Metaalunie terms and conditions - 1 January 2025
1.1. The Metaalunie member who uses these terms and conditions is referred to as the contractor. The other party is referred to as the client.
1.2. These terms and conditions apply to all offers made by a Metaalunie member, to all agreements concluded by him and to all agreements resulting from this, all insofar as the Metaalunie member is the contractor.
1.3. In the event of a conflict between a provision from the concluded agreement and these terms and conditions, the provision from the agreement shall prevail.
1.4. Only Metaalunie members may use these terms and conditions.
Article 2: Offers
2.1. All offers made by the contractor are without obligation and revocable, including offers that include a term for acceptance. The contractor has the right to revoke his offer up to two working days after the day on which the acceptance has reached him.
2.2. The prices stated by the contractor in the offer are expressed in euros, excluding sales tax and other government levies or taxes. The prices are also exclusive of travel, accommodation, packaging, storage and transport costs, costs for loading, stowing, unloading and cooperation with customs formalities.
2.3. Unless otherwise specified, the offer does not include: a. earthworks, pile driving, cutting, breaking, foundation work, carpentry, plastering, painting, wallpapering, repair work or any other construction work; b. the realisation of connections for gas, water, electricity, internet or other infrastructural facilities; c. measures to prevent or limit damage, theft or loss of items present at or near the workplace; d. removal of materials, soil, building materials or waste; e. vertical and horizontal transport.
Article 3: Confidentiality
3.1. All information provided by or on behalf of the contractor to the client (such as offers, designs, images, drawings and know-how) of whatever nature and in whatever form, is confidential. The client will only use this information for the performance of the agreement. He will not make the information public or reproduce it.
3.2. If the client violates an obligation from paragraph 1, he will owe an immediately claimable fine of € 25,000 per violation. The contractor can claim this fine in addition to compensation for damages on the basis of the law.
3.3. The client must return the information from paragraph 1 at the first request, within a period set by the contractor, at the contractor's discretion, or destroy it in a manner to be determined by the contractor, without being allowed to retain a copy in any form whatsoever. In the event of violation of this provision, the client will owe the contractor an immediately claimable fine of € 1,000 per day. The contractor can claim this fine in addition to compensation for damages on the basis of the law.
Article 4: Advice and information provided
4.1. The client cannot derive any rights from advice and information from the contractor that does not relate to the assignment.
4.2. If the client provides information to the contractor, the contractor may assume that it is correct and complete when making an offer and executing the agreement.
4.3. The contractor is not obliged to warn of, or independently investigate, any inaccuracies in the assignment, defects and unsuitability of items originating from the client and errors or defects in plans, drawings, calculations, specifications or implementation regulations provided by the client.
4.4. The client indemnifies the contractor against any claim by third parties in connection with (the use of) information provided by or on behalf of the client. This includes advice, instructions, drawings, calculations, designs, materials, brands, samples and models. The client will compensate the contractor for all damage suffered by the contractor. This also includes the full costs of defence.
Article 5: Delivery time
5.1. All delivery times, including in these conditions a delivery date, week, month, term or execution period, are indicative. If they are exceeded, the client must at all times put the contractor in default.
5.2. The delivery time only applies when the client and the contractor have reached agreement on all commercial and technical details in a timely manner, all information, including final and approved drawings and the like, is in the possession of the contractor, all items to be made available by the client have been received by the contractor, the agreed (term) payment has been received in a timely manner and the other conditions for the execution of the order have been met. If the delivery time no longer applies, the contractor may determine a new delivery time taking into account his planning.
5.3. The delivery time no longer applies if there are circumstances other than those known to the contractor when he specified the delivery time and those circumstances are at the expense and risk of the client, including changes to the order, additional or reduced work or suspension by the contractor. If the delivery time no longer applies, the contractor may determine a new delivery time, taking into account his planning.
5.4. The client must reimburse the contractor for all costs and damages incurred or suffered by the contractor as a result of a change in the delivery time as referred to in paragraphs 2 and 3, without a notice of default being required.
5.5. Exceeding the delivery time does not entitle the client to compensation or full or partial termination. The client indemnifies the contractor against claims from third parties as a result of exceeding the delivery time.
Article 6: Delivery and transfer of risk
6.1. Delivery takes place at the moment that the contractor makes the item available to the client at his business location and has notified him of this. The item is at the client's risk from that moment on.
6.2. If, after concluding the agreement, the contractor nevertheless arranges the transport in whole or in part at the request of the client or assists the client in this (such as storage, loading, stowing or unloading), this is at the expense and risk of the client. The client can insure themselves against these risks.
6.3. If, after delivery, there is transport carried out by or on behalf of the client and the contractor must have access to (transport) documents that are in the possession of the client, the client must make these documents available to the contractor upon first request and free of charge.
6.4. If a trade-in is involved and the client retains the trade-in item pending delivery of the new item, the risk of the trade-in item remains with the client until the moment that he has placed it in the possession of the contractor. If the client cannot deliver the trade-in item in the condition in which it was when the agreement was concluded, the contractor may terminate the agreement in whole or in part.
Article 7: Price change
The contractor may pass on to the client an increase in cost-determining factors that occurred after the conclusion of the agreement. The client must pay the price increase at the first request of the contractor.
Article 8: Force majeure
8.1. If the contractor cannot meet his obligations due to a circumstance that is beyond his actual control, this cannot be attributed to him and there is force majeure. In that case, the contractor is not liable for the damage that the client suffers as a result. The client is also not entitled to terminate the agreement in whole or in part in that case, except for the provisions of the fourth paragraph of this article.
8.2. The circumstances referred to in the first paragraph of this article include in any case (civil) war (risk), terrorism, riots, outbreaks of infectious diseases and the resulting government measures or advice, natural disasters, extreme weather conditions, import or trade restrictions, explosion, fire, water damage, sabotage, cybercrime, disruption of digital infrastructure, disruptions in the supply of energy, (partial) loss, theft or loss of tools, materials or information, defects in machines, roadblocks, blockades of railways and waterways or airports, strikes or work stoppages, staff shortages and the circumstance that third parties engaged by the contractor, such as suppliers, subcontractors and transporters, or other parties on which the contractor is dependent, do not or do not timely fulfil their obligations.
8.3. The contractor has the right to suspend the fulfilment of its obligations if it is temporarily prevented from fulfilling its obligations to the client due to force majeure. If the force majeure situation has ended, the contractor will fulfil its obligations as soon as its planning permits.
8.4. If there is force majeure and fulfilment is or becomes permanently impossible, or if the temporary force majeure situation has lasted for more than six months, the contractor is authorised to terminate the agreement in whole or in part with immediate effect. In such cases, the client is authorised to terminate the agreement with immediate effect, but only for that part of the obligations that have not yet been fulfilled by the contractor.
8.5. The parties are not entitled to compensation for damage suffered or to be suffered as a result of the force majeure, suspension or termination within the meaning of this article.
Article 9: Additional work
Additional work is calculated on the basis of the prices that apply to the contractor at the time the additional work is carried out. The client must pay the price of the additional work at the first request of the contractor.
Article 10: Execution of the work
10.1. The client shall ensure that the contractor can perform his work safely, undisturbed, uninterrupted and at the agreed time. The client shall ensure at his own expense and risk that: a. all permits, exemptions and other decisions that are necessary to perform the work have been obtained in good time. The client is obliged to provide the contractor with a copy of the aforementioned documents at the first request of the contractor; b. he informs the contractor in writing and in good time of all (safety) regulations applicable at the location; c. the contractor is provided with the necessary auxiliary personnel, tools and facilities (such as gas, water, electricity, internet, suitable access roads for any necessary transport, lifting and hoisting cranes, sanitary facilities and a lockable dry storage space) when performing his work; d. all activities that are necessary for the performance of the work and do not form part of the agreement have been performed in good time.
10.2. The client bears the risk and is liable for damage to and theft or loss of all items located at or near the location where the work is being performed or at another agreed location, such as the item delivered or to be delivered, tools, materials intended for the work or equipment used in the execution of the work. This does not apply if the client demonstrates that the damage, theft or loss was caused by the contractor itself.
10.3. Without prejudice to the provisions of paragraph 2 of this article, the client must take out sufficient insurance against the risks mentioned in that paragraph. If there is damage, the client is obliged to report this immediately to its insurer for further processing and settlement.
Article 11: Completion of the work
11.1. The work is considered to have been completed if: a. the client has approved the work; b. the work has been put into use. If part of the work has been put into use, that part is considered to have been completed; c. the contractor has given written
Article 13: Warranty and other claims
13.1. Unless otherwise agreed in writing, the contractor guarantees the proper execution of the agreed performance for a period of six months after delivery, as further elaborated in the following articles.
13.2. If the parties have agreed on deviating warranty conditions, the provisions of this article apply, unless and to the extent that this conflicts with those deviating warranty conditions.
13.3. The client must provide all cooperation free of charge to the investigation by or on behalf of the contractor of a complaint from the client about the performance performed, failing which all rights of the client in connection with that complaint will lapse.
13.4. If the contractor has rejected a complaint about the performance performed on good grounds, the client must reimburse all reasonable costs incurred in connection with the investigation of the complaint.
13.5. If the agreed performance has not been properly performed, the contractor will choose whether to perform it properly, replace the delivered item in whole or in part, or credit the client for a reasonable part of the order amount.
13.6. If the contractor chooses to perform the performance properly or replace the delivered item in whole or in part, the client will in all cases give him the opportunity to do so. The contractor determines the manner and time of performance himself. If the agreed performance consisted (partly) of processing material supplied by the client, the client must supply new material at his own expense and risk.
13.7. Items that are repaired or replaced by the contractor must be sent to him by the client. The transport, shipping and disassembly and assembly are at the expense and risk of the client. In addition, the travel, accommodation and travel hours are at the expense of the client. The contractor is entitled to request security or advance payment for these costs.
13.8. The contractor is only required to implement the guarantee if the client has fulfilled all his obligations.
13.9. a. The warranty is excluded for defects that are the result of:
normal wear and tear;
improper use;
non- or incorrect maintenance;
installation, (dis)assembly, modification or repair by the client or by third parties;
defects in or unsuitability of items, materials or resources originating from, or prescribed by the client.
b. No warranty is given on:
delivered items that were not new at the time of delivery;
inspection, repair and revision of items;
items for which a factory warranty has been provided;
items for which a warranty has been provided to the client by third parties.
13.10. The provisions of paragraphs 3 to 8 of this article apply accordingly to any claims by the client on the grounds of breach of contract, non-conformity or any other basis whatsoever.
Article 14: Obligation to complain
14.1. In any case, the client can no longer invoke a defect in the performance if he has not complained about it in writing to the contractor within fourteen days after he discovered the defect or reasonably should have discovered it.
14.2. On penalty of forfeiture of all rights, the client must have complained about the invoice in writing to the contractor within the payment term. If the payment term is longer than thirty days, the client must have complained in writing within thirty days after the invoice date.
Article 15: Items not taken
15.1. The client is obliged to actually take delivery of the item that is the subject of the agreement at the agreed location after the delivery time has expired.
15.2. The client must provide all cooperation free of charge to enable the contractor to deliver.
15.3. Items not taken will be stored at the expense and risk of the client.
15.4. In the event of a violation of the provisions of paragraph 1 or 2 of this article, the client shall, after the contractor has given notice of default, owe the contractor a fine of €250 per day with a maximum of €25,000 per violation. This fine may be claimed in addition to compensation for damages under the law.
Article 16: Payment
16.1. Payment shall be made at the place of establishment of the contractor or to an account to be designated by the contractor.
16.2. Unless otherwise agreed, payment shall be made within 30 days of the invoice date.
16.3. If the client fails to meet his payment obligation, he shall be obliged to comply with a request from the contractor for payment in lieu of payment of the agreed price.
16.4. The right of the client to offset his claims against the contractor or to suspend the fulfillment of his obligations is excluded,
Article 17: Securities
17.1. The client is obliged to provide sufficient security for all payments that the client owes the contractor under the agreement at the first request of the contractor, in the latter's opinion. If the client does not comply with this within the set term, he will immediately be in default. In that case, the contractor has the right to terminate the agreement and recover his damages from the client.
17.2. The contractor remains the owner of delivered goods as long as the client has not fulfilled his obligations under any agreement with the contractor, including claims such as damages, fines, interest and costs.
17.3. If the client has fulfilled his obligations after the goods have been delivered to him by the contractor in accordance with the agreement, the retention of title with respect to these goods will revive if the client does not fulfil his obligations under a subsequently concluded agreement.
17.4. As long as a retention of title applies to delivered goods, the client may not encumber or alienate them outside of his normal business operations. This provision has effect under property law.
17.5. After the contractor has invoked his retention of title, he may retrieve the delivered goods. The client will provide all cooperation to this end.
17.6. In the event of a violation of the provisions of paragraph 5 of this article, the client, after the contractor has given notice of default, owes the contractor a fine of € 250 per day with a maximum of € 25,000 per violation. This fine can be claimed in addition to compensation for damages under the law.
17.7. The contractor has a lien and a right of retention on all goods that he has or will receive from the client for whatever reason and for all claims that he has or may have on the client.
Article 18: Intellectual property rights
18.1. The contractor is considered to be the maker, designer, inventor or inventor of the works, models, signs or inventions created within the framework of the agreement. The contractor has the exclusive right to apply for a patent, trademark or model.
18.2. The contractor does not transfer any intellectual property rights to the client when performing the agreement.
18.3. If the performance to be delivered by the contractor (also) consists of the delivery of computer software, the source code will not be transferred to the client. The client obtains a non-exclusive, worldwide and perpetual user license to the computer software exclusively for the purpose of normal use and proper functioning of the item.
18.4. The client is not permitted to transfer the license or to issue a sublicense. This provision has property law effect. Only in the event of resale of the item in connection with which the contractor has delivered the computer software, the license will be transferred to the purchaser of the item under the same conditions and restrictions as included in this article, on condition that the purchaser of the item has accepted these conditions in writing.
18.5. The contractor is not liable for damage suffered by the client as a result of an infringement of intellectual property rights of third parties.
18.6. The Client indemnifies the Contractor against any third-party claim relating to an infringement of intellectual property rights.
Article 19: Transfer of rights or obligations
The Client may not transfer or pledge any rights or obligations under any article of these general terms and conditions or the underlying agreement(s) without the prior written consent of the Contractor. This provision has property law effect.
Article 20: Termination or cancellation of the agreement
20.1. The Client is not authorised to terminate or cancel the agreement in whole or in part.
20.2. The Contractor may agree to a request to terminate the agreement. In that case, the Client is liable for compensation of at least 20% of the agreed or estimated price. The Contractor is authorised to demand a higher compensation or to impose additional conditions on its consent.
Article 21: Applicable law and competent court
21.1. Dutch law applies. The Vienna Sales Convention (C.I.S.G.) or any other international regulation the exclusion of which is permitted, shall not apply.
21.2. The Dutch civil court that has jurisdiction in the place of establishment of the contractor shall have exclusive jurisdiction over disputes arising from the agreement or related thereto.
