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HVAC Netherland General Conditions of Sale and Delivery

HVAC Netherland General Conditions of Sale and Delivery

Section 1
1. Definitions.
The following definitions are used in these conditions:
• HVAC: HVAC Netherlands
• Customer: the person or legal entity with
whom HVAC has entered into an agreement or is negotiating the
terms of an agreement for the delivery of goods or services and/or
the (sub)contracting of work by HVAC.


Section 2
1. These conditions shall apply to all transactions, under any title
whatsoever, entered into by HVAC.
2. Further specification of any clause or term of these conditions or
of any agreement shall be subject to the definitions provided by the
latest edition of Incoterms.
3. Any deviation from these conditions shall require the written and
signed confirmation of a legal representative of HVAC who is
registered at the trade register.
4. Standard conditions issued by the customer shall only be valid
to the extent that HVAC issues a written statement acknowledging
its acceptance thereof.


Section 3
1. Requests for a judicial review of these conditions by the
customer or any interest group shall not release the customer of
any obligation under the agreement with HVAC, nor shall it entitle
him in any way to suspend his obligations vis-à-vis HVAC.


Section 4
1. Offering letters and quotations made orally shall not be binding.
Written offering letters and quotations shall be valid only for the
period specified therein. Following the customer's acceptance of
an agreement, it shall not enter into force until a legal
representative of HVAC who is registered in the trade register has
confirmed the order in writing.
2. In the event that, for reasons which are not deemed for the
account and risk of HVAC, HVAC fails to perform its duties under
an agreement within three months after HVAC's quotation has
been accepted or within three months of the date of the
agreement, HVAC shall be entitled to charge the customer for all
increases in prices or rates which have occurred in the meantime.
3. In the event that, for reasons which are not deemed for the
account and risk of HVAC, HVAC fails to perform all or a part of its
duties under an agreement on the agreed date, HVAC's rights
under the previous clause shall be applicable to the then remaining
portion of the agreement.
4. Price quotes issued by HVAC shall not include value added tax
and other official levies.
5. All delivery dates specified by HVAC shall be indicative only and
shall not be effective until HVAC has received all necessary
details. Delivery dates which have not been confirmed in writing
shall not give the customer any right of compensation for late
delivery.


Section 5
1. Goods delivered by HVAC shall be for the account and risk of
the customer from the moment these goods are dispatched from
HVAC's premises or, in the event of third party deliveries, those of
the supplier. The customer shall ensure that his insurance covers
this risk.
2. In all cases, HVAC's liability for losses incurred during
transportation shall be limited to the amount covered by HVAC's
insurance.
3. In the event of non-acceptance by the customer, HVAC will store
the deliverable goods at the account and risk of the customer,
upon which HVAC shall be under no obligation to undertake any
further action relative to the delivery of the goods. HVAC shall be
entitled to sell the goods one month after delivery, subject to a prior
written notice of default having been sent.
4. Non-acceptance of delivered goods shall be considered
applicable if the customer fails to accept HVAC's delivery during
regular office hours for any reason whatsoever. In such case, the
goods shall be deemed to have been delivered and the customer
shall be deemed to have accepted them.


Section 6
1. Upon cancellation of an order, the customer shall compensate
HVAC for all costs incurred by HVAC relative to the performance of
its duties under the agreement, including any costs of raw
materials, materials, wages and social security charges, in addition
to a cancellation fee amounting to a maximum of 1/3 of the agreed
price.
2. Upon cancellation, the customer shall indemnify HVAC against
all claims by third parties relative to the cancellation.
3. The provisions of this clause shall not infringe upon HVAC's
right to demand performance of the agreement and/or claim
damages for imputable non-performance.


Section 7
1. The customer shall ensure that his insurance adequately covers
all risks accountable to him by law or under the agreement, these
conditions or common opinion, for the entire duration of the
agreement.
2. Upon first notice, the customer shall provide HVAC with
sufficient evidence to the effect that he is in compliance with the
previous clause.
3. All HVAC's duties under the agreement shall be suspended until
such time that the customer is in compliance with the previous
clauses.


Section 8
1. The customer shall ensure that any documentation and
information made available to HVAC and HVAC's use thereof does
not infringe upon any rights of third parties whatsoever. The
customer shall indemnify HVAC against all claims made by third
parties in this respect.
2. HVAC shall retain full intellectual property rights to all designs,
pictures, drawings, software, models, quotations and general
information and/or know-how made available to the customer.
3. The customer shall not transfer to third parties, whether or not
free of charge, designs, pictures, drawings, software, models,
quotations and general information and/or know-how made
available to the customer by HVAC, nor publish or use such
materials in any manner without the written permission of HVAC.
Upon HVAC's written request, the customer shall return all such
goods to HVAC without delay.


Section 9
1. The customer shall receive user rights only for software
delivered by HVAC.
2. Upon termination of the use of software delivered by HVAC, the
customer shall transfer to HVAC, forthwith and free of charge, all
data carriers on which the software has been registered. If such
transfer is technically unfeasible, the customer shall ensure that
the registration is deleted from these data carriers.


Section 10
1. The customer shall refrain from any infringement of HVAC's
copyrights and shall undertake all measures necessary to prevent
any such infringement by third parties and to report any
infringement by third parties to HVAC without delay.
2. The customer shall use the software delivered by HVAC solely
for its designated purpose, and solely within and on behalf its own
business and/or own practice.
3. The customer shall neither access the program nor change,
modify or make visible its content in any way, unless this is
required for the use of the software pursuant to the previous
clause.
4. The customer shall have all modifications of the delivered
software desired by him implemented by HVAC.
5. In the event that the software is infringed upon by third parties or
used in any manner contrary to the previous clauses, the customer
involved shall be deemed to have violated the previous clauses of
this section unless evidence to the contrary is provided.


Section 11
1. Violation of the provisions of sections 9 and 10 shall render the
customer liable towards HVAC for an immediately payable penalty
of 50,000 EUR for each violation and 10,000 EUR for each day
that the violation continues, without prejudice to HVAC's right to
claim full compensation for all losses, in which case the penalty
shall not be deducted from the compensation.


Section 12
1. Force majeure is defined herein as any circumstance beyond
HVAC's control, which is not reasonably considered to be for the
account and/or risk of HVAC, including non-delivery by HVAC's
suppliers and strikes or labour stoppages which interfere or
completely impede HVAC's performance of its duties under the
agreement.
2. In the event of an impediment due to force majeure, HVAC
cannot be demanded to perform its duties under the agreement. In
the event of force majeure, HVAC shall be entitled to adjust the
terms of the agreement in consultation with the customer, to the
effect that HVAC will be able to perform its duties under the
agreement.
3. If the impediment due to force majeure lasts three months or will
definitely last longer than three months, each party shall be entitled
to terminate the agreement by a written notification, without
prejudice to the customer's duty to compensate HVAC for goods
and/or services already delivered.


Section 13
1. HVAC shall be entitled to a tolerance margin of 10% for
deviating size and weight measurements and technical
specifications previously reported to the customer by HVAC.
2. The provision of the previous clause may be set aside if a lower
tolerance margin has been explicitly specified in writing and/or if a
lower tolerance is required for the proper operation of the goods
delivered by HVAC.
3. Any adjustment requested by the customer shall be considered
additional work and shall be compensated by the customer.


Section 14
1. HVAC shall retain full ownership of all goods delivered by it until
the customer has fulfilled all its obligations vis-à-vis HVAC relative
to the delivery of the goods, including any related additional
obligations, such as compensating HVAC for any losses it has
made in connection with the transaction concerned and the
payment of any agreed interest and collection charges.
2. The customer shall not mortgage, pledge or reserve a nonpossessory
pledge on the goods delivered by HVAC, until he has
fulfilled all his obligations under section 14.1 above. The customer
shall inform third parties who have the intention of undertaking
such action of this limitation.
3. Upon the customer's failure to fulfil any of the obligations under
clauses 1 and 2 above, HVAC shall be entitled to repossess the
goods in question or have the goods returned. The customer
provides HVAC and/or the person designated by HVAC for this
purpose with the irrevocable power to enter his premises and
buildings and to take all necessary action which are or may be
conducive to the return of the goods.


Section 15
1. Deliverables consisting in whole or in part of a service will be
delivered to the best of HVAC's abilities.
2. HVAC shall be entitled to defer the delivery of services under a
phased servicing agreement to the next phase until the services
delivered in the preceding phase(s) have been accepted by the
customer in writing and have been paid for.
3. In the event that circumstances beyond HVAC's control hinder
or delay the execution of the agreement, HVAC shall be entitled to
charge all related costs to the customer.


Section 16
1. Unless otherwise agreed in writing, payment conditions are as
follows:
50% of the agreed price at the time of the order,
payable within 8 days of the invoice date or before delivery of the
goods; 50% of the agreed price upon delivery, payable within 8
days of the invoice date. Servicing and mounting; 100% of the
agreed price at the time of the order, payable prior to completion of
the order. Delivery of spare parts; 100% of the agreed price at the
time of the order, payable within 8 days of the invoice date.
2. Non-fulfilment of the provisions of the previous subsection shall
give HVAC the right to charge the customer interest at 2% of the
outstanding amount per month or a part of a month, calculated
from the invoice date, including any extra-judicial collection
charges incurred by HVAC, with a minimum of 15% of the
outstanding amount.
3. All costs incurred by HVAC for third party debt collection
services shall be payable by the customer to HVAC.
4. Upon HVAC's first request, the customer shall provide security
for the fulfilment of the agreement. Insofar as the customer fails to
provide such security, HVAC shall be entitled to dissolve the
agreement and claim compensation for the expenses incurred,
without prejudice to HVAC's right to claim damages.
5. The customer's right to set off any counterclaims is explicitly
excluded.


Section 17
1. The customer is shall be in default if he fails to fulfil his
obligations under the agreement within 10 days after the dispatch
of a written demand to this effect.
2. With effect of the time that the customer is in default vis-à-vis
HVAC, all agreed instalments will become payable with immediate
effect.
3. With effect of the time that the customer fails to fulfil any if his
obligation vis-à-vis HVAC, HVAC will be entitled, with immediate
effect, to suspend its obligations towards the customer until the
customer either fulfils all his obligations vis-à-vis HVAC or provides
adequate security for the fulfilment of such obligations, including
payment of the instalments referred to in the previous clause. The
customer's right to suspend his obligations is explicitly excluded.
4. The customer's right to dissolve the agreement shall be
preceded by a notice of default sent to HVAC by registered mail,
by which HVAC is given the opportunity to either fulfil its duties
under the agreement or carry out repairs. The customer shall not
be entitled to dissolve the agreement if he himself fails to fulfil his
obligations. If HVAC agrees to dissolve the agreement, the
customer shall compensate HVAC for all costs actually incurred by
HVAC as well as a dissolution fee of up to 1/3 of the agreed price,
without prejudice to HVAC's right to claim damages.
5. In the event that the customer fails to fulfil any of its obligations
vis-à-vis HVAC for 30 days, HVAC shall be entitled to terminate the
agreement by means of a written notification, without prejudice to
HVAC's right to claim payment of any goods already delivered
and/or services already performed, in addition to compensation for
any losses arising from the accountable non-performance of other
obligations.
6. In the event that the customer dies, applies for suspension of
payments, is declared bankrupt, a substantial portion of his assets
are seized, or his company is wound up, the agreement will be
dissolved forthwith, without judicial interference and all HVAC's
claims under the agreement shall be due and payable with
immediate effect.


Section 18
1. HVAC shall guarantee the proper functioning of the delivered
goods for a period of 12 months after delivery, unless the
established faults are the result of the customer's failure to use the
goods in accordance with the instructions provided by HVAC or of
any other improper use of the goods.
2. In order to invoke the guarantee, the customer shall in all cases
allow HVAC to repair a fault.
3. Faults caused by normal wear and tear or faults arising after
repairs performed by the customer or on his behalf, shall not be
covered by this guarantee.
4. The guarantee is subject to the customer fulfilling all his financial
obligations.
5. HVAC's liability shall be limited to repairing the fault or replacing
the goods, in whole or in part, free of charge, to be determined at
the discretion of HVAC.
6. The customer shall report faults which can be established by
thorough research to HVAC by registered letter within the agreed
period, and in any case within 8 days of the delivery of the goods
or after the fault should reasonably have been established; the
customer􀀁s failure to follow this procedure will cause him to lose his
right to make any claim.


Section 19
1. In the event that the customer incurs a loss as a result of an
event which according to common opinion should be covered by
the insurance of HVAC, HVAC's liability shall be limited to the
amount received by HVAC under the insurance policy, or the
amount HVAC would have received if it had been covered by such
an insurance policy.
2. HVAC shall not be held liable in the event that the customer's
properties are damaged during HVAC's mounting or fitting
activities, unless such damage is covered by the customer􀀁s
insurance.
3. HVAC's liability for (faults in) goods and/or services delivered by
third parties which are used by HVAC in the execution of the
agreement, shall be limited to the amount which HVAC can claim
from the third parties in question under its agreement with those
third parties, or – in the event of a dispute – under a settlement or
judicial judgment.
4. HVAC shall not be liable for any loss incurred by the customer
due to delays or operational and other losses of any nature
whatsoever.
5. HVAC's liability towards the customer shall be limited to
repairing the established faults or the proper delivery of the
services and shall not exceed the amount invoiced to the
customer.


Section 20
1. All agreements shall be subject to the laws of the Netherlands.
2. Al disputes with regard to an agreement between HVAC and the
customer and/or the fulfilment of the duties there under, which
under subject-matter competence fall within the jurisdiction of the
district court, shall be brought exclusively before the district court of
Haarlem.
© 2006 HVAC NEDERLAND V2

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