Article 1: Applicable terms and conditions
1. HyTEPS, HyTEPS International and KyAliber (hereinafter referred to both together and individually as HyTEPS) shall exclusively make offers and conclude agreements for the supply or provision of goods and services aimed at saving electrical energy and/or improving network quality subject to these General Terms and Conditions.
2. Deviations from or additions to these General Terms and Conditions will not be legally valid without written consent of HyTEPS, HyTEPS International or KyAliber. Should any provision of these General Terms and Conditions lack legal force, the other provisions shall remain fully valid.
Article 2: Tenders, formation of agreement
1. Any offer made by HyTEPS is entirely without obligation. Any binding agreement shall not come into effect until HyTEPS has confirmed this in writing.
2. Images, illustrations, dimensions and other specifications listed in an offer are to be considered approximations, unless HyTEPS has expressly indicated such data are to be considered accurate.
Article 3: Pricing
1. All pricing issued by HyTEPS is in euros (€), unless otherwise agreed. Pricing excludes any sales tax, due in connection with the agreement.
2. Costs associated with possible assembly and/or installation (including travel and accommodation costs) are to be borne by the client, unless expressly agreed otherwise.
Article 4: Payment
1. Payments must be received within thirty calendar days after invoice date, unless expressly agreed otherwise in writing. HyTEPS shall be entitled to require full payment in advance or an irrevocable bank guarantee for the total amount due, issued by a Dutch bank of repute.
2. In the event of late payment, client will be considered in default of payment without further notice. If the client is in default, they shall be liable for interest of 1% per month, or part of a month, on the outstanding amount, from 31 days after the invoice date until the date of settlement. Compound unpaid interest shall also bear interest after one year. Judicial and extrajudicial costs related to collection shall be borne in full by the client. Extrajudicial costs are due if the amount due has not been paid in full 60 days after the invoice date. The parties set the extrajudicial costs at 5% of the amount due.
3. In the event of non-timely payment, including failure to meet the demand for payment in advance and failure to meet the demand for a bank guarantee, HyTEPS shall be authorized to suspend performance of the agreement until full payment or a bank guarantee have been received. In the event of non-full payment within fourteen days after written reminder, HyTEPS may dissolve the agreement in full or in part.
4. This shall not affect any right to compensation.
5. Offsetting payments against claims against HyTEPS shall not be permitted. In the event of bankruptcy, suspension of payments or repossession on the part of the client, any amount owed to HyTEPS shall become immediately due and payable in full.
Article 5: Assembly and installation
1. With regard to HyTEPS, the client is responsible for the correct and timely implementation of all installations, facilities and/or conditions necessary for the preparation of the installation of goods and products.
2. Should the client fail to comply with the conditions mentioned in Article 5.1, resulting damage and costs shall be borne by the client.
Article 6: Testing
1. Client is obliged to cooperate with an inspection and/or handover test. This inspection or handover test shall take place within one month after commissioning. If the inspection or handover test does not take place within this period, all possible claims of the client towards HyTEPS regarding the quality, efficiency and/or defects of the delivered goods and advice shall lapse.
2. The Client shall visually inspect the goods delivered and/or service provided by HyTEPS no later than 7 days after delivery. Without written and specified notification of justified complaints, delivered goods/services shall be considered ‘accepted’ once this period has elapsed.
Article 7: Delivery
1. If a down payment has been agreed, the delivery period shall commence on the day this down payment has been paid and information relevant to execution of the agreement has been received by HyTEPS.
2. If no down payment has been agreed, the delivery period shall commence on the day on which the information relevant for execution of the agreement is received by HyTEPS.
3. HyTEPS will only be regarded as being in default when exceeding the term if, following expiration of a reasonable time limit set in writing, it has not fully complied with its obligations towards the lient due to circumstances for which HyTEPS may be held responsible. The client shall then be authorized to rescind the agreement insofar as client cannot reasonably be required to maintain the agreement.
4. HyTEPS is authorized to make partial deliveries.
5. Client is obliged to take delivery. A shortcoming which does not seriously impede the use of the delivered or performed goods shall not constitute a ground for invoking failure to meet the deadline, nor for refusing to take delivery or pay. This shall not affect the client’s right to the fastest possible rectification.
Article 8: Transfer of risk and ownership
1. Risk related to goods to be delivered shall always and permanently pass to the client at the time of goods arrival at the agreed place of delivery.
2. Ownership of a delivered item shall not transfer to the client until the client has paid all outstanding payments, of any description, to HyTEPS. In the event of late payment, HyTEPS is entitled to repossess or arrange repossession of delivered items without further notice of default and judicial intervention. The client hereby grants HyTEPS permission in advance to enter all locations in and around the client’s business. The client is not authorized to pledge the goods or encumber them with limited rights.
Article 9: Non-attribatable failure
1. Failure to fulfil an obligation shall not be imputable if this is the result of, or at least connected to, a circumstance, foreseeable or not, outside the span of control of the party concerned. Such circumstances include but are not limited to: war or comparable circumstances, mobilisation, riots, sabotage, terror, fire, lightning strikes, implosion or explosion or emission of dangerous gases or substances, natural disasters, extreme weather conditions, strike, occupation, boycotts or embargos and measures by domestic or foreign governments, such as import, export, supply or production bans.
2. If a party fails to comply with the agreement without this being attributable to that party, and compliance will remain impossible, the contract may be dissolved with immediate effect. If compliance is not permanently impossible, dissolution may only take place after a period of seventy-five consecutive calendar days has elapsed during which compliance is not possible. If HyTEPS incurs additional costs in executing the agreement due to circumstances that cannot be attributed to HyTEPS, HyTEPS has the right to pass these costs on to the client within reason.
Article 10: Deficiencies in goods and proceedings
1. If goods delivered, services provided, or work carried out demonstrate clear shortcomings, the client is entitled to compensation by HyTEPS in the form of repair, replacement or re-performance, of HyTEPS’ choice, providing the following conditions are met:
a. The shortcoming is attributable to HyTEPS
b. The shortcoming has arisen within 3 months after delivery of the goods in question or notification that the service or work has executed
c. The deficiency is communicated in writing within 7 days after it could reasonably have been discovered
d. Compliance is not permanently impossible
e. Any additions or changes to the delivered goods or the performed services, faults or maintenance are performed by HyTEPS
or with prior written permission from HyTEPS
f. Any consumable materials used comply with HyTEPS specifications
2. If replacement is necessary according to HyTEPS and the conditions mentioned above in paragraph 1 have been met, HyTEPS shall do so as soon as possible. The parties acknowledge that HyTEPS does depend on the delivery times of the manufacturer.
3. HyTEPS has the right to correct defects at its own initiative. In the case of replacements, any parts that have been replaced become/remain the property of HyTEPS.
4. An agreement can only be fully or partially dissolved as the result of a shortcoming, insofar as maintaining the agreement cannot be reasonably expected of the client.
Article 11: Liability for damage
1. HyTEPS’ liability in connection with any shortcomings in the goods and/or services provided by it shall be limited to the fulfilment of the provisions of Article 10 of these General Terms and Conditions
2. HyTEPS’ liability shall in all cases be limited to the amount paid out in the case concerned under the liability insurance taken out by HyTEPS. HyTEPS has a business liability insurance that reimburses damage up to a maximum of € 4,000,000, with a maximum of € 8,000,000 per year.
3. HyTEPS cannot be held liable for:
– infringement of patents, licenses, or other third-party rights resulting from the use, by or on account of data provided by the
– damage and/or loss – regardless of cause – of raw materials, semi-finished products, models, tools and other items made
available by the client
4. The client shall indemnify HyTEPS in respect of all claims from third parties for compensation of damages, for which the liability of HyTEPS in the relationship with the client is excluded in these terms and conditions.
Article 12: Right of intellectual property
1. HyTEPS reserves all rights, including those related to intellectual property, with regard to information which it makes available to the client in the context of the conclusion and performance of an agreement, for example in the form of drawings, diagrams, designs, calculations, descriptions, software or associated documentation and technical data.
2. This information may not be disclosed to other parties and/or duplicated and may only be used by the client within the context of the establishment and implementation of the agreement. If no agreement is reached, the client shall immediately transfer, on request of HyTEPS, the information carriers and any copies thereof, including the quotation.
Article 13: Applicable law and disputes
1. Agreements between HyTEPS. and the client are governed by the Dutch law, with the exclusion of the Contracts for the International Sale of Goods (CISG)
2. Disputes between the client and HyTEPS shall be settled exclusively by the District Court of East Brabant.
HyTEPS is a trade name of KyALIBER B.V.