Article 1: Applicability

1.1. These conditions apply to all offers made by members

of the Metaalunie and to all agreements they conclude

and to all agreements that may be the result thereof.

The offeror/supplier is the Metaalunie member who

uses these conditions. Such member is designated in

these conditions as the contractor or seller. The other

party is designated as the customer or buyer.

1.2. These conditions may be used only by members of the

Metaalunie.

1.3. The standard conditions of the customer shall not apply

and are expressly rejected.


Article 2: Offers

2.1. All offers are made without engagement.

2.2. If the customer supplies data, drawings etc. to the

contractor, the contractor may assume them to be correct

and may base his offer upon them.

2.3. The prices referred to in the offer are based on delivery

ex works in accordance with Incoterms 2000. The prices

are exclusive of turnover tax and packaging.

2.4. If his offer is not accepted, the contractor has the right

to charge the customer for all the costs which he has

had to incur in order to make his offer.

Article 3: Intellectual property rights

3.1. Unless agreed otherwise, the contractor retains the

copyright and all industrial property rights in the offers

made by him and in designs, illustrations, drawings,

models, test models, software etc. supplied by him.

3.2. The rights to the data referred to in paragraph 1 shall

remain the property of the contractor irrespective of

whether costs are charged to the customer for their

production. Such data may not be copied, used or

shown to third parties without the express consent of

the contractor. If this provision is infringed, the customer

shall owe the contractor a penalty of EUR 25,000.

This penalty may be claimed in addition to any compensation

owed by law.

3.3. The customer must return the data supplied to him as

referred to in paragraph 1 at the first request of the

contractor within the period specified by the contractor.

In the event of an infringement of this provision the

customer shall owe the contractor a penalty of EUR

1,000 per day. This penalty may be claimed in addition

to any compensation owed by law.

Article 4: Advice, designs and materials

4.1. The customer cannot derive any rights from advice and

information obtained from the contractor if they do not

relate directly to the order.

4.2. The customer is responsible for the drawings and calculations

made by him or on his behalf and for the functional

suitability of the materials prescribed by him or

on his behalf.

4.3. The customer shall indemnify the contractor against

any claim by its third parties relating to the use of drawings,

calculations, samples, models and so forth supplied

by or on behalf of the customer.

4.4. The customer may, at his own expense, examine (or

arrange for the examination of) the materials which

the contractor wishes to use before they are processed.

If the contractor suffers damage as a result, this shall

be borne by the customer.

Article 5: Delivery period

5.1. The delivery period quoted by the contractor is approximate.

5.2. In fixing the delivery period the contractor assumes

that he can execute the order in the circumstances

known to him at that time.

5.3. The delivery period starts when agreement has been

reached on all technical details, all necessary data, final

drawings etc. are in the possession of the contractor,

the agreed payment or instalment has been received

and the necessary conditions for execution of the order

have been fulfilled.

5.4. (a) If circumstances occur other than those known to

the contractor when he fixed the delivery period,

the contractor may extend the delivery period by

the time necessary to execute the order in the circumstances.

If the work cannot be fitted into the

planning schedule of the contractor, it shall be

completed as soon as his planning schedule permits

this.

(b) If there is extra work, the delivery period shall be

extended by the time that is necessary to supply

(or arrange for the supply of) the materials and

parts for this purpose and to carry out the additional

work. If the extra work cannot be fitted into

the planning schedule of the contractor it shall be

completed as soon as his planning schedule permits

this.

(c) If there is a suspension of obligations by the

contractor, the delivery period shall be extended

for the duration of the suspension. If continuation

of the work cannot be fitted into the planning

schedule of the contractor, the work shall be completed

as soon as his planning schedule permits

this.

(d) If work is impossible owing to weather conditions,

the delivery period shall be extended for the term

of the delay that has occurred as a result.

5.5 If the agreed delivery period is exceeded, this shall not

under any circumstances confer entitlement to compensation

unless this has been agreed in writing.

Article 6: Transmission of risk

6.1 In the case of delivery ex works, in accordance with

Incoterms 2000, the risk in relation to the goods shall

pass at the moment when the seller makes them available

to the buyer.

6.2 Irrespective of the provisions of the previous paragraph,

the customer and the contractor agree that the contractor

shall arrange for the carriage. The risk of storage,

loading, carriage and unloading shall be borne by the

customer in this case too. The customer may insure

himself against these risks.

6.3 Even if the seller installs and/or assembles the goods

sold, the risk in relation to the goods shall pass at the

moment when the seller makes them available to the

buyer at the business premises of the seller or at another

agreed place.

6.4 If a purchase involves a trade-in and the buyer continues

to use the goods to be traded in pending delivery of

the new goods, the risk in relation to the goods to be

traded in shall continue to be borne by the buyer until

the moment at which he transfers them to the possession

of the seller.

Article 7: Price changes

7.1 If four months have passed since the date on which the

agreement was concluded and its performance has not

yet been completed by the contractor, an increase in

the price-determinants may be passed on to the customer.

7.2 Payment of the price increase as referred to in paragraph

1 shall take place together with payment of the

principal or the last instalment.

7.3 If goods are supplied by the customer and the contractor

is prepared to use them, the contractor may then

charge a maximum of 20 percent of the market price of

the delivered goods.

Article 8: Impossibility of performance

8.1 The contractor shall be entitled to suspend performance

of his obligations if he is temporarily prevented from

performing them by circumstances that could not be

foreseen at the time of the conclusion of the agreement

and which are beyond his control.

8.2 Circumstances which could not be foreseen by the

contractor and which are beyond his control are

deemed to include failure of his suppliers and/or subcontractors

to fulfil their obligations or to do so in

good time, weather conditions, earthquakes, fire, loss

or theft of tools, loss of processed materials, road

blockades, strikes or work stoppages and import or

trade restrictions.

8.3 The contractor shall not be entitled to suspend performance

if performance is permanently impossible or if a

temporary impossibility has lasted for longer than six

months. The agreement may then be terminated in respect

of such part of the obligations as have not yet

been performed. In that case the parties shall not be

entitled to compensation for damage suffered or yet to

be suffered as a result of the termination.

Article 9: Scope of the work

9.1. The contractor shall ensure that all licences, exemptions

and other decisions that are necessary in order to carry

out the work are obtained in good time.

9.2 The price of the work does not include:

(a) the costs of groundwork, pile-driving, cutting,

breaking, foundation work, bricklaying, woodwork,

plastering, painting, wallpapering, repairs or

other construction work;

(b) the costs of gas, water or electricity connections

and other infrastructure facilities;

(c) the costs of preventing or mitigating damage to

goods present at or near the work;

(d) the costs of removing materials, building materials

or refuse;

(e) travelling and accommodation expenses.

Article 10: Alterations to the work

10.1 Alterations to the work shall result in any event in extra

work or reduced work if:

(a) there is an alteration to the design or the specifications;

(b) the information provided by the customer does not

correspond with the reality;

(c) the quantities diverge by more than 10% from the

estimates.

10.2 Extra work shall be calculated on the basis of the value

of the price determinants applicable at the time when

the extra work is carried out. Reduced work shall be

calculated on the basis of the value of the price determinants

applicable at the time when the agreement

was concluded.

10.3 If the increase and decrease in the work results on

balance in a decrease the contractor may charge the

customer in the final invoice 10% of the difference in

the balances. This provision does not apply in the case

of a reduction in the work that is a result of a request

of the contractor.

Article 11: Execution of the work

11.1 The customer shall ensure that the contractor can carry

out his activities without interruption and at the agreed

time and that in the execution of the work he has

access to the requisite facilities such as:

• gas, water and electricity;

• heating;

• a lockable and dry storage room;

• facilities prescribed under the Working Conditions Act

and other health and safety regulations under that Act.

11.2 The customer shall be liable for all damage as a result

of the loss, theft or burning of or damage to tools,

materials and other property of the contractor located

at the place where the work is performed.

11.3 If the customer fails to discharge his obligations as

referred to in the previous paragraphs and the work is

delayed as a result, the work shall be executed as soon

as the contractor’s planning schedule permits this. In

addition, the customer shall be liable for all loss or

damage suffered by the contractor as a result.

Article 12: Completion of the work

12.1. The work shall be deemed to have been completed

when:

(a) the customer has approved the work;

(b) the work has been used by the customer; if the

customer uses only part of the work, such part

shall be deemed to have been completed;

(c) the contractor gives written notice to the customer

that the work has been completed and the customer

does not indicate in writing within 14 days of

the notice whether or not the work has been

approved;

(d) the customer does not approve the work on

account of minor defects or missing parts which

can be repaired or supplied within 30 days and

which do not prevent the use of the work.

12.2 If the customer does not approve the work, he shall be

obliged to give written notice of this to the contractor

specifying the reasons.

12.3 If the customer does not approve the work he shall give

the contractor the opportunity to complete the work

anew. The provisions of this article shall then apply

once again.

Article 13: Liability

13.1 The contractor is liable for damage which the customer

suffers and which is the direct and sole result of a

failure attributable to the contractor. However, only loss

or damage for which the contractor is insured or for

which he should reasonably have been insured will be

eligible for compensation.

13.2 The following are not eligible for compensation:

(a) consequential loss or damage, including for

example loss or damage due to business standstills

and loss of profit;

(b) damage to goods which are being worked on or to

goods which are in the vicinity of the place where

the work is being carried out;

(c) damage caused by the intent or deliberate recklessness

of auxiliaries.

13.3 The customer indemnifies the contractor against all

claims of third parties on account of product liability

due to a defect in a product which has been supplied by

the customer to a third party and consisted wholly or

partly in products and/or materials supplied by the

contractor.

Article 14: Warranty

14.1 The contractor warrants the proper execution of the

agreed performance for a period of six months after

delivery or completion.

14.2 If the agreed performance consists in the carrying out

of contracted work, the contractor warrants the soundness

of the delivered construction and the materials

used in the construction for the period referred to in

paragraph 1, provided that he was free to choose such

materials.

If it transpires that the delivered construction or the

materials used are unsound, the contractor shall repair

or replace them. The parts which the contractor is to

repair or replace must be sent to him free of charge.

The dismantling and assembly of these parts and any

travelling and accommodation expenses incurred shall

be borne by the customer.

14.3 If the agreed performance consists in the processing by

the contractor of materials supplied by the customer,

the contractor warrants the soundness of the processing

for the period referred to in paragraph 1.

If it transpires that processing has not been carried out

in a sound manner, the contractor shall choose whether:

• to carry out the processing anew, in which case the

customer must supply new material at his own

expense;

• to repair the defect, in which case the customer must

return the material free of charge to the contractor;

• to provide the customer with a credit note for a proportionate

part of the invoiced amount.

14.4 If the agreed performance consists in the delivery of an

item of goods, the contractor shall warrant the soundness

of the delivered item during the period referred to

in paragraph 1.

If it transpires that the delivery has not been sound, the

item of goods must be returned free of charge to the

contractor. Thereafter the contractor shall choose whether:

• to repair the item of goods;

• to replace the item of goods;

• to provide the customer with a credit note for a proportionate

part of the invoiced amount.

14.5 If the agreed performance consists in part or in whole

of the installation and/or assembly of a delivered item

of goods, the contractor warrants the soundness of the

installation and/or assembly for the period referred to

in paragraph 1.

If it transpires that the installation and/or assembly has

not been carried out in a sound manner, the contractor

shall repair it. Any travelling and accommodation

expenses shall be borne by the customer.

14.6 The factory warranty shall apply to parts in respect of

which this has been expressly agreed in writing by the

customer and the contractor. If the customer has had

the opportunity to take cognizance of the content of the

factory warranty, this shall take the place of the warranty

under this article.

14.7 The customer must in all cases offer the contractor the

opportunity to repair the defect or to carry out the processing

anew.

14.8 The customer may invoke the warranty only after he

has complied with all his obligations to the contractor.

14.9 (a) No warranty is given for defects that are a result of:

• normal wear and tear;

• injudicious use;

• non-maintenance or defective maintenance;

• installation, assembly, modification or repair by

the customer or by third parties.

(b) No warranty is given for delivered items of goods

that were not new at the moment of delivery.

Article 15: Claims

The customer may no longer invoke an instance of non-performance

if he does not lodge a written claim with the

contractor within 14 days of the date on which he discovers

the defect or could reasonably be expected to discover it.

Article 16: Uncollected goods

If goods have not been collected by the time the delivery

period expires, they shall continue to be held available for

the customer. Uncollected goods shall be stored at the expense

and risk of the customer. The contractor may always make

exercise the power referred to in article 6:90 Civil Code.

Article 17: Payment

17.1. Payment shall be made at the place of business of the

contractor or by remittance to an account designated by

the contractor.

17.2 Unless agreed otherwise, payment shall be made as

follows:

(a) cash in the case of an over-the-counter sale;

(b) if payment in instalments has been agreed:

• 40% of the total price at the time the order is placed;

• 50% of the total price after the material is

supplied;

•10% of the total price upon completion;

(c) in all other cases: within 30 days of the date of the

invoice.

17.3 Regardless of the agreed terms of payment, the customer

shall be obliged, at the request of the contractor,

to provide such security for the payment as the contractor

deems sufficient for the payment. If the customer

fails to do so within the specified period, he shall be

deemed to be immediately in default. The contractor

shall in that case have the right to terminate the agreement

and recover his loss or damage from the customer.

17.4 The customer does not have the right to set off claims

against the contractor, unless the contractor has been

declared bankrupt.

17.5 The full claim for payment shall be immediately due

and exigible if:

(a) a payment period has been exceeded;

(b) the customer has been declared bankrupt or has

applied for a suspension of payments;

(c) the property or accounts receivable of the customer

are seized;

(d) the customer (being a legal entity) is wound up or

liquidated;

(e) the customer (being a natural person) is made the

subject of a guardianship order or dies.

17.6 If payment has not been made within the agreed

period for payment, the customer shall immediately

owe interest to the contractor. The interest shall be 10%

per year or the statutory rate of interest, whichever is

the higher. For the purpose of calculating the interest,

part of a month shall be treated as a full month.

17.7 If payment has not been made within the agreed

period for payment, the customer shall owe the

contractor all extrajudicial costs of recovery, subject to a

minimum of EUR 50.

The costs shall be calculated on the basis of the following

table:

• on the first EUR 3,000 ..................................... 15%

• on any additional amount up to EUR 6,000 ... 10%

• on any additional amount up to EUR 15,000 ... 8%

• on any additional amount up to EUR 60,000 ... 5%

• on any additional amount over EUR 60,000 ... 3%

If the extrajudicial costs actually incurred are higher

than those in the above-mentioned table, the costs

actually incurred shall be owed.

17.8 If the contractor is held to be in the right in legal proceedings,

all costs which he has incurred in connection

with the proceedings shall be borne by the customer.

Article 18: Reservation of title and right of lien

18.1 After delivery of the goods the contractor shall retain

title to them as long as the customer:

(a) fails or will fail to perform his obligations under

this agreement or other similar agreements;

(b) fails or will fail to pay for activities performed or

yet to be performed under such agreements;

(c) Has not paid claims that result from the nonobservance

of the above-mentioned agreements

such as damage, penalties, interest and costs.

18.2 As long as title to delivered goods is retained by the

contractor, the customer may not encumber them other

than in the normal course of his business.

18.3 After the contractor has invoked his reservation of title,

he may retake possession of the delivered goods. The

customer shall allow the contractor to enter the place

where the goods are situated.

18.4 If the contractor is unable to invoke his reservation of

title because the delivered goods have been mingled,

distorted or changed by way of accession (accessio), the

customer shall be obliged to grant the contractor a lien

on the newly created goods.

Article 19: Termination

If the customer wishes to terminate the agreement in

circumstances where the contractor is not in default and the

contractor agrees to this, the agreement shall be terminated

by mutual consent. The contractor shall in that case be

entitled to compensation of all pecuniary damage, such as

any loss suffered, loss of profit and costs incurred.

Article 20: Applicable law and choice of forum

20.1 The law of the Netherlands is applicable.

20.2 The Vienna Convention on Contracts for the International

Sale of Goods (CIGS) is not applicable, nor is

any other international regulation the exclusion of

which is permissible.

20.3 Only the civil court that has jurisdiction in the place of

establishment of the contractor may take cognizance of

disputes, unless this would be contrary to peremptory

law. The contractor may deviate from this rule of jurisdiction

and apply the statutory rules governing jurisdiction.

20.4 The parties may agree a different form of dispute resolution

such as arbitration or mediation.

* (Dutch Organisation of Entrepreneurs in Small and

Medium- Sized Businesses in the Metalworking and

Mechanical Engineering Industry.)


M E T A A L U N I E C O N D I T I O N S

Standard conditions of delivery and payment issued by the ‘Metaalunie’*, referred to as the METAALUNIE CONDITIONS and previously as the SMECOMA CONDITIONS,


©Metaalunie