Terms
METAALUNIE CONDITIONS
General delivery and payment conditions of Koninklijke Metaalunie (the Dutch organisation for small and medium-sized enterprises in the metal industry), referred to as ‘the METAALUNIE
CONDITIONS’, formerly referred to as ‘the SMECOMA CONDITIONS’,
filed with the Court Registry in Rotterdam on 1 January 2008.
Published by Koninklijke Metaalunie, PO Box 2600, 3430 GA Nieuwegein, the Netherlands.
©Koninklijke Metaalunie
Article 1: Applicability
1.1. These Terms & Conditions apply to all tenders issued by
members of Koninklijke Metaalunie, to all agreements
concluded by those members and to all agreements that may
result therefrom.
1.2. The tendering party/supplier is the Metaalunie member
applying these Terms & Conditions, and is referred to as ‘the
Supplier’. The counterparty is referred to as ‘the Client’.
1.3. In the event of any conflicts between the substance of the
agreement concluded between the Client and the Supplier on
the one hand and these Terms & Conditions on the other, the
provisions set out in the agreement have precedence.
1.4. These Terms & Conditions may only be used by members of
Koninklijke Metaalunie.
Article 2: Tenders
2.1. No obligations are attached to any tenders.
2.2. If the Client supplies the Supplier with data, drawings etc., the
Supplier may rely on their accuracy and shall base the tender
on that information.
2.3. All prices specified in the tender are based on delivery ex
works, in accordance with the Incoterms 2000. Prices are
stated exclusive of VAT and packing materials.
2.4. If the tender is not accepted, the Supplier is entitled to charge
the Client for all costs incurred in order to submit the tender.
Article 3: Intellectual property rights
3.1. Unless agreed otherwise in writing, the Supplier retains the
copyrights and all industrial property rights to all tenders,
designed submitted, illustrations, drawings, trial models,
programs, etc.
3.2. The rights listed in Article 3.1 remain the property of the
Supplier, regardless of whether costs have been charged to
the Client for their production. The relevant information may
not be copied, used or shown to third parties without the
Supplier’s explicit prior consent. The Client will be liable to
pay the Supplier a penalty for each instance of violation of
this provision, to the amount of €25,000. This penalty may be
demanded in addition to any compensation damages
awarded by law.
3.3. The Client must return all data provided as meant in
Article 3.1 on demand, within the period specified by the
Supplier. If this provision is violated, the Client is liable to pay
the Supplier a penalty of €1,000 per day. This penalty may be
demanded in addition to any compensation damages
awarded by law.
Article 4: Advice, designs and materials
4.1. The Client cannot derive any rights from advice or information
provided by the Supplier that has no direct bearing on the
engagement.
4.2. The Client is responsible for all drawings, calculations and
designs made by or on behalf of the Client, and for the
functional suitability of all materials prescribed by or on behalf
of the Client.
4.3. The Client indemnifies the Supplier for any claims from third
parties arising in connection with the use of the drawings,
calculations, designs, materials, samples, models, etc.
provided by or on behalf of the Client.
4.4. The Client may examine (or arrange for the examination of)
the materials that the Supplier intends to use before they are
processed, at the Client’s own expense. Any damages
incurred by the Supplier as a result are for the Client’s
expense.
Article 5: Delivery times
5.1. The delivery deadline and/or work period stated by the
Supplier are estimates.
5.2. In determining delivery deadlines and/or work periods, the
Supplier assumes that the engagement can be carried out
under the circumstances as they are known to the Supplier at
that moment.
5.3. Delivery deadlines and/or work periods do not commence
until the Parties have agreed on all commercial and technical
details, all necessary data, final and approved drawings, etc.
are in the Supplier’s possession, the payment or instalment
agreed has been received and the conditions necessary for
the performance of the engagement have been met.
5.4. a. In the event of circumstances that are different to those
known to the Supplier when the delivery deadline and/or
work period were determined, the Supplier may extend the
delivery deadline and/or work period by the time that is
required in order to perform the engagement under those
circumstances. If the work cannot be fitted into the
Supplier’s work schedule, it will be carried out as soon as
the Supplier’s schedule permits.
b. In the event of contract extras, the delivery deadline and/or
work period will be extended by the time required to supply
(or arrange for the supply of) the materials and parts
necessary for those contract extras and to carry out the
contract extras. If the contract extras cannot be fitted into
the Supplier’s work schedule, they will be carried out as
soon as the Supplier’s schedule permits.
c. In the event that the Supplier’s obligations are suspended,
the delivery deadline and/or work period will be extended
by the duration that the obligations are suspended. If
resumption of the work cannot be fitted into the Supplier’s
work schedule, the work will be carried out as soon as the
Supplier’s schedule permits.
d. In the event of weather conditions that prevent work being
carried out, the delivery deadline and/or work period will be
extended by the resulting delay.
5.5. If the delivery deadline and/or work period agreed is
exceeded, that circumstance does not in any instance entitle
the Client to compensation for damages, unless agreed in
writing.
Article 6: Transfer of risk
6.1. Deliveries are made ex works, in accordance with the
Incoterms 2000; the risks attached to the object are
transferred at the moment that the Supplier makes the object
available to the Client.
6.2. The provisions of Article 6.1 notwithstanding, the Client and
the Supplier may agree that the Supplier will arrange
transport. The risks attached to the storage, loading, transport
and unloading remain with the Client in such instances. The
Client may take out insurance to cover those risks.
6.3. In the event that objects are to be exchanged and the Client
continues to use the exchangeable object while awaiting
delivery of the new object, the risks attached to the
exchangeable object remain with the Client until the moment
that possession of the object has been relinquished to the
Supplier.
Article 7: Price changes
7.1. The Supplier may charge any increases in cost-determining
factors that arise after the agreement is concluded to the
Client if the performance of the agreement has not been
completed at the moment of the increase.
7.2. The Client is obliged to pay the price increases as meant in
Article 7.1 at the same time as the principal sum or the next
instalment is paid.
7.3. If the Client provides goods and the Supplier is prepared to
use those goods, the Supplier may charge up to 20% of the
market price of the goods provided.
Article 8: Impracticability of the engagement
8.1. The Supplier is entitled to suspend the fulfilment of any
obligations if any circumstances that could not be foreseen
when the agreement was concluded and that are beyond the
Supplier’s influence temporarily prevent the fulfilment of those
obligations.
8.2. Circumstances that the Supplier could not foresee and that
are beyond the Supplier’s influence are understood to include
(but are not limited to) the circumstance that the Supplier’s
own suppliers and/or subcontractors fail to meet their
obligations, or fail to do so in time, the weather, earthquakes,
fire, loss or theft of tools, the destruction of materials to be
processed, road blocks, strikes or work stoppages and
restrictions on import or trade.
8.3. The Supplier is no longer entitled to suspend the fulfilment of
any obligations when the temporary impossibility of
performance has lasted for more than six months. The
agreement may not be dissolved until that term has lapsed,
and only in respect of those obligations that have not been
fulfilled. In that event, the Parties are not entitled to any
compensation for damages incurred as a result of that
dissolution.
Article 9: Scope of the work
9.1. The Client is responsible for ensuring that all licences,
permits, dispensations and other administrative decisions that
are needed to carry out the work are obtained in time.
9.2. The price for the work does not include the following:
a. the costs of earthwork, pile driving, demolition, foundation
work, cementing, carpentry, plastering, painting,
wallpapering, repairs or other construction work;
b. the costs of connecting gas, water, electricity or other
infrastructural facilities;
c. the costs of preventing or limiting damages to any objects
situated on or near the work site;
d. the costs of disposing of materials, building materials or
waste products;
e. hotel and travelling expenses.
Article 10: Changes to the work
10.1. Any changes to the work will result in contract variations in at
least the following instances:
a. if the design or the specifications change;
b. if the information provided by the Client does not match the
actual situation;
c. in the event of deviation from estimated quantities by more
than 10%.
10.2. Contract extras will be charged based on the value of the
cost-determining factors as at the moment that the contract
extra is performed.
Contract deductions will be settled based on the value of the
cost-determining factors as at the moment that the agreement
was concluded.
10.3. If the value of the contract deductions exceeds that of the
contract extras, the Supplier is entitled to charge the Client for
10% of the difference upon final settlement. This provision
does not apply to any contract deductions based on requests
from the Supplier.
Article 11: Performance of the work
11.1. The Client is responsible for ensuring that the Supplier can
carry out the activities without interruption and at the times
agreed, and that the Supplier has access to the necessary
facilities when carrying out the activities, such as:
- gas, water and electricity;
- heating;
- lockable and dry storage space;
- all facilities required by the laws and regulations governing
working conditions.
11.2. The Client is liable for all damages, including those resulti
ng from loss, theft, burning or harm, to objects belonging to
the Supplier, the Client and/or any third parties, such as tools
and materials intended for use in the work that are located on
the site where the activities are carried out or at another
agreed location.
11.3. If the Client fails to fulfil the obligations as set out in
Article 11.1 and 11.2, and that failure causes delays in the
performance of the activities, the activities will be carried out
as soon as the Client as yet fulfils those obligations and when
the Supplier’s schedule permits. The Client is liable for all
damages that the Supplier incurs as a result of the delay.
Article 12: Completion of the work
12.1. The project will be deemed to have been completed when:
a. the Client has approved the work;
b. the Client has put the work into use. If the Client puts part
of the work into use, that part will be deemed to have been
completed;
c. the Supplier has notified the Client in writing that the work
is finished and the Client has not communicated, within 14
days after than notification, whether or not the work has
been approved;
d. the Client does not approve the work on grounds of minor
defects or missing parts that can be repaired or provided
within 30 days and that do not prevent the work from being
put into use.
12.2. If the Client does not approve the work, the grounds on which
the approval is withheld must be communicated to the
Supplier in writing.
12.3. If the Client does not approve the work, the Supplier must be
given another opportunity to complete the work. The
provisions set out in this Article apply anew.
12.4. The Client indemnifies the Supplier against all claims from
third parties for damages to parts of the work that have not
yet been completed that are caused by use of parts of the
work that have already been completed.
Article 13: Liability
13.1. The Supplier is liable for all damages that the Client incurs
that stem directly and exclusively from a shortcoming
attributable to the Supplier. However, only those damages for
which the Supplier is insured, or should within reason have
been insured, qualify for compensation.
13.2. If, when the agreement is concluded, it is impossible for the
Supplier to take out insurance as meant in Article 13.1, or
impossible to do so at reasonable conditions, or if it is
subsequently impossible to renew the insurance policy at
reasonable conditions, the maximum compensation payable
for damages is the amount that the Supplier charged for the
agreement in question (exclusive of VAT).
13.3. The following damages do not qualify for compensation:
a. trading losses, including losses caused by delays and loss
of profits. The Client should take out insurance to cover
such damages, if such is deemed desirable;
b. supervision damages, which are understood to include
damages caused, during or as a result of the performance
of the work, to objects on which work is being carried out
to objects situated in the vicinity of the work site. The
Client should take out insurance to cover such damages, if
such is deemed desirable;
c. damages caused by intent or gross negligence on the part
of helpers or non-management employees of the Supplier.
13.4. The Supplier is not liable for damages to materials provided
by or on behalf of the Client that result from improper
processing. At the Client’s request, the Supplier will repeat
the process, using materials provided by the Client, at the
Client’s expense.
13.5. The Client indemnifies the Supplier against all claims from
third parties for product liability stemming from defects in
products provided by the Client to third parties that consisted
of or included products and/or materials provided by the
Supplier.
Article 14: Guarantees
14.1. The Supplier guarantees the proper performance of the
product or service stipulated for a period of six months after
delivery or completion.
14.2. If the product or service stipulated consists of contract work,
the Supplier guarantees the soundness of the construction
delivered and the materials used, if the Supplier was at liberty
to choose those materials, for the period specified in
Article 14.1.
If the construction delivered and/or the materials used prove
to be unsound, the Supplier will make the necessary repairs
or replacement. Those parts that are to be repaired at the
Supplier’s place of business or are to be replaced by the
Supplier must be sent to the Supplier carriage paid.
Disassembly and assembly of those parts, plus any hotel and
travelling expenses, are for the Client’s account.
14.3. If the product or service stipulated (partly) consists of the
processing of materials provided by the Client, the Supplier
guarantees proper processing for the period specified in
Article 14.1.
If any processing proves to have been performed improperly,
the Supplier will do one of the following, at the Supplier’s
discretion:
- repeat the process, in which case the Client must provide
new materials, at the Client’s own expense;
- repair the shortcoming, in which case the Client must
return the materials to the Supplier carriage paid;
- credit the Client for a proportionate part of the invoice.
14.4. If the product or service stipulated consists of the delivery of
an object, the Supplier guarantees the soundness of the
object delivered for the period specified in Article 14.1.
If the delivery proves to have been defective, the object must
be returned to the Supplier carriage paid. The Supplier will
then elect either:
- to repair the object;
- to replace the object;
- to credit the Client for a proportionate part of the invoice.
14.5. If the product or service stipulated (partly) consists of the
fitting and/or assembling of a delivered object, the Supplier
guarantees the soundness of the fitting and/or assembly for
the period specified in Article 14.1.
If the fitting and/or assembly prove to be defective, the
Supplier will repair the fault. Any hotel and travelling
expenses are for the Client’s account.
14.6. Factory guarantees apply to those parts for which the Client
and the Supplier agree such explicitly and in writing. If the
Client has had the opportunity to examine the substance of
the factory guarantee, that factory guarantee will replace the
guarantees specified in this Article.
14.7. In all situations, the Client must allow the Supplier the
opportunity to repair any shortcomings and/or repeat the
processing.
14.8. The Client may only invoke guarantees after all obligations in
respect of the Supplier have been fulfilled.
14.9. a. No guarantee is given when defects are the result of:
- normal wear and tear;
- improper use;
- lack of proper maintenance;
- fitting, assembly, alterations or repairs by the Client or
by third parties.
b. No guarantee is given for delivered objects that were not
new when they were delivered of for objects whose use
the Client prescribed or that were provided by or on behalf
of the Client.
c. No guarantee is given on inspections of and/or repairs to
objects belonging to the Client.
Article 15: Complaints
The Client may not invoke defects in the product or service unless
a written complaint has been submitted to the Supplier within
fourteen days after the defect was detected or should, within
reason, have been detected.
Article 16: Failure to take delivery
In the event that the Client has not taken delivery of any object after
the delivery deadline has passed, those objects will remain
available to the Client. Any objects of which the Client has not
taken delivery will be stored for the Client’s account and risk. The
Supplier may at any time invoke the powers granted by Article
6:90 of the Dutch Civil Code.
Article 17: Payment
17.1. Payment must be made at the Supplier’s place of business or
to an account specified by the Supplier.
17.2. Unless agreed otherwise, payment must be made using one
of the following methods:
a. for counter sales: cash;
b. for payment in instalments:
- 40% of the total price when the engagement is granted;
- 50% of the total price when the materials have been
delivered or, if the engagement does not include
delivery of the materials, upon commencement of the
activities;
- 10% of the total price upon completion;
c. in all other instances: within thirty days after the date on
the invoice.
17.3. The payment conditions specified notwithstanding, the Client
is obliged, at the Supplier’s request, to provide security for
payment, to the Supplier’s satisfaction. Failure on the Client’s
part to provide such security for payment within the period
specified will immediately constitute default. In that event, the
Supplier is entitled to dissolve the agreement and recover any
damages from the Client.
17.4. The Client’s right to offset any claims on the Supplier is
excluded, except in the event of the Supplier’s bankruptcy or
if judicial debt rescheduling is applied in respect of the
Supplier.
17.5. The full claim for payment is payable on demand in the
following instances:
a. if any payment deadline has been exceeded;
b. if the Client has been declared bankrupt or requests
suspension of payments;
c. if any of the Client’s assets or claims are seized;
d. if the Client (if a company) is dissolved or wound up;
e. if the Client (if a natural person) makes a request for
judicial debt rescheduling, is placed under guardianship or
dies.
17.6. If payment has not been made by the payment deadline
specified, the Client is immediately liable to pay the Supplier
interest. That interest is payable at a rate of 12% per year, or
at the statutory rate if that is higher. For the purposes of
calculating the interest, partial months are counted as full
months.
17.7. If payment has not been made by the payment deadline
specified, the Client is immediately liable to pay the Supplier
all extrajudicial costs, to a minimum of €75.
The costs are calculated in accordance with the following
table:
over the first €3,000 15%
over the excess up to €6,000 10%
over the excess up to €15,000 8%
over the excess up to €60,000 5%
over the excess from €60,000 3%
If the actual extrajudicial costs exceed those based on this
formula, the Client is liable to pay the actual costs.
17.8. If judicial proceedings are decided in the Supplier’s favour, all
costs incurred by the Supplier in connection with those
proceedings are for the Client’s account.
Article 18: Retention of ownership and pledging
18.1. After delivery, the Supplier remains the owner of the objects
delivered for as long as:
a. the Client fails or will fail in the fulfilment of the obligations
stemming from this agreement or any similar agreements;
b. the Client fails or will fail to pay for any work performed or
to be performed under such agreements;
c. the Client has not paid any claims arising from nonfulfilment
of those agreements, such as compensation for
damages, penalties, interest and costs.
18.2. As long as any objects are subject to retention of ownership,
the Client may not encumber those objects in any way that
exceeds the scope of the Client’s ordinary activities.
18.3. Having invoked retention of ownership, the Supplier may
retrieve the objects delivered. The Client must allow the
Supplier to enter the place where those objects are located.
18.4. If the Supplier cannot invoke retention of ownership because
the objects delivered have been subject to confusion,
deformation or accession, the Client is obliged to give the
newly formed objects in pledge to the Supplier.
Article 19: Termination
If the Client wishes to dissolve the agreement without the Supplier
having failed in the performance thereof and if the Supplier so
agrees, the agreement will be terminated by mutual consent. In that
event, the Supplier is entitled to reimbursement for all financial
losses incurred, such as damages, loss of profits and costs.
Article 20: Applicable law and competent court
20.1. These Terms & Conditions are governed by the laws of the
Netherlands.
20.2. The Vienna Sales Convention (C.I.S.G.) does not apply to
these Terms & Conditions, nor do any other international
regulations whose exclusion is permitted.
20.3. Only the Dutch civil court within whose jurisdiction the
Supplier’s place of business is situated is competent to pass
judgment on disputes, unless such is at odds with any
mandatory rules of law. The Supplier is entitled to deviate
from this jurisdiction clause and apply the statutory rules for
jurisdiction.
20.4. The Parties may agree on another form of dispute settlement,
such as arbitration or mediation.
20.5 You have the right to cancel your order up to 14 days after receipt without giving any reason.
After cancellation you have another 14 days to return your product.
You will then be credited with the full order amount including shipping costs.
Only the costs for returning from your home to the webshop are for your own account.
Consult the website of your carrier for the exact rates. If you make use of your right of withdrawal,
the product will be returned to the entrepreneur with all accessories supplied
and - if reasonably possible - in its original condition and packaging.
To exercise this right, please contact us at info@pommee.nl.
We will then refund the order amount due within 14 days after registration of your return,
provided that the product has already been returned in good order.
These conditions are a full translation of the Dutch version of the
‘METAALUNIEVOORWAARDEN’ as deposited with the Registry of
the District Court in Rotterdam on 1 January 2008. Explanation and
interpretation of the text of these Conditions shall be based on the
Dutch text.