General Sales terms & conditions of Hyva Group
Section 1. General
1. These General Sales Terms & Conditions of Hyva Group (General Terms) apply to all orders, agreements relating thereto, modifications thereof and additions thereto between any company of the Hyva Group (Hyva) with their Buyers. Any deviation to these General Terms or use of any Hyva's local terms is permitted only if agreed in writing.
2. Buyer will be regarded as having accepted the General Terms by placing an order to Hyva or by entering into a sales agreement with Hyva.
3. Proposals given by Hyva are always free of any obligation. Hyva shall be bound by a proposal only after written acceptance thereof.
4. Buyer remains bound by Buyer's order. Hyva will only be bound by descriptions and conditions in the order which deviate from or add to the proposal made by Hyva, after written acceptance thereof.
5.Documentation, drawings, specifications, weight and performances shall be understood as general indications and shall in no way be binding on Hyva.
Section 2. Prices and payment
1. Unless otherwise agreed in writing, prices shall be Ex-Works, according to Incoterms 2020. Insurance, packaging, transport, assembly and installation and the risk inherent therein, plus any duties or levies shall quoted separately and be at Buyer’s expense.
2. Hyva shall, even after the proposal has been made and/or the agreement formalized, be entitled to adjust the agreed prices in the event of a change in one or more price fixing factors. Buyer shall be entitled to cancel the order if the price change is not acceptable. Costs originated as a result of changes in orders shall be at the Buyer’s expense.
3. Unless otherwise agreed, payment should be received by Hyva within 30 days from the date of invoice.
4. Any claim for damages or compensation under the warranty or for reimbursement from Hyva will not suspend the Buyer’s obligation to pay.
5. Delay interest for late payment shall be eight (8) percentage points above the rate of the main refinancing facility of the European Central Bank in force on the due date of payment, calculated from the due date until the date of actual payment. Such late payment penalties will be automatically due without prior notice. All legal and extra judicial costs incurred by Hyva in order to collect any outstanding amounts shall be at the Buyer’s expense.
6. If Hyva has reason to doubt the financial credibility of Buyer, Buyer shall upon Hyva’s first request provide a payment guarantee from a guarantor acceptable to Hyva. Hyva shall be entitled to demand payment immediately and to suspend the performance of any agreed obligation until payment has been received.
Section 3. Delivery
1. Hyva will make all reasonable business efforts to deliver on time. Nevertheless, delivery times stated by Hyva are indicative and shall not be legally binding. Buyer is not entitled to any compensation or cancellation of the order in case of delay. At the same time, Hyva undertakes to enter into detailed consultation with the Buyer whenever the delivery time has been exceeded excessively.
2. Place of delivery will be the factory or warehouse of Hyva, unless another place is agreed to in writing.
3. Hyva shall notify the Buyer when products are available for shipment or pick-up. Should Buyer fail to pick-up the products within 3 months after Hyva's notification, Hyva shall be entitled to charge Buyer the storage costs.
4. Risk of loss and damage shall pass from Hyva to Buyer in accordance with the agreed delivery term. Products returned with the purpose of being inspected or repaired shall remain in Hyva's possession but at the risk of the Buyer. Hyva will not insure these products against any risk whatsoever.
5. Hyva shall be deemed to have fulfilled its obligation to deliver, even when the required consent of authorities has not been obtained, where owing to circumstances beyond Hyva’s control, i) assembled products function, despite not all parts being delivered together with the assembled products, or ii) where a third party, not falling under Hyva’s supply chain processes, has failed to complete the expected tasks.
6. Complaints with regards to products, services and invoices should be lodged within two weeks after receipt of the products by Buyer.
Section 4. Retention of Title
1. All products delivered to Buyer shall remain Hyva's property until Hyva receives the full payment of all sums due, including but not limited to assembly, installation and delivery costs. Until the full payment is effectuated, Buyer must treat the products with care and adequately insure them at its own expense against loss and damage at replacement value.
2. Products in which title is retained may only be resold by Buyer in the normal course of business on normal terms and conditions and as long as Buyer is not in default, always provided that Buyer shall retain title to the products resold by him against its own customers and the claims from the resale price shall be assigned to Hyva. Where products for which title is retained are processed, combined and mixed with other products by the Buyer to the extent that they cannot be separated, Hyva shall have joint title to the resulting product, proportionally to the amount of the invoiced value of the products to which title is retained.
3. In case of delay of payment or any deterioration of the financial position of Buyer, Hyva is entitled to forbid the further resale or processing of the products supplied, to claim restitution of the products and to enter the premises of Buyer to collect the products. In the event of seizure or bankruptcy, Buyer is obliged to inform the bailiff and/or receiver about Hyva's ownership of the respective products.
4. Hyva shall be entitled to retain the products which Buyer has returned for repair or assembly purposes, until Buyer satisfies all obligations towards Hyva.
Section 5. Warranty
1. Hyva provides warranty for defects in product material and workmanship in accordance with the terms and conditions of the Hyva Warranty Conditions (“Standard warranty”) or Hyva Extended Warranty Conditions (“Extended warranty”) which are available at www.hyva.com/en/warranty/standard-warranty-terms-and-conditions/ and www.hyva.com/en/warranty/extended-warranty-terms-and-conditions/, respectively.
2. Standard warranty period is twelve (12) months from the date of first use of the product. Extended warranty is 1 year (or 1.000 hours of operation) from the date of first use for all operations requiring grabs, forks, manipulators or other accessories generating pushing forces on the ground or truck body, 5 years (or 5.000 hours of operation) on structural parts and 3 years (or 3.000 hours of operation) on all other parts.
3. Warranty is strictly limited to repair of the defect or replacement of the defective part or, at Hyva’s discretion, replacement of the product itself. To the extent permitted by law, Hyva explicitly rejects any liability for costs of product fitting and removal, vehicle or product downtime, replacement costs, transport or import costs, loss of earnings or profit, any damages caused by Hyva products and/or excessive or unreasonable labor costs.
Section 6. Force Majeure
1. Hyva shall not be liable for any loss or damages occurring as a result of non- or late performance due to i) an event of force majeure and/or ii) Buyer’s failure to comply with the obligations set out in any agreement existing between Buyer and Hyva or these terms and conditions. For the purposes of these terms and conditions, force majeure shall include war, national strike, civil upheaval, fire, floods, epidemics, pandemics and actions by government authorities, acts of god or any other cause that is reasonably beyond the control of the party.
2. Where the event of force majeure lasts for a longer period of time than three (3) months, Hyva shall be entitled to suspend or terminate the agreement, or where no agreement exists, the commercial relationship with Buyer. For these purposes, a written notice shall suffice. Buyer shall not be entitled to any compensation on these grounds. Upon termination, Hyva shall be entitled to reimbursement of costs incurred during the period of the force majeure event.
3. The Party whose performance is impeded or delayed by such event of force majeure shall immediately inform the other Party thereof, and do everything within its means to prevent such a delay or non- performance.
Section 7. Liability
1. Buyer undertakes to defend, indemnify and keep Hyva harmless from and against any injuries, losses, damages, costs, fees, judgment, settlement or other expenses caused by, related to or arising from Buyer's operations, use, sale or ownership of the product(s), or other claims however arising in connection with the use or operation of the product(s), unless caused by gross negligence or intent of Hyva.
2. Nothing in these General Terms shall limit or exclude Hyva's liability for death or personal injury caused by its negligence, or the negligence of its personnel (as applicable), fraud or fraudulent misrepresentation; or any matter in respect of which it would be unlawful for Hyva to exclude or restrict liability.
3. Hyva shall not be liable to Buyer, whether in contract, tort (including negligence), misrepresentation, breach of statutory duty, or otherwise, for any indirect, special, consequential or pure economic loss or damage, any loss of profits, anticipated profits or savings, revenue or business opportunities or damage to goodwill.
4. Buyer's rights of recourse against Hyva are restricted to the statutory limitations of claims and always provided that Buyer has complied with the obligation to notify Hyva of the defects without delay.
Section 8. Cancellation
Cancellations from Buyer must be accepted by Hyva in writing. Buyer shall indemnify Hyva against any losses resulting from such cancellation.
Section 9. Packaging
Unless otherwise explicitly agreed in writing, packaging will be at Buyer’s expense and in accordance with Hyva standards and/or instructions, and shall never be returned to Hyva, nor will Hyva be held responsible for any subsequent use or disposal of the packaging materials.
Section 10. Ownership of materials
1. Drawings, documents and devices, including but not limited to gauges, stamps, moulds, test equipment and tools, cost-accountings, plans, sketches, drawings, statements of sizes and weights, catalogues, images or any other documents drawn up by Hyva (the Materials) may not be copied, imitated or be shown to third parties without prior consent in writing of Hyva. All such Materials shall remain the property of Hyva, regardless of whether the Buyer has paid for them, and shall be returned to Hyva immediately upon Hyva’s first request, together with all copies thereof.
2. Statements and information by Hyva, as well as calculations and results of tests carried out as output to be expected of products to be measured, do not in any way oblige Hyva. Products supplied may deviate from such statements, calculations and results. Slight deviations from the usual tolerance shall be permitted even when Hyva has obliged itself in writing to specifically agreed data.
Section 11. Termination
Delay or lack of performance of Buyer’s obligations shall entitle Hyva to suspend or terminate the agreement, or commercial relationship in the absence of agreement, with the Buyer, without further notice and/or judicial interference, until such obligations have been duly satisfied. These rights are without prejudice to any other rights Hyva may have and with no obligation for Hyva to make any compensation whatsoever.
Section 12. Compliance
Parties shall comply with all applicable laws and regulations including but not limited to sanction requirements and export control regulations, anti-money laundering, bribery and anti-corruption, as well as the US Foreign Corrupt Practices Act and the UK Bribery Act. If Buyer resells Hyva's products, Buyer shall comply with sanction requirements imposed, administrated or enforced from time to time by European Union, the United Nations Security Council and any other applicable sanctions authority. Hyva shall have the right to terminate any and all orders and agreements relating thereto if the Buyer does not so comply.
Section 13. Applicable law
1. If Buyer and Hyva have the same domicile, these General Terms shall be governed by and construed in accordance with the laws of that country. All disputes arising out of the contractual relationship or agreements between the Parties shall be exclusively submitted to the courts of that country.
2. In other cases, these General Terms shall be governed by and construed exclusively in accordance with the laws of the Netherlands and excluding any conflict of law rules. All disputes arising out of the contractual relationship or agreements between the Parties shall be referred to mediation at the Netherlands Mediation Institute in accordance with its Mediation Rules. The mediation shall be conducted in English. If the mediation is abandoned by the mediator or is otherwise concluded without the dispute being resolved, then that dispute may be referred by either party to the courts of the Netherlands for determination (and for this purpose the parties hereby submit to the exclusive jurisdiction of the courts of the Netherlands.
3. The UN Convention on International Sale of Goods shall not apply.
Last updated on 2020 12 21