Terms and Conditions
MB Aluminium applies the terms and conditions set out below. These terms and conditions come into effect on 1 January 2025.
Contents
Article 1 - Definitions
Article 2 - Applicability of general terms and conditions
Article 3 - Payment
Article 4 - Offers and quotations
Article 5 - Prices
Article 6 - Price Indexation
Article 7 - Provision of information by the client
Article 8 - Withdrawal of assignment
Article 9 – Performance of the contract
Article 10 - Assignment Duration
Article 11 - Amendment of the Agreement
Article 12 - Force Majeure
Article 13 - Set-off
Article 14 - Suspension
Article 15 - Assignment of rights
Article 16 - Expiry of the claim
Article 17 - Guarantee
Article 18 - Insurance
Article 19 - Liability for Damage
Article 20 - Client Liability
Article 21 - Indemnity
Article 22 - Duty to complain
Article 23 - Retention of Title, Right of Suspension and Right of Retention
Article 24 - Intellectual property
Article 25 - Confidentiality
Article 26 - Penalty for breach of confidentiality obligation
Article 27 – Non-transfer of staff
Article 28 – Amendments to the terms and conditions
Article 29 - Applicable law and competent court
Article 1 - Definitions
MB Aluminium, located in Eindhoven, Chamber of Commerce number 87719932, is referred to as the service provider in these general terms and conditions.
2. The service provider’s counterparty is referred to in these general terms and conditions as the client.
3. The parties are the service provider and the client together.
4. The agreement means the service provision agreement between the parties.
Article 2 - Applicability of general terms and conditions
These terms and conditions apply to all quotes, offers, work, agreements and deliveries of services or goods by or on behalf of the service provider.
Deviations from these terms are only possible if expressly agreed upon in writing by the parties.
3. The agreement always contains obligations to use best endeavours for the service provider, not obligations to achieve a specific result.
Article 3 - Payment
Invoices must be paid within 7 days of the invoice date, unless the parties have agreed otherwise in writing or a different payment term is stated on the invoice.
Payments shall be made without any recourse of suspension or set-off by transferring the amount due to the bank account number specified by the service provider.
3. If the client fails to pay an invoice within the agreed period, they shall be in default by operation of law, without the need for any formal notice. From that moment, the service provider shall be entitled to suspend its obligations until the client has fulfilled their payment obligations.
4. Should the client default, the service provider shall proceed with debt collection. The costs relating to this debt collection shall be borne by the client. When the client is in default, they shall owe the service provider the principal sum, as well as statutory (commercial) interest, out-of-court collection costs, and other damages. The collection costs will be calculated in accordance with the Decree on compensation for out-of-court collection costs.
5. In the event of liquidation, bankruptcy, seizure or suspension of payments by the client, the service provider's claims against the client shall become immediately due and payable.
6. If the client fails to cooperate with the service provider in the execution of the assignment, they are still obliged to pay the agreed price to the service provider.
Article 4 - Offers and quotations
The service provider's offers are valid for a maximum of 1 month, unless a different acceptance period is stated in the offer. If the offer is not accepted within the specified period, it will expire.
2. Delivery times stated in quotations are indicative and do not entitle the client to terminate the agreement or claim damages if they are exceeded, unless otherwise expressly agreed in writing by the parties.
3. Offers and quotes do not automatically apply to back orders. The parties must explicitly and in writing agree to this.
Article 5 - Prices
The prices mentioned on the service.
2. The prices of goods are based on the costs known at that time. Increases in these costs, which could not have been foreseen by the service provider at the time of making the offer or concluding the agreement, may lead to price increases.
3. With regard to the services, the parties may agree on a fixed price when the agreement is concluded.
4. If no fixed price has been agreed, the rate with regard to the provision of services can be determined based on the hours actually spent. The rate will be calculated according to the service provider's usual hourly rates, applicable for the period in which they perform the work, unless an hourly rate deviating from this has been agreed.
5. If no rate based on the actual hours worked has been agreed, a guide price shall be agreed for the services, and the service provider shall be entitled to deviate from this by up to 10%. If the guide price exceeds the agreed amount by more than 10%, the service provider must inform the client in good time of the reasons justifying the higher price. In that case, the client shall be entitled to cancel that part of the assignment which exceeds the indicative price plus 10%.
Article 6 - Price Indexation
1. The prices and hourly rates agreed upon when entering into the agreement are based on the price level applied at that time. The Service Provider has the right to adjust the fees charged to the Client annually on 1 January.
2. Custom prices, rates, and hourly wages will be communicated to the client as soon as possible.
Article 7 - Provision of information by the client
The client makes all information relevant to the execution of the assignment available to the service provider.
The client is obliged to make available to the service provider, in a timely manner and in the desired form and manner, all data and documents that the service provider deems necessary for the correct execution of the assignment.
3. The client is responsible for the accuracy, completeness, and reliability of the data and documents made available to the service provider, even if they originate from third parties, unless the nature of the assignment dictates otherwise.
4. The client indemnifies the service provider against any damage whatsoever arising from non-compliance with the provisions of the first paragraph of this article.
5. If and to the extent requested by the client, the service provider shall return the relevant documents.
6. If the client fails to make the data and documents requested by the service provider available, or fails to do so in a timely or proper manner, and this causes delays in the execution of the assignment, the resulting additional costs and fees shall be borne by the client.
Article 8 - Withdrawal of assignment
1. The client is free to terminate the assignment with the service provider at any time.
2. When the client cancels the assignment, the client is obliged to pay the service provider's due remuneration and expenses incurred.
Article 9 – Performance of the contract
The service provider shall perform the agreement to the best of its knowledge and ability and in accordance with the requirements of good workmanship.
The service provider has the right to have work carried out by third parties.
3. The execution will be carried out by mutual agreement and after written consent and payment of any agreed advance.
4. It is the client's responsibility to ensure that the service provider can commence the assignment in a timely manner.
Article 10 - Assignment Duration
The agreement between the client and the service provider is entered into for an indefinite period, unless the nature of the agreement dictates otherwise or the parties have expressly agreed otherwise in writing.
2. If the parties have agreed on a deadline for the completion of certain work during the term of the agreement, this deadline shall never be considered a fatal term. If this deadline is exceeded, the client must notify the service provider in writing of their default.
Article 11 - Amendment of the Agreement
If it appears during the execution of the agreement that modification or addition of the work to be performed is necessary for a proper execution of the assignment, the parties shall adjust the agreement accordingly in good time and in mutual consultation.
2. If the parties agree that the agreement is amended or supplemented, the time of completion of performance may be affected thereby. The Service Provider shall inform the Client thereof as soon as possible.
3. If the amendment or addition to the agreement has financial and/or qualitative consequences, the service provider shall inform the client thereof in writing as soon as possible.
4. Where parties have agreed a fixed fee, the service provider shall indicate to what extent the amendment or supplement to the agreement results in an overrun of this fee.
Article 12 - Force Majeure
In addition to the provisions of Article 6:75 of the Dutch Civil Code, a failure by the service provider to fulfil any obligation towards the client shall not be attributable to the service provider in the event of a circumstance beyond the service provider's control, which prevents the fulfilment of its obligations to the client, in whole or in part, or which means that the fulfilment of its obligations cannot reasonably be expected of the service provider. Such circumstances include defaults by suppliers or other third parties, power outages, computer viruses, strikes, bad weather conditions, and work stoppages.
2. Should a situation as described above occur, as a result of which the service provider cannot fulfil its obligations towards the client, then those obligations shall be suspended for as long as the service provider cannot fulfil its obligations. If the situation referred to in the previous sentence has lasted for 30 calendar days, the parties shall have the right to dissolve the agreement in whole or in part in writing.
3. In the case referred to in the second paragraph of this article, the service provider is not obliged to compensate for any damage, even if the service provider benefits from the force majeure situation.
Article 13 - Set-off
The client waives their right to set off a debt owed to the service provider against a claim against the service provider.
Article 14 - Suspension
The client waives the right to suspend performance of any obligation arising from this agreement.
Article 15 - Assignment of rights
The rights of a party to this agreement may not be assigned without the prior written consent of the other party. This provision shall have real effect as referred to in Article 3:83(2) of the Dutch Civil Code.
Article 16 - Expiry of the claim
Any entitlement to compensation for damage caused by the service provider shall, in any event, expire 12 months after the event from which the liability arises, directly or indirectly. This does not exclude the provisions of Article 6:89 of the Dutch Civil Code.
Article 17 - Guarantee
The parties have entered into an agreement of a service nature, which for MB Aluminium only contains an obligation of effort and therefore no obligation of result.
Article 18 - Insurance
The client undertakes to adequately insure and keep insured goods supplied which are necessary for the execution of the underlying agreement, as well as goods belonging to the service provider that are present at the client's premises, and goods supplied subject to retention of title, against, among other things, fire, explosion, water damage, and theft.
2. The client shall provide the policies for these insurances for inspection upon first request.
Article 19 - Liability for Damage
The service provider is not liable for damage resulting from this agreement, unless the service provider intentionally caused the damage or acted with gross negligence.
2. In the event that the service provider owes compensation to the client, the compensation shall not exceed the fee.
3. Any liability for damages arising from or related to the performance of an agreement shall always be limited to the amount paid out by the relevant (professional) liability insurance policy(ies) in that specific case. This amount will be increased by the amount of the excess according to the relevant policy.
4. The limitation of liability shall also apply if the service provider is held liable for damage that arises directly or indirectly from the malfunctioning of equipment, software, data files, registers, or other items used by the service provider in the performance of the assignment.
5. The liability of the service provider for damage resulting from intent or wilful recklessness on the part of the service provider, its management or subordinates is not excluded.
Article 20 - Client Liability
If an order is placed by more than one person, each of them shall be jointly and severally liable for the amounts owed to the service provider under that order.
2. If an order is placed immediately or shortly by a natural person on behalf of a legal entity, that natural person can also be the client in their private capacity. This requires that the natural person can be considered the (co-)decision-maker of the legal entity. In the event of non-payment by the legal entity, the natural person is therefore personally liable for the payment of the invoice, regardless of whether it was issued in the name of a legal entity, in the name of the client as a natural person, or both, at the request of the client or otherwise.
Article 21 - Indemnity
The client indemnifies the service provider against all third-party claims relating to the goods and/or services provided by the service provider.
Article 22 - Duty to complain
The client is obliged to report complaints about the work performed directly to the service provider in writing. The complaint shall contain a description of the defect that is as detailed as possible, so that the service provider is able to respond to it adequately.
2. In no event can a complaint lead to the service provider being obliged to perform any work other than what has been agreed.
Article 23 - Retention of Title, Right of Suspension and Right of Retention
1. Any items present and supplied items and parts belonging to the client shall remain the property of the service provider until the client has paid the entire agreed price. Until that time, the service provider may invoke its retention of title and repossess the items.
2. If the agreed advance payments are not made or are not made on time, the service provider has the right to suspend the work until the agreed portion has been paid. This is then considered to be a default by the creditor. In such a case, a delayed delivery cannot be held against the service provider.
3. The service provider is not authorised to pledge or otherwise encumber the goods subject to its retention of title.
4. If items have not yet been delivered but the agreed deposit or price has not been paid in accordance with the agreement, the service provider has a right of retention. The items will then not be delivered until the client has paid in full and in accordance with the agreement.
5. In the event of the client's liquidation, insolvency or suspension of payments, the client's obligations shall become immediately due and payable.
Article 24 - Intellectual property
Unless otherwise agreed in writing by the parties, the service provider retains all intellectual property rights (including copyright, patent rights, trademark rights, design rights, etc.) in all designs, drawings, writings, data carriers or other information, quotations, images, sketches, models, prototypes, etc.
The intellectual property rights mentioned may not be copied, shown to third parties, made available, or otherwise used without the written consent of the service provider.
3. The client undertakes to keep confidential any confidential information made available to them by the service provider. Confidential information shall in any event be understood to mean that to which this article relates, as well as business data. The client undertakes to impose a written obligation of confidentiality on their personnel and/or third parties involved in the execution of this agreement, to the effect of this provision.
Article 25 - Confidentiality
Each party shall keep secret all information which it receives (in whatever form) from the other party and all other information concerning the other party which it knows or can reasonably be presumed to know is confidential or secret, or information the dissemination of which it can expect to cause damage to the other party, and shall take all necessary measures to ensure that its personnel also keep the said information secret.
2. The duty of confidentiality mentioned in the first paragraph of this article does not apply to information:
Which was already public at the time the recipient received this information or subsequently became public without a breach by the receiving party of a confidentiality obligation incumbent upon them
b. of which the receiving party can prove that this information was already in its possession at the time of disclosure by the other party
c. the receiving party has received it from a third party who was entitled to provide this information to the receiving party
d. which is made public by the receiving party due to a legal obligation
3. The duty of confidentiality described in this article shall apply for the duration of this agreement and for a period of three years following its termination.
Article 26 - Penalty for breach of confidentiality obligation
If the client breaches the article of these general terms and conditions concerning confidentiality, the client shall forfeit to the service provider an immediately due and payable penalty of €50,000.00 for each breach and, in addition, an amount of €5,000.00 for each day that such breach continues. This is regardless of whether the breach can be attributed to the client. Furthermore, no prior notice of default or legal proceedings are required for the forfeiture of this penalty. Nor does there need to be any form of damage.
The forfeiture of the penalty referred to in the first paragraph of this article does not prejudice the other rights of the service provider, including their right to claim damages in addition to the penalty.
Article 27 – Non-transfer of staff
The client shall not employ any staff from the service provider (or from companies engaged by the service provider for the performance of this agreement who are or have been involved in the performance of the agreement), nor shall they engage them, directly or indirectly, to work for them. This prohibition shall apply for the duration of the agreement up to one year after its termination. There shall be one exception to this prohibition: the parties may make other agreements through good business consultation. Such agreements shall be valid insofar as they are recorded in writing.
Article 28 – Amendments to the terms and conditions
MB Aluminium is entitled to amend or supplement these general terms and conditions.
2. Minor amendments may be made at any time.
3. MB Aluminium will discuss any significant substantive changes with the customer in advance as much as possible.
Article 29 - Applicable law and competent court
1. Dutch law shall apply exclusively to all agreements between the parties.
2. The Dutch courts in the district where MB Aluminium is established/practices/has its office shall have exclusive jurisdiction to hear any disputes between the parties, unless mandatory law provides otherwise.
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