Terms and Conditions

Metaalunie conditions
General terms and conditions of delivery issued by Koninklijke Metaalunie, filed with the registry of the District Court of Rotterdam.
1 January 2025

Article 1: Applicability

1.1. The Metaalunie member using these conditions is referred to as the contractor. The other party is referred to as the client.

1.2. These conditions apply to all offers made by a Metaalunie member, to all agreements it concludes and to all agreements arising from them, in each case insofar as the Metaalunie member is the contractor.

1.3. In the event of a conflict between a provision of the agreement concluded and these conditions, the provision of the agreement shall prevail.

1.4. Only Metaalunie members may use these conditions.

Article 2: Offers

2.1. All offers made by the contractor are without obligation and revocable, including offers that contain a period for acceptance. The contractor is entitled to revoke its offer up to two working days after the day on which the acceptance reached it.

2.2. The prices stated by the contractor in the offer are expressed in euros, exclusive of VAT and other government levies or taxes. The prices are furthermore exclusive of travel, accommodation, packaging, storage and transport costs, costs of loading, stowing and unloading, and assistance with customs formalities.

2.3. Unless otherwise agreed, the offer does not include:

1. earthwork, pile driving, cutting, breaking, foundation, masonry, carpentry, plastering, painting, wallpapering, repair work or any other construction work;
2. making connections for gas, water, electricity, internet or other infrastructure facilities;
3. measures to prevent or limit damage to, or theft or loss of, items present at or near the workplace;
4. removal of materials, soil, building materials or waste;
5. 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 shall use this information only for the performance of the agreement. It shall not disclose or reproduce the information.

3.2. If the client breaches an obligation under paragraph 1, it shall owe an immediately payable penalty of €25,000 per breach. The contractor may claim this penalty in addition to damages under the law.

3.3. At the first request, and within a period set by the contractor, the client must return the information referred to in paragraph 1 or destroy it in a manner to be determined by the contractor, at the contractor’s option, without retaining a copy in any form whatsoever. In the event of a breach of this provision, the client shall owe the contractor an immediately payable penalty of €1,000 per day. The contractor may claim this penalty in addition to damages under 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 rely on its accuracy and completeness when making an offer and performing the agreement.

4.3. The contractor is not obliged to warn of, or independently investigate, any inaccuracies in the assignment, defects in and unsuitability of items originating from the client, or errors or defects in plans, drawings, calculations, specifications or implementation instructions 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, among other things, advice, instructions, drawings, calculations, designs, materials, brands, samples and models. The client shall compensate all damage suffered by the contractor. This also includes the full costs of defence.

Article 5: Delivery time

5.1. All delivery times, which in these conditions include a delivery date, week, month, period or execution period, are indicative. If a delivery time is exceeded, the client must always give the contractor notice of default.

5.2. The delivery time only applies if the client and the contractor have reached agreement in good time on all commercial and technical details, all information, including final and approved drawings and the like, is in the contractor’s possession, all items to be made available by the client have been received by the contractor, the agreed (instalment) payment has been received in good time, and all other conditions for the performance of the assignment have been met. If the delivery time no longer applies, the contractor may set a new delivery time, taking its planning into account.

5.3. The delivery time no longer applies if circumstances arise other than those known to the contractor when it stated the delivery time and those circumstances are for the account and risk of the client, including a change to the assignment, additional or reduced work, or suspension by the contractor. If the delivery time no longer applies, the contractor may set a new delivery time, taking its planning into account.

5.4. The client must compensate the contractor for all costs incurred and damage suffered by the contractor as a result of a change in the delivery time as referred to in paragraphs 2 and 3, without notice of default being required.

5.5. Exceeding the delivery time does not entitle the client to damages or to full or partial termination. The client indemnifies the contractor against claims by third parties resulting from the delivery time being exceeded.

Article 6: Delivery and transfer of risk

6.1. Delivery takes place at the moment the contractor makes the item available to the client at its business premises and has notified the client of this. From that moment, the item is at the client’s risk.

6.2. If, after the agreement has been concluded, the contractor nevertheless arranges the transport in whole or in part at the client’s request, or assists the client with it (such as storage, loading, stowing or unloading), this is for the account and risk of the client. The client may insure itself against these risks.

6.3. If, after delivery, transport is carried out by or on behalf of the client and the contractor needs to have access to (transport) documents in the client’s possession, the client must make those documents available to the contractor at the first request and free of charge.

6.4. In the case of a trade-in, if the client retains the item to be traded in pending delivery of the new item, the risk of the item to be traded in remains with the client until the moment it has placed the item in the contractor’s possession. If the client cannot deliver the item to be traded in in the condition it was in 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 any increase in cost price factors that has occurred after the agreement was concluded. The client must pay the price increase at the contractor’s first request.

Article 8: Force majeure

8.1. If the contractor is unable to fulfil its obligations due to a circumstance beyond its actual control, this cannot be attributed to it and there is a case of force majeure. In that case, the contractor is not liable for the damage the client suffers as a result. Subject to the provisions of paragraph 4 of this article, the client is also not entitled to terminate the agreement in whole or in part in that case.

8.2. The circumstances referred to in paragraph 1 of this article include in any event: (civil) war (or the threat thereof), 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 disappearance of tools, materials or information, machine breakdowns, road blockades, blockades of railways, waterways or airports, strikes or work stoppages, staff shortages, and the circumstance that third parties engaged by the contractor, such as suppliers, subcontractors and carriers, or other parties on which the contractor depends, fail to fulfil their obligations or fail to do so on time.

8.3. The contractor is entitled to suspend the fulfilment of its obligations if it is temporarily prevented by force majeure from fulfilling its obligations towards the client. Once the force majeure situation has ended, the contractor shall fulfil its obligations as soon as its planning allows.

8.4. If there is force majeure and fulfilment is or becomes permanently impossible, or the temporary force majeure situation has lasted more than six months, the contractor is entitled to terminate the agreement in whole or in part with immediate effect. In those cases, the client is entitled to terminate the agreement with immediate effect, but only for the part of the obligations that has 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 force majeure, suspension or termination within the meaning of this article.

Article 9: Additional work

Additional work is charged on the basis of the prices applicable at the contractor at the time the additional work is performed. The client must pay the price of the additional work at the contractor’s first request.

Article 10: Performance of the work

10.1. The client shall ensure that the contractor can carry out its work safely, undisturbed, without interruption and at the agreed time. At its own expense and risk, the client shall in any event ensure that:

1. all permits, exemptions and other decisions required to carry out the work are obtained in good time. The client is obliged to provide the contractor with a copy of the aforementioned documents at the contractor’s first request;
2. it informs the contractor in writing and in good time of all (safety) regulations applicable at the location;
3. during the performance of its work, the contractor has access to the necessary assistants, equipment and facilities (such as gas, water, electricity, internet, access roads suitable for any necessary transport, lifting equipment and cranes, sanitary facilities and a lockable, dry storage space);
4. all work that is necessary for the performance of the work and does not form part of the agreement has been carried out in good time.

10.2. The client bears the risk of and is liable for damage to and theft or loss of all items located at or near the place where the work is being carried out or at another agreed location, such as the item delivered or to be completed, tools, materials intended for the work or equipment used in carrying out 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 adequate insurance against the risks referred to in that paragraph. In the event of damage, the client is obliged to report this to its insurer immediately for further handling and settlement.

Article 11: Completion of the work

11.1. The work is deemed to have been completed when:

1. the client has approved the work;
2. the work has been put into use. If part of the work has been put into use, that part is deemed to have been completed;
3. the contractor has notified the client in writing that the work has been completed and the client has not stated in writing within 14 days of the day of this notification that the work has not been approved;
4. the client does not approve the work on the grounds 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.

11.2. The contractor is not obliged to provide the client with a file within the meaning of Article 7:757a of the Dutch Civil Code relating to the building constructed and to be completed (a ‘handover or completion file’).

11.3. If the client does not approve the work, it is obliged to notify the contractor of this in writing, stating its reasons. The client must give the contractor the opportunity to complete the work after all.

Article 12: Liability

12.1. If the contractor is liable on any grounds whatsoever, that liability is at all times limited as set out in the following paragraphs.

12.2. If the contractor has any insurance taken out by or for it that provides cover, the contractor’s obligation to compensate damage is limited to the amount paid out under that insurance in the case in question.

12.3. If the contractor does not have insurance as referred to in the previous paragraph, or no amount is paid out under such insurance for whatever reason, the obligation to compensate damage is limited to a maximum of 15% of the contract sum (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 sum of the part or partial delivery in connection with which the contractor’s liability arose. In the case of a continuing performance agreement, the obligation to compensate damage is limited to a maximum of 15% (excluding VAT) of the contract sum over the last twelve months preceding the event causing the damage.

12.4. The following are not eligible for compensation:

1. consequential loss. Consequential loss includes, among other things: business interruption loss, loss of production, loss of profit, missed savings and subsidies, tax disadvantages, wasted costs, internal costs of the client, loss of goodwill and reputational damage, fines, damage resulting from the client’s liability towards third parties, damage in connection with the damage, destruction or loss of data or documents, transport costs and travel and accommodation costs, storage costs, costs of replacement equipment and personnel, and costs in connection with recalls;
2. damage to items in care, custody or control. This means damage caused by or during the performance of the work to items being worked on or to items located in the vicinity of the place where work is being carried out;
3. damage to, or caused by or with, equipment made available to the contractor;
4. damage caused by intent or deliberate recklessness of auxiliary persons or non-managerial subordinates of the contractor;
5. damage to material supplied by or on behalf of the client, including as a result of improperly performed processing, mounting, assembly or installation.

The client may insure itself against these types of damage where possible.

12.5. The client indemnifies the contractor against all claims by third parties resulting from a defect in a product supplied by the client to a third party and of which the products or materials supplied by the contractor form part. The client must compensate all damage suffered by the contractor in this connection, including the full costs of defence.

12.6. Any claim for damages by the client lapses by the mere passage of twenty-four months after it arose, unless the client has brought that claim before the competent court before the expiry of that period.

Article 13: Warranty and other claims

13.1. Unless otherwise agreed in writing, the contractor guarantees the proper performance of the agreed service for a period of six months after delivery or completion, as further set out in the following paragraphs.

13.2. If the parties have agreed on different warranty conditions, the provisions of this article apply, unless and insofar as they conflict with those different warranty conditions.

13.3. The client must provide all cooperation free of charge in the investigation by or on behalf of the contractor of a complaint by the client about the service performed, failing which all rights of the client in connection with that complaint shall lapse.

13.4. If the contractor has rejected a complaint about the service performed on reasonable grounds, the client must reimburse all costs reasonably incurred in connection with investigating the complaint.

13.5. If the agreed service has not been performed properly, the contractor shall choose whether to perform it properly after all, replace the delivered item in whole or in part, or credit the client for a reasonable part of the contract sum.

13.6. If the contractor chooses to perform the service properly after all or to replace the delivered item in whole or in part, the client shall in all cases give it the opportunity to do so. The contractor determines the method and time of performance itself. If the agreed service consisted (in part) of processing material supplied by the client, the client must supply new material at its own expense and risk.

13.7. Items that are repaired or replaced by the contractor must be sent to it by the client. Transport, shipping, dismantling and assembly are for the account and risk of the client. In addition, travel, accommodation and travel hours are for the account of the client. The contractor is entitled to demand security or advance payment for these costs.

13.8. The contractor is only obliged to honour the warranty once the client has fulfilled all its obligations.

13.9.

1. The warranty does not cover defects resulting from:
   • normal wear and tear;
   • improper use;
   • maintenance not carried out or carried out incorrectly;
   • installation, (dis)assembly, modification or repair by the client or by third parties;
   • defects in or unsuitability of items, materials or tools originating from, or prescribed by, the client.
2. No warranty is given on:
   • delivered items that were not new at the time of delivery;
   • the inspection, repair and overhaul of items;
   • items for which a manufacturer’s warranty has been granted;
   • items for which a warranty has been granted to the client by third parties.

13.10. The provisions of paragraphs 3 to 8 inclusive of this article apply mutatis mutandis to any claims by the client based on breach of contract, non-conformity or any other ground whatsoever.

Article 14: Obligation to complain

14.1. The client can in any event no longer invoke a defect in the service if it has not complained about it in writing to the contractor within fourteen days of discovering the defect or of the time it should reasonably have discovered it.

14.2. On pain of forfeiture of all rights, the client must have complained in writing to the contractor about the invoice within the payment term. If the payment term is longer than thirty days, the client must have complained in writing no later than thirty days after the invoice date.

Article 15: Items not taken

15.1. After the delivery time has expired, the client is obliged to actually take delivery of the item that is the subject of the agreement at the agreed location.

15.2. The client must provide all cooperation free of charge to enable the contractor to make delivery.

15.3. Items not taken are stored for the account and risk of the client.

15.4. In the event of a breach of paragraph 1 or 2 of this article, after the contractor has given it notice of default, the client shall owe the contractor a penalty of €250 per day per breach, up to a maximum of €25,000. This penalty may be claimed in addition to damages under the law.

Article 16: Payment

16.1. Payment is made at the contractor’s place of business or into an account to be designated by the contractor.

16.2. Unless otherwise agreed, payment is made within 30 days of the invoice date.

16.3. If the client fails to meet its payment obligation, it is obliged, instead of paying the agreed price, to comply with a request from the contractor for payment in kind.

16.4. The client’s right to set off 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, has been declared bankrupt or is subject to the statutory debt rescheduling scheme.

16.5. Regardless of whether the contractor has fully performed the agreed service, everything the client owes or will owe it under the agreement becomes immediately due and payable if:

1. a payment term has been exceeded;
2. the client fails to fulfil its obligations under article 15;
3. the client has not provided security at the first request in accordance with article 17 of these conditions;
4. a petition has been filed for the bankruptcy or suspension of payments of the client;
5. an attachment is levied on the client’s assets or claims;
6. the client (a company) is dissolved or liquidated;
7. the client (a natural person) applies for admission to the statutory debt rescheduling scheme, is placed under guardianship or has died.

16.6. In the event of late payment, the client owes the contractor interest on the amount payable from the day following the day agreed as the final day of payment up to and including the day on which the client has made the payment. If the parties have not agreed on a final day of payment, interest is due from 30 days after the amount became due and payable. The interest is 12% per year, but is equal to the statutory interest rate if this is higher. In calculating the interest, part of a month is regarded as a full month. At the end of each year, the amount on which interest is calculated is increased by the interest owed over that year.

16.7. The contractor is entitled to set off its debts to the client against claims of companies affiliated with the contractor on the client. In addition, the contractor is entitled to set off its claims on the client against debts owed by companies affiliated with the contractor to the client. Furthermore, the contractor is entitled to set off its debts to the client against claims on companies affiliated with the client. Affiliated companies are all companies belonging to the same group within the meaning of Article 2:24b of the Dutch Civil Code and a participating interest within the meaning of Article 2:24c of the Dutch Civil Code.

16.8. In the event of late payment, the client owes the contractor all extrajudicial costs, with a minimum of €75. These costs are calculated on the principal sum on the basis of the following table:

• on the first €3,000: 15%
• on the excess up to €6,000: 10%
• on the excess up to €15,000: 8%
• on the excess up to €60,000: 5%
• on the excess from €60,000: 3%

The extrajudicial costs actually incurred are payable if these are higher than the amount resulting from the above calculation.

16.9. If the contractor is found to be wholly or largely in the right in legal proceedings, all costs it has incurred in connection with those proceedings shall be borne by the client.

Article 17: Securities

17.1. At the contractor’s first request, the client is obliged to provide security which, in the contractor’s opinion, is sufficient for all payments owed by the client to the contractor under the agreement. If the client fails to do so within the period set, it is immediately in default. In that case, the contractor is entitled to terminate the agreement and recover its damage from the client.

17.2. The contractor remains the owner of delivered items as long as the client has not fulfilled its obligations under any agreement with the contractor, including claims such as damages, penalties, interest and costs.

17.3. If, after the items have been delivered to it by the contractor in accordance with the agreement, the client has fulfilled its obligations, the retention of title to these items revives if the client fails to fulfil its obligations under an agreement concluded later.

17.4. As long as delivered items are subject to retention of title, the client may not encumber or dispose of them outside the ordinary course of its business. This clause has effect under property law.

17.5. After the contractor has invoked its retention of title, it may retrieve the delivered items. The client shall provide all cooperation to this end.

17.6. In the event of a breach of paragraph 5 of this article, after the contractor has given it notice of default, the client shall owe the contractor a penalty of €250 per day per breach, up to a maximum of €25,000. This penalty may be claimed in addition to damages under the law.

17.7. The contractor has a right of pledge and a right of retention on all items that it has or will have in its possession from the client on any grounds whatsoever, for all claims it has or may have on the client.

Article 18: Intellectual property rights

18.1. The contractor is deemed to be the author, designer, creator or inventor, as applicable, of the works, models, signs or inventions created in the context of the agreement. The contractor has the exclusive right to apply for a patent, trademark or design.

18.2. In performing the agreement, the contractor does not transfer any intellectual property rights to the client.

18.3. If the service to be provided by the contractor consists (in part) of the supply of computer software, the source code is not transferred to the client. Solely for the normal use and proper functioning of the item, the client obtains a non-exclusive, worldwide and perpetual user licence for the computer software.

18.4. The client is not permitted to transfer the licence or to grant a sub-licence. This provision has effect under property law. Only upon resale of the item in connection with which the contractor supplied the computer software does the licence pass to the acquirer of the item, under the same conditions and restrictions as set out in this article, provided that the buyer 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 the intellectual property rights of third parties.

18.6. The client indemnifies the contractor against any claim by third parties relating to an infringement of intellectual property rights.

Article 19: Transfer of rights or obligations

The client cannot transfer or pledge 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 clause has effect under property law.

Article 20: Cancellation or termination of the agreement

20.1. The client is not entitled 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 owes a fee of at least 20% of the agreed or estimated price. The contractor is entitled to demand a higher fee or to impose further conditions on its consent.

Article 21: Applicable law and competent court

21.1. Dutch law applies. The Vienna Sales Convention (CISG) or any other international regulation that may be excluded does not apply.

21.2. The Dutch civil court with jurisdiction in the contractor’s place of business has exclusive jurisdiction over disputes arising from or relating to the agreement.