General delivery and payment conditions issued by the Metaalunie
(Dutch Organization of Entrepreneurs in Small and Medium-sized Businesses in the Metal) referred to as
METALLIC UNION CONDITIONS, filed at the Registry of the Court of Rotterdam on January 1, 2001
Edition of the Metaalunie, Postbus 2600, 3430 GA Nieuwegein. © Metaalunie
Article 1: Applicability.
1.1 These conditions apply to all offers made by members of the Metaalunie, to all agreements that they conclude and to all agreements that may result from this. The provider / supplier is the Metaalunie member who uses these conditions. This is referred to as the contractor or seller. The other party is referred to as the client or buyer.
1.2 These terms and conditions may only be used by members of the Metaalunie.
1.3 The client’s general terms and conditions do not apply and are expressly rejected.
Article 2: Offers.
2.1 All offers are non-binding.
2.2 If the client provides the contractor with data, drawings, etc., the contractor may assume that these are correct and shall base his offer on this.
2.3 The prices stated in the offer are based on delivery ex works, “ex works”, in accordance with Incoterms 2000. The prices are exclusive of sales tax and packaging.
2.4 If his offer is not accepted, the contractor has the right to charge the client all the costs that he has had to make to make his offer.
Article 3: Intellectual Property Rights.
3.1 Unless otherwise agreed, the contractor retains the copyrights and all industrial property rights to the offers made by him, designs, images, drawings, (test) models, software, etc.
3.2 The rights to the data referred to in paragraph 1 remain the property of the contractor regardless of whether costs have been charged to the client for their production. This data may not be copied, used or shown to third parties without the express permission of the contractor. In the event of a violation of this provision, the client owes the contractor a fine of Euro 25,000. This penalty can be claimed in addition to compensation under the law.
3.3 Client must return the information provided to him as referred to in paragraph 1 at the first request within the period set by the contractor. In the event of a violation of this provision, the client owes the contractor a fine of Euro 1,000 per day. This penalty can be claimed in addition to compensation under the law.
Article 4: Advice, designs and materials.
4.1 The client cannot derive any rights from advice and information he receives from the contractor if they do not relate directly to the assignment.
4.2 The client is responsible for the drawings and calculations made by him or on his behalf and for the functional suitability of materials prescribed by him or on his behalf.
4.3 The client indemnifies the contractor against any claim from third parties with regard to the use of drawings, calculations, samples, models and suchlike provided by or on behalf of the client.
4.4 The Client may examine the materials that the Contractor wishes to use before they are processed for its own account or have them examined. If the contractor suffers damage as a result, this will be borne by the client.
Article 5: Delivery time.
5.1 The delivery time will be approximated by the contractor.
5.2 When determining the delivery time, the contractor assumes that he can carry out the assignment under the circumstances known to him at that time.
5.3 The delivery time starts when agreement has been reached on all technical details, all necessary data, final drawings etc. are in the possession of the contractor, the agreed (installment) payment has been received and the necessary conditions for the implementation of the assignment has been fulfilled.
5.4 a. If there are circumstances other than those known to the contractor when he established the delivery time, the contractor may extend the delivery time by the time required to execute the order under these circumstances. If the work cannot be fitted into the contractor’s schedule, it will be completed as soon as his schedule permits.
5.4 b. If there is additional work, the delivery time will be extended by the time required to deliver the materials and parts for that (and have it delivered) and to perform the additional work. If the additional work cannot be fitted into the contractor’s planning, the work will be completed as soon as the planning permits.
5.4 c. If there is a suspension of obligations by the contractor, the delivery time will be extended by the duration of the suspension. If the continuation of the work cannot fit into the contractor’s planning, the work will be completed as soon as the planning permits.
5.4 d. If there is unworkable weather, the delivery time will be extended by the resulting stagnation time.
5.5 Exceeding the agreed delivery time will under no circumstances give rise to compensation, unless this has been agreed in writing.
Article 6: Risk transfer.
6.1 At purchase, delivery takes place ex works, “ex works”, in accordance with Incoterms 2000; the risk of the item passes when the seller makes it available to the buyer.
6.2 Irrespective of the provisions in the previous paragraph, the client and the contractor may agree that the contractor shall provide for the transport. The risk of storage, loading, transport and unloading also rests on the client in that case. Client can take out insurance against these risks.
6.3 Even if the seller installs and / or assembles the sold item, the risk of the item transfers at the moment that the seller makes the items available to the buyer in the business premises of the seller or at another agreed place. p >
6.4 If the purchase involves trade-in and the buyer continues to use the goods to be exchanged pending delivery of the new item, the risk of the item to be exchanged remains with the buyer until the moment he has it in his possession from seller.
Article 7: Price change.
7.1 If after the date on which the agreement is concluded four months have elapsed and the fulfillment thereof by the contractor has not yet been completed, an increase in the price-determining factors may be charged to the client.
7.2 Payment of the price increase as referred to in paragraph 1 takes place simultaneously with payment of the principal or the final installment.
7.3 If goods are supplied by the client and the contractor is prepared to use them, the contractor may charge a maximum of 20% of the market price of the delivered goods.
Article 8: Unworkability of the assignment.
8.1 Contractor has the right to suspend the fulfillment of his obligations if he is temporarily prevented from fulfilling his obligations due to circumstances that were not expected at the conclusion of the agreement and that are outside his sphere of influence. p>
8.2 Circumstances that could not be expected by the contractor and that are outside its sphere of influence include the circumstance that suppliers and / or subcontractors of the contractor do not or not timely fulfill their obligations, weather, earthquakes, fire, loss or theft of tools, loss of materials to be processed, road blocks, strikes or work interruptions and import or trade restrictions.
8.3 Contractor is not authorized to suspend performance if compliance is permanently impossible or if a temporary impossibility has lasted more than six months. The agreement can then be dissolved for that part of the obligations that has not yet been fulfilled. In that case the parties are not entitled to compensation for the damage suffered or to be suffered as a result of the dissolution.
Article 9: Scope of the work.
9.1 The client must ensure that all permits, exemptions and other decisions that are necessary to perform the work have been obtained in time.
9.2 The price of the work does not include:
a. the costs for earthwork, pile-driving, chopping, breaking, foundation, masonry, carpentry, plastering, painting, wallpapering, repair or other construction work;
b. the costs for connecting gas, water, electricity or other infrastructure facilities;
c. the costs for preventing or limiting damage to items present at or near the work;
d. the costs of disposal of materials, building materials or waste;
e. travel and subsistence costs.
Article 10: Changes to the work.
10.1 Changes to the work will in any case result in additional or reduced work if:
a. there is a change in the design or specifications;
b. the information provided by the client does not correspond to reality;
c. deviations from estimated quantities of more than 10%.
10.2 Additional work is calculated based on the value of the price-determining factors that apply at the time the additional work is performed. Less work is settled on the basis of the value of the price-determining factors that applied at the time the agreement was concluded.
10.3 If the balance of the contract work exceeds that of the contract extra work, the contractor may charge the client 10% of the difference of the balances in the final settlement. This provision does not apply to less work resulting from a request from the contractor.
Article 11: Execution of the work.
11.1 The client ensures that the contractor can carry out his work undisturbed and at the agreed time and that he is provided with the necessary facilities for the execution of his work, such as: gas, water and electricity; br /> – heating;
– lockable dry storage space;
– provisions prescribed under the Working Conditions Act and legislation.
11.2 The client is liable for all damage resulting from loss, theft, burning or damage to tools, materials and other items of the contractor that are located at the place where the work is performed.
11.3 If the client does not fulfill his obligations as described in the previous paragraphs and this causes a delay in the execution of the work, the work will be carried out as soon as the planning of the contractor permits this. In addition, the client is liable for all resulting damage for the contractor.
Article 12: Completion of the work.
12.1 The work is considered completed when:
a. the client has approved the work;
b. the work has been put into use by the client. If the client takes part of the work into use, that part will be considered as completed;
c. the contractor has informed the client in writing that the work has been completed and the client has not made known in writing within 14 days after the notification whether or not the work has been approved;
d. the client does not approve the work on the basis of minor defects or missing parts that can be repaired or supplied within 30 days and that do not prevent the work from being put into use.
12.2 If the client does not approve the work, he is obliged to state this in writing to the contractor, stating the reasons.
12.3 If the client does not approve the work, he shall give the contractor the opportunity to deliver the work again. The provisions of this article apply again.
Article 13: Liability.
13.1 The contractor is liable for damage that the client suffers and which is the direct and exclusive result of a shortcoming attributable to the contractor. Reimbursement, however, only qualifies for damage for which the contractor is insured or should reasonably have been insured.
13.2 The following are not eligible for reimbursement:
a. business damage including, for example, stagnation damage and lost profit;
b. visible damage. Supervision damage is understood to mean, among other things, damage caused by or during the execution of the work to be worked on or work being carried out in the vicinity of the place where work is being carried out; c. damage caused by intent or willful recklessness of auxiliaries
13.3 The client indemnifies the contractor against all claims from third parties for product liability as a result of a defect in a product delivered by the client to a third party that (partly) consisted of products and / or materials supplied by the contractor.
Article 14: Warranty.
14.1 The Contractor guarantees the proper execution of the agreed performance for a period of six months after delivery.
14.2 If the agreed performance consists of contracting work, the contractor warrants the soundness of the delivered construction and the materials used for the period referred to in paragraph 1, provided that he was free to choose it.
that the delivered construction or the materials used are not sound, the contractor will repair or replace it. The parts that are repaired or replaced by the contractor must be sent carriage paid to the contractor. Disassembly and assembly of these parts and any travel and accommodation costs incurred are at the expense of the client.
14.3 If the agreed performance consists of processing materials supplied by the client, the contractor guarantees the soundness of the performed work for the period referred to in paragraph 1. If it appears that an operation has not been performed properly, the contractor can choose whether he:
– perform the operation again. In that case, the client must provide new material at its own expense.
– repair the defect. In that case, the client must return the material to the contractor carriage paid;
– the client credits a proportionate part of the invoice.
If the agreed performance consists of the delivery of a good, the contractor guarantees the soundness of the good delivered during the period referred to in paragraph 1.
If it appears that the delivery has not been sound, the good must be free of charge. be sent back to the contractor. The contractor will then make a choice as to whether he:
– repairs the case;
– replaces the case;
– credits the client for a proportionate part of the invoice.
14.5 If the agreed performance (partly) consists of the installation and / or assembly of a delivered item, the contractor guarantees the soundness of the installation and / or assembly for the period referred to in paragraph 1.
If it appears that the installation and / or assembly has not been properly carried out, the contractor will rectify this. Any travel and accommodation costs incurred will be borne by the client.
14.6 The manufacturer’s warranty applies to those parts for which the client and contractor have expressly agreed this in writing. If the client has had the opportunity to become acquainted with the content of the factory warranty, it will take the place of a warranty under this article.
14.7 The client must in all cases offer the contractor the opportunity to repair a defect or to perform the operation anew.
14.8 The client can only appeal to the guarantee after he has fulfilled all his obligations towards the contractor.
14.9 a. No guarantee is given for defects that are the result of:
– normal wear and tear;
– improper use;
– non-maintenance or improper maintenance;
– installation, assembly, modification or repair by the client or by third parties.
No warranty is given for delivered items that were not new at the time of delivery.
Article 15: Complaints.
The client can no longer rely on a defect in the performance if he has not complained in writing to the contractor within 14 days after he has discovered the defect or should reasonably have discovered it.
Article 16: Goods not taken.
If goods have not been purchased after the delivery time has expired, they will remain available to the client. Items that have not been purchased are stored for the account and risk of the client. The contractor may always use the authority of article 6:90 of the Dutch Civil Code.