Article 1 Applicability
1. These General Terms and Conditions will apply to all offers made by, contracts concluded with and obligations assumed by Metalwire B.V., referred to below as ‘Metalwire’, and their execution, to the exclusion of any and all other terms and conditions.
2. The applicability of any general terms and conditions, by whatever name, used by the other party is hereby explicitly excluded, unless Metalwire has agreed to and confirmed them in writing.
3. The other party can invoke clauses varying from these General Terms and Conditions only if and insofar as Metalwire has accepted them in writing.
Article 2 Offers and prices
1. All offers are subject to contract, unless otherwise expressly agreed in writing. Metalwire will not be obliged to carry out assignments that have not yet been accepted in writing.
2. Inaccuracies in Metalwire’s order confirmation must be reported to Metalwire in writing within three (3) days of the date of the order confirmation, failing which the order confirmation will be deemed to be a correct and complete representation of the agreement and the other party will be deemed to be bound by it.
3. All prices are stated net of VAT, import duties, other taxes and levies, unless otherwise expressly stated by Metalwire, and are subject to change.
4. If cost price determining factors change after an offer has been made and/or a contract has been concluded, Metalwire will be entitled to adjust the prices accordingly.
5. Once placed, orders cannot be cancelled. If the other party nevertheless cancels a placed order in full or in part, it will be obliged to compensate Metalwire for all reasonable expenses incurred with a view to the execution of the order, the work carried out by Metalwire and Metalwire’s loss of profit, plus VAT.
Article 3 Delivery and risk
1. All deliveries are made ex works, unless otherwise expressly agreed.
2. In the case of delivery carriage paid, Metalwire will determine the method of shipment. If a different method of shipment is to be used, the additional costs, if any, will be at the other party’s expense.
3. Stated delivery dates are target dates and are not to be regarded as absolute deadlines. Failure to meet the delivery date will not render Metalwire liable for compensation and will not entitle the other party to withhold or suspend the performance of any of its obligations under the contract. However, the other party will be entitled to dissolve the contract if and insofar as Metalwire fails to carry out the assignment within a reasonable time limit stipulated by the other party. In that event, Metalwire will not be obliged to pay compensation.
4. Delivery dates are based on the prevailing working conditions at the time when the contract is concluded and on delivery in good time of the items that Metalwire requires to perform the contract. If a change in the working conditions and/or overdue delivery of items required by Metalwire causes a delay, the delivery time will be extended to the extent necessary.
5. If the other party fails to take delivery of the goods offered for delivery by Metalwire, all reasonable ensuing expenses, including transport, warehouse and storage costs, will be at the other party’s expense and the goods will be at the latter’s risk.
6. Regardless of the delivery method, purchased goods are transported at the other party’s risk from the moment they leave Metalwire’s factory, depot or warehouse.
7. The copy of delivery instructions, shipping document, receipt, confirmation of receipt or any other document format signed by the other party or a recipient designated by it will constitute proof that the goods stated in it have been received by the other party in full and to all appearances in good condition, unless the contrary is evident from a dated annotation by the recipient on the document in question.
8. Any inaccuracies in offers/order confirmations involving one or more arithmetical or other errors will be corrected without Metalwire being obliged to perform the contract in accordance with the document drawn up in error.
9. The other party will bear the risk of loss or damage caused by errors or defects in the information provided by it or by defects in or the unfitness of items that originate from it or must be obtained from a designated supplier and the risk of non-delivery or overdue delivery of the aforesaid items.
10. All information and advice provided by Metalwire is of a general nature only and free of obligation.
11. Metalwire will be entitled to perform the contract in parts and to demand payment for the part of the contract performed.
Article 4 Retention of title
1. Metalwire retains title to the goods delivered and yet to be delivered until the other party has paid the amounts of whatever nature that it owes Metalwire on account of all goods delivered and yet to be delivered in full, including the amounts owed on account of failure to perform any contract.
2. If the other party fails to perform its obligations or fails to do so in full, Metalwire will be entitled to repossess or cause the repossession of the delivered goods without prior demand or notice of default and without judicial intervention. The other party will be obliged to enable Metalwire to do so, failing which it will incur a penalty equal to 10% of the purchase price for each day, up to a maximum of the invoice amount of the goods to be repossessed, plus interest and costs.
3. The other party will not be entitled to pledge or transfer title to goods not yet paid for other than as part of its ordinary business operations.
4. The other party will be obliged to store the goods delivered subject to retention of title with due care and as the recognisable property of Metalwire.
5. The other party will have no right of retention vis-à-vis Metalwire in respect of the goods delivered by the latter.
Article 5 Warranty
1. Metalwire warrants that the goods it delivers are sound and in accordance with what the other party may reasonably expect pursuant to the terms of the contract. Metalwire provides a warranty only if and insofar as it has issued a written guarantee with each contract. The written guarantee also states the warranty period. If the goods delivered by Metalwire contain any defect caused by faults in the manufacturing, material and/or packaging that is covered by any warranty, Metalwire will repair or replace the goods in question in full or in part or apply a reasonable price reduction, all of the foregoing exclusively at Metalwire’s option and discretion.
2. The warranty will at all times be confined to the scope and substance of the warranty provided by Metalwire’s supplier.
3. Metalwire provides advice, statements and specifications – with respect to, for instance, the characteristics of goods to be delivered by it – without any obligation and by way of non-binding information. Metalwire does not provide any warranty in that regard.
Article 6 Complaints
1. In view of the nature and composition of Metalwire’s products, differences in terms of quality and weight not exceeding the standard tolerances do not give grounds for complaint.
2. Complaints with respect to visible differences to and/or defects in delivered goods must be supported by reasons and submitted to Metalwire in writing within eight (8) days of receipt by or on behalf of the other party. If a complaint is not submitted within the specified term, any claim against Metalwire will lapse.
3. If a complaint is justified, Metalwire will be entitled to repair or replace the goods in question or to issue a credit note for or refund the invoice amount payable for those goods, at its discretion. In that event, the other party will be obliged to return the goods to Metalwire without delay.
4. The other party will not be able to derive any right from the merits of the complaint to amend or dissolve the contract and/or to claim a reduction and/or setoff of any amount owed by it.
5. Submitted complaints do not suspend the other party’s obligation to pay.
6. The other party will be obliged to carefully inspect the delivered goods immediately upon receipt, failing which any right to submit a complaint and/or receive a replacement will lapse.
7. If the other party submits a complaint, it will be obliged to enable Metalwire to inspect the goods or have them inspected in order to verify the defect. The other party will be obliged to keep the goods to which the complaint is related available for Metalwire, failing which any right to submit a complaint and/or receive a replacement will lapse.
8. Defects relating to a portion of the delivered goods do not entitle the other party to reject or refuse the consignment in its entirety.
9. The other party will be obliged to report any inaccuracies in Metalwire’s invoices to Metalwire in writing within five (5) days of the invoice date, failing which it will be deemed to have approved the invoice.
Article 7 Force majeure
1. ‘Force majeure’ includes any circumstance, either foreseen or unforeseen, that renders the specific performance of the contract temporarily or permanently impossible, more onerous or more expensive. Situations constituting force majeure include war, threat of war, strikes, fire, industrial accident, staff illness, business interruption, transport delays, inconvenient legal provisions, restrictions on import/export, production or transport problems not anticipated by Metalwire and any other circumstance that is not exclusively dependent on Metalwire’s will, such as the non-delivery or overdue delivery of goods or services by third parties engaged by Metalwire.
2. If Metalwire is unable to perform its obligations under the contract (in full) as a result of force majeure, it will be entitled to dissolve the contract with immediate effect by giving notice in writing or to suspend the performance of the contract for the duration of the force majeure. In that event, the other party will not be entitled to compensation for damage, costs or interest. If the period of force majeure exceeds six (6) weeks, the other party will also be entitled to dissolve the contract with respect to the portion that cannot be performed, by giving notice in writing.
3. If, when a situation of force majeure occurs, Metalwire has already partially performed its obligations or will only be able to partially perform its obligations, it will be entitled to issue a separate invoice for the delivered or deliverable part, as the case may be, and the other party will be obliged to settle that invoice as if it related to a separate contract.
Article 8 Payment
1. Payment of all Metalwire’s invoices must be made within thirty (30) days of the invoice date at the latest, without reduction or setoff, unless otherwise agreed in writing.
2. Metalwire will be entitled to demand full or partial payment in advance and/or to obtain security for the payment of its invoices in a different manner at any time.
3. If an issued invoice is not paid within thirty (30) days of the invoice date or the agreed term, Metalwire will be entitled to charge the other party for loss of interest equal to the statutory commercial interest pursuant to Section 6:119a of the Dutch Civil Code [Burgerlijk Wetboek], with a minimum of ten percent (10%) per annum if the statutory interest rate is lower than ten percent (10%), in which respect part of a month will count as a whole month when calculating the interest due.
4. All costs incurred in the collection of payments will be at the other party’s expense. The extrajudicial collection costs will amount to at least fifteen percent (15%) of the amount to be collected, with a minimum of EUR 150.
5. The other party waives any right to set off amounts payable between the parties. Metalwire will be entitled to set off at any time all amounts owed to the other party against the amounts that the other party and/or the other party’s affiliates owe to Metalwire, whether or not due and payable.
6. The entire invoice amount will be immediately due and payable in full in the event that payment of an agreed instalment is not promptly made on the due date and in the event that the other party goes into liquidation, applies for a (provisional) suspension of payments or is granted statutory debt adjustment (under the Dutch Natural Persons Debt Rescheduling Act [Wet Schuldsanering Natuurlijke Personen]) and/or its property and/or receivables are attached. If any of the situations referred to above occurs, the other party will be obliged to notify Metalwire thereof immediately.
7. Payments made by the other party will first be applied to settle the costs payable, subsequently to settle the interest due and finally to settle the due and payable invoices that have been outstanding for the longest period, even if the other party has stated that the payment relates to an invoice of a later date.
Article 9 Suspension and dissolution
In the event that the other party:
a) is declared insolvent or a petition for its liquidation is filed, assigns its assets, is granted a (provisional) suspension of payments or files an application to that end or in the event that all or some of its property is attached;
b) is placed under administration or dies;
c) fails to perform any of its obligations imposed by law or these General Terms and Conditions;
d) fails to pay an invoice amount or any portion thereof within the applicable term; or
e) discontinues or transfers its business operations or an essential part thereof, including the transfer of its business operations to a company that has yet to be incorporated or to an existing company, or amends the objects of its business;
solely because of the occurrence of any of the circumstances referred to above, Metalwire will be entitled, without any judicial intervention or notice of default being required:
a. to suspend the execution of the assignments that it has not yet executed in full until the other party provides sufficient security for the proper performance of its respective obligations at Metalwire’s discretion; or
b. to dissolve the contract by means of an extrajudicial declaration or legal proceedings; or
c. to demand immediate and full payment of any amount owed by the other party for the deliveries made and/or work carried out by Metalwire without any warning or notice of default and/or to reclaim the delivered goods;
all of the foregoing without prejudice to any other rights that Metalwire may have to claim payment of compensation for damage, interest, costs etc.
Article 10 Liability
1. Except as provided for in Article 5, the other party will not have any claim against Metalwire on account of defects in or in connection with the goods delivered by Metalwire. Consequently, Metalwire will not be liable for direct or indirect loss or damage, including personal injury, tangible and intangible loss or damage, consequential loss or damage (loss of income, loss due to business interruption and the like), or any other loss or damage, irrespective of its cause, unless an intentional act or omission or gross negligence on Metalwire’s part is involved.
2. Metalwire will also not be liable within the meaning referred to above for acts performed by its employees or other persons who are controlled by it, including intentional acts or omissions or (gross) negligence on the part of those persons.
3. Metalwire will not be liable for loss or damage caused by:
a. failure to follow instructions and/or directions for use given by it or explicitly stated on the packaging of the goods or failure to do so correctly and/or fully;
b. the goods being repackaged or packaged anew;
c. normal wear and tear;
d. the goods being used incorrectly or improperly;
e. the goods being used or resold other than in their original condition; or
f. items of property being left behind at or near the location where Metalwire is obliged to carry out work.
4. In all cases in which Metalwire is obliged to pay compensation, the amount will not in any event exceed the invoice amount (exclusive of VAT) for the delivered goods in connection with which loss or damage was caused, with a maximum of EUR 10,000. In addition, if the loss or damage is covered by Metalwire’s business liability insurance, the compensation will not in any event exceed the amount actually paid out by the insurance company in the case in question.
5. Metalwire will not be liable for any direct or indirect loss or damage, in whatever form and of whatever nature, arising from its provision of information and/or advice. The other party will indemnify Metalwire against all possible claims from third parties in that regard, unless an intentional act or omission or gross negligence on Metalwire’s part is involved.
6. After identifying a defect in a good, the other party will be obliged to do all that will prevent or limit damage, which expressly includes the immediate discontinuation of the use and marketing of the good in question.
7. All claims against Metalwire, unless the latter has acknowledged them, will be barred by the mere expiry of a period of twelve (12) months after their inception.
Article 11 Governing law
1. All contracts concluded by Metalwire and any contracts deriving from them will be governed by Dutch law.
2. International conventions on the sale of tangible movable property the scope of which can be excluded between the parties do not apply and are hereby explicitly excluded from application. More specifically, the United Nations Convention on Contracts for the International Sale of Goods of 1980 (CISG 1980) is explicitly excluded from application.
Article 12 Dispute resolution
1. Any dispute between Metalwire and the other party will be subjected in the first instance to the opinion of the competent court in the district of Roermond, the Netherlands, unless statutory provisions dictate otherwise.
2. The place where the work is to be carried out will be deemed to be the place in which Metalwire’s registered office is located.
Article 13 Filing
These General Terms and Conditions have been filed with the Chamber of Commerce for Limburg in Venlo, the Netherlands.
Article 14 Other provisions
1. If any of the provisions of these General Terms and Conditions or any contract to which these General Terms and Conditions apply is void or voidable, that will not affect the validity of the remaining provisions. Metalwire and the other party will be obliged to replace void or voided provisions by valid provisions whose purport corresponds as much as possible to the void or voided provisions.
2. If the other party acts for and on behalf of one or more third parties, it will be liable to Metalwire as if it were the other party, without prejudice to the liability of those third parties.
METALWIRE B.V. – HORST, THE NETHERLANDS