General Sales Conditions of NRK Plastics Processors (also NRK PVT Plastics Processors)
1.1 These conditions apply to all offers, quotations, accepted orders, assignments, arrangements and/or other agreements, as well as to all negotiations entered into by one of the members of the NRK PVT, whether or not via the intermediation of an authorised person (hereinafter: “we”), with a third party (hereinafter: “client”), to the exclusion of all other terms and conditions, unless we have explicitly stated by letter or by email (hereinafter: “in writing”) that any such other conditions will apply. Any potential (general) conditions of the contractual party do not
1.2 Deviations from these conditions can only be agreed in writing.
1.3 If a client has on one occasion entered into an agreement with us under these general conditions, then these general conditions are also applicable to any subsequent agreement, regardless of whether such an order has been confirmed in writing.
Offers, regardless of the form, are always without obligation, until the resulting assignment has become binding in the manner described in Article 7.
3.1 We exclude any liability for direct or indirect damage caused by inaccuracies in advice and data provided by us with regard to products to be delivered, unless there exists intent or wilful recklessness.
3.2 If the exclusion of liability in the previous paragraph cannot be upheld, then the compensation is limited to a maximum of the invoice amount of the agreement (excluding VAT) from which the liability arises, otherwise to the part of the invoice to which the liability relates. The compensation for the damage is in any case limited to the amount disbursed by our liability insurer, to be supplemented with the amount of the deductible that is payable by us in the relevant case in accordance with the applicable insurance contract.
4.1 All drawings, sketches, diagrams, samples, models etc. (hereinafter: “documents”) produced by us in the context of orders remain our property and will remain so even after the agreement has been fully executed.
4.2 The documents may not be reproduced or shown to third parties, in whole or in part, for any purpose whatsoever, without our written permission. The client is liable for the damage that we suffer if third parties have access to one or more documents.
4.3 The documents must be returned to us immediately upon first request.
5.1 We are not obligated to test the data or documents received from the client or via him
from third parties nor to check the accuracy thereof.
5.2 We exclude any liability for inaccuracies in data, documents or advice provided by or on behalf of the client for use in the execution of the agreement.
5.3 If the exclusion of liability in the previous paragraph cannot be upheld, then the compensation is limited to a maximum of the invoice amount of the agreement (excluding VAT) from which the liability arises, otherwise to the part of the invoice to which the liability relates. The compensation for the damage is in any case limited to the amount disbursed by our liability insurer, to be supplemented with the amount of the deductible that is payable by us in the relevant case in accordance with the applicable insurance contract.
5.4 The client indemnifies us against third-party claims arising from the inaccuracies referred to in paragraph 5.1.
6.1 All prices are for delivery ex works, including packaging and excluding VAT, unless otherwise agreed. If costs that are due in connection with the agreement, such as freight costs, import and export duties, costs of storage, deposit, monitoring, customs clearance, tax or other charges, are introduced or increased after the conclusion of the agreement, these will be borne by the client, as well as the consequences of changes in exchange rates, unless explicitly agreed otherwise.
6.2 For goods that we must deliver at a later date or on demand and for goods that we do not have or only partially have in stock when we receive the order and that we will note for delivery as soon as possible, we reserve the right, without further notice, to calculate the prices and costs applicable at the time of delivery, regardless of prior confirmation.
III Order / Assignment and other arrangements
An agreement with the client is only formed after the assignment given to us has been accepted or confirmed by us in writing, without any reservations. Our order confirmation is deemed to accurately and completelyreflect the agreement, unless the client explicitly informs us otherwise in writing within 5 working days of receiving the order confirmation. The above likewise applies to the formation of further agreements and to the amendment of existing agreements.
If, after our acceptance of an order or sale, circumstances arise that affect the cost price, such as changes in the prices of raw materials or in the actual goods to be delivered, in wages, in exchange rates, in import duties, etc., then we are entitled to pass those price changes on to the client. The client will be informed of this.
9.1 After acceptance of the order, amendments specified by the client will only be implemented by us if they have been confirmed by us in writing. If we, for reasons on our part, decide not to implement the specified amendments, the client will never be entitled to dissolve the agreement in whole or in part and the client remains fully liable to pay the agreed price, or, at our discretion, the costs already incurred as well as the amount arising from our loss of profit and idle losses.
9.2 Cancellation or dissolution by the client is only possible after prior written permission from us. The client is then obliged to reimburse all costs already incurred by us, as well as our loss of profit and idle losses.
We are free to engage third parties for the execution of the agreement.
IV Provisions regarding the product
We are deemed to have met our obligations regarding the quantity of product to be delivered if we deliver 10% more or less than the ordered quantity.
12.1 Components to be made available to us by or on behalf of the client, which need to be applied or processed to, in or on the product to be manufactured by us, must be delivered to us on time, free of charge to our factory in the required quantity with a surplus of 10%.
12.2 The client is liable for the components or other goods thus made available to us by third parties and for the proper usability thereof. We assume, without any investigation, that these components, etc. can be easily used, assembled or processed in, on or to the assigned product to be manufactured, unless other provisions have been agreed in writing.
12.3 If the aforementioned components are delivered too late or cannot be processed by us and this results in production downtime, the client is liable for all damage suffered by us as a result of this downtime.
We will only take the product to be manufactured into production when the test series provided by us has been approved by the client and he has notified us in writing, or we have confirmed that approval in writing.
14.1 With due observance of the provisions elsewhere in these general conditions, we vouch, in the case of products manufactured by us or on our behalf, for both the soundness of the products delivered by us, and the quality of the material used and/or
built for that purpose, in the sense that the soundness of the specification must be predefined for specified products. In the case of delivery, in the context of trade of complete products manufactured by third parties, we only guarantee that the delivered products satisfy the specification and materials agreed between the parties.
14.2 Defects in moulds and products produced using those moulds, for which the client proves, within four months, calculated from the day of dispatch, that these defects have arisen exclusively or predominantly as a direct result of an inaccuracy in the structure designed by us or as a result of poor finishing or use of poor material, will be remedied by us. We are not obliged to make any further compensation for damage, direct or indirect, suffered by the client or by any third party.
14.3 With regard to the use of moulds made by us in our company, a guarantee period of two years applies, or the explicitly agreed number of plastics products to be produced applies.
14.4 The guarantee given in paragraphs 1 to 3 of this Article does not apply if it concerns:
a. defects that are the result of unsuitability of materials and/or components made available or prescribed by the client;
b. defects that are the result of improper use or omission by/on the part of the client or his staff;
c. defects due to normal wear and tear, improper handling, excessive load or use of unsuitable equipment and corrosive chemicals;
d. amendment of moulds, carried out by third parties outside of our assignment.
VI Moulds etc.
If we must take care of the manufacture of a mould, shape, auxiliary tool, etc., we will only start the production after the client has paid us the requested reimbursement for manufacturing costs. Similarly, we will only start to make amendments, improvements or repairs to moulds, etc. after the costs that we have determined (or estimated if necessary) for this have been paid. If no price has (yet) been explicitly agreed for the work, the client will pay us an advance for the costs to be determined by us upon first request.
16.1 Moulds, shapes, auxiliary tools, etc. manufactured by us or manufactured in whole or in part according to our instructions, for which the client has paid the agreed costs, become the property of the client at the moment that they are used by us for the manufacture of the product.
16.2 The moulds, shapes, auxiliary tools, etc. referred to in paragraph 1 of this article are nevertheless retained by us if they are not used for production and do not need to be returned to the client sooner – and not earlier than after a written request from the client – than after a period of two years after delivery and/or payment of the last order placed with us by him for products made with these moulds, shapes, auxiliary tools, etc.
16.3 The client is obliged to collect the moulds, shapes, auxiliary tools, etc. from us within three years after delivery of the last order. If this is not done in time, a deadline will be set by us in writing, within which the goods can still be collected. If the client does not respond in time, the moulds, shapes, auxiliary tools, etc. may be destroyed by us, without our being obliged to pay any compensation to the client. The client is obliged to pay the costs that we must incur due to the destruction.
In cases where the client delivers the moulds, shapes, auxiliary tools, etc., these are returned upon his request, but only after all our claims, for any reason whatsoever, have been paid.
18.1 We exclude our liability for any direct or indirect damage due to loss, misplacement or damage to moulds, shapes, auxiliary tools, etc., unless there exists intent or wilful recklessness. 18.2 If the exclusion of liability in the previous paragraph cannot be upheld, then the compensation is limited to repair or replacement of the moulds, shapes, auxiliary tools, etc., to be determined at our discretion.
19.1 Insofar as we have indicated on the offer or order confirmation the number of uses or products for which a mould, shape, auxiliary tool, etc. will normally be usable, then after that number of pieces or after the production of that number of pieces, the mould, shape, auxiliary tool, etc. will be deemed no longer suitable for further production. If such a specification has not been made in the offer or order confirmation, we will inform the client as soon as it appears to us that a mould, shape, auxiliary tool, etc. is no longer suitable for economically responsible production. In that case, he will also be informed of the costs associated with the repair or replacement.
19.2 When assessing economically responsible production, as referred to in paragraph 1 of this article, consideration must also be given to the advancement of technology and the adaptation of the company thereto, in terms of both volume and labour intensity.
19.3 As long as a mould, shape, auxiliary tool, etc. is,
according to the aforementioned standards, still suitable for production and is in our custody, and in the event of regular re-ordering of the products to be manufactured, the maintenance costs will be borne by us for a period of two years after first use.
19.4 Moulds, shapes, auxiliary tools, etc. that are no longer suitable for production according to the aforementioned standards do not need to be returned by us and may be destroyed by us without our being obliged to pay any compensation to the client.
20.1 Delivery occurs under the delivery conditions EXW (“Ex Works”) as referred to in the Incoterms 2010. From leaving the warehouse or factory, the goods are at the expense and risk of the client, who must take out adequate insurance for that risk.
20.2 We are free to choose efficient packaging and shipping. Packaging for our products that is intended for repeated use remains our property. The client will keep this packaging at our disposal. The client is liable for damage or loss.
20.3 Delivery times are only approximate and are not a strict deadline. We exclude any liability for the consequences of exceeding the suggested delivery time.
20.4 Exceeding the delivery time, due to any cause whatsoever, will not entitle the client to compensation, nor to non-fulfilment of any of his obligations. Dissolution by the client is possible under the conditions that apply for cancellation by the client, as stated in article 9, paragraph 2.
20.5 We are entitled to deliver an order in whole or successively in parts. In the latter case, we are entitled to invoice the client for each partial delivery separately and to demand payment for this. If and as long as a partial delivery is not paid by the client and/or the client does not fulfil other obligations arising from the relevant agreement or (an) earlier agreement(s), we are not obligated to deliver a subsequent partial delivery and we are entitled to dissolve the agreement(s) insofar as it has or they have not (yet) been executed, without judicial intervention and without any notice of default, while retaining our right to compensation and without the client being able to assert any right to compensation or otherwise.
VIII Retention of title and risk
21.1 We reserve the ownership of all goods delivered by us to the client under any agreement and goods still to be delivered until the purchase price for all these goods from any agreement has been paid in full. If, in the context of this/these agreement(s), we also carry out or will carry out work to be reimbursed by the client for the benefit of the
NRK PVT Plastics Processors | General Sales Conditions 2019 | EN 4/6
client, the aforementioned reserved ownership applies until the client has also paid these claims of ours in full. The reserved ownership also applies to the claims that we were able to obtain against the client due to the client’s failure to fulfil one or more of its obligations towards us arising from the aforementioned agreements.
21.2 If the client has goods in his possession for which we can exercise retention of title, the client is obliged to deliver the goods to us upon our first request, without judicial intervention being required. The client is furthermore obliged to keep the relevant goods separate and to mark them as originating from us.
21.3 The goods that fall under our retention of title may never be pledged or otherwise provided as security to third parties, including hire purchase and/or hire sale, nor may they be sold in any way or alienated or swapped or relocated to a location other than agreed.
21.4 The costs of exercising the retention of title are at the expense and risk of the client. The client is obliged to ensure that the goods that fall under our retention of title are insured against risks that are customary for insurance (fire, theft, water and storm damage are explicitly included herein) orthat we deem desirable.
21.5 The client is obligated to inform us immediately of the fact that third parties are asserting rights on goods that are subject to our retention of title pursuant to this article.
21.6 In the event of late collection and/or improper fulfilment of obligations resting on the client and in the event that the client requests suspension of payment or is declared bankrupt at its own request or at the request of a third party, or if seizure of his movable and/or immovable property takes place in any way, and if the client shuts down his company or threatens to shut it down, or approaches his creditors in the context of a debt restructuring/repayment scheme, or if we can reasonably assume that any of the aforementioned situations will occur in the very short term, we are entitled to inform the client in writing and to suspend any further delivery of goods or services as well as to suspend our potential payments and to dissolve in whole or in part any agreement concluded with the client by means of a single written notification to the client, all without prejudice to our rights such as the right to full compensation and/or reclamation of goods. The client agrees to this in advances and already grants us access to its grounds and buildings for that situation to reclaim the goods delivered by us but not yet paid for. Our claim against the client will become fully and immediately claimable in all the aforementioned cases.
IX Force majeure
22.1 If a force majeure situation occurs in relation to us, which also includes disruptions in the company, or in the supply of products, materials, raw materials or resources, and if circumstances arise that result in delivery becoming unreasonably onerous and/or a disproportionate burden for us, we are entitled either to suspend delivery for a reasonable period to be determined by us, or – either after expiry of the specified reasonable period or immediately – to dissolve the agreement without judicial intervention, by means of a written reasoned statement, without the client being able to derive any claim to compensation for damage suffered or to be suffered by it. If it is a case of partial execution, the client will owe us the incurred costs and/or a proportional part of the total price, naturally against delivery of the goods manufactured by us.
22.2 We exclude any liability for direct or indirect damage, howsoever named, for the client or for third parties due to suspension or dissolution as a result of the force majeure referred to in paragraph 1.
X Intellectual property rights
23.1 In the event of manufacture by us of goods according to drawings, samples, models or other instructions in the broadest sense of the word, received from the client or via him from third parties, the client guarantees that we are not, through the reproduction and/or delivery of those goods, infringing any form of intellectual property rights of third parties and the client fully indemnifies us against all claims and associated costs. If a third party objects to the manufacture and/or delivery on the basis of any alleged right as referred to above, we are on that basis automatically and exclusively entitled to immediately cease production and/or delivery and demand reimbursement of the incurred costs from the client, without prejudice to our claims for possible further damages, without our being obliged to pay him any compensation. We will inform the client if third parties object to the manufacture and/or delivery of goods intended for him.
23.2 If intellectual property rights arise during the execution of the agreement, then the intellectual property rights, including the copyright, remain with us. Insofar as the intellectual property rights fall to the client according to law, the client transfers these intellectual property rights to us in advance and the client will cooperate in this transfer if necessary and he furthermore grants a power of attorney to us so that we can do all that
is necessary in order for the intellectual property rights to fall to us. The client waives, to the extent permitted by law, any personality rights that remain with the client.
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23.3 If we give the client a right of use, this is always based on a non-exclusive and non-transferable licence, which is limited to the agreed use.
23.4 The client is liable for damage caused by infringement of our intellectual property rights, committed by means of the goods supplied to him by us. The client is obligated to inform us immediately as soon as he becomes aware of any infringement of our rights.
23.5 In the event of violation of the provisions of paragraphs 1 to 5 of this article, the client will, without any notice of default being required, immediately owe us a lump-sum fine of €50,000.00 as well as €5,000.00 per day that the violation continues up to a maximum of €100,000.00, without prejudice to our right to claim full compensation with interest and costs. Any paid or due fine will not be deducted from any due liability
with interest and costs. We and the client hereby explicitly deviate from the provisions of Article 92 (2) Book 6 Dutch Civil Code.
24.1 Upon receipt of the delivered goods, the client must examine whether the quantity of goods delivered is correct. Complaints about the delivered quantity must be made immediately after the client could reasonably have investigated the quantity, but must have been received at the latest within 5 working days after delivery of the goods. In the absence of a timely complaint, the quantity as stated on the consignment note,
delivery note or other such document is deemed to have been accepted by the client as correct.
24.2 All complaints about any incorrect execution of the orders, or about the quality of the delivered goods, must be submitted in writing within eight days of the delivery.
24.3 In the event of defects within the meaning of
article 14, paragraph 2 of these general conditions,
the client must inform us thereof by registered
letter within 48 hours after he believes that he has
found a defect.
24.4 When the periods referred to in paragraphs 1 to 3 of this article have expired, the client is deemed to have fully accepted the delivery. We therefore no longer have to deal with complaints outside these periods.
24.5 If a complaint has been made in time and after it has been proven that the delivered goods exhibit material or manufacturing defects, we will, at our discretion, arrange for either free repair or full or partial free redelivery. In the event of a delivery in
the context of the trade of complete products manufactured by third parties, we will arrange for a full or partial free redelivery at our discretion, or we will take back the delivered goods under credit of the client. We are not bound to any further
obligations, in particular not to compensation for damage.
24.6 We exclude any liability for costs, damage (both direct and indirect) and interest that may arise for the client or for third parties as a direct or indirect consequence of acts or omissions of persons in our service or of shortcomings of the goods delivered to the client by us, unless there exists intent or wilful recklessness.
24.7 If the exclusion of liability in the previous paragraph cannot be upheld, then the
compensation is limited to a maximum of the invoice amount of the agreement (excluding VAT) from which the liability arises, otherwise to the part of the invoice to which the liability relates. The compensation for the damage is in any case limited to the amount disbursed by our liability insurer, to be supplemented with the amount of the deductible that is payable by us in the relevant case in accordance with the applicable insurance contract.
24.8 We are only obliged to deliver in accordance with the specifications agreed when the orders were placed. We accept no liability for the applicability of the delivered products for the purposes intended by the client or for any other purposes that deviate from the specifications.
24.9 Complaints will not be processed if the client has in any way remained negligent with his obligations to us arising from any agreement.
24.10 The client indemnifies us against all claims for compensation of any damage, from third parties, arising from this agreement.
25.1 Within 10 working days of receiving an invoice, the client must check the correctness thereof and – insofar as applicable – justify their dispute of the correctness of the invoice. After the stipulated period has elapsed, the client’s right to dispute the correctness of the invoice expires. If the client disputes the correctness of the invoice within the aforementioned period, this does not then suspend the payment obligation as referred to in paragraph 2.
25.2 Payment must be made by bank transfer without any deduction, discount, settlement or suspension and must be credited to our bank account within 30 days of the invoice or, if a shorter period is specified, within that period. This period is a strict deadline. If this period is exceeded, the client is automatically in default.
25.3 As soon as the payment period has expired, the execution of all assignments accepted for the client will be suspended until full payment has been made, or until a deadline to be set by us. If this deadline is exceeded, we are entitled not to carry out the aforementioned assignments and to claim compensation.
25.4 As soon as the payment period has expired, the client owes interest of 1.5% of the invoice amount, NRK PVT Plastics Processors | General Sales Conditions 2019 | EN 6/6 including VAT, for each month or part of a month that exceeds the due date.
25.5 All costs (which expressly includes the full lawyers’ costs), in particular the extrajudicial and judicial costs for collection of our claim, relating to the late payment are to be borne by the client. The extrajudicial collection costs will amount to 15% of the amount due, including VAT.
25.6 If there is a reasonable suspicion that the client’s financial position gives cause for this, we are at all times entitled to demand advance payment or cooperation in establishing security for payment of the price within 10 working days of our request.
This period is a strict deadline. We are at all times entitled and are hereby irrevocably authorised by the client to perform any further (legal) acts required to establish a lien on the client’s claims or property (which explicitly includes establishment or confirmation of the lien by authentic or registered private deed) and thereby also to act on behalf of the client. We are entitled in the interim to suspend the execution of the work until the requested payment or security has been fulfilled. If the request for payment/security has not been fulfilled within 10 working days, the client is automatically in default and the agreement can be dissolved by us in writing without judicial intervention. The client is then liable for all costs, damage and loss of profit arising from the agreement and from the premature dissolution.
25.7 We have the right to determine the debts to which the payments are allocated, but in any case, payments will first of all be regarded as a deduction from the interest and costs incurred by us.
25.8 The client is also automatically in default in the event of (application for) bankruptcy or suspension of payment, being put under guardianship or under administration and liquidation.
XIII Applicable law and choice of forum
26.1 Dutch law applies exclusively to the agreements governed by these general sales conditions and agreements arising therefrom.
26.2 All disputes that may arise between us and the client are submitted exclusively to the competent court in the district where we are located. However, we always remain authorised to summon the client before the court that is competent according to law or the applicable international treaty.
XIV Final provisions
27.1 If, during the execution of the agreement, personal data as referred to in the General Data Protection Regulation are processed by us or by the client, we and the client – if the General Data Protection Regulation requires this – will agree, in writing, a processor agreement that complies with the provisions of the General Data Protection Regulation.
27.2 The client indemnifies us against the administrative sanctions, remedial sanctions and punitive sanctions imposed on us in the context of processing that we carry out during the execution of the Agreement.
28.1 These general sales conditions were filed with the Netherlands Chamber of Commerce, under number 27177181, and are valid from 15 July 2019.
28.2 We have the right to amend these general sales conditions. The client is deemed to have acceptedany amendment to the general sales conditions if the client has not reported its objections to us in writing within seven days of written notification of the amendments.
28.3 Invalidity or nullification of part of these general sales conditions do not result in the invalidity or nullification of these general sales conditions.
28.4 Insofar as these general sales conditions have been translated into a language other than Dutch, the Dutch text is always decisive in the event of differences.
Terms and Conditions of the Metaalunie
General Terms and Conditions issued by Koninklijke Metaalunie (the employers’ organisation for small and medium-sized enterprises in the metal industry) referred to as TERMS AND CONDITIONS OF THE METAALUNIE, filed with the Registry of the Court of Rotterdam on 1 January 2019.
Publication of the Koninklijke Metaalunie, P.O. Box 2600, 3430 GA, Nieuwegein.
© Koninklijke Metaalunie
Article 1: Scope of application
1.1. These Terms and Conditions apply to all offers made by a Metaalunie member, to all agreements that it enters into and to all agreements arising from this, all of which insofar as the Metaalunie member is the supplier or the contractor.
1.2. Metaalunie members who apply these Terms and Conditions are referred to as the Contractor. The other party is referred to as the Client.
1.3. In the event of conflicts between the agreement entered into by the Client and the Contractor and these Terms and Conditions, the provisions of the agreement will prevail.
1.4. These Terms and Conditions may only be applied by Metaalunie members.
Article 2: Offers
2.1. All offers are without obligation. The Contractor is entitled to revoke its offer up to two working days after it has received the acceptance.
2.2. If the Client provides the Contractor with information, the Contractor may assume that it is accurate and complete and will base its offer on this information.
2.3. The prices stated in the offer are denominated in euros, excluding VAT and
other government levies or taxes. The prices do not include travel, accommodation, packaging, storage and transport costs, nor do they include costs for loading, unloading and cooperating with customs formalities.
Article 3: Confidentiality
3.1. All information provided to the Client by or on behalf of the Contractor, such as offers, designs, images, drawings and know-how, of whatever nature and in whatever form are confidential, and the Client will not use it for any purpose other than for the implementation of the agreement.
3.2. The Client will not disclose or reproduce the information referred to in paragraph 1 of this article.
3.3. If the Client infringes one of the obligations referred to in paragraphs 1 and 2 of this article, it will owe an immediately payable penalty of 1 25,000 for each infringement. This penalty can be claimed in addition to compensation by virtue of the law.
3.4. The Client must return or destroy the information referred to in paragraph 1 of this article immediately on request, within a period set at the discretion of the Contractor. If this provision is infringed, the Client will owe the Contractor an immediately payable penalty of 1 1,000 per day. This penalty can be claimed in addition to compensation by virtue of the law.
Article 4: Advice and information provided
4.1. The Client cannot derive any rights from advice and information provided by the Contractor that is not directly related to the contract.
4.2. If the Client provides the Contractor with information, the Contractor may assume that it is accurate and complete when implementing the agreement.
4.3. The Client indemnifies the Contractor against any third-party claims related
to the use of advice, drawings, calculations, designs, materials, brands, samples, models and the like provided by or on behalf of the Client. The Client will compensate the Contractor for all damage suffered by the Contractor, including all costs incurred for defence against these claims.
Article 5: Delivery time/implementation period
5.1. Delivery times or implementation periods specified are indicative.
5.2. The delivery time or implementation period only commences once an agreement has been reached on all commercial and technical details, once all the information, including final and approved drawings and the like, is in the possession of the Contractor, the agreed payment (or instalment) has been received, and the other conditions for the contract have been met.
a. there are circumstances other than those known to the Contractor at the time it set the delivery period or implementation period, the delivery period or implementation period may be extended by the time the Contractor needs – taking into account its planning – to implement thecontract under these circumstances;
b. there are contract extras, the delivery period or implementation period
may be extended by the time the Contractor needs – taking into account
its planning – to have the materials and parts delivered and to carry out
the contract extras;
c. the Contractor suspends its obligations, the delivery period or implementation period may be extended by the time the Contractor needs – taking
into account its planning – to implement the contract after the reason for
the suspension no longer applies.
Unless the Client has evidence to the contrary, the duration of the extension of the delivery period or implementation period is presumed to be necessary and to be the result of a situation as referred to above in a to c.
5.4. The Client is obliged to pay all costs that the Contractor incurs or damages that the Contractor suffers as a result of a delay in the delivery or implementation period as stated in paragraph 3 of this article.
5.5. Under no circumstances does exceeding the agreed delivery or implementation period give the Client the right to compensation or to terminate the agreement. The Client indemnifies the Contractor against any third-party claims due to exceeding the delivery or implementation period.
Terms and Conditions of the Metaalunie
1 January 2019
General Terms and Conditions issued by Koninklijke Metaalunie (the employers’ organisation for small and medium-sized enterprises in the metal industry) referred
to as TERMS AND CONDITIONS OF THE METAALUNIE, filed with the Registry of the Court of Rotterdam on 1 January 2019.
Publication of the Koninklijke Metaalunie, P.O. Box 2600, 3430 GA, Nieuwegein.
© Koninklijke Metaalunie
Article 6: Delivery and risk transfer
6.1. Delivery takes place when the Contractor, at its business location, makes the good available to the Client and has informed the Client that the good is at its disposal. From that time onwards, the Client bears the risk of the good in terms of storage, loading, transport and unloading among others.
6.2. The Client and the Contractor may agree that the Contractor will be responsible for the transport. In that case too, the Client bears the risk of, inter alia, storage, loading, transport and unloading. The Client can insure itself against
6.3. If a good is exchanged and the Client retains the good to be exchanged pending delivery of the new good, the risk of the good to be exchanged remains with the Client until the time that it hands over the good to the Contractor. If the Client is unable to deliver the good to be exchanged in the condition in which it was when the agreement was concluded, the Contractor may terminate the agreement.
Article 7: Price changes
The Contractor may pass on to the Client an increase in cost-determining factors that occurs after entering into the agreement. The Client is obliged to pay the price increase immediately on the Contractor’s request.
Article 8: Force majeure
8.1. If the Contractor fails to fulfil its obligations, this cannot be attributed to the Contractor if this failure is due to force majeure.
8.2. Force majeure includes, inter alia, if third parties engaged by the Contractor – such as suppliers, subcontractors and transporters, or other parties that the Client is dependent on – do not meet their obligations at all or on time, or circumstances due to weather conditions, natural disasters, terrorism, cybercrime, disruption of digital infrastructure, fire, power failures, loss, theft or loss of tools, materials or information, roadblocks, strikes or work interruptions and import or trade restrictions.
8.3. The Contractor is entitled to suspend fulfilment of its obligations if it is temporarily prevented from fulfilling its obligations to the Client due to force majeure. Once the force majeure circumstances no longer apply, the Contractor will fulfil its obligations as soon as its planning permits.
8.4. If it concerns force majeure and fulfilment is or becomes permanently impossible, or the temporary force majeure circumstances have lasted for more than six months, the Contractor is entitled to terminate the agreement with immediate effect either entirely or in part. In those cases, the Client is entitled to terminate the agreement with immediate effect, but only for that part of the obligations that the Contractor has not yet fulfilled.
8.5. The parties are not entitled to compensation for the damages suffered or to be suffered as a result of the force majeure, 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 decisions that are necessary to carry out the work are obtained in good time. The Client is obliged to send the Contractor a copy of the aforementioned documents immediately on the Contractor’s request.
9.2. Unless otherwise agreed in writing, the work does not include:
a. groundwork, pile driving, cutting, breaking, foundation work, masonry,
carpentry, plastering, painting, wallpapering, repair work or other construction work;
b. making connections to gas, water, electricity, internet or other infrastructural facilities;
c. measures to prevent or limit damage to, of theft or loss of goods present
at or near the workplace;
d. removing equipment, building materials or waste;
e. vertical and horizontal transport.
Article 10: Contract extras
10.1. Changes in the work will in any event lead to contract extras if:
a. it concerns changes in the design, the specifications or the contract documents;
b. the information provided by the Client does not correspond with reality;
c. the estimated quantities deviate by more than 5%.
10.2. Contract extras are calculated on the basis of the price-determining factors that apply at the time the extra work is performed. The Client is obliged to pay the price for the contract extras immediately on the Contractor’s request.
Article 11: Implementation of the work
11.1. The Client will ensure that the Contractor can carry out its work undisturbed
and at the agreed time and that it is given the necessary facilities for the
implementation of its work, such as:
a. gas, water, electricity and internet;
c. lockable dry storage space;
d. the facilities prescribed under the Dutch Working Conditions Act
11.2. The Client bears the risk and is liable for damage to and theft or loss of goods belonging to the Contractor, Client and third parties, such as tools, material or equipment intended for the work or used for the work, located at or near the place where the work is carried out or at another agreed location.
11.3. Notwithstanding the provisions in paragraph 2 of this article, the Client is obliged to take out adequate insurance against the risks referred to in that paragraph. In addition, the Client must take out insurance for the risk of workrelated damage with regard to the equipment to be used. The Client must send the Contractor a copy of the relevant insurance(s) and proof of payment of the premium immediately on request. In the event of damages, the Client is obliged to report this immediately to its insurer for further processing and settlement.
Article 12: Delivery of the work
12.1. The work is considered to be delivered in the following cases:
a. once the Client has approved the work;
b. if the Client has put the work into operation. If the Client puts part of the work into operation, then that part is considered to have been delivered;
c. if the Contractor has notified the Client in writing that the work has been completed, and the Client fails to inform the Contractor in writing that the work has not been approved within 14 days of the day of the notification;
d. if the Client does not approve the work on the grounds of minor defects or missing parts that can be repaired or delivered within 30 days and that do not hinder the commissioning of the work.
12.2. If the Client does not approve the work, it is obliged to inform the Contractor of this in writing, stating the reasons. The Client must give the Contractor the opportunity to deliver the work at a later date.
12.3. The Client indemnifies the Contractor against third-party claims concerning damage to parts of the work not delivered due to the use of parts of the work that have already been delivered.
Article 13: Liability
13.1. In the event of an attributable failure, the Contractor is still obliged to fulfil its contractual obligations, with due observance of Article 14.
13.2. The Contractor’s obligation to compensate damages – regardless of the grounds – is limited to the damage against which the Contractor is covered under an insurance policy taken out by it or on its behalf. However, the scope of this obligation is never greater than the amount paid out under this insurance in the case in question.
13.3. If, for whatever reason, the Contractor does not have the right to invoke paragraph 2 of this article, the obligation to compensate damage is limited to a maximum of 15% of the total contract amount (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 amount for that part or that partial delivery. If it concerns continuing performance contracts, the obligation to compensate damage is limited to a maximum of 15% (excluding VAT) of the contract amount owed over the last twelve months prior to the losscausing event.
13.4. The following do not qualify for compensation:
a. consequential damages. Consequential damages include inter alia business interruption losses, loss of production, loss of profit, penalties, transport costs and travel and subsistence expenses;
b. damage to property in the care, custody or control of, but not owned by the insured party. Among other things, this damage includes damage caused by or during the performance of the work to goods that are being worked on or to goods that are located in the vicinity of the place where the work is being carried out;
c. damage as a result of intent or wilful recklessness by the Contractor’s auxiliary staff or non-managerial subordinates.
The Client can take out insurance for these damages if possible.
13.5. The Contractor is not obliged to compensate damage to material supplied by or on behalf of the Client as a result of improper processing.
13.6. The Client indemnifies the Contractor against all third-party claims due to product liability as a result of a defect in a product that has been delivered by the Client to a third party and of which the products or materials supplied by the Contractor are a part. The Client is obliged to reimburse all the damages suffered by the Contractor in this respect, including the (full) costs of the defence.
Article 14: Guarantee and other claims
14.1. Unless otherwise agreed in writing, the Contractor guarantees the proper execution of the agreed performance for a period of six months after delivery or completion, as detailed in the following paragraphs.
14.2. If the parties have agreed to deviating guarantee conditions, the provisions of this article will remain in full force, unless this is in conflict with those deviating guarantee conditions.
14.3. If the agreed performance has not been executed properly, the Contractor will decide within a reasonable period of time whether it will still perform the work properly or credit the Client for a proportionate part of the contract amount.
14.4. If the Contractor opts to still execute the performance properly, it will determine the manner and time of execution. The Client must in all cases offer the Contractor the opportunity to do so. If the agreed performance (also) included the processing of material provided by the Client, the Client must supply new material at its own expense and risk.
14.5. The Client is responsible for sending parts or materials that are to be repaired
or replaced by the Contractor to the Contractor’s business location.
14.6. The following are for the Client’s account:
a. all transport or shipping costs;
b. costs for dismantling and assembly;
c. travel and subsistence expenses and travel time.
14.7. The Contractor is only obliged to implement the guarantee if the Client has fulfilled all its obligations.
14.8. a. The guarantee does not cover defects that are the result of:
– normal wear and tear;
– improper use;
– lack of maintenance or maintenance carried out incorrectly;
– installation, assembly, modification or repairs carried out by the Client or third parties;
– faulty or unsuitable goods originating from or prescribed by the Client;
– faulty or unsuitable materials or tools used by the Client.
b. No guarantee is given for:
– goods delivered that were not new at the time of delivery;
– inspections and repairs carried out on goods owned by the Client;
– parts that are subject to a manufacturer’s guarantee.
14.9. The provisions of paragraphs 3 to 8 of this article apply by analogy to any of the Client’s claims based on breach of contract, non-conformity or any other basis whatsoever.
Article 15: Obligation to complain
15.1. The Client no longer has the right to invoke a defective performance if it has not complained to the Contractor in writing within fourteen days after it discovered or should reasonably have discovered the defect.
15.2. The Client must have filed complaints about the invoice with the Contractor in writing and within the payment term, subject to forfeiture of all rights. If the payment term is longer than thirty days, the Client must have filed its complaint in writing within thirty days of the invoice date at the latest.
Article 16: Failure to take possession of goods
16.1. The Client is obliged to take actual possession of the goods that are the subject of the agreement at the agreed location at the end of the delivery or implementation period.
16.2. The Client must cooperate fully and free of charge to enable the Contractor to deliver the goods.
16.3. Goods not taken into possession are stored at the Client’s expense and risk.
16.4. If the provisions of paragraph 1 or 2 of this article are infringed, the Client will owe the Contractor a penalty for each infringement of 1 250 per day up to a maximum of 1 25,000, after the Contractor has given notice of default. This penalty can be claimed in addition to compensation by virtue of the law.
Article 17: Payment
17.1. Payment is made at the Contractor’s business address or into an account to be designated by the Contractor.
17.2. Unless otherwise agreed, payments must be made within 30 days of the invoice date.
17.3. If the Client fails to fulfil its payment obligation, it is obliged to comply with a
request from the Contractor for a tender of payment instead of the agreed amount.
17.4. The Client’s right to offset 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 or is bankrupt or the statutory debt adjustment scheme applies to the Contractor.
17.5. Irrespective of whether the Contractor has fully executed the agreed performance, everything that the Client owes or will owe it under the agreement is immediately due and payable if:
a. a payment term has been exceeded;
b. the Client does not fulfil its obligations under Article 16;
c. the Client has filed for bankruptcy or suspension of payments;
d. the Client’s goods or claims have been attached;
the Client (a company) is dissolved or wound up;
f. the Client (a natural person) files a application to be admitted to the statutory debt adjustment scheme, is placed under a guardianship order or has died.
17.6. If payment is delayed, the Client will owe interest on that sum to the Contractor with effect from the day following the day agreed as the final day of payment up to and including the day on which the Client settles the amount in question. If the parties have not agreed on the final day of payment, the interest is due from 30 days after the sum has become due and payable. The interest is 12% per year, but is equal to the statutory interest if this is higher. For the interest calculation, a part of the month is considered to be a full month. At the end of each year, the amount on which the interest is calculated will be increased by the interest due for that year.
17.7. The Contractor is entitled to offset its debts to the Client against claims that companies affiliated to the Contractor have against the Client. In addition, the Contractor is entitled to offset its claims to the Client against debts that companies affiliated to the Contractor have against the Client. Furthermore, the Contractor is entitled to offset its debts to the Client against claims against companies affiliated to the Client. ‘Affiliated companies’ means all companies belonging to the same group, within the meaning of Book 2, Section 24b of the Dutch Civil Code, and a participation within the meaning of Book 2, Section 24c of the Dutch Civil Code.
17.8. For late payments, the Client owes the Contractor all extrajudicial costs with a minimum of 1 75.
These costs are calculated on the basis of the following table, i.e., the principal sum plus interest:
– on the first 1 3,000 15%
– on the excess up to 1 6,000 10%
– on the excess up to 1 15,000 8%
– on the excess up to 1 60,000 5%
– on the excess from 1 60,000 or more 3%
The extrajudicial costs actually incurred are due if they are higher than the calculation given above.
17.9. If judgment is rendered in favour of the Contractor in legal proceedings, either entirely or for the most part, the Client will bear all costs incurred in connection with these proceedings.
Article 18: Securities
18.1. Irrespective of the agreed payment terms, the Client is obliged to provide sufficient security for payment immediately on the Contractor’s request and at its discretion. If the Client does not comply with this provision within the set time limit, it will immediately be in default. In that case, the Contractor has the right to terminate the agreement and to recover its damages from the Client.
18.2. The Contractor remains the owner of the delivered goods as long as the Client:
a. has not fulfilled its obligations under any agreement with the Contractor;
b. claims arising from non-fulfilment of the aforementioned agreements, such as damage, penalties, interest and costs, have not been settled.
18.3. As long as the delivered goods are subject to retention of title, the Client may not encumber or dispose of these goods other than in the course of its normal business operations. This provision has effect under property law.
18.4. After the Contractor has invoked its retention of title, it may take back the delivered goods. The Client will cooperate fully with this.
18.5. If the Client has fulfilled its obligations after the Contractor has delivered the goods to it in accordance with the agreement, the retention of title with respect to these goods is revived if the Client does not fulfil its obligations under an agreement entered into subsequently.
18.6. The Contractor has a right of pledge and a right of retention on all goods that it has or may receive from the Client on any grounds whatsoever and for all
claims that it has or might have against the Client.
Article 19: Intellectual property rights
19.1. The Contractor is considered to be the maker, designer or inventor of the works, models or inventions created in the context of the agreement. The Contractor therefore has the exclusive right to apply for a patent, trademark or model.
19.2. The Contractor will not transfer any intellectual property rights to the Client in the implementation of the agreement.
19.3. If the performance to be delivered by the Contractor (also) includes providing computer software, the source code will not be handed over to the Client.
The Client will only acquire a non-exclusive, worldwide and perpetual licence for use for the computer software solely for the purpose of the normal use and proper functioning of the good. The Client is not permitted to transfer the licence or to issue a sub-licence. When the Client sells the good to a third party, the licence transfers by operation of law to the acquirer of the good.
19.4. The Contractor disclaims liability for damages that the Client suffers as a result of an infringement of third-party intellectual property rights. The Client indemnifies the Contractor against any third-party claims related to an infringement of intellectual property rights.
Article 20: Assignment of rights or obligations The Client may not assign or pledge any rights or obligations pursuant to any article in these General Terms and Conditions or the underlying agreement(s), unless it has the prior written consent of the Contractor. This provision has effect under property law.
Article 21: Cancellation or termination of the agreement
21.1. The Client is not entitled to cancel or terminate the agreement, unless the Contractor agrees to this. If the Contractor agrees, the Client will owe the Contractor an immediately due and payable compensation equal to the agreed price, less the savings for the Contractor as a result of the termination. The compensation will be at least 20% of the agreed price.
21.2. If the price depends on the actual costs to be incurred by the Contractor (on a cost-plus basis), the compensation as referred to in the first paragraph of this article is estimated based on the sum of the costs and labour and the profit that the Contractor would have made for the entire contract.
Article 22: Applicable law and competent court
22.1. Dutch law applies.
22.2. The Vienna Sales Convention (CISG) does not apply, nor does any other international regulation that may be excluded.
22.3. The Dutch civil court with jurisdiction in the Contractor’s place of business is authorised to take cognisance of any disputes. The Contractor may deviate from this rule governing jurisdiction and rely on the statutory rules governing jurisdiction instead.
These Terms and Conditions constitute a comprehensive translation of the
Dutch version of the Terms and Conditions of the Metaalunie as filed with the
Registry of the Court of Rotterdam on 1 January 2019. The Dutch version will
prevail in the explanation and interpretation of this text.