General Terms & Conditions
MTB – General Terms & Conditions for the provision of workers, assignments and contracts for work. MTB Regio Maastricht N.V. and its affiliated subsidiaries (hereafter referred to as 'MTB', separately or jointly), have drawn up the following conditions (hereafter 'General Terms & Conditions') which have been filed with the Registry of the Court of Limburg, located in Maastricht, deed number 23/2015 AL, dated 18 September 2015.
Article 1: Definitions
In these general conditions, the following capitalised terms are defined as follows:
a. "the Contractor”: MTB Regio Maastricht N.V. (Chamber of Commerce 14623843) or MTB B.V. (Chamber of Commerce 14078796) or MTB Holding B.V. (Chamber of Commerce 34393529) depending on which legal entity concludes an agreement with the Client;
b. "the Client": the natural person, the legal entity under public law, the legal entity under private law or the partnership that instructs the Contractor to perform work and services, to supply items and/or to create work of a tangible nature;
c. "the Assignment": the performance of work and services for the Client, the delivery of items and/or the creation of work of a tangible nature;
d. “the Parties”: the Contractor and the Client;
e. "In Writing": in a document signed by the Parties (e.g. agreement or quotation), by letter, by e-mail;
f. "the Conditions": these general conditions.
Article 2: Applicability of the Conditions
2.1. The Conditions apply to all agreements and other legal relationships between the Contractor and the Client.
2.2. The Client agrees to accept these Conditions unconditionally, with the exclusion of its own general conditions. Any reference to the applicability of the Client's general conditions will not have any effect and the Contractor expressly and completely rejects the applicability of the Client's general conditions.
2.3. In the event of a conflict between a provision of an agreement and/or quotation signed by the Parties and a provision of the Conditions in the sense that these provisions cannot coexist, the provision of the agreement and/or quotation will apply. Any other arrangements expressly agreed between the Parties In Writing that depart from the Conditions will also prevail over the Conditions.
2.4. The Contractor will be entitled at all times to amend the Conditions unilaterally. The Contractor will inform the Client of such an amendment In Writing, stating the effective date and enclosing or attaching the amended general conditions. As of the effective date, the amended general conditions will apply, also to existing agreements.
Article 3: Quotations
The Contractor's quotation is based on information provided by the Client and on the performance of the Assignment under normal circumstances.
Article 4: Conclusion of the agreement
4.1. An agreement is concluded at the time that the Contractor receives an agreement or quotation signed by the Client, either at the time that the Client otherwise accepts an offer made by the Contractor verbally or In Writing unchanged, or at the time that the Contractor commences the performance of the Assignment.
4.2. In the event of any additions or changes to the Assignment desired by the Client, the Client must notify the Contractor of such In Writing and in good time. The Contractor will notify the Client In Writing whether the additions or changes to the Assignment desired by the Client will be accepted and under what conditions.
Article 5: Performance of the Assignment by the Contractor
5.1. The Contractor will determine the manner in which the Assignment will be performed.
5.2. The Contractor will perform the Assignment in accordance with the agreement and the Conditions. If the Assignment relates or relates in part to the creation of work of a tangible nature, the Assignment will also be performed in accordance with any instructions, plans, drawings, calculations, specifications, contract documents and performance regulations of the Client, provided that these have been supplied to the Contractor In Writing in a timely manner and to the extent that these are reasonable and feasible.
5.3. The Contractor will perform the Assignment as carefully and efficiently as possible, taking into account the care expected of a good Contractor. Where necessary and desirable, the Contractor will inform the Client about the performance of the Assignment.
5.4. The Contractor will be entitled without the Client's permission to outsource the Assignment or parts thereof to, or have them performed by, third parties not employed by the Contractor, such as subcontractors, trainees, volunteers and/or persons who, whether or not from a benefit situation and with or without retention of a benefit, follow a training course and temporarily perform work at the Contractor (work experience company).
5.5. The Contractor will not be obliged to point out to the Client any inaccuracies in the Assignment and any defects or unsuitability of items originating from or prescribed by the Client, which also includes errors or defects in instructions, plans, drawings, calculations, specifications, contract documents performance regulations provided by the Client. The Contractor will be under no obligation to investigate and no obligation to warn.
5.6. If items are made available to the Contractor by or on behalf of the Client for the performance of the Assignment, the Contractor will be obliged only to check the correctness of the stated number of packages and the external proper condition of the packaging of the items when they are received and, in the event of deviation from the number of packages and/or visible damage to the packaging of the items, to state this (or have this stated) on the consignment note and to report this to the Client. Unless expressly instructed to do so In Writing by the Client, the packaging of the items will not be opened upon receipt in order to examine the contents. This will not take place until the time that the Contractor commences the performance of the Assignment. If the Contractor then discovers that the items made available by or on behalf of the Client deviate in numbers, type, dimensions or otherwise from what the Parties have agreed and/or are otherwise defective, the Contractor will immediately notify the Client In Writing.
Article 6: Cooperation in the performance of the Assignment by the Client
6.1. The Client will provide the Contractor in a timely manner with all information and cooperation the Contractor reasonably requires for the proper performance of the Assignment.
6.2. In the event that the Assignment relates or partly relates to the creation of work of a tangible nature, all items required for the performance of the Assignment, including parts, packaging and other materials and other requirements, will be made available to the Contractor by or on behalf of the Client, unless the Parties have expressly agreed otherwise In Writing.
6.3. The Client must deliver the items referred to in Article 6.2 to the Contractor no later than two working days prior to the agreed date of commencement of the performance of the Assignment (strict deadline) in good condition, properly packaged and accompanied by a correctly completed consignment note, packing note and other required documents. Delivery will take place by making the items available to the Contractor at the agreed place of destination, being Watermolen 1 in (NL-6229 PM) Maastricht, the Netherlands, Forwarding and Warehouse department (afdeling Expeditie en Magazijn). Delivery must take place on working days and during standard opening hours (8 a.m. – 4 p.m.). The Client must notify the Contractor In Writing of the time of delivery of the items no later than 48 hours prior to delivery.
6.4. The Client will arrange the transport of the items to the Contractor at its expense and risk and will ensure that the items are properly insured for damage, loss and theft, etc. The Client will arrange the customs formalities required for any export and import. The costs of these customs formalities and all duties, taxes and other levies will be borne by the Client. Unloading at the agreed place of destination will be carried out by the Client. If the Contractor unloads the items, it will do so at the Client's expense and risk.
6.5. The Client must complete the consignment note completely and truthfully in accordance with the instructions stated on it and must in any event state the number and nature of the packages, a description of the nature and type of the items and the gross weight. The Client must complete the packing note completely and truthfully and must in any event state the production order number, a description of the nature and type of items, the method of packaging, the packing unit, the number of items per packing unit and, in the case of foodstuffs, the best-by date. The Client will be responsible for the correctness of the contents of the consignment note and the packing not
Article 7: Late delivery and/or faulty delivery by the Client
7.1. If the Client delivers the items to be delivered by or on behalf of the Client too late and/or if the items delivered by or on behalf of the Client deviate in numbers, type, dimensions or otherwise from what the Parties have agreed, and/or if these are otherwise defective, the Client will be in default by operation of law without any notice of default being required.
7.2. The Contractor will then be entitled to suspend the performance of the Assignment. Any agreed delivery or transfer period will lapse.
7.3. In addition, the Client will be liable for the loss suffered by the Contractor as a result of the fact that the Assignment cannot be carried out at the agreed time, including missed turnover and loss of profit.
7.4. Furthermore, the Client will be obliged to deliver to the Contractor all items required for the performance of the Assignment and to be made available by the Client as yet, complete, in accordance with the agreement and in good condition within seven calendar days (strict deadline). As soon as the Contractor has received the items, the Contractor will reschedule the Assignment and determine a new delivery or transfer period in consultation with the Client.
Article 8: Storage
8.1. If the Contractor temporarily retains items delivered by or on behalf of the Client for the purpose of performing the Client's Assignment, the Contractor will be free to choose the place of storage for the items in question. In addition, the Contractor will at all times be entitled to move the items to another place of storage.
8.2. The Contractor will not be obliged to take any measures other than those that are customary for the storage of the items in question. The Contractor is obliged to take special measures only if the Parties have expressly agreed this In Writing. Special measures include refrigerated and/or frozen or deep frozen storage. The Contractor does not have its own storage capacity for refrigerated and/or frozen or deep frozen storage.
8.3. The Contractor will take good care of the items delivered by or on behalf of the Client. Items will, however, be stored at the expense and risk of the Client. The Client must ensure proper insurance for the items.
8.4. The Client is entitled to access the place where the items delivered by or on behalf of the Client are stored.
8.5. The Contractor will at all times be entitled, at the expense and risk of the Client, to immediately take all measures that the Contractor considers necessary, including the destruction of the items, if it is reasonably foreseeable that, without taking such measures, there will be a risk of death or physical injury, loss, theft or damage to the items themselves or to other items present in the place of storage or damage to the place of storage.
Article 9: Delivery and transfer by the Contractor
9.1. The Contractor will state the expected term of delivery or transfer as accurately as possible. Specified delivery or transfer periods are indicative. If the Contractor foresees that the expected delivery or transfer period will not be met, for example due to force majeure or unforeseen circumstances, the Contractor will inform the Client of this as soon as possible.
9.2. The Contractor will at all times be entitled to make early deliveries and transfers and partial deliveries and transfers.
9.3. Delivery and transfer will take place subject to Incoterms® 2010, ExWorks rule. The agreed place of delivery or transfer is Watermolen 1 in (NL-6229 PM) Maastricht, Forwarding and Warehouse department. If the Assignment relates or relates in part to the creation of work of a tangible nature, the provision of the items will be considered to be the delivery of the work.
9.4. The Contractor will notify the Client In Writing that the items are ready for delivery or transfer.
9.5. The Client will be obliged to take delivery of the items, after the Contractor has reported them ready, no later than within seven calendar days (strict deadline) by collecting the items, or having them collected, at the agreed place of delivery or transfer, being Watermolen 1 in (NL-6229 PM) Maastricht, Forwarding and Warehouse department. Items must be taken delivery of on working days and during standard opening hours (8 a.m. – 4 p.m.). The Client must notify the Contractor of the time of receipt of the items In Writing no later than 48 hours in advance.
9.6. Loading at the agreed place of delivery or transfer will be carried out by the Client. If the Contractor loads the items, it will do so at the Client's expense and risk. The Contractor will arrange transport only if this has been expressly agreed In Writing between the Parties and then at the Client's expense and risk. The Contractor has no transport insurance.
9.7. If the Client fails to take delivery of the items within seven calendar days after the Contractor has reported them ready, the Client will be in default by operation of law without any notice of default being required. In that case, the Contractor will be entitled to store the items at the expense and risk of the Client and/or sell them to a third party. For storage, the Client will owe a fee of € 1.75 excluding VAT per pallet place per week or part of a week, to be calculated from the eighth calendar day after the Contractor has reported the items ready. The Contractor will be entitled to increase the storage costs annually on 1 January. The Client will however still owe the agreed price, plus the storage costs and in the event of late payment, interest and out-of-court collection costs. If the items are sold to a third party, the net proceeds of that sale will be deducted from the amount owed by the Client.
Article 10: Retention of title
10.1. In so far as the items delivered or transferred are the property of the Contractor, these items will remain the property of the Contractor even after delivery or transfer until the Client has fulfilled its payment obligations under any agreement concluded with the Contractor in full, including claims relating to non-compliance with such an agreement.
10.2. For as long as the title to an item has not been transferred, the Client will not be allowed to dispose of or encumber this item.
10.3. The retention of title will not affect the time at which the risk of an item transfers to the Client.
10.4. The Client will be obliged to insure the delivered items and to retain possession thereof and to store them with all due care and as the recognisable property of the Contractor. The Client will not be permitted to remove or change any brand or identifying marks applied to a delivered item or its packaging.
10.5. If the Client fails to fulfil any payment obligation, the Contractor will be entitled to take back the delivered items that are subject to the retention of title. The Client will be obliged to give the Contractor or a third party designated by the Contractor the opportunity to do so and to reimburse the costs incurred by the Contractor in taking back the items.
Article 11: Prices, price adjustment, additional work
11.1. Prices quoted are calculated on the basis of information provided by the Client and are exclusive of turnover tax and exclusive of costs such as storage costs
11.2. The Contractor will be entitled to unilaterally change the prices at least annually on 1 January, including in the case of inflation and/or an increase in costs including wages and other personnel costs as a result of, for example, indexation under the law and/or the applicable collective labour agreement, production costs, costs of materials and resources used by the Contractor and insurance premiums.
11.3. Agreed additions or changes to the Assignment or its performance (see Article 4.2) that lead to more or less work, will result in a proportional adjustment of the agreed price. The scope of this price adjustment will be determined by the Contractor. In the event of additions or changes desired by the Client to the Assignment or its performance, the Contractor will inform the Client in good time of the need for a resulting price increase, to the extent that the Client should not have automatically understood this need.
Article 12: Invoicing and payment
12.1. The Contractor will be entitled to request full or partial advance payment. At the Contractor's first request, the Client will be obliged to provide sufficient security to the Contractor, in the form and in the manner desired by the Contractor, for the fulfilment of all existing and future payment obligations of the Client to the Contractor pursuant to the agreement.
12.2. The Contractor will be entitled, at its own discretion, to invoice in advance (in the event of advance payment being required), periodically, in instalments or after performance of the Assignment.
12.3. All invoices in which payment in advance is requested will be payable within two days of the date of the invoice. All other invoices will be payable within 30 days of the date of the invoice.
12.4. All payments must be made by transfer to the bank account specified by the Contractor on the invoice.
12.5. If any payment discount is agreed, this will take place in the manner indicated by the Contractor.
12.6. All payment terms are strict deadlines. If a payment term is exceeded, the Client will be in default by operation of law without any notice of default being required. In such a case, the Client will owe interest of 1% per month on the outstanding amount, as well as a fee for the out-of-court collection and legal costs. The fee for the out-of-court collection costs will be 15% of the outstanding amount with a minimum of €150. If the actual out-of-court collection costs are higher, the Client will owe the actual costs. The fee due for legal costs will be the actual costs of the legal proceedings, including court fees, lawyer’s fees, and bailiff’s fees.
Article 13: Settlement, suspension and right of retention
13.1. The Client expressly, unconditionally and irrevocably waives any right of suspension and settlement to which it is entitled.
13.2. The Contractor will be entitled to settle. The requirement of reciprocity of debts does not apply to settlement by the Contractor. The Contractor will not only be entitled to settle a debt owed to the Client against a claim of the Contractor against the Client, but also against a claim of a group company against the Client.
13.3. The Contractor will be entitled to suspension. The requirement of sufficient connection does not apply to the invocation of the right of suspension by the Contractor. The Contractor will also be entitled, in the absence of any connection between the obligation and the claim, to suspend the fulfilment of its obligation until its claim against the Client has been settled. In the event of partial or improper performance by the Client, the Contractor will be entitled to suspend performance in full.
13.4. If, in the context of the performance of the Assignment, the Contractor retains any Client items, the Contractor will be entitled to suspend the fulfilment of any obligation to hand over such items to the Client until the Client has fully complied with its payment obligations under any agreement concluded with the Contractor.
Article 14: Duration and termination of the agreement
14.1. In the absence of an agreed duration, an agreement between the Parties will be valid for an indefinite period of time.
14.2. Each of the Parties may terminate an agreement entered into for an indefinite period of time, not being an agreement relating to the creation of work of a tangible nature:
- with immediate effect, i.e. without observance of a notice period, if the other party has applied for suspension of payment or has been declared bankrupt;
- in all other cases, with due observance of a notice period of at least three months.
14.3. Termination will be communicated In Writing to the other party.
14.4. During the notice period, the rights and obligations pursuant to the terminated agreement will continue.
14.5. An agreement entered into for a definite period of time will end by operation of law by the passage of time without the need for notice. Premature termination of an agreement entered into for a definite period of time and an agreement that also relates to the creation of work of a tangible nature is excluded. An agreement entered into for a definite period of time and an agreement that also relates to the creation of work of a tangible nature can be terminated only by mutual agreement, in return for payment by the Client to the Contractor of the full price less the savings arising for the Contractor from the termination, with the scope of the savings being determined by the Contractor.
14.6. The Client expressly, unconditionally and irrevocably waives the right to dissolve all or part of an agreement with the Contractor in or out of court, with the exception of the right to dissolve the agreement in the event of continuing force majeure on the part of the Contractor (see Article 17.3).
14.7. The Client expressly, unconditionally and irrevocably waives the right to annul all or part of an agreement with the Contractor in or out of court, as well as a claim for removal of disadvantageous effects.
Article 15: Duty to investigate and complain, prescription
15.1. Immediately after the Contractor has performed the Assignment, the Client must investigate whether the Assignment has been performed correctly. If the Assignment relates or also relates to the creation of work of a tangible nature and/or the delivery of items, the Client must immediately upon receipt inspect the delivered or transferred items or have them inspected in order to determine whether the delivered or transferred items comply with the agreement.
15.2. The Client must report any defects to the Contractor within five working days after the performance of the Assignment or after receipt of the delivered or transferred items. Defects in the delivered or transferred items that were not visible at the time of receipt and that could not have been detected in the case of timely and proper investigation, must be reported by the Client within five working days after it discovered the defect, on the understanding that a complaint submitted after more than three months have elapsed since the delivered or transferred items were received will be too late, irrespective of the time at which the Client discovered or reasonably should have discovered the alleged defect. A complaint must be submitted In Writing, accurately stating the nature and extent of the alleged defect and accompanied by photographs to substantiate it. The Client will be obliged to give the Contractor the opportunity to investigate the merits of a complaint and to provide all cooperation that is reasonably necessary to this end.
15.3. If the Client does not complain on time and/or in accordance with the rules set out above and/or does not give the Contractor the opportunity to investigate the merits of a complaint and/or does not provide all reasonably necessary cooperation to this end, it can no longer invoke a defect in the performance of the Assignment or the delivered or transferred items and all claims and defences factually based on such will lapse.
15.4. Any complaints concerning invoices must be submitted by the Client In Writing within ten working days of receipt of the invoice stating the reasons for the complaint, failing which the right to dispute the invoice will be forfeited.
Article 16: Liability, exoneration and indemnification
16.1. The Contractor’s liability for damage in connection with the Assignment will be limited at the Contractor's discretion to the proper performance of the Assignment as yet within a reasonable period of time, the replacement or repair free of charge of what has been performed under the Assignment, the crediting of the net amount invoiced by the Contractor for the performance of the Assignment or the payment of an amount of damages with due observance of the provisions of the following paragraphs of this article.
16.2. The Contractor will not be liable for:
- indirect damage and consequential damage suffered by the Client, including but not limited to loss of turnover, loss of profit, missed savings, damage due to business stagnation and damage as a result of claims by third parties that in any way directly or indirectly result from or are related to the Assignment;
- damage due to conduct or culpable negligence of third parties, regardless of whether these third parties were engaged by the Contractor;
- damage that is due to defects or unsuitability of items originating from or prescribed by the Client, with items also being understood to mean instructions, plans, drawings, calculations, specifications, contract documents and performance regulations provided by the Client;
- damage suffered by the Client in connection with the termination of an agreement by the Contractor.
16.3. The Contractor's total obligation to compensate the Client, regardless of the reason, will at all times be limited to the amount actually paid out by the Contractor's insurance, increased by the Contractor's excess in respect of the matter. If the Contractor's insurance should not pay out, the total liability will be limited to the net amount invoiced by the Contractor for the performance of the Assignment. The Contractor has a liability insurance for companies. The Contractor also has an equipment and goods insurance. Cover is subject to limitations and exclusions and involves an excess. At the request of the Client, the policies will be sent to the Client.
16.4. The Client will indemnify the Contractor against any third-party claims that are in any way directly or indirectly related to or arise from the Assignment, including any third-party claims based on product liability, including indemnification against all costs, including legal costs, incurred on the Contractor's part due to such third-party claims. In the event that the Client and the Contractor are jointly and severally liable vis-à-vis third parties on account of product liability, the Parties agree that the Client, in the mutual relationship between the Parties, will be fully liable for that damage.
16.5. If it is established that the Client's damage is the result of intent, gross negligence or wilful recklessness on the part of the Contractor or its managerial subordinates, the Contractor will not be entitled to invoke the exclusions and limitations of its liability set out in this article. If the Assignment relates to the creation of work of a tangible nature, the Contractor will not be entitled to invoke the exclusions and limitations of its liability set out in this article if it is established that the Client's damage is the result of hidden defects in the delivered work known to but concealed by the Contractor.
16.6. The Client guarantees that the limitations of liability included by the Contractor in this article will, by means of a third-party clause, form part of the agreements concluded by the Client with third parties to the extent that these agreements in any way directly or indirectly, result from or are related to the Assignment.
Article 17: Force majeure
17.1. Force majeure on the part of the Contractor means all external circumstances over which the Contractor has no control and which reasonably prevent the normal performance of the agreement, irrespective of whether those circumstances were foreseeable at the time of concluding the agreement. These circumstances include fire and other accidents in the Contractor's business, war, storm damage, water damage and other natural disasters, terrorism and threat of terrorism, including for instance receiving a powder letter, a shortage of staff due to a strike, sickness, holidays or dismissal of staff, a general lack of raw materials, delays at suppliers and other third parties on whom the Contractor is dependent, government measures, general breakdowns in the energy supply, import and export restrictions and general transport problems.
17.2. If a force majeure event occurs on the part of the Contractor, the Contractor will be entitled at its own discretion to either suspend the delivery and fulfilment of other obligations until the force majeure event ceases to exist, or to dissolve the agreement wholly or in part by means of a notification In Writing to the Client. If the Contractor has already partially fulfilled its obligations at the beginning of the force majeure event, or it is clear that the Contractor will only be able to fulfil part of its obligations, the Contractor will be entitled to invoice the items already delivered and/or services already provided separately and the Client will be obliged to pay this invoice as if it concerned a separate agreement.
17.3. If stated delivery dates are exceeded by more than two months due to a force majeure event on the part of the Contractor, the Client may also dissolve the agreement by means of a notification In Writing (including by e-mail) to the Contractor.
Article 18: Choice of law and choice of forum
18.1. The legal relationship between the Parties will be governed exclusively by Dutch law. Dutch law will apply to the agreement and to all present and future obligations other than contractual obligations, such as obligations under the law.
18.2. The district court in Limburg, Maastricht location, has exclusive jurisdiction in the first instance to take cognisance of any disputes that have arisen or will arise from existing and/or future agreements between the Parties, as well as any disputes that have arisen or will arise from or in connection with all existing and future obligations between the Parties other than contractual obligations, such as obligations under the law.