HOF HYDRAULIC SOLUTIONS TERMS AND CONDITIONS
1. As used herein, the following terms have the meanings indicated.
Buyer: means any Buyer receiving a Quote for Products from Seller.
Goods: means any tangible part, system or component to be supplied by the Seller.
Products: means the Goods, and / or Services described in a Quote provided by the Seller.
Quote: means the offer or proposal made by Seller to Buyer for the supply of Products.
Seller: means HOF HYDRAULIC SOLUTIONS, including all divisions and businesses thereof.
Services: means any services to be supplied by the Seller.
Terms: means the terms and conditions of this Offer of Sale or any newer version of the same as published by Seller electronically at https://www.hofhydraulic.com/
2. All sales of Products by Seller are contingent upon, and will be governed by, these Terms and, these Terms are incorporated into any Quote provided by Seller to any Buyer. Buyer’s order for any Products whether communicated to Seller verbally, in writing, by electronic date interface or other electronic commerce, shall constitute acceptance of these Terms. Seller objects to any contrary or additional terms or conditions of Buyer. Reference in Seller’s order acknowledgement to Buyer’s purchase order or purchase order number shall in no way constitute an acceptance of any of Buyer’s terms of purchase. No modification to these Terms will be binding on Seller unless agreed to in writing and signed by an authorized representative of Seller.
3. Prices and Payment. The Products set forth in Seller’s Quote are offered for sale at the prices indicated in Seller’s Quote. Unless otherwise specifically stated in Seller’s Quote, prices are valid for thirty (30) days and do not include packaging and any sales, use, or other taxes or duties. The Seller is entitled to charge a handling fee of 100 USD, for order value less than USD 4,000. Seller reserves the right to modify the originally agreed price if the prices and costs on which the calculation is based, in particular costs for labor, raw materials, energy, tolls and/or costs for auxiliary, operating materials and currency exchange rate have changed significantly since conclusion of the contract and this has led to an increase in production costs. Unless otherwise specified by Seller, all prices are EXW Seller’s facility (INCOTERMS 2010).
All sales are contingent upon credit approval and payment for all purchases is due upon the date of invoice (or such date as may be specified in the Quote). The costs of discounting and collection, in particular of bills of exchange or cheques, shall be borne by the Buyer. All international payment transfers to be made with the “OUR” instruction. Unpaid invoices beyond the specified payment date incur interest at the rate of 8 % per month or the maximum allowable rate under applicable law.
4. Transfer of risk: Delivery shall be EXW (FCA Incoterms 2010), either by collection or by dispatch as agreed. If collection does not take place on the fixed delivery date by the Buyer or an authorized representative, Seller is deemed authorized to dispatch the delivery item at the Buyer’s expense and risk. In case of collection and in case of dispatch, the risk passes to the Buyer as soon as the delivery item has been handed over by the Seller to the Buyer or his representative or to the transport company or forwarding agent.
If dispatch is delayed due to circumstances for which the Seller is not responsible, the risk shall pass to the Buyer on the day on which notice of readiness for dispatch is given. The risk shall also pass to the Buyer upon dispatch if partial deliveries are made. The Buyer shall also bear the risk if he is in default of collection of the delivery items.
If the Buyer is in default of collection or payment, Seller is entitled to withdraw from the contract and claim damages after expiry of a reasonable period set by the Seller. This shall also apply – without the requirement of setting a deadline – if the Buyer refuses to accept the delivery items wrongfully, earnestly and finally. Delivered items are to be accepted by the Buyer, even if they exhibit defects, without prejudice to the rights under Section 4 of these conditions, insofar as these defects are insignificant.
In all other respects, the agreed-upon delivery clauses shall be interpreted in accordance with the Incoterms applicable at the time the contract is concluded. In the absence of a special agreement, the delivery clause EXW shall apply.
5. Shipment; Delivery; Title and Risk of Loss. All delivery dates are Seller is not responsible for damages resulting from any delay. Regardless of the manner of shipment, delivery occurs and title and risk of loss or damage pass to Buyer, upon placement of the Products with the shipment carrier at Seller’s facility. Unless otherwise agreed, Seller may exercise its judgment in choosing the carrier and means of delivery. No deferment of shipment at Buyers’ request beyond the respective indicated shipping date will be made except on terms that will indemnify, defend and hold Seller harmless against all loss and additional expense. Buyer shall be responsible for any additional shipping and storage charges incurred by Seller due to Buyer’s acts or omissions.
If dispatch is delayed at the Buyer’s request, the Buyer shall be charged at least 0.5% of the invoice amount per month, starting one month after notification of readiness for dispatch.
6. The warranty related to the Products is as follows:
(i) Goods are warranted against defects in material or workmanship for a period of twelve (12) months from the date of delivery or 2,000 hours of use, whichever occurs first. The warranty period begins with the delivery to the end Buyer. However, the maximum warranty period is eighteen (18) months after the transfer of risk. The warranty period shall not begin anew as a result of subsequent performance. However, the warranty period shall be extended by the duration of any business interruption caused by the rectification of defects of replacement delivery;
(ii) Services shall be performed in accordance with generally accepted practices and using the degree of care and skill that is ordinarily exercised and customary in the field to which the Services pertain and are warranted for a period of six (6) months from the completion of the Services by Seller. All prices are based upon the exclusive limited warranty stated above, and upon the following disclaimer:
DISCLAIMER OF WARRANTY: THIS WARRANTY IS THE SOLE AND ENTIRE WARRANTY PERTAINING TO PRODUCTS. SELLER DISCLAIMS ALL OTHER WARRANTIES, EXPRESS AND IMPLIED, INCLUDING DESIGN, NONINFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE.
In principle, the Buyer is entitled to the statutory warranty claims and warranty rights – subject to the provisions of these terms and conditions of sale and repair, in particular Section 8.
If the delivery item is defective at the time of transfer of risk, the Buyer’s claim for subsequent performance shall, at Seller’s discretion, include the free delivery of a defect-free item or the free remedy of the defect. This shall not apply to additional expenses incurred as a result of the delivery items being taken to a place other than the contractual place of receipt. Seller does not owe any installation and removal of the defective goods, nor does it owe the costs for installation and removal.
7. Claims; Commencement of Actions. Buyer shall promptly inspect all Products upon receipt. No claims for shortages and discrepancies will be allowed unless reported to the Seller within ten (10) days of delivery. Buyer shall notify Seller of any alleged breach of warranty within ten (10) days after the date the non-conformance is or should have been discovered by Buyer. Any claim or action against Seller based upon breach of contract or any other theory, including tort, negligence, or otherwise must be commenced within twelve (12) months from the date of the alleged breach or other alleged event, without regard to the date of discovery.
Under this warranty the Seller will, on the Buyer returning the Goods carriage paid to such place as the Seller shall direct* make good any such defect by repair or replacement if, in the opinion of the Seller, the defect constitutes a breach of this warranty. Any parts so repaired or replaced free of charge under the warranty will be subject to a warranty on the same terms as this warranty for a period of three months from the date of repair or replacement or until the expiration of the six months period of this guarantee whichever is the longer. No claim will be met by the Seller under this warranty arising out of fair wear and tear if the Goods have been incorrectly fitted, misused, subjected to neglect or abnormal conditions or used with lubricant of an unsuitable specification or have been involved in any accident or if any attempt to repair, replace or modify or inspect the fault without the prior approval of the Seller or if they have been in any way dealt with contrary to any instructions issued by the Seller. Should these Conditions apply to a consumer transaction this Warranty shall not affect the statutory rights of the Buyer. In Section 8 below and in this Condition “consumer transaction” and “statutory rights” shall bear the meaning they have in the Consumer Transactions (Restrictions on Statements) Order 1976 (as amended).
*For UK Section 36 of the Sale of Goods Act 1979 shall not apply
8. LIMITATION OF LIABILITY. IN THE EVENT OF A BREACH OF WARRANTY, SELLER WILL, AT ITS OPTION, REPAIR OR REPLACE THE NONCONFORMING PRODUCT, RE-PERFORM THE SERVICES, OR REFUND THE PURCHASE PRICE PAID WITHIN A REASONABLE PERIOD OF TIME. IN NO EVENT IS SELLER LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF, OR AS THE RESULT OF, THE SALE, DELIVERY, NON- DELIVERY, SERVICING, NON-COMPLETION OF SERVICES, USE, LOSS OF USE OF, OR INABILITY TO USE THE PRODUCTS OR ANY PART THEREOF, LOSS OF DATA, IDENTITY, PRIVACY, OR CONFIDENTIALITY, OR FOR ANY CHARGES OR EXPENSES OF ANY NATURE INCURRED WITHOUT SELLER’S WRITTEN CONSENT, WHETHER BASED IN CONTRACT, TORT OR OTHER LEGAL THEORY. IN NO EVENT SHALL SELLER’S LIABILITY UNDER ANY CLAIM MADE BY BUYER EXCEED THE PURCHASE PRICE PAID FOR THE PRODUCTS.
9. Loss to Buyer’s Property. Any designs, tools, patterns, materials, drawings, confidential information or equipment furnished by Buyer or any other items which are or become Buyer’s property, will be considered obsolete and may be destroyed by Seller after two (2) consecutive years have elapsed without Buyer ordering the Products manufactured using such Seller shall not be responsible for any loss or damage to such property while it is in Seller’s possession or control.
10. Special Tooling. Special Tooling includes but is not limited to tooling, jigs, fixtures and associated manufacturing equipment acquired or necessary to manufacture Products. A tooling charge may be imposed for any Special Tooling. Such Special Tooling shall be and remain Seller’s property notwithstanding payment of any charges by Buyer. In no event will Buyer acquire any interest in Special Tooling belonging to Seller that is utilized in the manufacture of the Products, even if such Special Tooling has been specially converted or adapted for such manufacture and notwithstanding any charges paid by Buyer. Unless otherwise agreed, Seller has the right to alter, discard or otherwise dispose of any Special Tooling or other property in its sole discretion at any time.
11. User Responsibility. The Buyer through its own analysis and testing, is solely responsible for making the final selection of the Products and assuring that all performance, endurance, maintenance, safety and warning requirements of the application of the Products are met. The Buyer must analyze all aspects of the application and follow applicable industry standards, specifications, and other technical information provided with the Product. If Seller provides Product options based upon data or specifications provided by the Buyer, the Buyer is responsible for determining that such data and specifications are suitable and sufficient for all applications and reasonably foreseeable uses of the Products. In the event the Buyer is not the end-user, Buyer will ensure such end-user complies with this paragraph.
12. Use of Products, Indemnity by Buyer. Buyer shall comply with all instructions, guides and specifications provided by Seller with the Unauthorized Uses. If Buyer uses or resells the Products for any uses prohibited in Seller’s instructions, guides or specifications, or Buyer otherwise fails to comply with Seller’s instructions, guides and specifications, Buyer acknowledges that any such use, resale, or non-compliance is at Buyer’s sole risk. Buyer shall indemnify, defend, and hold Seller harmless from any losses, claims, liabilities, damages, lawsuits, judgments and costs (including attorney fees and defense costs), whether for personal injury, property damage, intellectual property infringement or any other claim, brought by or incurred by Buyer, Buyer’s employees, or any other person, arising out of: (a) improper selection, application, design, specification or other misuse of Products provided by Seller; (b) any act or omission, negligent or otherwise, of Buyer; (c) Seller’s use of patterns, tooling, equipment, plans, drawings, designs or specifications or other information or things furnished by Buyer; (d) damage to the Products from an external cause, repair or attempted repair by anyone other than Seller, failure to follow instructions, guides and specifications provided by Seller, use with goods not provided by Seller, or opening, modifying, deconstructing or tampering with the Products for any reason; or (e) Buyer’s failure to comply with these Terms. Seller shall not indemnify Buyer under any circumstance except as otherwise provided in these Terms.
If the type and serial number plate has been removed, the Buyer has to prove which types and serial number the affected product has, provided that the cooperation of the Seller is required, for a fee.
If it turns out during the examination of a product for which a complaint has been made that there is no deviation from the agreed quality for which the Seller is responsible, the Seller is entitled to charge appropriate lump sums for the examination work (according to internal hourly rates and flat rates for costs).
13. Security Interest. To secure payment of all sums due, Seller retains a security interest in all Products delivered to Buyer and, Buyer’s acceptance of these Terms is deemed to be a Security Agreement under the Uniform Commercial Code. Buyer authorizes Seller as its attorney to execute and file on Buyer’s behalf all documents Seller deems necessary to perfect its security interest.
Until all claims arising from the business relationship to which the Seller is entitled now or in the future against the Buyer have been fulfilled, the Seller will be granted the securities listed in the following paragraphs, which the Seller will release at the request of the Buyer at the Buyer’s discretion, insofar as their value exceeds the claims by more than 10%.
The Seller retains ownership of the delivery items until receipt of all payments with the Buyer (“reserved goods”). Where payment is agreed upon using cheque or bill of exchange, the retention of title extends to Buyer’s redemption of the bill of exchange accepted by Seller and does not expire by the crediting of the cheque received to the Seller. The retention of title shall also continue if the claims are included in a current account and the balance has been struck and acknowledged.
The Buyer is obliged to treat the reserved goods with care and to insure them at his own expense against theft, machine breakage, water, fire and other damage. Any maintenance and inspection work must be carried out by the Buyer in good time and at his own expense. The insurance policy and proof of payment of the premiums must be presented to Seller on request. Claims and rights arising from the insurance relationship are hereby assigned by the Buyer to the Seller. Seller accepts this assignment. The assignment is conditional on the complete acquisition of ownership by the Buyer.
The Buyer may neither pledge the reserved goods nor assign them as security.
The Buyer must immediately inform the Seller about attachments as well as seizures or other dispositions concerning the reserved goods by third parties. The costs of the removal of such measures shall be borne by the Buyer, insofar as they are not reimbursed by the third party.
The Buyer is entitled to resell the reserved goods in the ordinary course of business under retention of title or to transfer their use to third parties in return for payment. However, the Buyer hereby assigns to the Seller all claims against his Buyers or third parties arising from the resale or transfer of use of the reserved goods, irrespective of whether the reserved goods are passed on without or after processing. The assignment also includes in particular the claims that the Buyer acquires against his credit institutions on the basis of payment by his Buyers. The Seller accepts this assignment. The Buyer remains authorized to collect this claim even after the assignment. The right of the Seller itself to collect the claim remains unaffected by this, however the Seller will only make use of this authority if the Buyer does not meet his payment obligations towards the Seller or if an application for the initiation of insolvency proceedings is made against the Buyer. Starting with the default of payment, the Seller may demand that the amounts due to the Seller be paid into a trust account designated by the Seller. The Seller can also demand that the debtors of the Buyer make payments to the Seller and for this purpose the Buyer identifies the debtors of the assigned claim to the Seller and discloses the assignment and all information on the collection of the claims to these debtors without being asked.
If the claim from the resale cannot be assigned to the aforementioned extent because the claim falls under a current account agreement between the Buyer and his Buyer, the balance from the current account relationship after balancing shall be deemed assigned insofar as the claim from the resale is to be assigned in accordance with the above provisions.
In the event of processing, combining, mixing or blending of the reserved goods by the Buyer with other goods not belonging to the Seller, the Seller shall have co-ownership of the new item in proportion to the value of the reserved goods to the other processed goods at the time of processing, combining, mixing or blending. Otherwise, the same shall apply to the new item created as to the goods subject to retention of title. It shall be deemed to be reserved goods within the meaning of these conditions.
If the Seller declares its withdrawal from the contract, the Buyer is obliged to surrender the reserved goods.
14. Cancellations and Changes. Buyer may not cancel or modify any order for any reason, except with Seller’s written consent and upon terms that will indemnify, defend and hold Seller harmless against all direct, incidental and consequential loss or damage. Seller, at any time, may change Product features, specifications, designs and availability.
15. Limitation on Assignment. Buyer may not assign its rights or obligations without the prior written consent of Seller.
16. Force Majeure. Seller does not assume the risk and is not liable for delay or failure to perform any of Seller’s obligations by reason of events or circumstances beyond its reasonable control (“Events of Force Majeure”). Events of Force Majeure shall include without limitation: accidents, strikes or labor disputes, acts of any government or government agency, acts of nature, delays or failures in delivery from carriers or suppliers, shortages of materials, or any other cause beyond Seller’s reasonable control.
17. Waiver and Severability. Failure to enforce any provision of these Terms will not invalidate that provision; nor will any such failure prejudice Seller’s right to enforce that provision in the future. Invalidation of any provision of these Terms by legislation or other rule of law shall not invalidate any other provision herein and, the remaining provisions will remain in full force and
18. Seller may terminate any agreement governed by or arising from these Terms for any reason and at any time by giving Buyer thirty (30) days prior written notice. Seller may immediately terminate, in writing, if Buyer: (a) breaches any provision of these Terms (b) appoints a trustee, receiver or custodian for all or any part of Buyer’s property (c) files a petition for relief in bankruptcy on its own behalf, or one if filed by a third party (d) makes an assignment for the benefit of creditors; or (e) dissolves its business or liquidates all or a majority of its assets.
19. Indemnity for Infringement of Intellectual Property Rights. Seller is not liable for infringement of any patents, trademarks, copyrights, trade dress, trade secrets or similar rights (“Intellectual Property Rights”) except as provided in this Section. Seller will defend at its expense and will pay the cost of any settlement or damages awarded in an action brought against Buyer based on a third party claim that one or more of the Products sold hereunder infringes the Intellectual Property Rights of a third party in the country of delivery of the Products by the Seller to the Buyer. Seller’s obligation to defend and indemnify Buyer is contingent on Buyer notifying Seller within ten (10) days after Buyer becomes aware of any such claim, and Seller having sole control over the defense of the claim including all negotiations for settlement or compromise. If one or more Products sold hereunder is subject to such a claim, Seller may, at its sole expense and option, procure for Buyer the right to continue using the Products, replace or modify the Products so as to render them non-infringing, or offer to accept return of the Products and refund the purchase price less a reasonable allowance for depreciation. Seller has no obligation or liability for any claim of infringement:
(i) arising from information provided by Buyer; or
(ii) directed to any Products provided hereunder for which the designs are specified in whole or part by Buyer; or
(iii) resulting from the modification, combination or use in a system of any Products provided hereunder. The foregoing provisions of this Section constitute Seller’s sole and exclusive liability and Buyer’s sole and exclusive remedy for such claims of infringement of Intellectual Property Rights.
20. Governing Law. These Terms and the sale and delivery of all Products are deemed to have taken place in, and shall be governed and construed in accordance with, the laws of Thailand, as applicable to contracts executed and wholly performed therein and without regard to conflicts of laws principles. Buyer irrevocably agrees and consents to the exclusive jurisdiction and venue of the courts of Thailand with respect to any dispute, controversy or claim arising out of or relating to the sale and delivery of the Products.
21. Entire Agreement. These Terms, along with the terms set forth in the main body of any Quote, forms the entire agreement between the Buyer and Seller and constitutes the final, complete and exclusive expression of the terms of sale. In the event of a conflict between any term set forth in the main body of a Quote and these Terms, the terms set forth in the main body of the Quote shall prevail. All prior or contemporaneous written or oral agreements or negotiations with respect to the subject matter shall have no effect. These Terms may not be modified unless in writing and signed by an authorized representative of Seller.
22. Compliance with Laws. The Buyer agrees to comply with all applicable laws, regulations, and industry and professional standards of the country they operate within. The Buyer agrees to indemnify, defend, and hold harmless the Seller from the consequences of any violation of such laws, regulations and standards by the Buyer, its employees or agents. The Buyer represents and agrees that the Buyer will not make any payment or give anything of value, directly or indirectly, to any governmental official, political party or official thereof, candidate for political office, or commercial entity or person, for any improper purpose, including the purpose of influencing such person to purchase Products or otherwise benefit the business of the Seller. The Buyer further represents and agrees that it will not receive, use, service, transfer or ship any Product from the Seller in a manner or for a purpose that violates Export Laws or would cause Seller to be in violation of Export Laws.