Metaalunie conditions
General delivery and payment conditions of Koninklijke Metaalunie (the Dutch organization 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 there from.
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 installment 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 installment 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 fulfillment 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 fulfillment 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 fulfillment 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 licenses, 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 resulting 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 fulfill 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 installments:
– 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 favor, 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 fulfillment 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 non-fulfillment 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.
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.
GENERAL TERMS OF PURCHASING AND (SUB) CONTRACTING (IF APLICABLE)
General Terms of Purchasing and (Sub)Contracting Conditions of Tooling Specialist Derksen BV in ‘s-Heerenberg, conditions are filed at the Chamber of Commerce, in Arnhem (NLD) under 09101255
VAT: NL808513916B01
GENERAL
article 1: Applicability
1.1. The Client is the natural or legal person using these General Terms of Purchasing and (Sub)Contracting. The other party shall be referred to as the Contractor. In these General Terms, ‘work’ shall also include the execution of Services.
1.2. Articles 1 to 16, inclusive, of these General Terms shall be applicable to all offers made to the Client and all agreements concluded with the Client and to all agreements that may result therefrom. If the offers or the agreements concluded also or exclusively concern (sub)contracting and/or execution of Services, articles 17 to 22, inclusive, of these General Terms shall apply as well.
1.3. Any deviations from these General Terms of Purchasing and (Sub)Contracting shall only apply if the Client has provided the Contractor with written confirmation of these.
1.4. In the event of any conflicts between the contents of the agreement concluded between the Client and the Contractor on the one hand and these Terms & Conditions on the other, the provisions set out in the agreement shall take precedence.
article 2: Costs related to offers
The Client shall not reimburse any costs made in connection with offers or quotations, also including the costs of advice, drawings etc. made by, or on behalf of, the Contractor.
article 3: Delivery date and penalty
3.1 Agreed upon delivery time and/work period are deemed final deadlines. If the Contractor exceeds the delivery time and/or work period, the Contractor shall be deemed to be in default. As soon as the Contractor has reasons to suspect that he will not be able to deliver, to deliver on time or to deliver duly, he shall inform the Client immediately.
3.2 The Contractor shall be liable for any damage and/or loss incurred as a result of a delay in delivery and/or work period as meant in article 3.1.
3.3 For each day of delay in delivery the Contractor is liable to pay the Client a penalty, payable on demand, of 1% of the agreed purchase order up to a maximum of 5 % of the agreed purchase order.
3.4 The penalty referred to in article 3.3. may be claimed in addition to compensatory and complementary damages by virtue of the law. The Client is entitled to set off this penalty and/or these damages against the amounts owed to the Contractor.
article 4: Prices
4.1 The prices referred to in the offer are based on delivery Free Domicile at the agreed place of delivery, “Delivered Duty Paid”, in accordance with Incoterms 2010. All prices are firm, fixed, net of all duties and taxes and include adequate packaging.
4.2 Any increase in prices shall be borne by the Contractor, even after the agreement has been concluded. This applies regardless of the period elapsed between the date the agreement was concluded and its execution.
article 5: Transmission of risk
5.1 Delivery of the Products shall be made Free Domicile at the agreed place of delivery, “Delivered Duty Paid”, in accordance with Incoterms 2010.
5.2 If delivery “ex works” has been agreed upon and nevertheless the Contractor either transports or arranges for transport, the risk for loading and transport shall be borne by the Contractor.
5.3 If the Products are collected on behalf of the Client, the Contractor has to assist the Client with the loading free of charge.
article 6: Inspection and testing
6.1 The Client, its principal and the Board of Directors of the work site shall at all times be entitled to inspect or test the Products ordered and/or delivered and the work and/or work in progress. In that case, the Contractor shall arrange for any facilities which may reasonably be required in connection with this.
6.2 The costs of the testing referred to in article 6.1 shall be borne by the Contractor, in the event that the Client and/or its principal and/or the Board of Directors of the work site rejects these Products/the work. Inspection or approval shall not release the Contractor from any warranty or liability arising under these General Terms of Purchasing, the agreement or the law.
article 7: Rejection
7.1 If the Products/the work delivered by the Contractor do not meet the requirements set in the order and/or the specification, the Contractor shall be entitled to reject these. Taking delivery or payment of the Products and/or the work does not imply approval thereof. Despite approval of the Products/the work, the costs and risks shall remain the Contractor’s responsibility.
7.2 Should the Client reject delivered Products and/or the work, the Contractor shall within a period determined by the Client;
- repair the Products/the work free of charge or, at Client’s discretion;
- replace the Products free of charge and/or carry out (or have carried out) the work in accordance with the agreement.
7.3 If the Contractor does not, not within the set period, or not to the Client’s satisfaction, meet its obligation referred to in article 7.2, the Client shall be entitled to carry out the activities referred to in article 7.2 by itself or to arrange repairs by a third party, at the Contractor’s expense. The Client shall be entitled to set off the costs incurred against the amounts owed to the Contractor.
article 8: Intellectual property rights
8.1. ‘Intellectual Property Rights’ are understood to include copyrights, database rights, industrial design rights, trademarks, patents, as well as the right to obtain these rights through petition, deposit, registration or any other means.
8.2. ‘Intellectual Property Rights to the Work’ are all Intellectual Property Rights to the work, to the Products and to the resources such as drawings, models, moulds and equipment, formed during or for the execution of the agreement between Contractor and Client.
8.3. All Intellectual Property Rights to the Work belong to the Client. The Contractor hereby nunc pro tunc transfers these rights insofar as possible to the Client and at first request of the Client the Contractor will without any delay carry out any additional actions required for said transfer.
8.4. For the (transfer of) Intellectual Property Rights to the Work, the Client owes no compensation to the Contractor.
8.5. The Contractor relinquishes its (moral) rights mentioned in article 25 clause 1 subsection a of the Copyrights Act. Insofar as changes in the work, the products or their name are concerned, the Contractor also relinquishes its (moral) rights mentioned in article 25 clause 1 subsections b and c of the Copyrights Act. The Contractor will not appeal to the power(s) granted in article 25 clause 4 of the Copyrights Act.
8.6. The Contractor guarantees that the products to be delivered by him, the work to be performed by him and the Intellectual Property Rights to the Work do not infringe any Third-party rights, Intellectual Property Rights included, and safeguards the Client against all relevant claims. The Contractor will reimburse the Client for all damages as a result of any infringement.
article 9: Confidentiality
9.1 All Confidential Information which means and includes all information, documents, drawings, know-how, and knowledge etc. disclosed by the Client in whatever form to the Contractor, shall be kept secret and confidential and shall not be disclosed to others or used by the Contractor for any purpose other than for the purpose of executing his respective contractual obligations.
9.2 The Confidential Information as meant in article 9.1 shall not be disclosed, directly or indirectly to any third party, without the express written consent of the Client. If for the execution of the agreement the Contractor needs to disclose the Confidential Information to its employees, the Contractor is obliged to bind its employees to the same confidentiality obligations as stipulated in this agreement, before the Confidential Information is disclosed to them.
9.3 If the Contractor has to disclose the Confidential Information as meant in article 9.1 to any third party (parties) in connection with the execution of his contractual obligations, he shall also bind such party (parties) to the same confidential obligations as stipulated in this article.
9.4 The Contractor shall owe the Client a penalty payable on demand to the amount of 25 % of the total order sum with a minimum of € 10.000, and a penalty of €1000 per day by continuousing of the violence.
9.5 The penalty referred to in article 9.4 may be claimed in addition to compensatory and complementary damages by virtue of the law. The Client shall be entitled to set off this penalty and or these damages against the amounts owed to the Contractor.
article 10: Non-competition
Without the express written consent of the Client, the Contractor shall completely refrain from quotations and/or offers to the principal relating to the work, whether directly or via mediation by any third parties.
article 11: Appliances
11.1 All appliances such as drawings, models, moulds, matrices and tools which Client puts at the disposal of the Contractor for the purpose of executing its respective contractual obligations shall remain or shall become under all circumstances the property of the Client. This also applies to the appliances, which Contractor especially made within the framework of the agreement irrespective of whether costs are charged to the Client for their production.
11.2 All resources and all copies made of these must be made available to the Client or returned to the Client upon its first request.
11.3 At Client’s demand the appliances have to be clearly and indelibly marked as the property of the Client. The Contractor shall indicate the Client’s ownership of these appliances to any third party that may wish to seize them.
11.4 Notwithstanding the stipulations in article 9 the Contractor shall not use the appliances for any purpose other than the performance of his contractual obligations. The Contractor shall not reveal the appliances to third parties without Client’s express written permission. The Contractor shall bear the risk of loss of and/or damages to the appliances and shall at his own expense insure the appliances against these risks.
article 12: Liability
12.1 The Contractor is fully liable for all direct and consequential losses, which may arise as a result of an attributable shortcoming or wrongful act of the Contractor, its staff or auxiliary persons. This also includes any loss arising as a result of the presence, use, delivery or removal of the property of the Contractor, its staff or other persons engaged by the Contractor in the execution of the order.
12.2 The Contractor shall fully indemnify the Client against third-party claims for loss compensation as meant in the first paragraph.
article 13: Insurance
The Contractor shall prove to the Client, upon its request and to the Clients satisfaction, that the Contractor has arranged, at its own expense, adequate insurance for any loss the Client might sustain as a result of acts or omissions of the Contractor and/or any third parties used.
article 14: Warranty
14.1 The Contractor gives warranty that all Products/the work provided by the Contractor comply with the agreement, be free from any faults or defects with respect to material, design and manufacturing for a period of 12 months after the Products/the work have been put into use or to a maximum of 18 months from the date of delivery.
14.2 The Client shall repair all defects in the Products/the work which become apparent during the warranty period immediately and in consultation with the Client, or, at the Client’s discretion, else replace the defective Products, work or parts of the work.
14.3 All Costs in connection with the repair or the replacement of the Products/the work shall be borne by the Contractor. Those costs include inter alia the costs for returning the Products/the work to operation after the aforementioned repair or replacement. If the Products/the work form part of a larger object, the costs in connection with returning said object to operation will also be born by the Contractor.
14.4 In case the Contractor does not fulfil his responsibilities as agreed within this article, the Client is entitled to rework or to subcontract the rework in order to fulfil the Contractor’s warranty responsibilities at the Contractor’s risk and expense. The Client shall be entitled to set off the costs incurred against the amounts owed to the Contractor.
article 15: Payment
15.1 Payment will be effected within the agreed term of payment of 60 days after invoice date or individual agreed, unless the Client has a complaint after taking delivery of the Products – including the corresponding documents – with regard to the quantity and/or quality of the consignment or if the consignment is rejected.
15.2 In the event of advance payment or periodic payment, the Client shall be entitled to demand a sufficient guarantee for delivery at Client’s discretion. If the Contractor does not provide this within the set period, it shall immediately be in default. The Client shall in that case be entitled to rescind the agreement and to recover its losses from the Contractor.
15.3 The Client shall be entitled at all times to offset any amounts the parties may have to claim from each other.
15.4 The Client reserves the right to pay the Contractor the social security contributions and wage tax owed by the Contractor with respect to the work, for which the Client is jointly and severally liable pursuant to the Wages and Salaries and Social Security Contributions (Liability of Subcontractors) Act, by payment into its blocked account as referred to in the Wages and Salaries and Social Security Contributions (Liability of Subcontractors) Act, or into the deposit held for the Contractor by the Tax Collectors Office.
15.5 Without prejudice to the provisions of the previous paragraph, the Client shall at all times be entitled to deduct the social security contributions and wage tax amounts referred to above from the (sub)contract sum and to pay these directly to the Tax Collectors Office on behalf of the contractor.
article 16: Applicable law and choice of forum
16.1 The law of the Netherlands is applicable.
16.2 The Vienna Convention on Contracts for the International Sale of Products (CIGS) is not applicable, nor is any other international regulation the exclusion of which is permissible.
16.3 Only the Dutch civil court that has jurisdiction in the place of establishment of the Client may take cognisance of disputes, unless this would be contrary to peremptory law. The Client may deviate from this rule of jurisdiction and apply the statutory rules governing jurisdiction. The parties may agree a different form of dispute resolution such as arbitration or mediation.
(SUB)CONTRACTING/SERVICES
article 17: Prohibition on Assignment/Pledging
The Contractor shall be prohibited from assigning, pledging or transferring under any title whatsoever, the ownership of the social security contributions and wage tax due, included in the contract sum, for which the Client is liable pursuant to the Wages and Salaries and Social Security Contributions (Liability of Subcontractors) Act.
article 18: Contractor’s obligations
18.1 The Contractor is obliged to:
- have a valid declaration of registration from the relevant Employee Insurance Schemes Administration Office (UWV), in so far as this is provided by the Office. The Contractor is obliged to show this registration form at the Client’s request;
- at the request of the Client, provide the Client with a recent extract (no older than three months) from the Trade Register of the Chamber of Commerce;
- hand over to the Client a list of all employees to be employed for the work, as well as hand over once only for each employee(before the employee commences work) a copy of valid proof of identity and, upon request, payroll records;
- hand over to the Client a man-days register, which states for each employee the name, social security number, address, domicile, date of birth and number of hours worked and on which date;
- strictly comply with all obligations regarding the employees employed by the Contractor;
- strictly perform all statutory obligations with respect to the payment of social security contributions and wage tax related to the work assigned to it and, furthermore, to strictly observe the applicable Collective Labour Agreement;
- automatically provide a periodic statement with respect to its payment of wage tax and social security contributions, as referred to in the guideline(s) established within the framework of the Wages and Salaries and Social Security Contributions (Liability of Subcontractors) Act;
- at the request of the Client, prepare weekly reports according to a model approved by the Client and to offer the weekly reports, completed and signed, to the Client every week for its approval;
- if the Wages and Salaries and Social Security Contributions (Liability of Subcontractors) Act is applicable, set up its administration in such a way the following information can be instantly retrieved:
– the agreement or the content of the agreement on the basis Contractor has performed the Work;
– the data/information concerning the fulfilment of the obligations under the agreement including a registration of the persons engaged and the days/hours during which those persons have carried out the work;
– the payments made under the agreement.
- to provide the Client, upon request, with all information for its own administration or the administration of its principal;
- if the Wages and Salaries and Social Security Contributions (Liability of Subcontractors) Act is applicable, have at its disposal the original escrow account agreement and to show this at the Client’s request, unless parties have agreed that the Client shall deposit directly into the deposit held for the Contractor by the Tax Collectors Office.
18.2 In case the Contractor has not, or not yet, complied with its obligations of paragraph 1, the Client shall only be obliged to make any payment after it has received the missing data and has processed these administratively, and/or the Contractor has complied with any of its other obligations.
article 19: Organisation of the work
19.1. The Contractor shall be obliged to exclusively observe the Client’s directions and instructions.
19.2. The Client shall be authorised to deny the Contractor’s employees access to the work or to arrange for their removal, on account of unsuitability, disorderly conduct, misconduct etc., without reimbursement of any damages / costs the Contractor may encounter as a result thereof.
19.3. The work and break times at the work site and the rest days or public holidays, vacations or other days off recognised generally or at the location of the work site or prescribed by public authorities or pursuant to any Collective Labour Agreement, shall also apply to the Contractor and its employees who execute work at the work site. It shall not be possible for the Contractor to recover any losses arising from this from the Client. The latter shall also apply if the Contractor’s services cannot be used on account of a strike or other causes evident at the Client or at third parties;
19.4. Unless agreed otherwise, the Contractor is obliged to ensure, from commencement to completion of the work, that there is a regular foreman at the work site, with whom it shall be possible to make both organisational and technical arrangements. His name must be known to the persons or institutions designated by the Client.
19.5. The Contractor should provide its employees with the correct means of personal protection and to supervise their (correct) use. Any costs arising from this shall be borne by the Contractor.
19.6. Any required insurance as well as the excess of any CAR policy which may have be taken out with respect to the work site, shall be at the Contractor’s expense.
19.7. The Contractor should arrange for such manpower that the execution of the work is completely adjusted to the planning established by the Client and that other work does not come to a halt. If the Client alters the planning/progress in the work, the Contractor shall be obliged to adjust itself to this. Manpower changes shall only be permitted following the Client’s approval.
19.8. As prescribed by the Motor Insurance Liability Act (WAM), the Contractor shall be obliged to ensure that the working materials subject to the WAM supplied by it are insured. With respect to the working materials subject to the WAM which are rented by the Contractor, it should be proven to the Contractor’s satisfaction that these materials meet the aforementioned insurance requirements. Furthermore, the Contractor is obliged to have an adequate insurance for the working risks of the working materials subject to the WAM supplied by it.
19.9. With respect to cables, pipes and other overground and subterranean property of third parties, the Contractor shall at all times continue to be obliged to arrange for the determination of their location. The Contractor should inform the Client immediately about any damage.
19.10. Any required materials such as scaffolding, hydraulic platforms, hoisting materials and small materials, including hand tools, measuring equipment, mobile scaffolding, ladders and stepladders etc., shall be arranged by the Contractor and included in the total price.
19.11. If work has to be done on, or to, parts of the work site which have already been completed, such as plastered walls, tiling, paintwork etc., the Contractor should take protective measures in order to prevent damage and/or soiling. Any damage and/or soiling which is detected during or after the work, shall be deemed to have been caused by the Contractor.
19.12. On completion of the work, the Contractor should deliver the work broom clean and leave behind a clean work site.
article 20: Invoicing
20.1 Notwithstanding the provisions of article 18.2, the Client shall only approve an invoice for payment provided the work, or the part to which the instalment pertains, has been completed to the Contractor’s satisfaction and provided the invoice meets the formal requirements as set out in article 20.2.
20.2 The invoice should meet the statutory requirements set forth in the Turnover Act. The Contractor should at any rate state the following details clearly and in an orderly fashion:
- the date of issue of the invoice;
- a consecutive invoice number;
- the Client’s name and address;
- the Contractor’s name and address;
- the number of the agreement;
- the work site and the location(s) at which work has been executed, to which the invoice pertains;
- the period and the execution to which the invoice pertains;
- the amount of man-hours worked, the amount of labour costs and (separately) the percentage of wage taxes contained in the labour costs, if the Wages and Salaries and Social Security Contributions (Liability of Subcontractors) Act is applicable;
- a statement of the turnover tax or the transfer arrangements with respect to it, if this is not applicable, and in the latter case, the amount of turnover tax;
- a statement of the VAT identification number of the Contractor;
- a statement of the VAT identification number of the Client, if the VAT payment has been transferred to the Client;
- an indication of the invoice amounts, split according to tax rate and subsequently subdivided into unit prices and any discount applied.
article 21: Statutes and regulations
21.1 The Contractor shall comply with all statutory and other regulations, terms and provisions which are applicable to the work pursuant to the contracting agreement concluded by the Client with its client.
21.2 The Contractor shall itself and at its own costs procure any permits and safety measures in connection with the work.
article 22: Execution by third parties
22.1 Without prior written permission from the Client, the Contractor is not allowed to transfer or subcontract the order or any part of it, or the execution of it to another party.
22.2 If the Contractor, after having obtained permission, assigns the work or any part of it, to a third party, it is obliged to immediately draw up a written agreement with respect to this. The terms of that agreement should correspond with the agreement concluded for the work between the Contractor and the Client, at which the Contractor and the third party mutatis mutandis take the legal position of respectively the Client and the Contractor.
22.3 Transfer/subcontracting shall not affect the Contractor’s obligations under the agreement with the Client.
22.4 Without prejudice to the provisions in articles 22.1, 22.2 and 22.3, the Contractor shall not be authorised to use the employees made available to it, until after the Client’s prior written permission. In the event that the work is subcontracted, or workers are hired in, as referred to above, the Contractor shall be obliged to comply with the administrative regulations of the ‘Uitvoeringsregeling inleners – keten – en opdrachtgeversaansprakelijkheid 2004’.
These conditions are a full translation of the Dutch version of our ‘General Terms of Purchasing and (Sub)Contracting Conditions’ as filed at the Chamber of Commerce in Arnhem (NLD) Explanation and interpretation of the text of these Conditions shall be based on the Dutch text.