Terms and conditions
The Metaalunie Conditions 2023
General Delivery and Payment Conditions issued by the Metaalunie (Dutch Organization of Entrepreneurs in Small and Medium-Sized Enterprises in the Metal Industry), referred to as METAALUNIE CONDITIONS formerly known as SMECOMA CONDITIONS, filed at the Registry of the Court in Rotterdam on January 1, 2001.
Published by the Metaalunie, P.O. Box 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 they conclude, and to all agreements that may result from them. This offeror/supplier is the Metaalunie member using these conditions. This is referred to as contractor or seller. The counterparty is referred to as client or buyer.
• 1.2. These conditions may only be used by members of the Metaalunie.
• 1.3. General conditions of the client are not applicable and are expressly rejected.
Article 2: Offers
• 2.1. All offers are non-binding.
• 2.2. If the client provides data, drawings, etc. to the contractor, the contractor may assume the accuracy thereof and will base their offer on it.
• 2.3. The prices mentioned in the offer are based on delivery ex-factory, "ex works," in accordance with Incoterms 2000. Prices are exclusive of turnover tax and packaging.
• 2.4. If the contractor's offer is not accepted, the contractor has the right to charge the client for all costs incurred to make the 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 them, provided designs, images, drawings, (test) models, software, etc.
• 3.2. The rights to the data mentioned in clause 1 remain the property of the contractor, regardless of whether the client has been charged for their production. These data may not be copied, used, or shown to third parties without explicit consent from the contractor. In case of violation of this provision, the client shall be liable to the contractor for a penalty of EUR 25,000. This penalty can be claimed in addition to damages under the law.
• 3.3. The client must return the data provided to them as referred to in clause 1 upon the first request within the time frame set by the contractor. In case of violation of this provision, the client shall be liable to the contractor for a penalty of EUR 1,000 per day. This penalty can be claimed in addition to damages under the law.
Article 4: Advice, Designs, and Materials
• 4.1. The client cannot derive any rights from advice and information provided by the contractor if they do not directly relate to the assignment.
• 4.2. The client is responsible for the drawings and calculations made by or on behalf of them and for the functional suitability of prescribed materials made by or on behalf of them.
• 4.3. The client indemnifies the contractor against any claims by third parties regarding the use of drawings, calculations, samples, models, and the like provided by or on behalf of the client.
• 4.4. The client may, at their own expense, have the materials that the contractor intends to use examined before they are processed. If this causes damage to the contractor, it shall be borne by the client.
Article 5: Delivery Time
• 5.1. The delivery time is determined approximately by the contractor.
• 5.2. In establishing the delivery time, the contractor assumes that they can carry out the assignment under the circumstances known to them at that time.
• 5.3. The delivery time commences when all technical details have been agreed upon, all necessary data, final drawings, etc., are in possession of the contractor, the agreed (periodic) payment has been received, and the necessary conditions for the execution of the assignment have been met.
• 5.4 a. If circumstances arise other than those known to the contractor when they established the delivery time, the contractor may extend the delivery time by the time necessary to carry out the assignment under these circumstances. If the work cannot be accommodated within the contractor's schedule, it will be completed as soon as their schedule allows.
• 5.4 b. In the case of additional work, the delivery time will be extended by the time required to (have) deliver(ed) the materials and components for it and to perform the additional work. If the additional work cannot be accommodated within the contractor's schedule, the work will be completed as soon as their schedule allows.
• 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 be accommodated within the contractor's schedule, the work will be completed as soon as their schedule allows.
• 5.4 d. In the event of adverse weather conditions, the delivery time will be extended by the resulting period of stagnation.
• 5.5. Exceeding the agreed delivery time does not entitle the client to damages, unless expressly agreed upon in writing.
Article 6: Transfer of Risk
• 6.1. In the case of a purchase, delivery takes place ex works, "ex works," in accordance with Incoterms 2000; the risk of the goods passes to the buyer at the moment the seller makes them available.
• 6.2. Regardless of the provisions of the previous clause, the client and the contractor may agree that the contractor will handle transportation. The risk of storage, loading, transportation, and unloading also rests with the client in that case. The client can insure themselves against these risks.
• 6.3. Even in cases where the seller installs and/or assembles the sold goods, the risk of the goods passes to the buyer at the moment the seller makes the goods available to the buyer at the seller's premises or another agreed place.
• 6.4. In the case of a purchase involving a trade-in, if the buyer continues to use the goods to be traded-in in anticipation of the delivery of the new goods, the risk of the goods to be traded-in remains with the buyer until they have handed them over to the seller.
Article 7: Price Change
• 7.1. If more than four months elapse after the date on which the agreement was concluded and the contractor's performance has not yet been completed, an increase in price-determining factors may be passed on to the client.
• 7.2. Payment of the price increase as referred to in clause 1 takes place simultaneously with payment of the principal amount or the final installment.
• 7.3. If the client provides goods and the contractor is willing to use them, the contractor may charge the client a maximum of 20% of the market price of the supplied goods.
Article 8: Impossibility of Execution of the Assignment
• 8.1. The contractor has the right to suspend the fulfillment of their obligations if circumstances arise that were not to be expected at the time of the conclusion of the agreement and which are beyond their control, temporarily preventing them from fulfilling their obligations.
• 8.2. Circumstances that are not to be expected by the contractor and are beyond their control include, among others, the circumstance that suppliers and/or subcontractors of the contractor do not or do not timely meet their obligations, weather conditions, earthquakes, fire, loss or theft of tools, loss of materials to be processed, roadblocks, strikes or work stoppages, and import or trade restrictions.
• 8.3. The contractor is not authorized to suspend if performance is permanently impossible or if temporary impossibility has lasted for more than six months. The agreement can then be dissolved for that part of the obligations that has not yet been fulfilled. In this case, the parties are not entitled to compensation for damages resulting from the dissolution.
Article 9: Scope of the Work
• 9.1. The client must ensure that all permits, exemptions, and other authorizations necessary for carrying out the work are obtained in a timely manner.
• 9.2. The price of the work does not include:
• a. the costs for ground, pile, excavation, demolition, foundation, masonry, carpentry, plastering, painting, wallpapering, repair, or other construction work;
• b. the costs for connection to gas, water, electricity, or other infrastructure facilities;
• c. the costs to prevent or limit damage to items present on or near the work;
• d. the costs of disposal of materials, construction materials, or waste;
• e. travel and accommodation costs.
Article 10: Changes to the Work
• 10.1. Changes to the work result in more or less work in any case 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 of more than 10% occur from estimated quantities.
• 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 calculated based on the value of the price-determining factors that applied at the time of the conclusion of the agreement.
• 10.3. If the balance of less work exceeds that of more 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 by the contractor.
Article 11: Execution of the Work • 11.1. The client ensures that the contractor can carry out their activities without interruption and at the agreed-upon time and that they have access to the necessary facilities during the execution of their activities, such as: • – gas, water, and electricity; • – heating; • – lockable dry storage space; • – facilities prescribed under the Occupational Health and Safety Act and regulations. • 11.2. The client is liable for all damage resulting from loss, theft, burning, or damage to the contractor's, the client's, and/or third parties' property, such as tools and materials intended for the work, located at the place where the work is performed or at another agreed place. • 11.3. If the client fails to fulfill their obligations as described in the previous clauses, resulting in a delay in the execution of the work, the work will be carried out as soon as the contractor's schedule allows. Additionally, the client is liable for all damage resulting from this for the contractor.
Article 12: Completion of the Work • 12.1. The work is considered completed when: • a. the client has approved
Article 13: Liability
• 13.1. The Contractor is liable for damages suffered by the Client that are a direct and exclusive result of a shortcoming attributable to the Contractor. However, only damage against which the Contractor is insured, or which the Contractor should reasonably have been insured against, qualifies for compensation.
• 13.2. If, at the time of entering into the agreement, the Contractor is unable to secure insurance as mentioned in clause 1, or if it is not possible to renew such insurance on reasonable terms thereafter, the compensation for damages is limited to the amount charged by the Contractor for the relevant agreement (excluding VAT).
• 13.3 Not eligible for compensation are:
• a. Business-related damages, including, for instance, loss of profit and stagnation damages. The Client may choose to insure against these damages if desired.
• b. Indirect damages. Indirect damages include damages caused by or during the execution of the contracted work to items being worked on or items located in the vicinity of the work area. The Client may choose to insure against these damages if desired.
• c. Damages caused by intentional acts or deliberate recklessness of assistants or non-managerial subordinates of the Contractor.
• 13.4 The Contractor is not liable for damages to material supplied by or on behalf of the Client due to inadequately performed processing.
• Upon the Client's request, the Contractor will re-execute the processing using newly supplied material at the Client's expense.
• 13.5. The Client indemnifies the Contractor from all third-party claims due to product liability resulting from a defect in a product supplied by the Client to a third party, which (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 from the delivery date.
• 14.2. If the agreed performance involves contracting work, the Contractor guarantees the soundness of the delivered structure and the used materials for the period mentioned in clause 1, provided that the Contractor had the freedom to choose them.
• In case the delivered structure or used materials are found to be unsound, the Contractor will repair or replace them. The parts repaired or replaced by the Contractor should be sent to the Contractor free of charge. Dismantling, reassembly of these parts, and any travel and accommodation costs incurred will be borne by the Client.
• 14.3. If the agreed performance involves processing materials supplied by the Client, the Contractor guarantees the soundness of the carried-out processing for the period mentioned in clause 1.
• If it is found that a processing has not been soundly executed, the Contractor will make a choice whether to:
• – reexecute the processing. In this case, the Client must supply new material at their own expense;
• – rectify the defect. In this case, the Client must return the material to the Contractor free of charge;
• – credit the Client for a proportionate part of the invoice.
• 14.4 If the agreed performance involves the delivery of an item, the Contractor guarantees the soundness of the delivered item for the period mentioned in clause 1.
• If it is found that the delivery has not been sound, the item must be returned to the Contractor free of charge. Thereafter, the Contractor will choose whether to:
• – repair the item;
• – replace the item;
• – credit the Client for a proportionate part of the invoice.
• 14.5 If the agreed performance includes the installation and/or assembly of a delivered item, the Contractor guarantees the soundness of the installation and/or assembly for the period mentioned in clause 1.
• If it is found that the installation and/or assembly has not been soundly executed, the Contractor will rectify it. Any travel and accommodation costs incurred will be borne by the Client.
• 14.6. For those parts that the Client and Contractor have expressly agreed upon in writing, the manufacturer's warranty applies. If the Client has had the opportunity to become familiar with the content of the manufacturer's warranty, it will replace the warranty under this article.
• 14.7. In all cases, the Client must provide the Contractor with the opportunity to rectify any defects or reexecute the processing.
• 14.8. The Client can only invoke the warranty after fulfilling all their obligations towards the Contractor.
• 14.9. a. No warranty is provided for defects resulting from:
• – normal wear and tear;
• – improper use;
• – inadequate maintenance or non-performance of maintenance;
• – installation, assembly, modification, or repair by the Client or third parties.
• b. No warranty is provided for delivered items that were not new at the time of delivery or for items prescribed by the Client or supplied on their behalf.
• c. No warranty is provided for inspecting and/or repairing items owned by the Client.
Article 15: Claims
The Client cannot invoke a defect in the performance if they have not lodged a written complaint with the Contractor within 14 days of discovering or reasonably ought to have discovered the defect.
Article 16: Non-Taken Items
When items are not taken after the expiration of the delivery period, these items remain at the disposal of the Client. Non-taken items are stored at the expense and risk of the Client. The Contractor may always make use of the authority provided by Article 6:90 of the Dutch Civil Code.
Article 17: Payment
• 17.1. Payment shall be made at the place of establishment of the Contractor or to an account designated by the Contractor.
• 17.2. Unless otherwise agreed, payment shall be made as follows:
• 17.2.a. for over-the-counter sales, in cash;
• 17.2.b. if installment payments are agreed upon;
• – 40% of the total price upon order;
• – 50% of the total price upon material delivery;
• – 10% of the total price upon completion;
• 17.2.c. in all other cases, within 30 days from the invoice date.
• 17.3. Regardless of the agreed payment conditions, the Client is obligated to provide sufficient security for payment at the request of the Contractor. If the Client fails to do so within the stipulated period, they will immediately be in default. In this case, the Contractor has the right to terminate the agreement and recover their damages from the Client.
• 17.4. The Client's right to set off their claims against the Contractor is excluded, unless the Contractor is declared bankrupt.
• 17.5. The entire payment claim becomes immediately due and payable when:
• a. a payment term has been exceeded;
• b. the Client has been declared bankrupt or applies for a suspension of payments;
• c. seizure is made on the Client's assets or claims;
• d. the Client (corporation) is dissolved or liquidated;
• e. the Client (natural person) is placed under guardianship or dies.
• 17.6. When payment has not been made within the agreed payment term, the Client owes the Contractor interest immediately. The interest rate is 12% per year, but equals the statutory interest rate if it is higher. For interest calculation, a part of a month is considered a full month.
• 17.7. When payment has not been made within the agreed payment term, the Client owes the Contractor all extrajudicial collection costs, with a minimum of EUR 50.
• The costs are calculated based on the adequate table:
• Up to EUR 3,000 15%
• From more than EUR 3,000 to EUR 6,000 10%
• From more than EUR 6,000 to EUR 15,000 8%
• From more than EUR 15,000 to EUR 60,000 5%
• From more than EUR 60,000 3%
• If the actual incurred extrajudicial costs are higher than what follows from the calculation above, the actual incurred costs are due.
• 17.8. If the Contractor is successful in a legal proceeding, all costs incurred in connection with this proceeding shall be borne by the Client.
Article 18: Retention of Title and Right of Pledge
• 18.1. After delivery, the Contractor remains the owner of the delivered goods as long as the Client:
• a. is in default or will be in default in the performance of their obligations under this agreement or other similar agreements;
• b. does not pay or will not pay for performed or yet to be performed work under such agreements;
• c. has not satisfied claims arising from the non-performance of the above-mentioned agreements, such as damages, penalties, interest, and costs.
• 18.2. As long as a retention of title rests on the delivered goods, the Client may not encumber them outside their normal business operations.
• 18.3. After the Contractor has invoked their retention of title, they may reclaim the delivered goods. The Client grants the Contractor permission to enter the premises where these goods are located.
• 18.4. If the Contractor cannot invoke their retention of title due to the delivered goods being mixed, transformed, or commingled, the Client is obligated to pledge the newly formed goods to the Contractor.
Article 19: Termination
• If the Client wishes to terminate the agreement without any default on the part of the Contractor, and the Client agrees to this, the agreement shall be terminated by mutual consent. In this case, the Contractor is entitled to compensation for all financial damages, such as incurred losses, lost profits, and incurred costs.
Article 20: Applicable Law and Choice of Forum
• 20.1. Dutch law applies.
• 20.2. The United Nations Convention on Contracts for the International Sale of Goods (CISG) does not apply, nor does any other international regulation from which exclusion is permitted.
• 20.3. Only the civil court with jurisdiction in the Contractor's place of establishment shall have jurisdiction over disputes, unless this contradicts mandatory law. The Contractor may deviate from this jurisdiction rule and follow the statutory jurisdiction rules.
• 20.4. The parties may agree on a different form of dispute resolution, such as arbitration or mediation.