General Sales terms & conditions of Hyva Group
Paragraph 1. General
- At all times the following terms will apply exclusively to all agreements between Hyva Group and all Hyva subsidiaries belonging to the Hyva Group (all to be mentioned hereafter “Hyva”) with their buyers. Deviating terms will only apply after written acceptance by Hyva.
- A buyer will be regarded as having accepted the present terms by giving an order to Hyva or entering into any sales agreement with Hyva.
- Tenders given by Hyva are always free of all obligation. Hyva will only be bound by a tender after written acceptance of the order of the buyer.
- Hyva will only be bound to what has been accepted in writing. Inaccuracies in the confirmation of order should be notified in writing not later than ten days after the date of the confirmation.
- The buyer who places the order will remain bound to his order, unless it has been refused by Hyva. Hyva will only be bound to descriptions and conditions in the order which deviate from or add to a possible tender, after written acceptance thereof.
- Documentation, drawings, specifications, weight and performances are only meant to give a general indication and will in no way be binding on Hyva.
- It is not allowed to reproduce documentation, print work, drawings, schedules and photo material. Hyva will keep the copyright and ownership thereof.
Paragraph 2. Prices and payment
- Prices will be ex-works. Insurance, packaging, transport and the risk inherent therein, plus any levies will be at the buyer expense. Any additional costs in connection with delivery outside the Netherlands will also be at the buyers expense.
- In the event of a change in one or more price fixing factors, whether foreseen or not, are having given the tender or after the agreement was made, Hyva will be entitled to adjust the agreed prices accordingly. On such an increase VAT will also be charged.
- Hyva is also entitled to charge the buyer with extra costs even if (the price of) this extra work has not been agreed or ordered in writing in advance: For Dutch buyers Paragraph 1646 of the Civil Code (B.W.) will not apply. The costs will originate with changes of orders, which already have been carried out, will be at the buyers expense.
- Unless otherwise agreed, payment should be received by Hyva within 30 days from the date of invoice. Failing to meet this condition will cause the buyer to be in default without having received a default notice.
- Hyva reserves to itself the right to demand a part payment as well as payment in cash on delivery.
- Any claim to damages or compensation under the guarantee, or any claim to reimbursement from Hyva on whatever grounds will not suspend the buyers obligation of payment. Nor can the buyer plead compensation from Hyva as a reason for non-payment.
- Whenever the buyer does not pay any outstanding amounts, he will be forthwith liable to an interest with a percentage of 1 % per month from the date of the invoice to the date of complete settlement, without being notified with a default notice. This rate of interest is also due on all costs, described by and arising from section 8 of this paragraph.
- All legal and extra judicial costs, incurred by Hyva in order to collect any debts are at the buyers expense.
- Any products which Hyva has in its possession and which belong (in joint ownership) to the buyer, will be regarded as a security for the settlement of all amounts the buyer will owe Hyva.
- If, at any time, Hyva has doubts concerning changes in the liquidity position of the buyer, as well as requests for guardian ship or deprivation of management of their affairs, a petition for bankruptcy, or filing for a letter of licence will cause Hyva to be entitled to demand payment forthwith and to suspend the agreed obligation until after payment has been received.
Paragraph 3. Delivery
- Delivery times stated in tenders, confirmations of order, agreements or otherwise are always without engagement and will never be legally binding. Expiration only, will not pose a default. Hyva will do everything possible to exercise agreed delivery times as accurately as possible.
- The delivery time will start on the day after the order has been received and accepted.
- Should Hyva exceed delivery times for whatever reason, except deliberate action, the buyer will not be entitled to any compensation, dissolution of the agreement, or non-fulfilment of any obligation, which might originate from the respective agreement. Hyva is obliged to enter into detailed consultation with the buyer whenever the delivery time has been exceeded excessively.
- Place of delivery will be the factory or storage place of Hyva- unless another place is agreed to in writing. All transport costs and dispatch costs as well as the risks connected therewith will be at the buyers expense.
- Delivery will be regarded to take place at the moment the products have left Hyva's storage place or at the moment Hyva has notified the buyer that the products are ready for delivery, whichever is the first.
- In the event that the buyer has not accepted the products within three months after this notification, Hyva will be entitled to charge the buyer with storage costs.
- Regarding part delivery. Part deliveries will be regarded as single deliveries. Products to be assembled by Hyva will be regarded as delivered as soon as they are ready. If owing to circumstances beyond Hyva's control a functional test cannot take place, delivery will nevertheless be regarded as having taken place.
- In the event of any parts not being delivered at the same time as the assembled products, owing to circumstances beyond Hyva's control but where the assembled products will nevertheless function, or whenever activities by third parties, which do not belong to Hyva's supply have not been completed, Hyva will be regarded as having fulfilled her delivery obligation, even when the required consent by the authorities have not been obtained.
- Complaints with regard to products, activities and to invoices should be lodged within a fortnight after delivery or receipt.
Paragraph 4. Guarantee / warranty
- Hyva guarantees that its activities and products are carried out and produced to good standards of workmanship. Undiminished stipulated in item 5 of this paragraph, this warranty lasts for one year after delivery, according to the provision in paragraph 3 section 5 of these terms of the object, or - earlier - when: a maximum of 20 000 tipping cycles for cylinders – tipping valve-tip control and tipping body construction is reached, or maximum 300 running hours for PTO and pump; and with max. of 100 000 km driven distance of the vehicle for oil tanks. Any deviation from terms and conditions mentioned in this paragraph 4 has to be agreed in writing by Hyva per contract before putting into operation of the products.
- Appeal to defects has to be done in writing within a fortnight before expiration of the warranty period. Exceeding this period will lapse Hyva 's liability of related products. Legal claims shall be laid before court within 1 year after noticing in time to Hyva.
- The defects to be demonstrated and proved by the buyer will be repaired or replaced by Hyva free of all obligation, after admission of warranty liability. Faulty products or parts shall be kept available for inspection by Hyva , or when ordered by Hyva for third parties, or shall be sent free of charge to Hyva or Hyva service station when agreed in writing by Hyva.
- Replacement of faulty parts will exclusively take place after receipt of the faulty parts. The replaced part will become the property of Hyva. Dispatch of old as well as new parts, as well as packing costs, will be charged to the buyer. Costs for mounting into a unit or assembly on a vehicle, travelling costs and lodging expenses as well as the materials necessary for assembly, including oil and gaskets, will also be at the buyers expense. Repaired or replaced parts will have a warranty period of three months.
- Products (or parts thereof) delivered by Hyva and produced by third parties, which have become faulty will only fall under the warranty on the terms and during the period determined by the producer of the respective products.
- Defects of parts or products caused by normal wear, as well as paint damages, or damages caused by unforeseen external forces on Hyva products do not fall under warranty.
- The buyer has an obligation to Hyva to keep the products delivered to him in a good state of upkeep. Unprofessional treatment or insufficient maintenance in the widest sense of products delivered will release Hyva completely of any obligations in connection with the guarantee. In the event of the buyer himself carrying out any repairs or applying any alterations or having these carried out or applied to the delivered products, this guarantee will lapse.
- The guarantee will lapse also whenever the faults have been caused by injudicious use, or whenever the maintenance has not been carried out according to the instructions and stickers provided, whenever seals of valves or jacks have been broken, whenever other oils, greases, pressures or currents have been used without approval by Hyva, whenever the cause of the fault(s) cannot be determined and whenever these have another origin than faulty materials or the activities carried out by Hyva. Finally an appeal to any guarantee will lapse if the buyer does not meet by any of his obligations.
- Whenever Hyva satisfies obligations arising from its given warranty, it will be regarded as a total and complete compensation.
Paragraph 5. Risk
- Immediately on delivery or on notification of removal, whichever is the earlier, the risk for all damages which could be sustained by the products (including damages by transport, fire, water, theft, embezzlement etc.) will be at the buyers expense. The buyer should insure himself properly for all those risks.
- Products, which have been handed in with the purpose of being worked upon or being repaired or being inspected, will remain in Hyva's possession but at the buyer risk. Hyva will not insure these products against any risk whatsoever.
Paragraph 6. Force Majeure
- Hyva will not be liable for any losses or damages which have been sustained by the buyer, whether caused by delay or not properly or not at all satisfying the conditions of this agreement, where these have been caused by force majeure on the part of Hyva.
- Where the force majeure exceeds 3 months, Hyva will then be entitled to suspend carrying out or to dissolve the agreement without judicial interference by written statement only, without being obliged to give any compensation. After dissolution Hyva will be entitled to reimbursement for costs made by them or activities carried out by them. Hyva will inform the buyer as soon as possible in case of force majeure.
Paragraph 7, Liability
- Except by its own deliberate fault at Hyva side and except as stipulated in paragraph 4 section 9 any liability of Hyva for damages such as business losses, other damages indirectly sustained as consequence of liability claims by third parties will be excluded.
- Herewith the buyer will indemnify Hyva completely from any costs, losses, damages and interests caused by liability claims by third parties for which the liability of Hyva in these terms in relation with the buyer is excluded.
- Furthermore the buyer will indemnify Hyva completely against all costs, damages and interests caused by possible liabilities from violation of patents, licences, copyrights or any other rights of third parties with the use of data in carrying out the order given to Hyva.
Paragraph 8. Reserved ownership and retainer rights
- The ownership of supplied products or products to be supplied will only transfer to the buyer when all obligations to Hyva in connection with the delivery of those products -whether or not including assembly, including costs and interest have been met completely by the buyer.
- Hyva should be notified forthwith of any deterioration of the financial position of the buyer or any other alteration which could be of influence in satisfying the agreed obligations. Whenever the buyer does not satisfy his obligations, Hyva will be entitled to retrieve the supplied products.
- The buyer who does not get ownership of the products supplied to him is not entitled to transfer these products as security to third parties, nor to alienate them, to let them, to give them in exchange, consignment or as a security or to take them out of his company in any other way.
- In the event of products belonging to Hyva being integrated into a larger unity whereby these could be regarded as a main part, the buyer shall transfer to Hyva the ownership in proportion to the value of the products supplied to and owned by Hyva.
- The buyer is herewith obliged to co-operate with measures taken by Hyva in order to protect its properties. The buyer is obliged to inform the bailiff in the event of a seizure of the receiver in the event of a bankruptcy, about Hyva's ownership of the respective products.
- With respect to products of the buyer which have been handed in at Hyva for repair or to which parts or products have to be assembled, Hyva will be entitled -if Hyva so chose- to retain the products until the buyer has from whatever cause met all obligations towards Hyva.
Paragraph 9. Cancellation
- In case Hyva agrees in writing with cancellations the buyer is always obliged to buy all materials bought in by Hyva whether those have been used or not, at cost price plus costs of labour incurred and ten percent of the agreed price.
- In that case the buyer will also be obliged to indemnify the losses on the exchange rate resulting from the cancellation.
- Furthermore the buyer should safeguard Hyva from possible claims of third parties resulting from the cancellation.
Paragraph 10. Packaging
Unless otherwise explicitly agreed in writing, packaging will take place at the buyers expense and according to Hyva standards and/or -judgement and will never be taken back, nor will Hyva be held responsible for any subsequent use or disposal of the packaging materials.
Paragraph 11. Drawings, documents and devices
- Drawings, documents and devices should not be copied, imitated or be shown to third parties without prior consent in writing of Hyva. Cost-accountings, plans, sketches. drawings, statements of sizes and weights, catalogues, images or other documents drawn up by Hyva, remain the property of Hyva even when the buyer has paid for them. These drawings, documents and devices should be handed back to Hyva on first request. By devices is also meant gauges, stamps, moulds, test equipment and tools.
- Statement 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 oblige Hyva in any way: the products to be supplied could deviate from such statements, calculations and results. Slight deviations from the usual tolerance are permitted even when Hyva has obliged itself in writing to specifically agreed data.
Paragraph 12. Assembly
- Whenever assembling of the products to be supplied is included in the agreement, the price will include assembly of the products supplied by Hyva in so far as this will take place in the Hyva factory or factory of selected third party by Hyva.
- Assembly activities which will not take place at the concerning Hyva factory or selected factory of third party, will be at the buyers risk and expense. In such a case the buyer should provide Hyva with the necessary help, materials and devices and lodging possibilities, at all times observing the legal safety requirements and precautions. Costs for travelling and lodging will be charged to the buyer separately.
- To these assembly activities the warranty terms and conditions will similarly apply.
Paragraph 13. Dissolution
- In case the buyer does not in time or any other way fulfil any obligation resulting from an agreement with Hyva, the buyer is in default and will give Hyva the right without default notice or judicial interference to suspend the execution of the agreement and the allied agreement, until payment sufficiently has been assured and/or to dissolve the agreement and allied agreement in whole or in part, these rights are without prejudice to any other rights Hyva may have and with no obligation for Hyva to make any compensation.
- A letter of licence, the winding-up of the buyers company, a seizure of products or bank accounts and the like, will give Hyva the right to regard the agreement and all other agreements, which have not or only partly not been carried out between parties, as wholly or partly dissolved without default notice or judicial interference. In that case the buyer will not have any rights anymore from this agreement, whilst Hyva will forthwith be entitled to claim immediate payment of products already supplied or activities already carried out and the buyer will be excluded from any compensation.
Paragraph 14. Limitation
All claims from the buyer in virtue of an agreement with Hyva to which these General Terms apply, will be limited to eighteen months from the moment of completion of the respective agreement.
Paragraph 15. Language
In case the translation of these General Terms may be the subject of any difference of opinion, the Dutch text governs.
Paragraph 16. Applicable law; Competent Court
- All Contracts and agreements shall be governed by the substantive law of the country of the relevant Hyva establishment to which these terms will be wholly or partly applied excluding The 1980 Vienna Sales Convention.
- In so far as disputes might arise as a result of agreements between Hyva establishments and buyers in The European Community, these should be heard by the Dutch Arbitration Institute at the Hague or with approval of Hyva, by court in the area of Dutch buyer. For Hyva establishments outside the Netherlands and outside the European Community, any dispute with buyers in first and highest instance will be heard by the arbitration committee and rules of the International Chamber of Commerce by one or more arbiters appointed in accordance with referred rules.
Changes to the Sales Terms and Conditions
We may update our sales terms at any time by publishing an updated version. The new modified or amended Sales Terms will apply to orders placed by you and accepted by us after that revision date. Therefore, we encourage you to review our Sales Terms periodically to be informed about our terms and conditions.
Deposited at the office of the Chamber of Commerce The Hague under number 28099546, dated 21-07-2005 FO-E 00000130 / 03-02-09 / RVAC