TERMS AND CONDITIONS (METAALUNIE)
General Terms and Conditions issued by Koninklijke Metaalunie (the Dutch organization for small and medium-sized enterprises in the metal industry), referred to as the METAALUNIE TERMS AND CONDITIONS,
filed at the Registry of the Rotterdam District Court on 1 January 2014. Issued by Koninklijke Metaalunie, P.O. Box 2600, 3430 GA Nieuwegein, the Netherlands.
Article 1: Applicability
1.1. These Terms and Conditions apply to all offers made by members of Koninklijke Metaalunie, all agreements they conclude and all agreements that may result therefrom,all this in so far as the Metaalunie member is offeror or supplier.
1.2. A Metaalunie member using these Terms and Conditions is referred to as the Contractor. The other party is referred to as the Client.
1.3. In the event of any conflict between the substance of the agreement concluded between the Contractor and the Client and these Terms and Conditions, the provisions of the agreement will prevail.
1.4. These Terms and Conditions may only be used by Metaalunie members.
Article 2: Offers
2.1. All offers are without obligation.
2.2. If the Client provides the Contractor with data, drawings and the like, the Contractor
may rely on their accuracy and completeness and will base its offer on the same.
2.3. The prices stated in the offer are based on delivery ex works, Contractor’s place of establishment,
in accordance with the Incoterms 2010. Prices are exclusive of VAT and
2.4. If the Client does not accept the Contractor’s offer, the Contractor is entitled to charge
the Client for all costs incurred by the Contractor in making the offer to the Client.
Article 3: Intellectual property rights
3.1. Unless otherwise agreed in writing, the Contractor retains the copyright and all industrial
property rights in the offers made by it and in the designs, pictures, drawings, models
(including trial models), software and the like provided by it.
3.2. The rights in the data referred to in paragraph 1 of this article will remain the property
of the Contractor irrespective of whether the costs of their production have been
charged to the Client. These data may not be copied, used or shown to third parties
without the Contractor’s prior express written consent. The Client will owe the Contractor
an immediately payable penalty of € 25,000 for each breach of this provision. This
penalty may be claimed in addition to damages pursuant to the law.
3.3. On the Contractor’s first demand, the Client must return the data provided to it as referred
to in paragraph 1 of this Article within the time limit set by the Contractor. Upon
breach of this provision, the Client will owe the Contractor an immediately payable penalty
of € 1,000 per day. This penalty may be claimed in addition to damages pursuant to
Article 4: Advice and information provided
4.1. The Client cannot derive any rights from advice or information it obtains from the Contractor
if this does not relate to the assignment.
4.2. If the Client provides the Contractor with data, drawings and the like, the Contractor
may rely on their accuracy and completeness in the performance of the agreement.
4.3. The Client indemnifies the Contractor from and against all liability to third parties relating
to use of the advice, drawings, calculations, designs, materials, samples, models
and the like provided by or on behalf of the Client.
Article 5: Delivery period / performance period
5.1. The delivery period and/or performance period will be set by the Contractor on an approximate
5.2. In setting the delivery period and/or performance period, the Contractor will assume
that it will be able to perform the assignment under the conditions known to it at that
5.3. The delivery period and/or performance period will only commence once agreement has
been reached on all commercial and technical details, all necessary data, final and approved
drawings and the like are in the Contractor’s possession, the agreed payment or
instalment has been received and the necessary conditions for performance of the assignment
have been satisfied.
a. In the event of circumstances that differ from those that were known to the Contractor
when it set the delivery period and/or performance period, it may extend
the delivery period and/or performance period by such period as it needs to perform
the assignment under such circumstances. If the work cannot be incorporated
into the Contractor’s schedule, it will be performed as soon as the Contractor’s
schedule so permits.
b. In the event of any contract addition, the delivery period and/or performance period
will be extended by such period as the Contractor needs to (cause to) supply the
materials and parts for such work and to perform the contract addition. If the contract
addition cannot be incorporated into the Contractor’s schedule, the work will
be performed as soon as the Contractor’s schedule so permits.
c. If the Contractor suspends its obligations, the delivery period and/or performance
period will be extended by the duration of the suspension. If the continuation of the
work cannot be incorporated into the Contractor’s schedule, the work will be performed
as soon as the Contractor’s schedule so permits.
d. In the event of inclement weather, the delivery period and/or performance period
will be extended by the resulting delay.
5.5 The Client is required to pay all costs incurred by the Contractor as a result of delay affecting
the delivery period and/or performance period as referred to in Article 5.4.
5.6 If the delivery period and/or performance period is/are exceeded, this will in no event
entitle to damages or termination.
Article 6: Transfer of risk
6.1. Delivery will be made ex works, Contractor’s place of establishment, in accordance with
the Incoterms 2010. The risk attached to the good passes to the Client at the time the
Contractor makes the good available to the Client.
6.2. Notwithstanding the provisions in paragraph 1 of this article, the Client and Contractor
may agree that the Contractor will arrange for transport. In that event, the risk of storage,
loading, transport and unloading will be borne by the Client. The Client may insure
itself against these risks.
6.3. In the event of a purchase in which a good is exchanged (inruil) and the Client retains
the good to be exchanged pending delivery of the new good, the risk attached to the
good to be exchanged remains with the Client until it has placed this good in the possession
of the Contractor. If the Client cannot deliver the good to be exchanged in the
condition that it was in when the agreement was concluded, the Contractor may terminate
Article 7: Price change
7.1. The Contractor may pass on to the Client any increase in costing factors occurring after
conclusion of the agreement.
7.2. The Client will be obliged to pay the price increase as referred to in paragraph 1 of this
article on any of the occasions below, such at the discretion of the Contractor:
a. upon the occurrence of the price increase;
b. at the same time as payment of the principal sum;
c. on the next agreed payment deadline.
Article 8: Force majeure
8.1. The Contractor is entitled to suspend performance of its obligations if it is temporarily
prevented from performing its contractual obligations to the Client due to force
8.2. Force majeure is understood to mean, inter alia, the circumstance of failure by suppliers,
the Contractor’s subcontractors or transport companies engaged by the Contractor
to perform their obligations or perform them in good time, weather conditions, earthquakes,
fire, power failure, loss, theft or destruction of tools or materials, road blocks,
strikes or work stoppages and import or trade restrictions.
8.3. If the Contractor’s temporary inability to perform lasts for more than six months, it will
no longer be entitled to suspend performance. On expiry of this deadline, the Client and
the Contractor may terminate the agreement with immediate effect, but only as regards
such part of the obligations that has not yet been performed.
8.4. In the event of force majeure where performance is or becomes permanently impossible,
both parties are entitled to terminate the agreement with immediate effect as regards
such part of the obligations that has not yet been performed.
8.5. 8.5. The parties will not be entitled to compensation for damage suffered or to be suffered
as a result of suspension or termination as referred to in this article.
Article 9: Scope of the work
9.1. The Client must ensure that all licences, exemptions and other administrative decisions
necessary to carry out the work are obtained in good time. The Client is required upon
the Contractor’s first demand to send the Contractor a copy of the documents mentioned
9.2. The price of the work does not include:
a. the costs of earthwork, pile driving, cutting, breaking, foundation work, cementing,
carpentry, plastering, painting, wallpapering, repair work or other construction
b. the costs of connecting gas, water, electricity or other infrastructural facilities;
c. the costs of preventing or limiting damage to any goods present on or near the work
d. the costs of removal of materials, building materials or waste;
e. travel and accommodation expenses.
Article 10: Changes to the work
10.1. Changes to the work will in any event result in contract variations work if:
a. the design, specifications or contract documents are changed;
b. the information provided by the Client is not factually accurate;
c. quantities diverge by more than 10% from the estimates.
10.2. Contract additions will be charged on the basis of the pricing factors applicable at the
time the contract addition is performed.
Contract deductions will be charged on the basis of the pricing factors applicable at the
time the agreement was concluded.
10.3. The Client will be obliged to pay the price of the contract addition as referred to in paragraph
1 of this article on any of the occasions below, such at the discretion of the Contractor:
a. when the contract addition arises;
b. at the same time as payment of the principal sum;
c. on the next agreed payment deadline.
10.4. If the sum of the contract deduction exceeds that of the contract addition, in the final
settlement the Contractor may charge the Client 10% of the difference. This provision
does not apply to contract deductions that result from a request by the Contractor.
Article 11: Performance of the work
11.1. The Client will ensure that the Contractor can carry out its activities without interruption
and at the agreed time and that the requisite facilities are made available to it when
carrying out its activities, such as:
a. gas, water and electricity;
c. lockable and dry storage space;
d. facilities required pursuant to the Working Conditions Act and Working Conditions
11.2. The Client bears the risk of and is liable for any damage connected with loss, theft,
burning and damage to goods belonging to the Contractor, the Client and third parties,
such as tools, materials intended for the work or material used in the work, that are located
on the work site or at another agreed location.
11.3. The Client is obliged to adequately insure itself against the risks referred to in paragraph
2 of this article. In addition, the Client must procure insurance of work-related
damage as regards the material to be used. Upon the Contractor first demand, the Client
must send it a copy of the relevant insurance policy/policies and proof of payment of
the premium. In the event of any damage, the Client is required to report this to its insurer
without delay for further processing and settlement.
11.4. If the Client fails to perform its obligations as described in the previous paragraphs and
this results in delayed performance of the activities, the activities will be carried out as
soon as the Client performs its obligations as yet and the Contractor’s schedule so permits.
The Client is liable for all damage suffered by the Contractor as a result of the delay.
Article 12: Completion of the work
12.1. The work is deemed to be completed in the following events:
a. when the Client has approved the work;
b. when the work is been taken into commission by the Client. If the Client takes part
of the work into commission, that part will be deemed to be completed;
c. if the Contractor notifies the Client in writing that the work has been completed and
the Client does not inform it in writing as to whether or not the work is approved
within 14 days of such notification having been made;
d. if the Client does not approve the work due to minor defects or missing parts that
can be rectified or subsequently delivered within 30 days and that do not prevent
the work from being taken into commission.
12.2. If the Client does not approve the work, it is required to inform the Contractor of this in
writing, stating reasons. The Client must provide the Contractor with the opportunity to
complete the work as yet.
12.3. The Client indemnifies the Contractor from and against any claims by third parties for
damage to non-completed parts of the work caused by use of parts of the work that
have already been completed.
Article 13: Liability
13.1. In the event of an attributable failure, the Contractor is obliged to perform its contractual
obligations as yet.
13.2. 13.2 The Contractor’s obligation to pay damages, irrespective of the legal basis, is
limited to damage for which the Contractor is insured under an insurance policy taken
out by it or on its behalf, but will never exceed the amount paid out under this insurance
in the relevant case.
13.3. If, for any reason whatsoever, the Contractor cannot invoke the limitation in paragraph
2 of this article, the obligation to pay damages will be limited to a maximum of 15% of
the total assignment amount (excluding VAT). If the agreement comprises parts or partial
deliveries, the obligation to pay damages is limited to a maximum of 15% (excluding
VAT) of the assignment amount of that part or that partial delivery.
13.4. The following does not qualify for compensation:
a. consequential loss, including business interruption loss, production loss, loss of
profit, transport costs and travel and accommodation expenses. The Client may insure
itself against this damage if possible;
b. damage to goods in or under its care, custody or control. Such damage includes
damage caused as a result of or during the performance of the work to goods on
which work is being performed or to goods situated in the vicinity of the work site.
The Client may insure itself against such damage if it so desires;
c. damage caused by the intent or wilful recklessness of agents or non-management
employees of the Contractor.
13.5. The Contractor is not liable for damage to material provided by or on behalf of the Client
where that damage is the result of improper processing.
13.6. The Client indemnifies the Contractor from and against all claims by third parties on account
of product liability as a result of a defect in a product supplied by the Client to a
third party and that consisted, entirely or partially, of products and/or materials supplied
by the Contractor. The Client is obliged to compensate all damage suffered by the
Contractor in this respect, including the full costs of defence.
Article 14: Warranty and other claims
14.1. Unless otherwise agreed in writing, the Contractor warrants the proper execution of the
agreed performance for a period of six months after delivery/completion. In the event
that a different warranty period is agreed, the other paragraphs of this article are also
14.2. If the agreed performance was not properly executed, the Contractor will decide whether
to properly execute it as yet or to credit the Client for a proportionate part of the invoice
amount. If the Contractor chooses to properly execute the performance as yet, it
will determine the manner and time of execution itself. If the agreed performance consisted
(entirely or partially) of the processing of material provided by the Client, the Client
must provide new material at its own risk and expense.
14.3. Parts or materials that are repaired or replaced by the Contractor must be sent to the
Contractor by the Client.
14.4. The Client bears the expense of:
a. all costs of transport or dispatch;
b. costs of disassembly and assembly;
c. travel and accommodation expenses.
14.5. The Client must in all cases offer the Contractor the opportunity to remedy any defect or
to perform the processing again.
14.6. The Client may only invoke the warranty once it has satisfied all its obligations to the
14.7. a. No warranty is given if the defects result from:
– normal wear and tear;
– improper use;
– lack of maintenance or improper maintenance;
– installation, fitting, modification or repair by the Client or third parties;
– defects in or unsuitability of goods originating from, or prescribed by, the Client;
– defects in or unsuitability of materials or auxiliary materials used by the Client.
b. No warranty is given in respect of:
– goods supplied that were not new at the time of delivery;
– the inspection and repair of goods of the Client;
– parts for which a manufacturer’s warranty has been provided.
14.8. The provisions of paragraphs 2 to 7 of this article apply mutatis mutandis to any claims
by the Client based on breach of contract, non-conformity or on any other basis whatsoever.
14.9. The Client cannot assign any rights under this article.
Article 15: Obligation to complain
15.1. The Client can no longer invoke a defect in performance if it does not make a written
complaint to the Contractor in respect thereof within fourteen days of the date it discovered,
or should reasonably have discovered, the defect.
15.2. On pain of forfeiture of all rights, the Client must submit complaints regarding the
amount invoiced to the Contractor in writing within the payment deadline. If the payment
deadline is longer than thirty days, the Client must complain no later than thirty
days after the date of the invoice.
Article 16: Failure to take delivery of goods
16.1. Upon expiry of the delivery period and/or performance period, the Client is obliged to
take delivery of the good or goods forming the subject of the agreement.
16.2. The Client must lend all cooperation that can be reasonably expected from it to enable
the Contractor to make the delivery.
16.3. If the Client does not take delivery of goods, such goods will be stored at the risk and
expense of the Client.
16.4. Upon breach of the provisions in paragraphs 1 and/or 2 of this article, the Client will
owe the Contractor a penalty of € 250 per day, to a maximum of € 25,000. This penalty
may be claimed in addition to damages pursuant to the law.
Article 17: Payment
17.1. Payment will be made at the Contractor’s place of establishment or to an account to be
designated by the Contractor.
17.2. Unless agreed otherwise, payment will be made as follows:
a. in cash where sale is at the service desk;
b. in the case of payments in instalments:
– 40% of the total price upon assignment;
– 50% of the total price after supply of the material or, if delivery of the material
is not included in the assignment, after commencement of the work;
– 10% of the total price upon completion;
c. in all other cases, within thirty days of the date of the invoice.
17.3. If the Client fails to comply with its payment obligation, instead of paying the sum of
money agreed it will be obliged to comply with a request by the Contractor for payment
in kind (inbetalinggeving).
17.4. The right of the Client to set off or suspend amounts it is owed by the Contractor is excluded,
save in the event of the Contractor’s bankruptcy or if statutory debt rescheduling
applies to the Contractor.
17.5. Irrespective of whether the Contractor has fully executed the agreed performance, everything
that is or will be owed to it by the Client under the agreement is immediately
due and payable if:
a. a deadline for payment has been exceeded;
b. an application has been made for the Client’s bankruptcy or suspension of payments;
c. attachment is levied on the Client’s goods or claims;
d. the Client (a company) is dissolved or wound up.
e. the Client (a natural person) requests to be admitted to statutory debt rescheduling,
is placed under guardianship or dies.
17.6 If payment is not made within the agreed payment deadline, the Client will immediately
owe interest to the Contractor. The interest rate is 12% per annum, but is equal to the
statutory interest rate if the latter rate is higher. When calculating interest, part of a
month is regarded as a whole month.
17.7 The Contractor is authorised to set off its debts to the Client with amounts owed by the
Client to companies affiliated with the Contractor. In addition, the Contractor is authorised
to set off amounts owed to it by the Client with debts to the Client of companies
affiliated with the Contractor. Further, the Contractor is authorised to set off its debts to
the Client with amounts owed to the Contractor by companies affiliated with the Client.
Affiliated companies are understood to mean the companies belonging to the same
group, within the meaning of Article 2:24b Dutch Civil Code, and participating interests
within the meaning of Article 2:24c Dutch Civil Code.
17.8 If payment is not made within the agreed payment deadline, the Client will owe the
Contractor all extrajudicial costs, with a minimum of € 75.
These costs will be calculated on the basis of the following table (principal sum plus interest):
on the first € 3,000 15%
on any additional amount up to € 6,000 10%
on any additional amount up to € 15,000 8%
on any additional amount up to € 60,000 5%
on any additional amount from € 60,000 3%
The extrajudicial costs actually incurred will be owed if these are higher than they would
be according to the above calculation.
17.9 If judgment is rendered in favour of the Contractor in legal proceedings, all costs that it
has incurred in relation to these proceedings will be borne by the Client.
Article 18: Security
18.1. Irrespective of the agreed payment conditions, upon the first demand of the Contractor
the Client is obliged to provide such security for payment as the Contractor deems sufficient.
If the Client does not comply with such demand within the period set, it will immediately
be in default. In that event, the Contractor is entitled to terminate the
agreement and to recover its damage from the Client.
18.2. The Contractor will retain ownership of any goods delivered as long as the Client:
a. fails or will fail in the performance of its obligations under this agreement or other
b. has not paid debts that have arisen due to non-performance of the aforementioned
agreements, such as damage, penalties, interest and costs.
18.3. As long the goods delivered are subject to retention of title, the Client may not encumber
or alienate the same other than in the ordinary course of its business.
18.4. Once the Contractor has invoked its retention of title, it may take possession of the
goods delivered. The Client will lend its full cooperation to this end.
18.5. The Contractor has a right of pledge and a right of retention in respect of all goods that
are or will be held by it for any reason whatsoever and for all claims it has or might acquire
against the Client in respect of anyone seeking their surrender.
18.6. If, after the goods have been delivered to the Client by the Contractor in accordance
with the agreement, the Client has met its obligations, the retention of title will be revived
with regard to such goods if the Client does not meet its obligations under any
agreement subsequently concluded.
Article 19: Termination of the Agreement
If the Client wishes to terminate the agreement without the Contractor being in default, and
the Contractor agrees to this, the agreement will be terminated by mutual consent. In that
case, the Contractor is entitled to compensation for all financial loss, such as loss suffered, loss
of profit and costs incurred.
Article 20: Applicable law and competent court
20.1. Dutch law applies.
20.2. The Vienna Sales Convention (C.I.S.G.) does not apply, nor do any other international
regulations the exclusion of which is permitted.
20.3. Disputes will be heard exclusively by the Dutch civil court with jurisdiction over the Contractor’s
place of establishment, unless this is contrary to mandatory law. The Contractor
may deviate from this rule of jurisdiction and apply the statutory rules of jurisdiction.
These conditions are a full translation of the Dutch version of the ‘METAALUNIEVOORWAARDEN’
as deposited with the Registry of the District Court in Rotterdam on 1 January
2014. Explanation and interpretation of the text of these Conditions shall be based on the