
- Price increases from 3 months after the conclusion of the agreement are only allowed if the entrepreneur has stipulated it and:
- they are the result of statutory regulations or stipulations; or
- the consumer is authorized to terminate the contract on the day on which the price increase takes effect.
- The prices stated in the offer of products or services shall include VAT.
- All prices are subject to misprints and typesetting errors. No liability shall be accepted for the consequences of misprints and typesetting errors. In case of misprints, the entrepreneur is not obliged to deliver the product at the wrong price.
Article 10 - Compliance and Warranty
- The entrepreneur guarantees that the products and / or services meet the contract, the specifications stated in the offer, the reasonable requirements of reliability and / or usability and on the date of the conclusion of the agreement existing legal provisions and / or government regulations. If agreed, the entrepreneur also guarantees that the product is suitable for other than normal use.
- A guarantee provided by the entrepreneur, manufacturer or importer does not affect the legal rights and claims that the consumer, based on the agreement, can assert against the entrepreneur.
- Any defects or wrongly delivered products must be reported in writing to the entrepreneur within 3 days of delivery. The products must be returned in their original packaging and as new.
- The guarantee period of the entrepreneur corresponds to the factory guarantee period. However, the entrepreneur is never responsible for the ultimate suitability of the products for each individual application by the consumer, nor for any advice regarding the use or application of the products.
- The guarantee does not apply if:
- The consumer has repaired and/or modified the delivered products himself or has had them repaired and/or modified by third parties;
- The delivered products have been exposed to abnormal conditions or are otherwise carelessly handled or contrary to the instructions of the entrepreneur and/or are treated on the packaging;
- The defectiveness is wholly or partially the result of regulations which the government has laid down or will lay down with regard to the nature or quality of the materials used.
Article 11 - Delivery and implementation
- The entrepreneur will take the greatest possible care when receiving and executing orders of products and in assessing applications for the provision of services.
- The place of delivery is the address that the consumer has made known to the company.
- Subject to what is stated in paragraph 4 of this article, the company will execute accepted orders expeditiously but at least within 30 days, unless the consumer has agreed to a longer delivery period. If the delivery has been delayed, or if an order cannot be filled or can be filled only partially, the Consumer shall be informed about this within 30 days after the order was placed. In that case, the consumer has the right to dissolve the agreement free of charge. The consumer is not entitled to compensation.
- All delivery periods are indicative. The consumer cannot derive any rights from any delivery dates mentioned. Exceeding a term does not entitle the consumer to compensation.
- In case of dissolution in accordance with paragraph 3 of this article, the entrepreneur shall return the amount paid by the consumer as soon as possible but at the latest within 14 days after dissolution.
- If delivery of an ordered product turns out to be impossible, the entrepreneur shall make an effort to provide a replacement article. The fact that a replacement article is being delivered will be communicated in a clear and comprehensible manner, at the latest upon delivery. The right of withdrawal cannot be excluded with replacement articles. The cost of any return shipment shall be borne by the entrepreneur.
- The risk of damage and/or loss of products rests with the entrepreneur up to the moment of delivery to the consumer or a representative previously designated and announced to the entrepreneur, unless otherwise expressly agreed.
Article 12 - Continuing transactions: duration, termination and extension
- The consumer can terminate an agreement entered into indefinitely, which extends to the regular delivery of products (including electricity) or services at any time, subject to the agreed termination rules and a notice of up to one month.
- The consumer may contract for a definite period and that extends to the regular delivery of products (including electricity) or services, at any time at the end of the fixed term denounce the applicable termination rules and a notice not exceeding one month.
- The consumer can terminate the agreements mentioned in the previous paragraphs:
- at all times terminate them and not be limited to termination at a specific time or in a specific period;
- at least terminate them in the same manner as they were concluded by him;
- always terminate them with the same period of notice as the entrepreneur has stipulated for himself.
- An agreement that has been entered into for a definite period of time and that extends to the regular supply of products (including electricity) or services, may not be tacitly extended or renewed for a definite period of time.
- Notwithstanding the preceding paragraph, a fixed-term contract that has been concluded for the regular supply of daily or weekly newspapers or magazines may be tacitly renewed for a maximum period of three months, if the consumer has the right to terminate this renewed contract before the end of the renewal period, with a period of notice that does not exceed one month.
- A fixed-term contract that has been concluded for the regular supply of products or services may only be automatically prolonged for an indefinite period of time if the consumer has at all times the right to terminate, with a period of notice that does not exceed one month and a period that does not exceed three months if the contract is to regularly supply daily or weekly newspapers or magazines, but less than once a month.
- A contract with a limited term for the regular supply, by way of introduction, of daily or weekly newspapers and magazines (trial or introductory subscription) shall not be tacitly continued and shall end automatically at the end of the trial or introductory period.
- If a contract lasts more than one year, after one year the consumer may at any time terminate with a notice of up to one month, unless the reasonableness and fairness resisting the termination before the end of the agreed term.
Article 13 - Payment
- As far as no other date has been agreed, sums payable by the consumer should be paid within 7 working days after the start of the reflection period, as referred to in article 6, paragraph 1. In case of an agreement for the provision of a service, this period shall start after the consumer has received the confirmation of the agreement.
- The consumer has the duty to inform the entrepreneur immediately of any inaccuracies in payment details provided or mentioned.
- In case of non-payment on the part of the consumer, and subject to legal restrictions, the entrepreneur is entitled to charge the consumer for any reasonable costs made known to the consumer in advance.
Article 14 - Complaints procedure
- The entrepreneur shall have a sufficiently publicised complaints procedure and shall handle the complaint in accordance with this complaints procedure.
- Complaints about the implementation of the agreement must be fully and clearly described and submitted to the entrepreneur within 7 days after the consumer has found the defects.
- Complaints submitted to the entrepreneur shall be answered within a period of 14 days, calculated from the date of receipt. If a complaint requires a foreseeably longer processing time, the entrepreneur shall respond within 14 days with a notice of receipt and an indication of when the consumer can expect a more detailed answer.
- If the complaint cannot be solved in mutual consultation, a dispute arises that is subject to the dispute settlement procedure.
- Complaints that cannot be solved by mutual agreement, the consumer should turn to Stichting WebwinkelKeur (www.webwinkelkeur.nl), who will mediate free of charge. If there is still no solution, the consumer has the possibility of his complaint by GeschilOnline Foundation to deal with, the decision is binding and both entrepreneur and consumer agree to this binding decision. There are costs associated with submitting a dispute to this Disputes Committee, which must be paid by the consumer to the committee in question. It is also possible to submit complaints via the European ODR platform (http://ec.europa.eu/odr).
- A complaint does not suspend the obligations of the entrepreneur, unless the entrepreneur indicates otherwise in writing.
- If a complaint is found to be justified by the entrepreneur, the entrepreneur will, at his discretion, either replace or repair the delivered products free of charge.
Article 15 - Final consumer clause
- The Buyer warrants that (i) he will comply with all legislation and/or regulations applicable to the goods in any form whatsoever (including sale, lease, processing) and, in particular, that he will comply with all export control and sanction regulations of the EU and the UN and (ii) that the goods are not directly or indirectly destined for, or are likely to be destined for, any country for which sanctions are in force in respect of the goods pursuant to UN or EU regulations, unless the Buyer has obtained an exemption or a licence from a competent authority designated by the UN or EU. Buyer undertakes to include this guarantee as a perpetual clause in subsequent agreements for the trade in the goods.
Article 16 - Premature termination of the agreement
- Seller shall be entitled to terminate the agreement with purchaser with immediate effect, without judicial intervention being required, if seller reasonably suspects that the goods are destined, directly or indirectly, for any country for which a sanction is in force for the goods concerned pursuant to UN or EU regulations, without an exemption or permit having been obtained from a competent authority.
- Upon termination of the agreement as referred to in paragraph 1 of this article, purchaser shall not be entitled to any compensation from vendor.
Article 17 - Disputes
- Only Dutch law applies to agreements between the entrepreneur and the consumer to which these general terms and conditions apply. Even if the consumer lives abroad.
- The Vienna Sales Convention does not apply.
Article 18 - Additional or different provisions
Additional provisions or provisions that deviate from these general terms and conditions may not be to the consumer's detriment and should be recorded in writing or in such a way that the consumer can store them in an accessible manner on a durable data carrier.
GENERAL TERMS AND CONDITIONS TRADING PARTNERS (B2B)
Table of contents:
- Metaalunie Terms & Conditions
- Article 1 - Applicability
- Article 2 - Offers
- Article 3 - Confidentiality
- Article 4 - Advice and information provided
- Article 5 - Delivery time / period of execution
- Article 6 - Delivery and transfer of risk
- Article 7 - Price alteration
- Article 8 - Force majeure
- Articele 9 - Scope of work
- Article 10 - Additional work
- Article 11 - Execution of the work
- Article 12 - Completion of the work
- Article 13 - Liability
- Article 14 - Guarantee and other claims
- Article 15 - Obligation to complain
- Article 16 - Failure to take possession of goods
- Article 17 - Payment
- Article 18 - Securities
- Article 19 - Intellectual property rights
- Article 20 - Assignment of rights or obligations
- Article 21 - Cancellation or termination of the agreement
- Article 22 - Applicable law and competent court
- Supplement to these Metaalunie Conditions
In all cases where we act as supplier, our offers, orders placed with us and contracts concluded with us are subject to the METAALUNIE CONDITIONS. These conditions are filed with the registry of the District Court of Rotterdam and read as follows::
Terms and Conditions of the Metaalunie 1 January 2019
General Terms and Conditions issued by Koninklijke Metaalunie (the employers’ organisation for small and medium-sized enterprises in the metal industry) referred to as TERMS AND CONDITIONS OF THE METAALUNIE, filed with the Registry of the Court of Rotterdam on 1 January 2019.
Publication of the Koninklijke Metaalunie, P.O. Box 2600, 3430 GA, Nieuwegein. © Koninklijke Metaalunie
Article 1: Scope of application
- 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.
- Metaalunie members who apply these Terms and Conditions are referred to as the Contractor. The other party is referred to as the Client.
- 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.
- These Terms and Conditions may only be applied by Metaalunie members.
Article 2: Offers
- All offers are without obligation. The Contractor is entitled to revoke its offer up to two working days after it has received the acceptance.
- If the Client provides the Contractor with information, the Contractor may assume that it is accurate and complete and will base its offer on this information.
- The prices stated in the offer are denominated in euros, excluding VAT and other government levies or taxes. The prices do not include travel, accommodation, packaging, storage and transport costs, nor do they include costs for loading, unloading and cooperating with customs formalities.
Article 3: Confidentiality
- 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.
- The Client will not disclose or reproduce the information referred to in paragraph 1 of this article.
- 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.
- 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.
Article 4: Advice and information provided
- The Client cannot derive any rights from advice and information provided by the Contractor that is not directly related to the contract.
- If the Client provides the Contractor with information, the Contractor may assume that it is accurate and complete when implementing the agreement.
- The Client indemnifies the Contractor against any third-party claims related to the use of advice, drawings, calculations, designs, materials, brands, samples, models and the like provided by or on behalf of the Client. The Client will compensate the Contractor for all damage suffered by the Contractor, including all costs incurred for defence against these claims.
Article 5: Delivery time/implementation period
- Delivery times or implementation periods specified are indicative.
- 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.
- 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;
- 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;
- 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.
- 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.
- 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.
Article 6: Delivery and risk transfer
- Delivery takes place when the Contractor, at its business location, makes the good available to the Client and has informed the Client that the good is at its disposal. From that time onwards, the Client bears the risk of the good in terms of storage, loading, transport and unloading among others.
- The Client and the Contractor may agree that the Contractor will be responsible for the transport. In that case too, the Client bears the risk of, inter alia, storage, loading, transport and unloading. The Client can insure itself against these risks.
- If a good is exchanged and the Client retains the good to be exchanged pending delivery of the new good, the risk of the good to be exchanged remains with the Client until the time that it hands over the good to the Contractor. If the Client is unable to deliver the good to be exchanged in the condition in which it was when the agreement was concluded, the Contractor may terminate the agreement.
Article 7: Price changes
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.
Article 8: Force majeure
- If the Contractor fails to fulfil its obligations, this cannot be attributed to the Contractor if this failure is due to force majeure.
- Force majeure includes, inter alia, if third parties engaged by the Contractor – such as suppliers, subcontractors and transporters, or other parties that the Client is dependent on – do not meet their obligations at all or on time, or circumstances due to weather conditions, natural disasters, terrorism, cybercrime, disruption of digital infrastructure, fire, power failures, loss, theft or loss of tools, materials or information, roadblocks, strikes or work interruptions and import or trade restrictions.
- The Contractor is entitled to suspend fulfilment of its obligations if it is temporarily prevented from fulfilling its obligations to the Client due to force majeure. Once the force majeure circumstances no longer apply, the Contractor will fulfil its obligations as soon as its planning permits.
- If it concerns force majeure and fulfilment is or becomes permanently impossible, or the temporary force majeure circumstances have lasted for more than six months, the Contractor is entitled to terminate the agreement with immediate effect either entirely or in part. In those cases, the Client is entitled to terminate the agreement with immediate effect, but only for that part of the obligations that the Contractor has not yet fulfilled.
- The parties are not entitled to compensation for the damages suffered or to be suffered as a result of the force majeure, suspension or termination as referred to in this article.
Article 9: Scope of the work
- 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.
- Unless otherwise agreed in writing, the work does not include:
- groundwork, pile driving, cutting, breaking, foundation work, masonry, carpentry, plastering, painting, wallpapering, repair work or other construction work;
- making connections to gas, water, electricity, internet or other infrastructural facilities;
- measures to prevent or limit damage to, of theft or loss of goods present at or near the workplace;
- removing equipment, building materials or waste;
- vertical and horizontal transport.
Article 10: Contract extras
- Changes in the work will in any event lead to contract extras if:
- it concerns changes in the design, the specifications or the contract documents;
- the information provided by the Client does not correspond with reality;
- the estimated quantities deviate by more than 5%.
- Contract extras are calculated on the basis of the price-determining factors that apply at the time the extra work is performed. The Client is obliged to pay the price for the contract extras immediately on the Contractor’s request.
Article 11: Implementation of the work
- 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:
- gas, water, electricity and internet;
- lockable dry storage space;
- the facilities prescribed under the Dutch Working Conditions Act [Arbowet].
- 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.
- 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.
Article 12: Delivery of the work
- The work is considered to be delivered in the following cases:
- once the Client has approved the work;
- if the Client has put the work into operation. If the Client puts part of the work into operation, then that part is considered to have been delivered;
- if the Contractor has notified the Client in writing that the work has been completed, and the Client fails to inform the Contractor in writing that the work has not been approved within 14 days of the day of the notification;
- if 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 that do not hinder the commissioning of the work.
- If the Client does not approve the work, it is obliged to inform the Contractor of this in writing, stating the reasons. The Client must give the Contractor the opportunity to deliver the work at a later date.
- The Client indemnifies the Contractor against third-party claims concerning damage to parts of the work not delivered due to the use of parts of the work that have already been delivered.
Article 13: Liability
- In the event of an attributable failure, the Contractor is still obliged to fulfil its contractual obligations, with due observance of Article 14.
- 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.
- 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.
- The following do not qualify for compensation:
- consequential damages. Consequential damages include inter alia business interruption losses, loss of production, loss of profit, penalties, transport costs and travel and subsistence expenses;
- 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;
- 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.
- The Contractor is not obliged to compensate damage to material supplied by or on behalf of the Client as a result of improper processing.
- 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.
Article 14: Guarantee and other claims
- Unless otherwise agreed in writing, the Contractor guarantees the proper execution of the agreed performance for a period of six months after delivery or completion, as detailed in the following paragraphs.
- If the parties have agreed to deviating guarantee conditions, the provisions of this article will remain in full force, unless this is in conflict with those deviating guarantee conditions.
- If the agreed performance has not been executed properly, the Contractor will decide within a reasonable period of time whether it will still perform the work properly or credit the Client for a proportionate part of the contract amount.
- If the Contractor opts to still execute the performance properly, it will determine the manner and time of execution. The Client must in all cases offer the Contractor the opportunity to do so. If the agreed performance (also) included the processing of material provided by the Client, the Client must supply new material at its own expense and risk.
- The Client is responsible for sending parts or materials that are to be repaired or replaced by the Contractor to the Contractor’s business location.
- The following are for the Client’s account:
- all transport or shipping costs;
- costs for dismantling and assembly;
- travel and subsistence expenses and travel time.
- The Contractor is only obliged to implement the guarantee if the Client has fulfilled all its obligations.
- The guarantee does not cover:
- a. Defects that are the result of:
- normal wear and tear;
- improper use;
- lack of maintenance or maintenance carried out incorrectly;
- installation, assembly, modification or repairs carried out by the Client or third parties;
- faulty or unsuitable goods originating from or prescribed by the Client;
- faulty or unsuitable materials or tools used by the Client;
- b. No guarantee is given for:
- goods delivered that were not new at the time of delivery;
- inspections and repairs carried out on goods owned by the Client;
- parts that are subject to a manufacturer’s guarantee.
- The provisions of paragraphs 3 to 8 of this article apply by analogy to any of the Client’s claims based on breach of contract, non-conformity or any other basis whatsoever.
Article 15: Obligation to complain
- 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.
- 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.
Article 16: Failure to take possession of goods
- Opdrachtgever is verplicht na afloop van de levertijd of uitvoeringsperiode de zaak of zaken die onderwerp is of zijn van de overeenkomst op de overeengekomen plaats feitelijk af te nemen.
- Opdrachtgever dient kosteloos alle medewerking te verlenen om opdrachtnemer tot aflevering in staat te stellen.
- Niet afgenomen zaken worden voor rekening en risico van opdrachtgever opgeslagen.
- Bij overtreding van het bepaalde uit lid 1 of 2 van dit artikel is opdrachtgever, nadat opdrachtnemer hem in gebreke heeft gesteld, aan opdrachtnemer per overtreding een boete verschuldigd van 1 250,– per dag met een maximum van 1 25.000,–. Deze boete kan naast schadevergoeding op grond van de wet worden gevorderd.
Article 17: Payment
- Payment is made at the Contractor’s business address or into an account to be designated by the Contractor.
- Unless otherwise agreed, payments must be made within 30 days of the invoice date.
- 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.
- 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.
- 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 payment term has been exceeded;
- the Client does not fulfil its obligations under Article 16;
- the Client has filed for bankruptcy or suspension of payments;
- the Client’s goods or claims have been attached;
- the Client (a company) is dissolved or wound up;
- 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.
- 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.
- 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.
- For late payments, the Client owes the Contractor all extrajudicial costs with a minimum of 1 75.
- These costs are calculated on the basis of the following table, i.e., the principal sum plus interest:
- on the first 1 3,000 15%
- on the excess up to 1 6,000 10%
- on the excess up to 1 15,000 8%
- on the excess up to 1 60,000 5%
- on the excess from 1 60,000 or more 3%
- The extrajudicial costs actually incurred are due if they are higher than the calculation given above.
- 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.
Article 18: Securities
- Irrespective of the agreed payment terms, the Client is obliged to provide sufficient security for payment immediately on the Contractor’s request and at its discretion. If the Client does not comply with this provision within the set time limit, it will immediately be in default. In that case, the Contractor has the right to terminate the agreement and to recover its damages from the Client.
- The Contractor remains the owner of the delivered goods as long as the Client: a. has not fulfilled its obligations under any agreement with the Contractor; b. claims arising from non-fulfilment of the aforementioned agreements, such as damage, penalties, interest and costs, have not been settled.
- As long as the delivered goods are subject to retention of title, the Client may not encumber or dispose of these goods other than in the course of its normal business operations. This provision has effect under property law.
- After the Contractor has invoked its retention of title, it may take back the delivered goods. The Client will cooperate fully with this.
- If the Client has fulfilled its obligations after the Contractor has delivered the goods to it in accordance with the agreement, the retention of title with re spect to these goods is revived if the Client does not fulfil its obligations under an agreement entered into subsequently.
- The Contractor has a right of pledge and a right of retention on all goods that it has or may receive from the Client on any grounds whatsoever and for all claims that it has or might have against the Client.
Article 19: Intellectual property rights
- 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.
- The Contractor will not transfer any intellectual property rights to the Client in the implementation of the agreement.
- 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.
- 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.
Article 20: Assignment of rights or obligations
The Client may not assign or pledge any rights or obligations pursuant to any article in these General Terms and Conditions or the underlying agreement(s), unless it has the prior written consent of the Contractor. This provision has effect under property law.
Article 21: Cancellation or termination of the agreement
- 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.
- 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.
Article 22: Applicable law and competent court
- Dutch law applies.
- The Vienna Sales Convention (CISG) does not apply, nor does any other international regulation that may be excluded.
- The Dutch civil court with jurisdiction in the Contractor’s place of business is authorised to take cognisance of any disputes. The Contractor may deviate from this rule governing jurisdiction and rely on the statutory rules governing jurisdiction instead.
- 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.
Supplement to these Metaalunie Terms and Conditions
In addition to these METAALUNION TERMS AND CONDITIONS, we apply the following binding end-user clauses for international transactions
End consumer clause
- The Purchaser warrants that (i) when trading in the goods in any form (including sale, lease, processing) it will comply with all laws and/or regulations applicable thereto and in particular with all EU and UN export control and sanction regulations and (ii) the goods are not destined or likely to be destined, directly or indirectly, for any country for which sanctions are in force in respect of the goods pursuant to UN or EU regulations, unless the Purchaser has obtained an exemption or permit from a competent authority designated by the UN or EU. The purchaser undertakes to include this guarantee as a perpetual clause in subsequent contracts for the sale of the goods.
Premature termination of the agreement
- The Seller shall be entitled to terminate the agreement with the Buyer with immediate effect, without the need for legal intervention, if the Seller reasonably suspects that the goods are directly or indirectly destined for any country for which a sanction is in force pursuant to UN or EU regulations for the goods concerned, without an exemption or a licence having been obtained from a competent authority.
- Upon termination of the agreement as referred to in paragraph 1 of this article, the Buyer shall not be entitled to any compensation from the Seller.