General terms and conditions
TERMS AND CONDITIONS OF THE METAALUNIE 1 January 2019
General Terms and Conditions issued by Koninklijke Metaalunie (the employers’ organisation for small and medium-sized enterprises in the metal industry) referred to as TERMS AND CONDITIONS OF THE METAALUNIE, filed with the Registry of the Court of Rotterdam on 1 January 2019. Publication of the Koninklijke Metaalunie, P.O. Box 2600, 3430 GA, Nieuwegein.
© Koninklijke Metaalunie
Article 1: Scope of application
1.1. These Terms and Conditions apply to all offers made by a
Metaalunie member, to all agreements that it enters into and
to all agreements arising from this, all of which insofar as the
Metaalunie member is the supplier or the contractor.
1.2. Metaalunie members who apply these Terms and Conditions
are referred to as the Contractor. The other party is referred
to as the Client.
1.3. In the event of conflicts between the agreement entered into
by the Client and the Contractor and these Terms and Conditions,
the provisions of the agreement will prevail.
1.4. These Terms and Conditions may only be applied by Metaalunie
Article 2: Offers
2.1. All offers are without obligation. The Contractor is entitled to
revoke its offer up to two working days after it has received
2.2. If the Client provides the Contractor with information, the
Contractor may assume that it is accurate and complete and
will base its offer on this information.
2.3. The prices stated in the offer are denominated in euros, excluding
VAT and other government levies or taxes. The prices
do not include travel, accommodation, packaging, storage
and transport costs, nor do they include costs for loading,
unloading and cooperating with customs formalities.
Article 3: Confidentiality
3.1. All information provided to the Client by or on behalf of the
Contractor, such as offers, designs, images, drawings and
know-how, of whatever nature and in whatever form are confidential,
and the Client will not use it for any purpose other
than for the implementation of the agreement.
3.2. The Client will not disclose or reproduce the information referred
to in paragraph 1 of this article.
3.3. If the Client infringes one of the obligations referred to in paragraphs
1 and 2 of this article, it will owe an immediately payable
penalty of € 25,000 for each infringement. This penalty
can be claimed in addition to compensation by virtue of the
3.4. The Client must return or destroy the information referred to
in paragraph 1 of this article immediately on request, within a
period set at the discretion of the Contractor. If this provision
is infringed, the Client will owe the Contractor an immediately
payable penalty of € 1,000 per day. This penalty can be
claimed in addition to compensation by virtue of the law.
Article 4: Advice and information provided
4.1. The Client cannot derive any rights from advice and information
provided by the Contractor that is not directly related to
4.2. If the Client provides the Contractor with information, the
Contractor may assume that it is accurate and complete
when implementing the agreement.
4.3. The Client indemnifies the Contractor against any third-party
claims related to the use of advice, drawings, calculations,
designs, materials, brands, samples, models and the like provided
by or on behalf of the Client. The Client will compensate
the Contractor for all damage suffered by the Contractor, including
all costs incurred for defence against these claims.
Article 5: Delivery time/implementation period
5.1. Delivery times or implementation periods specified are indicative.
5.2. The delivery time or implementation period only commences
once an agreement has been reached on all commercial and
technical details, once all the information, including final and
approved drawings and the like, is in the possession of the
Contractor, the agreed payment (or instalment) has been received,
and the other conditions for the contract have been
a. there are circumstances other than those known to the
Contractor at the time it set the delivery period or implementation
period, the delivery period or implementation
period may be extended by the time the Contractor needs
– taking into account its planning – to implement the contract
under these circumstances;
b. there are contract extras, the delivery period or implementation
period may be extended by the time the Contractor
needs – taking into account its planning – to have the materials
and parts delivered and to carry out the contract
c. the Contractor suspends its obligations, the delivery period
or implementation period may be extended by the time the
Contractor needs – taking into account its planning – to
implement the contract after the reason for the suspension
no longer applies.
Unless the Client has evidence to the contrary, the duration of
the extension of the delivery period or implementation period
is presumed to be necessary and to be the result of a situation
as referred to above in a to c.
5.4. The Client is obliged to pay all costs that the Contractor incurs
or damages that the Contractor suffers as a result of a
delay in the delivery or implementation period as stated in
paragraph 3 of this article.
5.5. Under no circumstances does exceeding the agreed delivery
or implementation period give the Client the right to compensation
or to terminate the agreement. The Client indemnifies
the Contractor against any third-party claims due to exceeding
the delivery or implementation period.
Article 6: Delivery and risk transfer
6.1. Delivery takes place when the Contractor, at its business
location, makes the good available to the Client and has informed
the Client that the good is at its disposal. From that
time onwards, the Client bears the risk of the good in terms of
storage, loading, transport and unloading among others.
6.2. The Client and the Contractor may agree that the Contractor
will be responsible for the transport. In that case too, the Client
bears the risk of, inter alia, storage, loading, transport and
unloading. The Client can insure itself against these risks.
6.3. If a good is exchanged and the Client retains the good to be
exchanged pending delivery of the new good, the risk of the
good to be exchanged remains with the Client until the time
that it hands over the good to the Contractor. If the Client is
unable to deliver the good to be exchanged in the condition
in which it was when the agreement was concluded, the Contractor
may terminate the agreement.
Article 7: Price changes
The Contractor may pass on to the Client an increase in
cost-determining factors that occurs after entering into the
agreement. The Client is obliged to pay the price increase
immediately on the Contractor’s request.
Article 8: Force majeure
8.1. If the Contractor fails to fulfil its obligations, this cannot be attributed
to the Contractor if this failure is due to force majeure.
8.2. Force majeure includes, inter alia, if third parties engaged by
the Contractor – such as suppliers, subcontractors and transporters,
or other parties that the Client is dependent on – do
not meet their obligations at all or on time, or circumstances
due to weather conditions, natural disasters, terrorism,
cybercrime, disruption of digital infrastructure, fire, power
failures, loss, theft or loss of tools, materials or information,
roadblocks, strikes or work interruptions and import or trade
8.3. The Contractor is entitled to suspend fulfilment of its obligations
if it is temporarily prevented from fulfilling its obligations
to the Client due to force majeure. Once the force majeure
circumstances no longer apply, the Contractor will fulfil its
obligations as soon as its planning permits.
8.4. If it concerns force majeure and fulfilment is or becomes permanently
impossible, or the temporary force majeure circumstances
have lasted for more than six months, the Contractor
is entitled to terminate the agreement with immediate effect
either entirely or in part. In those cases, the Client is entitled
to terminate the agreement with immediate effect, but only
for that part of the obligations that the Contractor has not yet
8.5. The parties are not entitled to compensation for the damages
suffered or to be suffered as a result of the force majeure,
suspension or termination as referred to in this article.
Article 9: Scope of the work
9.1. The Client must ensure that all licences, exemptions and
other decisions that are necessary to carry out the work are
obtained in good time. The Client is obliged to send the Contractor
a copy of the aforementioned documents immediately
on the Contractor’s request.
9.2. Unless otherwise agreed in writing, the work does not include:
a. groundwork, pile driving, cutting, breaking, foundation
work, masonry, carpentry, plastering, painting, wallpapering,
repair work or other construction work;
b. making connections to gas, water, electricity, internet or
other infrastructural facilities;
c. measures to prevent or limit damage to, of theft or loss of
goods present at or near the workplace;
d. removing equipment, building materials or waste;
e. vertical and horizontal transport.
Article 10: Contract extras
10.1. Changes in the work will in any event lead to contract extras
a. it concerns changes in the design, the specifications or the
b. the information provided by the Client does not correspond
c. the estimated quantities deviate by more than 5%.
10.2. Contract extras are calculated on the basis of the price-determining
factors that apply at the time the extra work is performed.
The Client is obliged to pay the price for the contract
extras immediately on the Contractor’s request.
Article 11: Implementation of the work
11.1. The Client will ensure that the Contractor can carry out its
work undisturbed and at the agreed time and that it is given
the necessary facilities for the implementation of its work,
a. gas, water, electricity and internet;
c. lockable dry storage space;
d. the facilities prescribed under the Dutch Working Conditions
11.2. The Client bears the risk and is liable for damage to and theft
or loss of goods belonging to the Contractor, Client and third
parties, such as tools, material or equipment intended for the
work or used for the work, located at or near the place where
the work is carried out or at another agreed location.
11.3. Notwithstanding the provisions in paragraph 2 of this article,
the Client is obliged to take out adequate insurance against
the risks referred to in that paragraph. In addition, the Client
must take out insurance for the risk of work-related damage
with regard to the equipment to be used. The Client must
send the Contractor a copy of the relevant insurance(s) and
proof of payment of the premium immediately on request. In
the event of damages, the Client is obliged to report this immediately
to its insurer for further processing and settlement.
Article 12: Delivery of the work
12.1. The work is considered to be delivered in the following cases:
a. once the Client has approved the work;
b. if the Client has put the work into operation. If the Client
puts part of the work into operation, then that part is considered
to have been delivered;
c. if the Contractor has notified the Client in writing that the
work has been completed, and the Client fails to inform the
Contractor in writing that the work has not been approved
within 14 days of the day of the notification;
d. if the Client does not approve the work on the grounds
of minor defects or missing parts that can be repaired or
delivered within 30 days and that do not hinder the commissioning
of the work.
12.2. If the Client does not approve the work, it is obliged to inform
the Contractor of this in writing, stating the reasons. The Client
must give the Contractor the opportunity to deliver the
work at a later date.
12.3. The Client indemnifies the Contractor against third-party
claims concerning damage to parts of the work not delivered
due to the use of parts of the work that have already been
Article 13: Liability
13.1. In the event of an attributable failure, the Contractor is still
obliged to fulfil its contractual obligations, with due observance
of Article 14.
13.2. The Contractor’s obligation to compensate damages – regardless
of the grounds – is limited to the damage against
which the Contractor is covered under an insurance policy
taken out by it or on its behalf. However, the scope of this
obligation is never greater than the amount paid out under
this insurance in the case in question.
13.3. If, for whatever reason, the Contractor does not have the
right to invoke paragraph 2 of this article, the obligation to
compensate damage is limited to a maximum of 15% of the
total contract amount (excluding VAT). If the agreement consists
of parts or partial deliveries, this obligation is limited to
a maximum of 15% (excluding VAT) of the contract amount
for that part or that partial delivery. If it concerns continuing
performance contracts, the obligation to compensate damage
is limited to a maximum of 15% (excluding VAT) of the
contract amount owed over the last twelve months prior to the
13.4. The following do not qualify for compensation:
a. consequential damages. Consequential damages include
inter alia business interruption losses, loss of production,
loss of profit, penalties, transport costs and travel and subsistence
b. damage to property in the care, custody or control of, but
not owned by the insured party. Among other things, this
damage includes damage caused by or during the performance
of the work to goods that are being worked on or to
goods that are located in the vicinity of the place where the
work is being carried out;
c. damage as a result of intent or wilful recklessness by the
Contractor’s auxiliary staff or non-managerial subordinates.
The Client can take out insurance for these damages if possible.
13.5. The Contractor is not obliged to compensate damage to
material supplied by or on behalf of the Client as a result of
13.6. The Client indemnifies the Contractor against all third-party
claims due to product liability as a result of a defect in a product
that has been delivered by the Client to a third party and
of which the products or materials supplied by the Contractor
are a part. The Client is obliged to reimburse all the damages
suffered by the Contractor in this respect, including the (full)
costs of the defence.
Article 14: Guarantee and other claims
14.1. Unless otherwise agreed in writing, the Contractor guarantees
the proper execution of the agreed performance for a
period of six months after delivery or completion, as detailed
in the following paragraphs.
14.2. If the parties have agreed to deviating guarantee conditions,
the provisions of this article will remain in full force, unless
this is in conflict with those deviating guarantee conditions.
14.3. If the agreed performance has not been executed properly,
the Contractor will decide within a reasonable period of time
whether it will still perform the work properly or credit the Client
for a proportionate part of the contract amount.
14.4. If the Contractor opts to still execute the performance properly,
it will determine the manner and time of execution. The
Client must in all cases offer the Contractor the opportunity to
do so. If the agreed performance (also) included the processing
of material provided by the Client, the Client must supply
new material at its own expense and risk.
14.5. The Client is responsible for sending parts or materials that
are to be repaired or replaced by the Contractor to the Contractor’s
14.6. The following are for the Client’s account:
a. all transport or shipping costs;
b. costs for dismantling and assembly;
c. travel and subsistence expenses and travel time.
14.7. The Contractor is only obliged to implement the guarantee if
the Client has fulfilled all its obligations.
14.8. a. The guarantee does not cover defects that are the result
- normal wear and tear;
- improper use;
- lack of maintenance or maintenance carried out incorrectly;
- installation, assembly, modification or repairs carried out
by the Client or third parties;
- faulty or unsuitable goods originating from or prescribed by
- faulty or unsuitable materials or tools used by the Client.
b. No guarantee is given for:
- goods delivered that were not new at the time of delivery;
- inspections and repairs carried out on goods owned by the
- parts that are subject to a manufacturer’s guarantee.
14.9. The provisions of paragraphs 3 to 8 of this article apply by
analogy to any of the Client’s claims based on breach of contract,
non-conformity or any other basis whatsoever.
Article 15: Obligation to complain
15.1. The Client no longer has the right to invoke a defective performance
if it has not complained to the Contractor in writing
within fourteen days after it discovered or should reasonably
have discovered the defect.
15.2. The Client must have filed complaints about the invoice with
the Contractor in writing and within the payment term, subject
to forfeiture of all rights. If the payment term is longer than
thirty days, the Client must have filed its complaint in writing
within thirty days of the invoice date at the latest.
Article 16: Failure to take possession of goods
16.1. The Client is obliged to take actual possession of the goods
that are the subject of the agreement at the agreed location
at the end of the delivery or implementation period.
16.2. The Client must cooperate fully and free of charge to enable
the Contractor to deliver the goods.
16.3. Goods not taken into possession are stored at the Client’s
expense and risk.
16.4. If the provisions of paragraph 1 or 2 of this article are infringed,
the Client will owe the Contractor a penalty for each
infringement of € 250 per day up to a maximum of € 25,000,
after the Contractor has given notice of default. This penalty
can be claimed in addition to compensation by virtue of the
Article 17: Payment
17.1. Payment is made at the Contractor’s business address or
into an account to be designated by the Contractor.
17.2. Unless otherwise agreed, payments must be made within 30
days of the invoice date.
17.3. If the Client fails to fulfil its payment obligation, it is obliged
to comply with a request from the Contractor for a tender of
payment instead of the agreed amount.
17.4. The Client’s right to offset its claims against the Contractor or
to suspend the fulfilment of its obligations is excluded, unless
the Contractor has been granted a suspension of payments
or is bankrupt or the statutory debt adjustment scheme applies
to the Contractor.
17.5. Irrespective of whether the Contractor has fully executed the
agreed performance, everything that the Client owes or will
owe it under the agreement is immediately due and payable
a. a payment term has been exceeded;
b. the Client does not fulfil its obligations under Article 16;
c. the Client has filed for bankruptcy or suspension of payments;
d. the Client’s goods or claims have been attached;
e. the Client (a company) is dissolved or wound up;
f. the Client (a natural person) files a application to be admitted
to the statutory debt adjustment scheme, is placed
under a guardianship order or has died.
17.6. If payment is delayed, the Client will owe interest on that sum
to the Contractor with effect from the day following the day
agreed as the final day of payment up to and including the
day on which the Client settles the amount in question. If the
parties have not agreed on the final day of payment, the interest
is due from 30 days after the sum has become due and
payable. The interest is 12% per year, but is equal to the statutory
interest if this is higher. For the interest calculation, a
part of the month is considered to be a full month. At the end
of each year, the amount on which the interest is calculated
will be increased by the interest due for that year.
17.7. The Contractor is entitled to offset its debts to the Client
against claims that companies affiliated to the Contractor
have against the Client. In addition, the Contractor is entitled
to offset its claims to the Client against debts that companies
affiliated to the Contractor have against the Client. Furthermore,
the Contractor is entitled to offset its debts to the Client
against claims against companies affiliated to the Client.
‘Affiliated companies’ means all companies belonging to the
same group, within the meaning of Book 2, Section 24b of
the Dutch Civil Code, and a participation within the meaning
of Book 2, Section 24c of the Dutch Civil Code.
17.8. For late payments, the Client owes the Contractor all extrajudicial
costs with a minimum of € 75.
These costs are calculated on the basis of the following table,
i.e., the principal sum plus interest:
on the first € 3,000 15%
on the excess up to € 6,000 10%
on the excess up to € 15,000 8%
on the excess up to € 60,000 5%
on the excess from € 60,000 or more 3%
The extrajudicial costs actually incurred are due if they are
higher than the calculation given above.
17.9. If judgment is rendered in favour of the Contractor in legal
proceedings, either entirely or for the most part, the Client will
bear all costs incurred in connection with these proceedings.
Article 18: Securities
18.1. Irrespective of the agreed payment terms, the Client is
obliged to provide sufficient security for payment immediately
on the Contractor’s request and at its discretion. If the Client
does not comply with this provision within the set time limit,
it will immediately be in default. In that case, the Contractor
has the right to terminate the agreement and to recover its
damages from the Client.
18.2. The Contractor remains the owner of the delivered goods as
long as the Client:
a. has not fulfilled its obligations under any agreement with
b. claims arising from non-fulfilment of the aforementioned
agreements, such as damage, penalties, interest and
costs, have not been settled.
18.3. As long as the delivered goods are subject to retention of
title, the Client may not encumber or dispose of these goods
other than in the course of its normal business operations.
This provision has effect under property law.
18.4. After the Contractor has invoked its retention of title, it may
take back the delivered goods. The Client will cooperate fully
18.5. If the Client has fulfilled its obligations after the Contractor
has delivered the goods to it in accordance with the agreement,
the retention of title with respect to these goods is
revived if the Client does not fulfil its obligations under an
agreement entered into subsequently.
18.6. The Contractor has a right of pledge and a right of retention
on all goods that it has or may receive from the Client on any
grounds whatsoever and for all claims that it has or might
have against the Client.
Article 19: Intellectual property rights
19.1. The Contractor is considered to be the maker, designer or
inventor of the works, models or inventions created in the
context of the agreement. The Contractor therefore has the
exclusive right to apply for a patent, trademark or model.
19.2. The Contractor will not transfer any intellectual property rights
to the Client in the implementation of the agreement.
19.3. If the performance to be delivered by the Contractor (also)
includes providing computer software, the source code will
not be handed over to the Client. The Client will only acquire
a non-exclusive, worldwide and perpetual licence for use for
the computer software solely for the purpose of the normal
use and proper functioning of the good. The Client is not permitted
to transfer the licence or to issue a sub-licence. When
the Client sells the good to a third party, the licence transfers
by operation of law to the acquirer of the good.
19.4. The Contractor disclaims liability for damages that the Client
suffers as a result of an infringement of third-party intellectual
property rights. The Client indemnifies the Contractor against
any third-party claims related to an infringement of intellectual
Article 20: Assignment of rights or obligations
The Client may not assign or pledge any rights or obligations
pursuant to any article in these General Terms and Conditions
or the underlying agreement(s), unless it has the prior
written consent of the Contractor. This provision has effect
under property law.
Article 21: Cancellation or termination of the agreement
21.1. The Client is not entitled to cancel or terminate the agreement,
unless the Contractor agrees to this. If the Contractor
agrees, the Client will owe the Contractor an immediately due
and payable compensation equal to the agreed price, less the
savings for the Contractor as a result of the termination. The
compensation will be at least 20% of the agreed price.
21.2. If the price depends on the actual costs to be incurred by
the Contractor (on a cost-plus basis), the compensation as
referred to in the first paragraph of this article is estimated
based on the sum of the costs and labour and the profit that
the Contractor would have made for the entire contract.
Article 22: Applicable law and competent court
22.1. Dutch law applies.
22.2. The Vienna Sales Convention (CISG) does not apply, nor
does any other international regulation that may be excluded.
22.3. The Dutch civil court with jurisdiction in the Contractor’s place
of business is authorised to take cognisance of any disputes.
The Contractor may deviate from this rule governing jurisdiction
and rely on the statutory rules governing jurisdiction
These Terms and Conditions constitute a comprehensive
translation of the Dutch version of the Terms and Conditions
of the Metaalunie as filed with the Registry of the Court of
Rotterdam on 1 January 2019. The Dutch version will prevail
in the explanation and interpretation of this text.
ADDITIONAL TERMS AND CONDITIONS FOR SUPPLIERS
No additional charges will be accepted unless quoted and confirmed in writing
In accordance with SOLAS regulation II-I/35, new installation of Asbestos in connection with IMO MSC.1/Circ. 1374 and 1379 that all materials, products and components delivered by your company have to be free of asbestos.
GENERAL TERMS OF PURCHASING AND (SUB) CONTRACTING
General Terms of Purchasing and (Sub)Contracting Conditions of Thimar in Tholen, filed at the Registry of the Court in Breda under number 20136017
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 Gen-eral Terms shall be applicable to all of-fers made to the Client and all agree-ments 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 Ser-vices, 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 be-tween the Client and the Contractor on the one hand and these Terms & Condi-tions 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 peri-od 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 de-liver 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% of the agreed purchase or-der with a minimum of €up to a maximum of% 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 Contrac-tor.
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 regard-less 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 de-livery, “Delivered Duty Paid”, in accord-ance with Incoterms 2010.
5.2 If delivery “ex works” has been agreed upon and nevertheless the Contractor ei-ther 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 re-quired in connection with this.
6.2 The costs of the testing referred to in arti-cle 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 re-lease 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 responsibil-ity.
7.2 Should the Client reject delivered Prod-ucts 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 satisfac-tion, meet its obligation referred to in arti-cle 7.2, the Client shall be entitled to car-ry 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 under-stood to include copyrights, database rights, industrial design rights, trade-marks, patents, as well as the right to ob-tain 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 execu-tion 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 Con-tractor will without any delay carry out any additional actions required for said trans-fer.
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. Inso-far as changes in the work, the products or their name are concerned, the Contrac-tor also relinquishes its (moral) rights mentioned in article 25 clause 1 subsec-tions b and c of the Copyrights Act. The Contractor will not appeal to the power(s) granted in article 25 clause 4 of the Copy-rights Act.
8.6. The Contractor guarantees that the prod-ucts to be delivered by him, the work to be performed by him and the Intellectual Property Rights to the Work do not in-fringe 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 dis-closed to others or used by the Contrac-tor for any purpose other than for the pur-pose of executing his respective contrac-tual 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 Confi-dential Information to its employees, the Contractor is obliged to bind its employ-ees to the same confidentiality obliga-tions as stipulated in this agreement, be-fore the Confidential Information is dis-closed to them.
9.3 If the Contractor has to disclose the Con-fidential Information as meant in article 9.1 to any third party (parties) in connec-tion with the execution of his contractual obligations, he shall also bind such party (parties) to the same confidential obliga-tions as stipulated in this article.
9.4 The Contractor shall owe the Client a penalty payable on demand to the amount of% of the to-tal order sum with a minimum of €, if it violates one or more of the aforementioned obligations.
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 Contrac-tor.
article 10: Non-competition
Without the express written consent of the Client, the Contractor shall complete-ly refrain from quotations and/or offers to the principal relating to the work, whether directly or via mediation by any third par-ties.
article 11: Appliances
11.1 All appliances such as drawings, mod-els, moulds, matrices and tools which Client puts at the disposal of the Contrac-tor for the purpose of executing its re-spective contractual obligations shall remain or shall become under all circum-stances 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 Cli-ent 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 appli-ances for any purpose other than the per-formance of his contractual obligations. The Contractor shall not reveal the appli-ances to third parties without Client’s ex-press written permission. The Contractor shall bear the risk of loss of and/or dam-ages 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 short-coming 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 para-graph.
article 13: Insurance
The Contractor shall prove to the Client, upon its request and to the Clients satis-faction, 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 Con-tractor and/or any third parties used.
article 14: Warranty
14.1 The Contractor gives warranty that all Products/the work provided by the Con-tractor comply with the agreement, be free from any faults or defects with re-spect to material, design and manufactur-ing for a period ofmonths af-ter the Products/the work have been put into use or to a maximum ofmonths from the date of delivery.
14.2 The Client shall repair all defects in the Products/the work which become appar-ent during the warranty period immediate-ly 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 re-turning the Products/the work to operation after the aforementioned repair or re-placement. If the Products/the work form part of a larger object, the costs in con-nection with returning said object to op-eration will also be born by the Contrac-tor.
14.4 In case the Contractor does not fulfil his responsibilities as agreed within this ar-ticle, 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 as much as pos-sible, unless the Client has a complaint after taking delivery of the Products - in-cluding 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 peri-odic payment, the Client shall be entitled to demand a sufficient guarantee for de-livery at Client’s discretion. If the Con-tractor does not provide this within the set period, it shall immediately be in de-fault. The Client shall in that case be en-titled to rescind the agreement and to re-cover 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 contribu-tions and wage tax owed by the Contrac-tor with respect to the work, for which the Client is jointly and severally liable pur-suant 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 Con-tractor 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 se-curity contributions and wage tax amounts referred to above from the (sub)contract sum and to pay these di-rectly to the Tax Collectors Office on be-half 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 exclu-sion of which is permissible.
16.3 Only the Dutch civil court that has juris-diction in the place of establishment of the Client may take cognisance of dis-putes, 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 dis-pute resolution such as arbitration or me-diation.
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:
a. 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;
b. 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;
c. hand over to the Client a list of all em-ployees to be employed for the work, as well as hand over once only for each employee(before the employee com-mences work) a copy of valid proof of identity and, upon request, payroll rec-ords;
d. hand over to the Client a man-days regis-ter, which states for each employee the name, social security number, address, domicile, date of birth and number of hours worked and on which date;
e. strictly comply with all obligations re-garding the employees employed by the Contractor;
f. strictly perform all statutory obligations with respect to the payment of social se-curity contributions and wage tax related to the work assigned to it and, further-more, to strictly observe the applicable Collective Labour Agreement;
g. automatically provide a periodic state-ment 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 Contribu-tions (Liability of Subcontractors) Act;
h. at the request of the Client, prepare week-ly reports according to a model approved by the Client and to offer the weekly re-ports, completed and signed, to the Cli-ent every week for its approval;
i. if the Wages and Salaries and Social Security Contributions (Liability of Sub-contractors) Act is applicable, set up its administration in such a way the follow-ing 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 per-sons have carried out the work;
- the payments made under the agree-ment.
j. to provide the Client, upon request, with all information for its own administration or the administration of its principal;
k. if the Wages and Salaries and Social Security Contributions (Liability of Sub-contractors) Act is applicable, have at its disposal the original escrow account agreement and to show this at the Cli-ent’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 para-graph 1, the Client shall only be obliged to make any payment after it has re-ceived the missing data and has pro-cessed 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 exclu-sively 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 reim-bursement 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, va-cations or other days off recognised gen-erally or at the location of the work site, or prescribed by public authorities or pur-suant to any Collective Labour Agree-ment, 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 aris-ing from this from the Client. The latter shall also apply if the Contractor’s ser-vices cannot be used on account of a strike or other causes evident at the Cli-ent or at third parties;
19.4. Unless agreed otherwise, the Contractor is obliged to ensure, from commence-ment 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 arrange-ments. His name must be known to the persons or institutions designated by the Client.
19.5. The Contractor should provide its em-ployees with the correct means of per-sonal 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 ex-pense.
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 Li-ability Act (WAM), the Contractor shall be obliged to ensure that the working mate-rials 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 aforemen-tioned insurance requirements. Further-more, 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 im-mediately about any damage.
19.10. Any required materials such as scaffold-ing, hydraulic platforms, hoisting materi-als and small materials, including hand tools, measuring equipment, mobile scaf-folding, 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, til-ing, paintwork etc., the Contractor should take protective measures in order to pre-vent 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 in-voice 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:
a. the date of issue of the invoice;
b. a consecutive invoice number;
c. the Client's name and address;
d. the Contractor's name and address;
e. the number of the agreement;
f. the work site and th