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General Sales Conditions

Unless explicitly agreed otherwise in writing, all activities, services and agreements of or with Hyundai Construction Equipment Europe shall be subject to the general terms and conditions of sale stated on the back of this document. If transmission occurs by fax or by e-mail, the back of this document shall also be sent. The recipient of the document acknowledges – also tacitly – that, except in case of written evidence to the contrary, he has become knowledgeable of and accepts these general terms and conditions of sale.

GENERAL TERMS AND CONDITIONS OF SALE OF Hyundai Construction Equipment Europe

  1. General
    1. Without prejudice to the application of any special terms and conditions contained in a separate written agreement, these general terms and conditions of sale shall apply to each offer, tender, order confirmation, order form or agreement between Hyundai Construction Equipment Europe (a company under the laws of Belgium, with its registered office at Hyundailaan 4, 3980 Tessenderlo, Belgium and with Central Enterprise Database registration number 0454.495.082, hereafter 'HCEE'), and its customer (hereafter 'Customer'). In case of conflict between these general terms and conditions and any separate written agreement, the provisions of the latter shall prevail.
    2. These general terms and conditions of sale are deemed to be accepted by the Customer by the mere fact of issuing an order or instruction, whether orally or in writing. Acceptance of these general terms and conditions further implies that the Customer fully renounces the application of its own general terms and conditions (of purchase).
    3. If any provision of these general terms and conditions should be unenforceable or contravene a provision of mandatory law, this will not affect the validity and enforceability of the other provisions of these general terms and conditions, nor the validity and enforceability of that part of the relevant provision that is not unenforceable or contrary to mandatory law. In such cases, the parties will negotiate in good faith to replace the unenforceable or contradictory provision by an enforceable and legal provision that is as close as possible to the intent and purpose of the original provision.
    4. Non-application by HCEE of one or more provisions of these general terms and conditions cannot be construed as a waiver of such conditions
    5. The Customer may not assign its agreement(s) with HCEE or any rights or obligations under such agreement(s) to third parties without the prior express written consent of HCEE.

     

  2.  Conclusion of agreements
    1. All price lists, offers and contract proposals of HCEE shall be without obligation, merely for information purposes and as such not binding for HCEE. Price lists may be amended unilaterally at any time without prior notice. Any order placed by the Customer shall bind the Customer irrevocably and definitively but shall not bind HCEE. An agreement shall not be established between HCEE and the Customer until the Customer has received an order confirmation from HCEE or until HCEE has signed any other written agreement.
    2. If after the initial order or instruction, the Customer wishes to make changes to the contract, these changes shall be carried out only if (i) HCEE expressly consents to them, and (ii) the Customer accepts that HCEE may pass on to the Customer all associated price adjustments and costs that the changes entail.
    3. Any cancellation of an order or instruction by the Customer shall be in writing and shall only be valid if accepted in writing by HCEE. In the event of a cancellation accepted by HCEE, the Customer shall by operation of law owe HCEE, without notice of default or judicial intervention, a fixed compensation equal to 20% of the net amount of the purchase price, without prejudice to the right of HCEE to claim, where applicable, compensation for the damage actually incurred.

     

  3. Description of the goods to be supplied
    1. description of the goods to be supplied shall be included in a separate order confirmation of HCEE and/or agreement between HCEE and the Customer.
    2. Without prejudice to the provisions of these general terms and conditions, the Customer acknowledges and accepts the technical limitations, warranty limitations and/or any other comments and reservations concerning the goods to be supplied as set forth in the offer, order confirmation, agreement between HCEE and the Customer and/or in any other documentation made available by HCEE to the Customer.

     

  4. Price, order and delivery
    1. Orders shall be invoiced at the prices and conditions as stated in the offer, order confirmation and/or agreement. Unless expressly otherwise stipulated or agreed, the prices stated by HCEE exclude VAT, customs duties, transport and insurance costs and/or other levies, taxes and costs, all of which are fully for the expense of the Customer.
    2. The delivery times shall be provided by HCEE for information purposes only; they are approximate and shall not bind HCEE. Unless expressly otherwise agreed in writing, any delay in delivery by HCEE cannot give rise to any cancellation of the order, rescission of the agreement or compensation for damage. HCEE may suspend the delivery at any time while the Customer still has to fulfil any obligation of any nature, scale or origin towards HCEE.
    3. Unless otherwise confirmed in writing by HCEE in advance, deliveries shall always be executed ex factory. The Customer shall always be responsible for the required import and/or exchange permits.
    4. HCEE expressly reserves the right to make partial deliveries that constitute an equal number of partial sales. Partial delivery of an order can never be invoked as a ground for refusal to pay for delivered goods.
    5. HCEE expressly reserves the right to engage subcontractors of its choosing for the performance of its obligations.

     

  5. Payment and reservation of title
    1. Unless expressly otherwise stipulated in the order confirmation and/or the agreement or on the invoice, every invoice of HCEE shall be payable at the registered office of HCEE in euro at the time of delivery in cash, by giro transfer or by bank cheque. The net amount of the invoice is to be paid. The exchange-rate risk, bank charges and other costs are for the expense of the Customer.
    2. Any payment received shall be deemed first to cover any owed interest and/or costs and then to cover the oldest outstanding invoice, regardless of whether the payment instruction states differently.
    3. In case of total or partial non-payment of an invoice at the due date, the Customer shall by operation of law and without prior notice of default owe late payment interests over the unpaid invoice amount at to the interest rate provided for in the Act of 2 August 2002 concerning prevention of payment arrears in commercial transactions. Furthermore, in the case of late payment of the invoice, the Customer shall owe by operation of law and without prior notice of default a fixed amount equal to 15% of the unpaid invoice amount, subject to a minimum of EUR 150 per invoice, without prejudice to the right of HCEE to claim, where applicable, compensation for the damage actually incurred. Unless otherwise agreed, payments made to intermediaries such as agents or representatives shall be considered non-existent.
    4. In case of non-payment or incomplete payment of any invoice at the due date, all other not yet overdue debts of the Customer shall immediately and by operation of law become fully payable, without prior notice of default. In this case, HCEE further reserves the right to suspend deliveries, without prior notice of default and without compensation for damage, until HCEE has received full payment, increased with interest and costs where appicable.
    5. Invoices must be protested in writing within seven (7) calendar days of their receipt. Any protest concerning quantity, quality or performance expressed after the aforementioned date shall be inadmissible. Protest of the invoice does not suspend the Customer’s payment obligation. Setoff on the part of the Customer is explicitly excluded. 
    6. If at any time HCEE doubts the creditworthiness of the Customer due to legal action against the Customer, in case of non-payment or late payment of any invoices and/or due to any other identifiable event that casts doubt on the confidence in the Customer’s proper fulfilment of its commitments and/or renders their fulfilment impossible, HCEE expressly reserves the right to suspend further deliveries and to claim a prepayment or any (other) forms of guarantee.
    7. Subject to the application of mandatory legal provisions stating otherwise, all extrajudicial costs (such as debt collection costs) and litigation costs (costs of summons and fees) that HCEE must incur to get the Customer to fulfil its commitments (in a timely manner) are for the expense of the Customer.
    8. The drawing and/or acceptance of bills of exchange or other negotiable documents shall not renew the debt and these general terms and conditions of sale shall therefore remain in force.

     

  6. Inspection, complaints and warranty
    1. The Customer shall immediately take possession of the goods on delivery and shall examine whether their quality corresponds with what was agreed. By accepting the delivery of the ordered goods, the Customer confirms that the delivery is complete and without defects, in accordance with the offer, order confirmation, agreement and/or delivery note, and that no goods or parts are missing.
    2. Any defects must be reported to HCEE in writing without delay and at the latest within eight (8) calendar days after the recorded date of receipt. Any latent defects at delivery must be reported to HCEE in writing without delay and at the latest within eight (8) calendar days after their discovery and within six (6) months after the recorded date of receipt. A complaint shall not suspend the payment obligation of the Customer. Any complaint made after the aforementioned times shall be inadmissible and shall never give rise to any liability, warranty or indemnification on part of HCEE.
    3. If a complaint is admissible, the goods shall be kept intact by the Customer for inspection by HCEE or a representative thereof. The goods may not be used or sold until the inspection has been fully completed. Complaints shall never give the Customer the right to return the entire shipment of goods, except with the prior express written consent of HCEE. In such cases the Customer shall return the defective parts at its own expense to the registered office of HCEE. Returns not permitted by HCEE shall always be at the sole and complete risk, responsibility and expense of the Customer.
    4. For parts not produced by HCEE, including but not limited to tires, electrical equipment and engines, the duration and the scope of the warranty of HCEE is always limited to the warranty that HCEE may invoke in relation to the producer or its supplier (back-to-back).
    5. Subject to the application of mandatory legal provisions stating otherwise or if expressly otherwise agreed, the warranty provided by HCEE shall entail only replacement or repair in kind, within a period deemed necessary by HCEE, of the goods or parts which, following receipt of a written complaint in accordance with article 6.2, are acknowledged by HCEE as being defective. At its sole discretion HCEE may choose between replacement and repair. Unless expressly otherwise agreed in writing, any additional costs concerning such replacement or repair, including but not limited to loss of use, shipment costs, customs duties, sending out of personnel for repairs, adjustment of machines and replacement/installation of parts, shall always be at the expense of the Customer.
    6. Unless expressly otherwise agreed in writing, the warranty for defects shall not apply to (i) the usability and/or suitability of the goods for any purpose whatsoever, (ii) goods that after delivery were modified, altered or rented out without the prior consent of HCEE, (iii) goods from which the mark was removed, (iv) second-hand goods, (v) goods not paid for by due date, (vi) goods for which the Customer declined an HCEE recommendation for a training course regarding their usage, working and maintenance, and (vii) goods damaged through normal wear and tear, insufficient maintenance, injudicious use or negligence on the part of the Customer.
    7. The Customer shall bear the burden of proof regarding the defects.

     

  7. Liability
    1. If HCEE (including its agents or employees) would be held liable in relation to the Customer for any reason whatsoever, such liability shall be limited to the provisions made in this article.
    2. HCEE shall only be liable for the damage caused by the unsoundness of the goods that it delivered or for the damage arising from the performance of the agreement, if and to the extent that such damage was caused by a deliberate error or by deception and/or fraud on the part of HCEE or its subcontractors and to the extent that the Customer proves that HCEE failed to fulfil one of its principal duties. HCEE shall not be liable for any other errors.
    3. In the event that HCEE would be held liable for any damage, the maximum liability of HCEE shall always be limited to 75% of the invoice value of the order placed by the Customer, more specifically to that part of the order that the liability concerns. Where damage is covered by insurance, the liability of HCEE shall always be limited to the amount actually paid by the insurer.
    4. HCEE is only liable for foreseeable direct damage. HCEE may never be held liable for indirect or intangible damage, including but not limited to consequential damage, loss of turnover, sales, profits or customers, missed savings, unsaleability of goods and damage to third parties.
    5. The Customer shall indemnify HCEE for any claims by third parties due to damage related to the execution of the agreement whose cause is not attributable to HCEE.
    6. To the express exclusion of HCEE, the Customer is solely liable and responsible in relation to its own customers, regardless of the nature, cause or scope of the liability.
    7. HCEE shall never be liable for damages resulting from incorrect assembly, installation, connection, use or maintenance of delivered goods.

     

  8. Transfer of ownership, transfer of risk and insurance
    1. Sold goods shall remain the exclusive and full property of HCEE until complete payment of the invoice, including any costs, interest and compensation, even if changes have been made to the goods. Advance payments shall be retained to compensate for possible losses on resale.
    2. If the Customer resells goods belonging to HCEE, the Customer shall immediately and by operation of law pledge to HCEE all receivables arising from such resale.
    3. The Customer shall maintain the delivered goods in impeccable condition and shall not rent them out, export them, sell them or make changes to them as long as the corresponding invoices have not been paid in full. Until receipt of complete payment, the Customer shall be under the obligation to show the delivered goods on request to HCEE (or its representative) and to inform HCEE of any change to its registered office or place of business. In the event of non-payment or partial non-payment by the due date, the Customer shall allow HCEE immediately and without further formalities to take the delivered goods out of service on site or to repossess them.
    4. Until complete payment of the invoice, the Customer is expressly prohibited from using the delivered goods as a means of payment, pledging them or encumbering them with any other collateral right. To the extent necessary, this clause shall be deemed repeated for each and every delivery. The Customer shall immediately inform HCEE by registered letter of any third party seizure of the sold goods.
    5. Notwithstanding the foregoing, the Customer bears all risks attached to the sold goods, including but not limited to risks of loss or destruction, from the time the sold goods are available to be taken in possession by the Customer.
    6. Until the time of actual transfer of ownership, the Customer shall insure the sold goods against all customary risks (including but not limited to loss, fire, water damage and theft) and shall at the first request submit the relevant insurance policy to HCEE for inspection.

     

  9. Rescission
    1. HCEE has the right to rescind the agreement with the Customer at any time, with immediate effect, without judicial authorisation, without prior notice of default and without paying any compensation for damage, in the following cases: (i) if the Customer, despite a written notice of default in which a remedial period of at least seven (7) calendar days is observed, remains in default with respect to the (timely and proper) fulfilment of one or more obligations resulting from the agreement (in particular, payment of the invoices); (ii) suspension of payment or (applying for) bankruptcy or an arrangement under the Belgian Continuity of Enterprises Act of 31 January 2009 (insofar as applicable, in accordance with Article 35 of the Act) by the Customer; (iii) liquidation or discontinuation of the activities of the Customer; (iv) if (a part of) the assets of the Customer are seized; (v) if the Customer refuses to make an advance payment or to provide other guarantees demanded by HCEE, or (vi) if HCEE has reasonable grounds to doubt that the Customer will fulfil its obligations towards HCEE.
    2. In case of rescission, HCEE further retains the right to claim compensation for all costs and damages incurred by HCEE and all claims of HCEE upn the Customer shall immediately become payable. If at the time of the rescission any part of the agreement has already been performed (e.g. by shipping sold goods), HCEE has the right to rescind the entire agreement and to recover anything already delivered or performed.

  10. Applicable law and forum
    1. All agreements to which these general terms and conditions apply, as well as all other agreements that result from these, are governed exclusively by Belgian law, unless expressly otherwise agreed in writing.
    2. Any disputes arising between parties regarding agreements subject to these general terms and conditions shall be exclusively subject to the competence and jurisdiction of the courts in the district of Antwerp (Belgium). At its sole discretion, HCEE may also bring proceedings before the courts of the place where the Customer has its domicile or registered office.