Article 1
Applicable conditions
HyTEPS, HyTEPS International and KyAliber (hereinafter jointly and individually referred to as HyTEPS) will only submit quotations and conclude agreements for the supply or provision of goods and services aimed at saving electrical energy and/or improving network quality under these general terms and conditions.
Deviations or additions to these general terms and conditions are not legally valid without the written consent of HyTEPS, HyTEPS International or KyAliber. If any provision of these General Terms and Conditions lacks legal force, the remaining provisions shall remain in full force and effect.
Article 2
Quotation, conclusion of agreement.
An offer from HyTEPS is entirely without obligation. A binding agreement only comes into effect after HyTEPS confirms it in writing.
Illustrations, drawings, dimensions and the like accompanying a quotation are approximate, unless HyTEPS has expressly indicated otherwise.
Article 3
Prices
All prices quoted by HyTEPS are in Euro (€), unless otherwise agreed, and exclude sales tax payable in connection with the agreement.
Costs associated with any assembly and/or installation work (including travel time and accommodation costs), shall be borne by the Customer, unless otherwise agreed in writing between the parties.
Article 4
Payments
Payments shall be received within thirty calendar days of the invoice date, unless otherwise agreed in writing. HyTEPS is entitled to require full payment in advance or an irrevocable bank guarantee, issued by a Dutch bank of good standing, for the total amount due.
In case of non-timely payment, the client is in default without any notice of default being required. If the client is in default, he shall owe interest on the outstanding amount of 1% per month or part of a month from 31 days after the invoice date until the day of payment. Past due, unpaid interest shall also bear interest after one year. Judicial and extrajudicial costs related to collection shall be borne in full by the Customer. Extrajudicial costs are due if the amount due has not been paid in full 60 days after the invoice date. The parties already now set the extrajudicial costs at 5% of the amount due.
In case of non-timely payment, including failure to comply with the demand for payment in advance, and failure to comply with the demand for a bank guarantee, HyTEPS is authorised to suspend the performance of the agreement until receipt of full payment or the bank guarantee. In case of non-full payment within fourteen days after written reminder, HyTEPS may dissolve all or part of the agreement.
All this is without prejudice to its right to compensation.
Set-off against claims against HyTEPS is not permitted. In the event of bankruptcy, suspension of payments or seizure on the part of the customer, anything owed to HyTEPS shall become immediately due and payable in full.
Article 5
Assembly and installation
Client is responsible to HyTEPS for correct and timely implementation of all fixtures, provisions and/or conditions necessary for the set-up of the good cum product to be installed.
If the client fails to comply with the conditions mentioned in Article 5.1, the resulting damages and costs shall be borne by the client.
Article 6
Inspection
The Customer is obliged to cooperate in an inspection and/or takeover test, which inspection or takeover test must take place within one month after commissioning. If the inspection or takeover test does not take place within this period, any claims the customer may have against HyTEPS regarding the quality, efficiency and/or defects of the goods and advice provided shall lapse.
Client shall visually inspect the good and/or service provided by HyTEPS within no later than 7 days after delivery. Delivered goods/services shall be considered 'accepted' when this period has elapsed without written and specified notification of justified complaints.
Article 7
Supply
If a down payment has been agreed, the delivery period shall commence on the day on which the agreed down payment has been made and the information relevant for performance of the agreement has been received by HyTEPS.
If no down payment has been agreed, the delivery period shall commence on the day on which the information relevant for performance of the agreement is received by HyTEPS.
HyTEPS shall only be in default by exceeding a deadline if, even after the expiry of a reasonable further deadline set in writing, it has not fulfilled its obligations towards the customer or has not fulfilled them in full, due to circumstances attributable to it. The customer shall then be authorised to terminate the agreement insofar as it cannot reasonably be required to maintain the agreement.
HyTEPS is authorised to make partial deliveries.
Client is obliged to purchase. A shortcoming, which does not seriously impede the use of the delivered or performed product, does not constitute a ground for invoking exceeding the term or refusing acceptance or payment. This shall not affect the Customer's right to undo the shortcoming as soon as possible.
Article 8
Transfer of risk and ownership.
The risk for deliverables always and permanently passes to client at the time of arrival at the agreed place of delivery.
Ownership of any item delivered shall not pass to the client until the client has paid all that it owes HyTEPS on any account. In the event of late payment, HYTEPS is entitled to repossess or arrange for the repossession of delivered items without further notice of default and judicial intervention. The customer hereby grants HyTEPS permission in advance to enter all places in and around the customer's business. The customer is not authorised to pledge the goods or encumber them with limited rights.
Article 9
Non-attributable failure.
Failure to comply with an obligation is not imputable if it results from, or is related to, a circumstance beyond the control of the party concerned. Such circumstances include (but are not limited to): war, mobilisation, riots, sabotage, terror, fire, lightning strike, import or explosion or release of hazardous gases or substances, natural disasters, extreme weather conditions, strike, occupation, boycott or blockade and measures taken by the domestic or foreign government, such as import, export, supply or production bans.
If a party fails to comply with the contract without this being attributable to it and if compliance is permanently impossible, the contract can be dissolved with immediate effect. If performance is not permanently impossible, dissolution may only take place after the expiry of seventy-five consecutive calendar days during which performance is not possible. Upon termination under this article, neither the terminating party nor the other party shall be liable for any damages. If HyTEPS incurs additional costs in fulfilling the agreement due to circumstances beyond its control, it shall be entitled to pass these on in full to the customer.
Article 10
Deficiencies in goods and operations.
If a delivered good or a service or work performed is defective, the customer shall only be entitled to free restoration by HyTEPS by repair, replacement or re-performance (at HyTEPS' discretion), provided that:
a. the cause of the failure is attributable to HyTEPS
b. the deficiency has come to light within 3 months of delivery of the relevant good, or notification that the service or work has been performed
c. the failure is notified in writing to HyTEPS within 7 days after it could reasonably have been discovered
d. compliance is not permanently impossible
e. any additions or changes to the delivered good or work performed have been made by, or with the prior written consent of HyTEPS
f. the consumable material used meets HyTEPS' specifications
If replacement is necessary according to HyTEPS and the conditions mentioned above in paragraph 1 are met, HyTEPS shall proceed to do so as soon as possible. The parties acknowledge that HyTEPS does depend on the delivery times of the manufacturer.
HyTEPS has the right to repair deficiencies of its own accord. Components released in case of replacement remain/become the property of HyTEPS.
An agreement can only be dissolved in full or in part due to a failure to perform to the extent that maintaining it cannot reasonably be required of the client.
If there is a warranty case, transport and travel costs to an address abroad are borne by the customer.
Article 11
Liability for damages.
HyTEPS's liability in connection with any shortcomings in the goods and/or services it provides is limited to compliance with what is stated above in Article 10 of these general terms and conditions.
HyTEPS' liability in all cases is limited to the amount paid out in the relevant case under the liability insurance taken out by HyTEPS. HyTEPS has a corporate liability insurance policy that covers damages up to a maximum of €4,000,000, with a maximum of €8,000,000 per year.
HyTEPS is also not liable for:
- infringement of patents, licences, or other rights of third parties resulting from use of data provided by the customer
- damage and/or loss of raw materials, semi-finished products, models, tools and other items made available by the customer.
The customer shall indemnify and hold HyTEPS harmless from third-party claims for compensation for which HyTEPS' liability is excluded in these terms and conditions in the relationship with the customer.
Article 12
Intellectual property rights.
HyTEPS reserves all rights, including intellectual property rights, in relation to information that it makes available to the client in the context of concluding and performing an agreement. For example: drawings, diagrams, designs, calculations, descriptions, software or related documentation/technical data.
This information may not be disclosed to third parties and/or copied and may only be used by the customer within the framework of the conclusion and execution of the agreement. If no agreement is concluded, the customer shall immediately transfer the data carriers and any copies thereof, including the quotation, to HyTEPS at HyTEPS' first request.
Article 13
Applicable law, disputes.
Agreements between HyTEPS and client are governed by Dutch law, to the exclusion of the Vienna Sales Convention (CISG).
Disputes between client and HyTEPS will be exclusively settled by the District Court of East Brabant. HyTEPS is a trade name of KyALIBER B.V.
