Article 1. General
1. These terms and conditions apply to every offer, deal and agreement between Ultimate Metal Design, hereinafter referred to as “Contractor” and a Client, which the supplier has declared this terms and conditions applicable, insofar as parties have not explicitly deviated in writing.
2. The terms and conditions also apply to contracts with the Contractor concerning the implementation of which third parties should be involved.
3. The applicability of any purchase or other conditions of the Client is explicitly rejected.
4. If at any time, one or more provisions in these general conditions in whole or in part will be partially void or should be annulled, these general conditions apply in full. The Contractor and the Client will then discuss new provisions replacing the annulled or partially void general conditions to agree upon, in which the purpose and intent of the original provisions will be considered as much as possible.
5. If uncertainty exists regarding the interpretation of one or more provisions of these general conditions, the explanation will be to the tenor of these provisions.
6. If a situation arises between the parties that are not regulated in these general conditions, this situation should be assessed to the tenor of these general conditions.
7. If the Contractor doesn’t always require strict adherence to these conditions, it doesn’t mean that its provisions do not apply, or that the Contractor would lose the right to any degree in other cases, to demand strict compliance with the provisions of these terms and conditions.
Article 2. Offers and deals
1. All offers and deals of the Contractor are without obligation, unless the offer contains a period for acceptance.
2. The Contractor will create an offer based on information and data provided by the Client. The Contractor may rely on the accuracy of this data.
3. The Contractor cannot be adhered to his offers or deals if the Client can reasonably understand that the offers or deals, or any part thereof, are an obvious mistake or error.
4. The prices quoted in an offer or deal are exclusive of VAT and other Government levies, possible expenses made within the scope of the agreement, including travel and subsistence, shipping and handling, unless otherwise indicated.
5. If the acceptance (whether or not on secondary items) differs from the offer or deal included in the included offerings, the Contractor is not bound by it. The agreement won’t be realised in accordance with this differed acceptance, unless the supplier indicates otherwise.
6. A composite quotation doesn’t oblige Contractor to execute part of the assignment against a corresponding part of the given price. Offers and deals shall not apply automatically to future orders.
Article 3. Contract length; execution times, transfer of risk, implementation and modification agreement; price increase.
1. The agreement between the Contractor and the Client is entered into for an indefinite period, unless the nature of the agreement dictates otherwise or if parties expressly agree otherwise and in writing.
2. If a term for the execution of certain activities or for the supply of certain things has been agreed or specified, then this is never a deadline. If a term is exceeded, the Client must therefore send the Contractor a written notice of default. The Contractor needs to be allowed a reasonable term to still implement the agreement.
3. The Contractor shall execute the agreement to the best knowledge and ability in accordance with the demands of good craftsmanship, according to the basis of the currently known state of science.
4. The Contractor has the right to have certain work done by third parties. The applicability of article 7:404, 7:407 paragraph 2 and 7:409 BW is expressly excluded.
5. If the Contractor or third parties engaged by the Contractor carry out activities in the context of the assignment at the Clients location or a location designated by the Client, the Client will free of charge care for the facilities desired within reason by those employees.
6. Delivery is ex company of the Contractor. The Client is obliged to take the goods at the time they are made available to him. If the Client refuses or fails to provide information or instructions necessary for the delivery, then the Contractor is entitled to store the goods at the expense and risk of the Client. The risk of loss, damage or depreciation will transfer to the Client from the moment things are available to the Client.
7. The Contractor is entitled to carry out the agreement in stages and separately invoice the executed parts.
8. If the agreement is carried out in stages, the Contractor can suspend the execution of the parts belonging to a following stage until the Client has approved the results of the preceding stage in writing.
9. The Client shall ensure that all data, which the Contractor has said to be necessary or which the Client reasonably understand to be necessary for the performance of the contract, will be provided to the Contractor in a timely manner. If the data required for the execution of the agreement are not provided in time to the Contractor, the Contractor has the right to suspend the execution of the agreement and/or charge the Client for the additional costs resulting from the delay according to the then usual rates. The execution period won’t start before the Client has provided the data to the Contractor. The Contractor isn’t liable for damage of whatever nature, because the Contractor used incorrect/incomplete data provided by the Client.
10. If during the execution of the agreement it appears that for a proper implementation it is necessary to change or supplement it, then the parties will proceed to adjust the agreement in a timely manner and in mutual consultation. If the nature, scope or content of the agreement, whether or not at the request or instruction of the Client, of the competent authorities, etc., is changed and the agreement is thereby amended in qualitative and / or quantitative terms, this may have consequences for what was originally agreed. As a result, the originally agreed amount can also be increased or decreased. The Contractor will provide a quotation thereof in advance as much as possible. In addition, the originally specified term of implementation can be changed by changing the agreement. The Client accepts the possibility of amending the agreement, including the change in price and execution time.
11. If the agreement is amended, including an addition, the Contractor is entitled to implement it only after approval has been given by the person authorized within the Contractor and the Client has agreed to the price and other conditions specified for the performance, including understood the time to be determined at which time it will be implemented. Failure or immediate implementation of the amended agreement does not constitute a breach of contract on the part of the Contractor and is no reason for the Client to terminate or cancel the contract.
12. Without being in default, the Contractor may refuse a request to amend the agreement if this could have a qualitative and / or quantitative consequence, for example for the work to be performed or the goods to be delivered in that context.
13. If the Client should be in default in the proper performance of that which he is obliged to the Contractor, the Client is liable for all damage caused by the Contractor directly or indirectly as a result.
14. If the Contractor agrees a fixed fee or price with the Client, the Contractor is nevertheless entitled to increase this fee or price at any time without the Client being entitled to terminate the agreement for that reason, if the increase of the price arises from a power or obligation under the laws or regulations or is caused by an increase in the price of raw materials, wages, etc. or on other grounds that were not reasonably foreseeable when entering into the agreement.
15. If the price increase, other than as a result of a change to the agreement, amounts to more than 10% and takes place within three months after the conclusion of the agreement, only the Client who is entitled to appeal to Title 5, Section 3 of Book 6 of the Dutch Civil Code is entitled to the dissolve the agreement by a written statement, unless the Contractor is then still prepared to execute the agreement on the basis of the originally agreed upon, if the price increase results from a power or an obligation imposed on the Contractor by law; if it is stipulated that the delivery will take place more than three months after the conclusion of the agreement, or, if a matter is delivered, if it is stipulated that the delivery will take place more than three months after the purchase.
Article 4. Suspension, termination and early termination of the agreement.
1. The Contractor is authorized to suspend the fulfillment of the obligations or to dissolve the agreement, if the Client does not, not fully or not timely, fulfill the obligations arising from the agreement, after concluding the agreement circumstances give the Contractor knowledge of good ground to fear that the Client will not fulfill its obligations if, at the conclusion of the agreement, the Client was requested to provide security for the fulfillment of its obligations under the agreement and this security is not provided or is insufficient or if due to the delay on the part of the The Client can no longer be required to fulfill the agreement under the originally agreed conditions.
2. The Contractor is furthermore entitled to terminate the agreement if circumstances arise that are of such a nature that fulfillment of the agreement is impossible or if other circumstances occur that are of such a nature that the Contractor cannot reasonably be expected to maintain the agreement unchanged.
3. If the agreement is dissolved, the claims of the Contractor against the Client are immediately due and payable. If the Contractor suspends the fulfillment of the obligations, it retains its claims under the law and agreement.
4. If the Contractor proceeds to suspension or dissolution, it is in no way obliged to compensate damage and costs arising in any way.
5. If the termination is attributable to the Client, the Contractor is entitled to compensation for the damage, including the costs, arising directly and indirectly as a result.
6. If the Client fails to fulfill its obligations arising from the agreement and this non-compliance justifies termination, then the Contractor is entitled to terminate the agreement immediately and with immediate effect without any obligation on its part to pay any compensation or compensation, while the Client, by virtue of non-performance, compensation or compensation is required.
7. If the contract is terminated prematurely by the Contractor, the Contractor will arrange for the transfer of work still to be performed to third parties in consultation with the Client. This unless the cancellation is attributable to the Client. If the transfer of the work entails additional costs for the Contractor, these will be charged to the Client. The Client is obliged to pay these costs within the specified period, unless the Contractor indicates otherwise.
8. In the event of liquidation, (application for) suspension of payment or bankruptcy, of seizure – if and insofar as the seizure has not been lifted within three months – at the expense of the Client, of debt restructuring or any other circumstance whereby the Client is no longer free the Contractor is free to terminate the agreement immediately and with immediate effect or to cancel the order or agreement, without any obligation on its part to pay any compensation or compensation. The claims of the Contractor against the Client are immediately due and payable in that case.
9. If the Client cancels an order in whole or in part, then the work that was carried out and the items ordered or prepared for it, plus any delivery and delivery costs thereof and the working time reserved for the implementation of the agreement, will be in full be charged to the Client.
Article 5. Force majeure.
1. The Contractor is not obliged to fulfill any obligation towards the Client if it is prevented from doing so as a result of a circumstance that is not due to fault, and is not for its account under the law, legal act or generally accepted views.
2. In these general terms and conditions, force majeure is understood to mean any circumstance independent of the will of the Contractor, as a result of which the fulfillment of its obligations towards the Client is wholly or partially prevented or as a result of which the fulfillment of its obligations cannot reasonably be expected of the Contractor, irrespective of whether this circumstance was foreseeable during the conclusion of the agreement.
3. The contractor can suspend the obligations under the agreement during the period that the force majeure continues. If this period lasts longer than two months, then each of the parties is entitled to terminate the agreement, without obligation to compensate damage to the other party.
4. Insofar as the Contractor has at the time of the occurrence of force majeure partly fulfilled its obligations under the agreement or will be able to fulfill it, and the part fulfilled or to be fulfilled will have independent value, the Contractor is entitled to the part already fulfilled or to be fulfilled to be invoiced separately. The Client is obliged to pay this invoice as if it were a separate agreement.
Article 6. Payment and collection costs.
1. Payment must always be made within 14 days after the invoice date, in a manner to be indicated by the Contractor in the currency in which the invoice is made, unless otherwise indicated in writing by the Contractor. Contractor is entitled to invoice periodically.
2. If the Client fails to pay an invoice on time, the Client is legally in default. The Client will then owe an interest of 1% per month, unless the legal interest is higher, in which case the legal interest is due. The interest on the claimable amount will be calculated from the moment that the Client is in default until the moment of payment of the full amount due.
3. The Contractor has the right to have the payments made by the Client go first of all to reduce the costs, then to reduce the interest still due and finally to reduce the principal sum and the current interest. The Contractor may, without being in default as a result, refuse an offer for payment if the Client designates a different order for the allocation of the payment. The contractor may refuse full repayment of the principal sum if the vacant and accrued interest and collection costs are not thereby also paid.
4. The Client is never entitled to set off what it owes the Contractor. Objections to the amount of an invoice do not suspend the payment obligation. The Client who does not appeal to section 6.5.3 (articles 231 up to and including 247, book 6 of the Dutch Civil Code) is also not entitled to suspend payment of an invoice for any other reason.
5. If the Client is in default or in default in the (timely) fulfillment of its obligations, then all reasonable costs for obtaining satisfaction out of court will be borne by the Client. The extrajudicial costs are calculated on the basis of what is customary in Dutch collection practice, currently the calculation method according to the Voorwerk II Report. However, if the Contractor has incurred higher collection costs that were reasonably necessary, the costs actually incurred will be eligible for reimbursement. Any legal and execution costs incurred will also be recovered from the Client. The Client also owes interest on the collection costs.
Article 7. Retention of title.
1. The items supplied by the Contractor under the Contract remain the property of the Contractor until the Client has properly fulfilled all obligations arising from the contract(s) concluded with the Contractor.
2. The goods supplied by the Contractor that fall under the retention of title pursuant to paragraph 1. may not be resold and may never be used as a means of payment. The Client is not authorized to pledge or encumber the property subject to retention of title in any other way.
3. The Client must always do everything that can reasonably be expected of it in order to safeguard the Contractor’s property rights. If third parties seize the goods delivered under retention of title or wish to establish or enforce rights thereon, the Client is obliged to immediately inform the Contractor thereof. Furthermore, the Client undertakes to insure and keep insured the goods delivered under retention of title against fire, explosion and water damage as well as against theft and to provide the Contractor with the policy of this insurance for inspection upon first request. In the event of payment of the insurance, the Contractor is entitled to these tokens. Insofar as necessary, the Client undertakes vis-à-vis the Contractor in advance to lend its cooperation to everything that may prove to be necessary or desirable in that context.
4. In the event that the Contractor wishes to exercise its ownership rights referred to in this article, the Client gives prior unconditional and irrevocable permission to the Contractor and third parties to be designated by the Contractor to enter all those places where the Contractor’s property is located and to take it back.
Article 8. Guarantees, investigation and complaints, limitation period.
1. The Client is obliged to investigate the goods supplied or have them examined, immediately as soon as the goods are made available to him or the relevant activities have been carried out. In addition, the Client should investigate whether the quality and / or quantity of the delivery corresponds to what has been agreed and meets the requirements that the parties have agreed in this regard. Any visible defects must be reported to the Contractor in writing within seven days after delivery. Any non-visible defects must be reported in writing to the Contractor immediately, but in any case no later than within fourteen days, after discovery thereof. The report must contain a description of the defect that is as detailed as possible, so that the Contractor is able to respond adequately.
2. If a defect is reported later, the Client no longer has the right to repair, replacement or compensation.
3. The Client must give the Contractor the opportunity to investigate a complaint or have it investigated and will provide all cooperation necessary for the investigation of the complaint. If the Client does not cooperate or if investigation is no longer possible as a result of the Client’s actions, the complaint will not be processed and the Contractor will not accept any liability in this regard. If the complaint has proven to be unfounded, the costs of investigating the complaint will be borne by the Client. The Client cannot derive any rights from handling a complaint.
4. If the Client complains in time, this does not suspend its payment obligation. In that case, the Client also remains obliged to purchase and pay for the otherwise ordered goods and what they have ordered the Contractor to do.
5. If the Client complains in time, correctly and rightly about defects in the services or materials supplied and furthermore is not in default vis-à-vis the contractor, the Contractor has the option (if possible) to perform (or have performed) the services rendered properly (part of) ) refund the agreed fee or credit the invoiced amount. By fulfilling one of the aforementioned performances, the Contractor is fully discharged with regard to his obligations and the Client is not entitled to further (damage) compensation or termination of the agreement.
6. If it is established that a complaint is unfounded, then the costs incurred as a result, including the research costs incurred by the Contractor as a result, will be borne entirely by the Client.
7. Contrary to the statutory limitation periods, the limitation period of all claims and defenses against the Contractor and the third parties involved by the Contractor in the execution of an agreement is one year.
Article 9. Liability.
1. If the Contractor should be liable, then this liability is limited to what is regulated in this provision.
2. The Contractor is not liable for damage of whatever nature caused by the fact that the Contractor relied on incorrect and / or incomplete data provided by or on behalf of the Client.
3. If the Contractor should be liable for any damage, then the Contractor’s liability is limited to a maximum of twice the invoice value of the order, at least to that part of the order to which the liability relates.
4. The liability of the Contractor is always limited to the amount paid out by its insurer, if applicable.
5. The contractor is only liable for direct damage.
6. Direct damage is exclusively understood to mean the reasonable costs for determining the cause and scope of the damage, insofar as the determination relates to damage within the meaning of these terms and conditions, any reasonable costs incurred for the Contractor’s defective performance of the agreement to have an answer, insofar as these can be attributed to the Contractor and reasonable costs incurred to prevent or limit damage, insofar as the Client demonstrates that these costs have led to the limitation of direct damage as referred to in these general conditions. The contractor is never liable for indirect damage, including consequential damage, lost profit, lost savings and damage due to business interruption.
7. The limitations of liability included in this article do not apply if the damage is due to intent or gross negligence of the Contractor.
Article 10. Disclaimer.
1. The Client indemnifies the Contractor against any claims from third parties that suffer damage in connection with the performance of the agreement and whose cause is attributable to parties other than the Contractor. If the Contractor may be called on to do so by third parties, the Client is obliged to assist the Contractor both outside and in court and to immediately do everything that may be expected of him in that case. If the Client fails to take adequate measures, the Contractor is entitled to do so without notice of default. All costs and damage on the part of the Contractor and third parties that arise as a result are integrally for the account and risk of the Client.
Article 11. Intellectual property.
1. The Contractor reserves the rights and powers that accrue to it under the Copyright Act and other intellectual laws and regulations. The Contractor has the right to use the knowledge it has gained as a result of the implementation of an agreement for other purposes as well, insofar as no strictly confidential information from the Client is disclosed to third parties.
Article 12. Applicable law and disputes.
1. All legal relationships to which the Contractor is a party are exclusively governed by Dutch law, even if an obligation is fully or partially implemented abroad or if the party involved in the legal relationship is domiciled there. The applicability of the Vienna Sales Convention is excluded.
2. The judge in the place of business of the Contractor has exclusive jurisdiction to hear disputes, unless the law prescribes otherwise. Nevertheless, the Contractor has the right to submit the dispute to the competent court according to the law.
3. Parties will only appeal to the courts after they have made every effort to settle a dispute in mutual consultation.
Article 13. Location and change of conditions.
1. These terms and conditions have been filed with the Chamber of Commerce Midden-Brabant in Tilburg under file number 17237038.
2. The most recently filed version or the version as it applied at the time the legal relationship with the Contractor was established applies.
3. The Dutch text of the general conditions always determines the explanation thereof.