De Gier B.V.'s General Terms and Conditions are issued by Koninklijke Metaalunie. Please find below the terms and conditions that were deposited on 1 January 2019.
Clause 1. Scope
1.1. | These terms and conditions apply to all offers made by a Koninklijke Metaalunie member, to all agreements it concludes and to all resulting agreements, provided that the Koninklijke Metaalunie member is the supplier or contractor.
1.2. | The Koninklijke Metaalunie member who uses these terms and conditions is referred to as the contractor. The other party is designated as the client.
1.3. | In case of any conflict between the content of the agreement concluded between the client and the contractor and these terms and conditions, the provisions of the agreement shall take precedence.
1.4. | These terms and conditions shall only be used by Koninklijke Metaalunie members.
Article 2: Offers
2.1. | All offers are without obligation. The contractor is entitled to withdraw its offer within two working days after receiving acceptance of the offer.
2.2. | If the client provides information to the contractor, the contractor shall assume this information is accurate and complete and shall base its offer on it.
2.3. | The prices quoted in the offer are in euros excluding VAT and other governmental levies or taxes. The prices also exclude travel, accommodation, packaging, storage and transport costs as well as loading, unloading and cooperation in terms of any customs formalities.
Clause 3. Confidentiality
3.1. | All information provided to the client by or on behalf of the contractor of any kind and in any form whatsoever (such as offers, designs, images, drawings and expertise) is confidential. The client shall not use such information for any purpose other than the execution of the agreement.
3.2. | The client shall not duplicate or make public the information referred to in clause 1 of this article.
3.3. | If the client breaches any of the obligations set out in clauses 1 and 2 of this article, it will owe an immediately payable €25,000 penalty for each breach. This penalty can be claimed in addition to any statutory damages.
3.4. | The client must return or destroy the information referred to in clause 1 of this article at the client's request within a period chosen and specified by the contractor. If this provision is breached, the client shall owe the contractor an immediately payable penalty of
€1,000 per day. This penalty can be claimed in addition to any statutory damages.
Article 4. Advice and information provided
4.1. | The client cannot derive any rights from advice and information provided by the contractor that are not directly related to the contract.
4.2. | If the client provides information to the contractor, the contractor can rely on the accuracy and completeness of this information for the execution of the agreement.
4.3. | The client indemnifies the contractor against any third party claim with regard to the use of advice, drawings, calculations, designs, materials, brands, samples, models and so on provided by or on behalf of the client. The client shall compensate all damage suffered by the contractor, including all incurred defence costs against these claims.
Article 5. Delivery time / execution period
5.1. | A specified delivery time or execution period is indicative only.
5.2. | The delivery time or execution period shall only start when all commercial and technical details have been agreed, all information – including definitive and approved drawings and so on – is in the possession of the contractor, the agreed (instalment) payment has been received and the other conditions for the execution of the assignment have been met.
5.3. | In the event of:
a. circumstances other than those known to the contractor when it specified the delivery time or execution period, the delivery time or execution period shall be extended by as much time as the contractor needs based on its schedule to carry out the assignment under these circumstances;
b. additional work, the delivery time or execution period shall be extended by as much time as the contractor needs based on its schedule to deliver the materials and components for the additional work (or to have them delivered) and to carry out the additional work;
c. the contractor's suspension of obligations, the delivery time or execution period shall be extended by the time the contractor needs based on its schedule to execute the assignment after the reason for the suspension has expired. Unless the client can prove otherwise, the duration of the extension of the delivery time or execution period shall be presumed necessary and the result of a situation as referred to under a to c above.
5.4. | The client is required to pay all costs incurred by the contractor and all damage suffered by the contractor as a result of a delay in the delivery time or execution period, as mentioned in paragraph 3 of this article.
5.5. | Exceeding the delivery time or execution period shall under no circumstances entitle the client to compensation or dissolution. The client indemnifies the contractor against any third party claims submitted because the delivery time or execution period has been exceeded.
Article 6: Delivery and risk transfer
6.1. | Delivery shall take place as soon as the contractor makes the goods available to the client at its company location and has informed the client that the goods are available. From that moment on, the client shall bear the risk associated with storing, loading, transporting and unloading the goods and so on.
6.2. | The client and contractor may agree that the contractor arranges the transport. In that case, the risk of storage, loading, transport, unloading and so on shall remain with the client. The client may take out insurance for these risks.
6.3. | If in the event of an exchange, the client retains the goods to be exchanged pending the delivery of the new item, the risk associated with the goods to be exchanged shall remain with the client until they have been returned to the contractor. If the client is unable to deliver the goods to be exchanged in the condition they were in when the agreement was concluded, the contractor may terminate the agreement.
Article 7. Price changes
The contractor may pass on to the client any increase in cost-determining factors that occurred after the conclusion of the agreement. The Client shall immediately pay the price increase at the Contractor's request.
Article 8: Force majeure
8.1. | The contractor's failure to meet its obligations cannot be attributed to the contractor if it is the result of force majeure.
8.2. | Force majeure occurs in circumstances where third parties engaged by contractors or other parties on which the client depends – such as suppliers, subcontractors and transporters – fail to fulfil their obligations (on time) due to weather conditions, natural disasters, terrorism, cybercrime, disruption of the digital infrastructure, fire, power failure, loss, theft or loss of equipment, materials or information, road blocks, strikes, work interruptions and import or trade restrictions.
8.3. | The contractor is entitled to suspend the fulfilment of its obligations if it is temporarily prevented from fulfilling its obligations towards the client due to force majeure. Once the force majeure situation is over, the contractor shall fulfil its obligations as soon as its schedule allows it.
8.4. | If the force majeure circumstances make it permanently impossible for the contractor to meet its obligations, or if a temporary force majeure situation has lasted for more than six months, the contractor is entitled to terminate part or all of the agreement with immediate effect. In such cases, the client is authorised to terminate the part of the agreement concerning the obligations that the contractor has not yet fulfilled with immediate effect.
8.5. | The parties shall not be entitled to compensation for any damage (to be) suffered as a result of force majeure, suspension or dissolution within the meaning of this article.
Article 9. Scope of work
9.1. | The client must ensure that all permits, exemptions and other decisions necessary to carry out the work are obtained in good time. The client is required to send the contractor a copy of the aforementioned documents immediately at the contractor's request.
9.2. | Unless otherwise agreed in writing, the work does not include:
a. groundwork, pile driving, cutting, demolition, foundation work, masonry, carpentry, plastering, painting, wallpapering, repair work or other construction work;
b. connecting gas, water, electricity, internet or other infrastructure facilities;
c. measures to prevent or limit damage to or theft or loss of property present at or near the workplace;
d. disposal of building waste and other materials or waste;
e. vertical and horizontal transport.
Article 10. Additional work
10.1. | Changes to the work shall always result in additional work:
a. if there is a change in the design or specifications;
b. if the information provided by the client does not match reality;
c. if the estimated quantities deviate by more than 5%.
10.2. | Additional work is calculated based on the pricing factors applicable at the time the additional work is carried out. The client is required to pay the price of the additional work immediately at the contractor's request.
Article 11. Performance of the work
11.1. | The client shall ensure that the contractor can carry out its work without any disruption and at the agreed time. The client shall also keep the necessary facilities at the contractor's disposal during the work, such as:
a. gas, water, electricity and internet;
b. heating;
c. lockable dry storage space;
d. provisions prescribed by the regulations of the Working Conditions Act.
11.2. | The client shall bear the risk of and be liable for damage to and theft or loss of goods belonging to the contractor, the client and third parties, such as tools, materials and equipment intended or used for the work located at or near the place where the work is carried out or at another agreed location.
11.3. | Without prejudice to the provisions of clause 2 of this article, the client is required to take out adequate insurance for the risks referred to in that clause. The client shall also make sure that the risk of work-related damage to the equipment is insured. The client shall immediately send the contractor a copy of the insurance policy or policies concerned and proof of payment of the premiums at the contractor's request. The client is required to report any damage to its insurer immediately for further handling and settlement.
Clause 12. Delivery of the work
12.1. | The delivery of the work shall be considered completed in the following cases:
a. if the client has approved the work;
b. if the client starts to use the work delivered by the client. If the client starts to use part of the delivery, that part of the delivery shall be considered as completed;
c. if the contractor notified the client in writing that the work was completed and the client does not provide written notice that the work has not been approved within 14 days of the date of the client's notification;
d. if the client does not approve the work because of minor defects or missing parts that can be repaired or delivered within 30 days and that do not hinder the client's use of the work.
12.2. | If the client does not approve the work, the client shall inform the contractor of this in writing and state its reasons. The client shall give the contractor the opportunity to still deliver the work.
12.3. | The client shall indemnify the contractor against any third-party claims regarding damage to parts of the work not delivered resulting from the use of parts of the work that have already been delivered.
Article 13. Liability
13.1. | In the event of an attributable breach, the contractor shall still be obliged to fulfil its contractual obligations in accordance with Article 14.
13.2. | The contractor's obligation to compensate damage on any basis whatsoever is limited to the damage for which the contractor is insured based on the insurance taken out by or on behalf of the contractor. However, the extent of this obligation shall never exceed the amount paid out under this insurance for the case in question.
13.3. | If, for whatever reason, the contractor is not entitled to invoke clause 2 of this article, the obligation to compensate damage shall be limited to a maximum of 15% of the total contract sum (excluding VAT). If the agreement consists of several parts or partial deliveries, this obligation shall be limited to a maximum of 15% (excluding VAT) of the contract price of the relevant parts or partial deliveries. In the case of long-term contracts, the obligation to compensate damage is limited to a maximum of 15% (excluding VAT) of the contract amount due for the last twelve months prior to the event that caused the damage.
13.4. | The following are not eligible for compensation:
a. Consequential damage Consequential damage includes business interruption loss, production loss, lost profits, penalties, transport costs and travel and accommodation costs;
b. Damage to the items that are in the insured's care, custody or control, but are not owned by the insured. This type of damage is understood to include damage caused during the execution of the work to items that are being worked on or are situated near the location of the work;
c. Damage caused by deliberate or intentional recklessness of agents or non-managerial subordinates of the contractor.
If possible, the client can take out insurance for such losses.
13.5. | The contractor is not obliged to compensate any damage to materials supplied by or on behalf of the client as the result of unsatisfactory work.
13.6. | The client shall indemnify the contractor against all product liability claims by third parties as a result of a faulty product delivered by the client to a third party that includes the products or materials supplied by the contractor. The client shall compensate all damage suffered by the contractor in this regard, including the (full) defence costs.
Article 14. Warranty and other claims
14.1. | Unless otherwise agreed in writing, the contractor is responsible for the proper performance of the agreed work for a period of six months after delivery, as set out in more detail in the following clauses.
14.2. | If the parties have agreed to deviate from the usual warranty conditions, the provisions of this article shall apply without any prejudice, unless they are in conflict with the deviating warranty conditions.
14.3. | If the agreed work has not been properly performed, the contractor shall decide within a reasonable period whether it will still execute the work properly or credit the client with the proportional part of the contract sum.
14.4. | If the contractor chooses to perform the work properly, it shall determine the manner and time of execution itself. The client must always offer the contractor the opportunity to do this. If the agreed work (partly) consisted of processing material supplied by the client, the client shall supply new material at its own expense and risk.
14.5. | If the contractor needs to repair or replace certain parts or materials, the client shall sends these to contractor.
14.6. | The client shall pay for the following:
a. all transport or shipping costs;
b. disassembly and assembly costs;
c. travel and accommodation costs and travel hours.
14.7. | The contractor is only required to implement the warranty if the client has fulfilled all its obligations.
14.8. | a. Warranty is excluded in the event of defects resulting from:
- normal wear and tear;
- improper use;
- maintenance that was not carried out or not carried out correctly;
- installation, assembly, modification or repair by the client or by third parties;
- defective or inappropriate goods originating from or prescribed by the client;
- defective or inappropriate materials or tools used by the client.
b. No warranty is given on:
- delivered items that were not new at the time of delivery;
- inspection and repair of the client's items;
- parts covered by the manufacturer's warranty.
14.9. | The provisions of clauses 3 to 8 of this article shall apply mutatis mutandis in the event of any claims by the client on the grounds of default, non-conformity or any other basis whatsoever.
Clause 15. Obligation to complain
15.1. | The client can no longer invoke a defect in the work if it has failed to complain to the contractor in writing within 14 days after it has discovered the defect or could reasonably be expected to have discovered the defect.
15.2. | The client shall submit any complaints about its invoice to the contractor in writing within the payment period. If it fails to do so, it shall forfeit all rights. If the payment term exceeds 30 days, the client shall complain in writing within 30 days of the invoice date at the latest.
Article 16. Unreceived items
16.1. | At the end of the delivery or execution period, the client shall effectively receive the items that are the subject of the agreement at the agreed location.
16.2. | The client shall cooperate fully with the contractor to enable it to make a full delivery.
16.3. | Unreceived items shall be stored at the client's expense and risk.
16.4. | If the provisions of clauses 1 or 2 of this article are breached, the client shall owe the contractor a penalty of €250,- per day up to a maximum of €25.000,- for each breach. This penalty can be claimed in addition to any statutory damages.
Article 17. Payment
17.1 | Payment shall be made at the place of business of the contractor or to an account to be designated by the contractor.
17.2 | Unless agreed otherwise, payment shall be made within 30 days of the invoice date.
17.3 | If the customer fails to fulfil his payment obligation, he is obliged, instead of paying the agreed sum of money, to comply with a request by the contractor for payment in instalments.
17.4 |The customer's right to set off his claims against the contractor or to suspend performance of his obligations is excluded, unless there is a suspension of payments or bankruptcy of the contractor or the contractor is subject to statutory debt rescheduling.
17.5 | Irrespective of whether the contractor has fully performed the agreed performance, everything that the customer owes or will owe to the contractor under the agreement is immediately due and payable if:
a. a payment term has been exceeded;
b. the customer fails to fulfil his obligations under article 16;
c. the bankruptcy or suspension of payments of client has been applied for;
d. goods or claims of client are seized;
e. client (company) is dissolved or liquidated;
f. customer (natural person) applies for admission to statutory debt rescheduling, is placed under guardianship or dies.
17.6 | In the event of any delay in the payment of a sum of money, the principal shall owe the contractor interest on that sum from the day following the day agreed as the latest date for payment up to and including the day on which the principal has paid the sum. If the parties have not agreed on a final day for payment, the interest shall be due from 30 days after it falls due. The interest rate shall be 12% per annum, but shall be equal to the statutory interest rate if this is higher. In calculating interest, part of a month is considered a full month. At the end of each year, the amount on which interest is calculated shall be increased by the interest due over that year.
17.7 | The contractor is entitled to set off its debts to the customer against claims of companies affiliated with the contractor on the customer. In addition, the Contractor is entitled to set off its debts to the Client against debts owed to the Client by companies affiliated with the Contractor. Furthermore, the Contractor is authorised to set off its debts to the Client against claims on companies affiliated with the Client. Affiliated companies are understood to mean all companies belonging to the same group within the meaning of Article 2:24b of the Dutch Civil Code and a participating interest within the meaning of Article 2:24c of the Dutch Civil Code.
17.8. | If payment is not made in time, the client will owe the contractor all extrajudicial costs, subject to a minimum of €75.
These costs are calculated on the basis of the following table (principal sum incl. interest):
over the first € 3,000,- 15%
over the amount up to € 6.000,- 10%
over the amount up to € 15.000,- 8%
over the amount up to € 60.000,- 5%
over the amount exceeding € 60.000,- 3%.
The extrajudicial costs actually incurred shall be payable if they are higher than follows from the above calculation.
17.9 | If the contractor is wholly or largely successful in legal proceedings, all costs incurred by him in connection with those proceedings shall be borne by the customer.
Article 18. Guarantees
18.1. | Irrespective of the agreed payment conditions, the client shall immediately provide sufficient security for payment at the contractor's request. If the client fails to do so within the set period, it shall be in default immediately. In that case, the contractor is entitled to dissolve the agreement and recover its losses from the client.
18.2. | The contractor remains the owner of the delivered goods as long as the client:
a. has not fulfilled its obligations under any agreement with the contractor;
b. has not paid claims resulting from the failure to comply with the aforementioned agreements, such as damages, penalties, interests and costs.
18.3. | As long as the delivered goods are subject to retention of title, the client must not encumber or dispose of the delivered goods outside its normal business operations. This condition shall have effect under property law.
18.4. | Once the contractor has invoked its retention of title, it may recover the delivered goods. The client shall cooperate fully in this regard.
18.5. | If the client has fulfilled its obligations after the contractor has delivered the goods to the client in accordance with the agreement, but does not meet its obligations under a subsequent agreement, this shall revive the retention of title for these goods.
18.6. | The contractor has a right of pledge and a right of retention for all the items it is or will be looking after for the client and for all receivables it has or may have from the client.
Article 19. Intellectual property rights
19.1. | The contractor is considered as the creator, designer or inventor of the work, models and inventions resulting from the agreement. The contractor therefore has the exclusive right to apply for a patent, trademark or model.
19.2. | The contractor shall not transfer any intellectual property rights to the client during the execution of the agreement.
19.3. | If the work to be provided by the contractor includes the provision of computer software, the source code shall not be transferred to the client. The client shall only receive a non-exclusive, worldwide and perpetual user licence for the computer software for the normal use and proper operation of the business only. The client is not permitted to transfer the licence or issue a sub-licence. If the client sells the goods to a third party, the licence shall automatically transfer to the purchaser of the goods.
19.4. | The contractor shall not be liable for any damage suffered by the client as a result of a breach of the intellectual property rights of third parties. The client shall indemnify the contractor against any third party claims relating to a breach of intellectual property rights.
Article 20. Transfer of rights or obligations
The client shall not assign or pledge any rights or obligations arising from any article of these General Terms and Conditions or the underlying agreement(s), unless it has the contractor's prior written consent. This condition shall have effect under property law.
Article 21. Agreement termination or cancellation
21.1. | The client is not entitled to terminate or cancel the agreement, unless the contractor agrees. If the contractor agrees, the client shall owe the contractor compensation that is immediately due and payable equal to the agreed price minus the contractor's savings resulting from the termination. The compensation shall be at least 20% of the agreed price.
21.2. | If the price is made dependent on the actual costs to be incurred by the contractor (hourly rate), the compensation referred to in the first clause of this article shall be the estimated sum of the contractor's expected costs, working hours and profit for the entire contract.
Clause 22. Applicable law and competent court
22.1. | Dutch law applies.
22.2. | The United Nations Convention on Contracts for the International Sale of Goods (CISG) does not apply, nor are any other international rules that can be excluded.
22.3. | The Dutch civil court that is competent in the district of the contractor's place of business shall handle any disputes. The contractor can deviate from this jurisdiction rule and apply the statutory jurisdiction rules.
De Gier Drive Systems
+ 31 174 29 20 89