GENERAL PURCHASE TERMS AND CONDITIONS OF PRAMET TOOLS, s.r.o.

Transcription

1 GENERAL PURCHASE TERMS AND CONDITIONS OF PRAMET TOOLS, s.r.o. INTRODUCTORY PROVISIONS These General Purchase Terms and Conditions (hereafter referred to as GPTC ) are applicable to all contractual relations relating to purchase contracts and contracts for work ( Contracts ), in which Pramet Tools s.r.o. is represented as the purchaser or the ordering party of the goods, performance of work or provision of services ( Subject Matter of Delivery ). The GPTC constitute an inseparable part of the Contracts in accordance with Section 1751 of Act no. 89/2012 Coll., the Civil Code ( Civil Code ). Pramet Tools s.r.o. is hereafter referred to as Purchaser in these GPTC as far as the Contracts are concerned. The sellers and the contractors are hereafter referred to as Seller in these GPTC as far as the Contracts are concerned. The mutual rights and duties of the parties shall be governed by wording of these GPTC effective as per the day of the draft purchase contract (order). These GPTC shall be binding for the Purchaser and the Seller as a part of the Contract concluded for the Subject Matter of Delivery according to the Purchaser s order. By accepting the order or providing the Subject Matter of Delivery the Seller agrees with these GPTC. The GPTC are published on the Seller s internet sites The Seller shall inform the Purchaser about a possible change in these GPTC by publishing it in the same place. Divergent provisions in the Contract take precedence over these GPTC. These GPTC take precedence over any other trade terms and conditions of the Seller or third parties even in case that the Seller explicitly refers to them in any of its documents, or otherwise, during discussions about the Contract. 1. OFFER AND ACCEPTANCE 1.1. The Purchaser places orders with the Seller solely on its own forms. The Purchaser shall specify goods, services according to the Seller s offer, quantity, price, delivery time, and possibly delivery terms if they differ from the GPTC delivery terms. The order shall be delivered to the Seller by letter, fax or If not agreed between the contracting parties otherwise, the Seller shall confirm the acceptance of the order within 3 days after the Purchaser's order is delivered to the Seller, namely either by a written confirmation or by affixing the stamp and signature of the responsible person in the Purchaser's order. The order confirmation shall be delivered to the Seller by letter, fax or . By delivering the order confirmation, the purchase contract is concluded If it is agreed by the contracting parties that the Seller may express its approval to the order by sending the goods or performing the service as per the order without notifying the Purchaser, then a purchase contract is concluded when the goods are shipped or service is performed, however, only on condition that the goods or services are delivered to the Purchaser without any discrepancies and within a week after the order is delivered to the Seller If the Seller modifies or supplements the Purchaser s data in the order confirmation, such order confirmation is considered a new proposal for concluding a contract. In such case the contract is concluded only supposing that the Purchaser provides a written approval to the order modification without reservation within 3 working days If the Subject Matter of Delivery represents services or performance of work the Seller shall provide such services in compliance with the Purchaser s interests, which the Seller knows or must have known. The Seller undertakes to provide such services with expert care at a high professional level. The Seller shall inform the Purchaser about any circumstances, which the Seller found when performing the Subject Matter of Delivery of the contract and which can affect the Purchaser s instructions. The Seller is not entitled to authorize the third parties fully or partly to perform the Subject Matter of Delivery of the contract concluded with the Purchaser without the Purchaser s prior express approval If the Seller authorizes the third party to perform the Subject Matter of Delivery of the contract fully or partly, the Seller shall stand for the damage in the same way as if the Seller caused such damage regardless whether such third party undertook to perform the certain activity independently or not The Seller shall compensate for damage on the objects that were handed over by the Purchaser to perform the Subject Matter of Delivery of the contract, except the case when the Seller could not avert such damage even if taking expert care. Unless it is stipulated otherwise, the Purchaser shall not pay the Seller the costs, which occurred when performing the Subject Matter of Delivery of the Contract, only if their character implies without doubt that they are not included in the price and the Purchaser confirmed payment of such costs in writing. The Seller is not entitled to compensation for the costs, which were not used in a sensible and effective way. 2. DELIVERY TERMS 2.1. Delivery of the Subject Matter of Delivery of the Contract shall be governed by INCOTERMS 2010, DAP Clause, and the place of delivery shall be the Purchaser s address stated in the order (or a different address announced in writing or by fax together with the order at latest). The Seller shall deliver the Subject Matter of Delivery (goods) to the place of destination in the time specified in the Purchaser's order If the Seller is not able to deliver the Subject Matter of Delivery in a regular manner (in the agreed quantity, quality and fabrication) and in time, it shall notify the Purchaser immediately. Simultaneously, the Seller shall inform the Purchaser about the reason for such delay and its estimated length. The Seller's delay with the delivery of the Subject Matter of Delivery more than 30 days is always considered substantial violation of the Contract and the Purchaser can withdraw from the contract. No other Purchaser's rights are affected herewith The Purchaser shall not accept the Subject Matter of Delivery before the agreed date of delivery. In such case the Seller shall arrange regular storage of the Subject Matter of Delivery at its own expense and risk and hand the Subject Matter of Delivery over to the Purchaser as of the date of delivery The Purchaser shall not accept a smaller or greater quantity of the Subject Matter of Delivery (goods) than agreed. The Purchaser shall decide at its discretion to take over a smaller quantity of goods than agreed, the Seller shall deliver the missing quantity of the goods immediately. Other Purchaser's rights are not affected by taking over a smaller quantity by the Purchaser The partial deliveries are allowed only with the Purchaser s prior consent. If the Seller delivers to the Purchaser a greater amount or number of goods (or other delivery) than agreed, a contract shall be concluded for this greater amount only on condition that the Purchaser explicitly accepts it without unreasonable delay after the goods are delivered. If the Purchaser does not do so, a contract shall not be concluded, i.e. Section of 2093 of the Civil Code shall not be applied The Seller shall pack the goods properly and secure them for transport in conformity with common practice and shall minimize the negative impact on environment in such a way that the goods will be maximally preserved and protected during transport The Seller takes into account that the Purchaser may undertake an obligation to deliver to its customers the goods or products of which the delivered goods/services are parts or accessories, or in which the goods are incorporated, and that in relation to any non-performance of the Seller's obligations a significant damage may arise to the Purchaser The Purchaser shall not accept the Subject Matter of Delivery, which shows any defects or backlogs, from the Seller. in Ostrava, Section C, File no Page 1 of 5

2 3. DOCUMENTATION 3.1. The Seller shall hand over to the Purchaser: 4. PRICE a) Certificate of the goods origin; b) CE certificate, or certificate of conformity; c) Certificate of compliance with work safety, health and environmental protection as per valid legitimate and legal Czech and EU requirements; d) Safety data sheets; e) Attests; f) Declaration of compliance with the conditions for placing the packaging on the market according to the valid Act on packagings The price of the goods is determined in the Seller's pricelist, unless another price arises from the Contract or Seller s price offer in a specific case. The Seller's pricelist is always binding for both contracting parties for minimum of one calendar year. The pricelist cannot be modified unilaterally by the Seller during its validity, namely neither as a result of the Seller's increased costs e.g. as a consequence of the exchange rate change The price includes the costs of transport to the place of delivery and packing of the goods. 5. GUARANTEE 5.1. The Seller shall deliver the Subject Matter of Delivery in accordance with the Contract, these GPTC and especially in the amount, quality and fabrication as per the Contract. The goods must always conform to the technical requirements determined by legal regulations of the Czech Republic. If the Purchaser has any special technical-qualitative requirements, about which it informed the Seller when placing the order for the goods/services at latest, these Purchaser's technical-qualitative requirements must also be met The Seller shall ensure at its own expense any required attests, or permits, or approvals issued by the state authorities of the country of the goods origin and the authorities of the Czech Republic The Seller shall provide the Purchaser with the minimum guarantee period of 24 months, commencing on the day when the Subject Matter of Delivery is accepted by the Purchaser. If the producer of the goods provides a longer guarantee, the Seller automatically provides such a longer guarantee to the Purchaser The Seller shall provide the Purchaser with a respective guarantee sheet together with the goods. If the Purchaser is not provided with the guarantee sheet, the guarantee period shall be determined in compliance with this provision. 6. LIABILITY FOR DEFECTS, COMPLAINT PROCEDURE, BREACH OF CONTRACT, COMPENSATION FOR DAMAGE 6.1. The Purchaser shall notify the Seller in writing of any defects without undue delay after the defects are discovered, namely by the end of the guarantee period at latest. The Purchaser shall notify the Seller of any discovered apparent defects of the goods, delivery of a smaller quantity of the goods, incomplete delivery of the goods/services and apparently damaged delivery within 30 days after the Subject Matter of Delivery is taken over The Seller shall remove any defects in the period specified in the Purchaser's notice of defects The Purchaser has the following rights from the defects of the goods: a) To request a removal of the defects by repair, if repairable; b) To request a removal of the defects by delivering a new object without defect or by delivering the missing goods; c) To request a discount from the price of the faulty goods; d) To withdraw from the purchase contract The Purchaser shall notify the Seller about the selected claim for defects of the goods in a notice of defects, or without undue delay after this notice The Purchaser can withdraw from the purchase contract, always without selecting a different claim for defects of the goods, if the quantity of the delivered goods is lower than the agreed quantity, or if more than 5% of the goods have such defects that prevent the Purchaser from their regular using, or if the goods do not confirm to the technical-qualitative requirements. The said defects of the goods are considered substantial violation of the purchase contract The Seller undertakes to replace the delivered goods which as a consequence of faulty material, faulty production or design became unusable or ceased to confirm to the technical-qualitative requirements If the delivered Subject Matter of Delivery have any defects, the Purchaser shall not pay the price for the goods or the unpaid part of the price of the goods till the defects of the goods are completely removed or the faulty goods are replaced with new goods. The same applies if a smaller quantity of the goods is delivered than the agreed quantity A discount from the purchase price shall correspond to the difference between the value of the performance free of defects and the performance with defects. The Seller shall account such discount by 5 working days since the date when the Purchaser claimed the discount The Seller answers for the fact that the Subject Matter of Delivery does not have any legal defects In case that the Seller breaches any duties stipulated by the Contract, GPTC, or legal duties relating to the Contract and the Subject Matter of Delivery or if the documents submitted by the Seller to the Purchaser contain false, misleading or incomplete data, the Seller shall pay to the Purchaser any loss, which will occur to the Purchaser as a result of this. The loss shall be paid in money unless the parties agree otherwise In case that a breach of the duties by The Seller is a substantial breach, the Purchaser can withdraw from individual contract, sub-contract and/or general contract concluded with the Seller The parties hold responsibility for a damage in accordance with valid legal regulations, these GPTC and the Contract. The parties commit to do their utmost to prevent damages and to minimise damages that might occur The Purchaser is not liable for a loss of profit in the amount allowed by valid regulations, neither for any direct, incidental and consequent damages, loss of the contracts, data, operating time or damages that occurred because the expected results and business plans have not been achieved. The amount of the compensation for any damage caused by the Seller to the Purchaser in connection with any Contract shall be limited by a maximum amount, which equals to the price of performance from the Contract in connection with which such damage occurred. in Ostrava, Section C, File no Page 2 of 5

3 7. ENVIRONMENTAL CLAUSE 7.1. The Seller shall ensure that the delivered Subject Matter of Delivery and packing will comply with all regulations regarding environmental protection, valid at the time when the goods are sold Within the Contracts with the Purchaser, the Sellers undertakes to follow regulations regarding environmental protection, air protection and waste treatment, namely to comply with laws defining individual aspects of environment: 7.3. The Seller becomes an originator of wastes and must follow the regulations of the Act on wastes as amended. The individual wastes must be sorted according to their types and must be classified according to the valid decree Waste Catalogue, and must be separately collected. The Seller will keep a continuous waste register and it will submit it to the Purchaser on request A part of useable construction materials originated in the Purchaser s premises can be reused based on the Purchaser s request. This activity shall be recorded and confirmed into a building log At the request the Seller shall prove the method of waste disposal and the authorization for wastes treatment of the third person that will perform the disposal. In case of an ecological accident caused on the part of the Seller in the Purchaser s premises, the Seller shall bear all the costs including risks Temporary collection of the wastes in the predefined area in the Purchaser s premises must be approved by a Purchaser s ecologist The Seller shall enable the ordering party to control its activity. In case a discrepancy with environmental legislative regulations is found, the Seller must remedy such discrepancy immediately. If the discrepancy is not remedied or if applicable legal regulations are violated repeatedly, the Purchaser shall impose sanctions on the Seller or withdraw from the contract. The Purchaser may set in writing other specific terms and conditions referring to the Seller's activities if necessary. 8. WORK SAFETY AND HEALTH PROTECTION 8.1. The authorised Purchaser s worker (a head worker ordering the work) shall ensure training of the Seller prior to own start of work according to the contract for work and shall inform the Seller about the assigned workplace, access roads and sanitary facilities, which its workers can use etc. The authorised worker shall also draw the Seller s attention to risks, which its workers may encounter, measures for eliminating such risks (remove or lower them to an acceptable level) and to continuous increased attention, caution and consideration to surroundings of its workers. This responsibility also applies to the Seller that must draw attention to risks arising from the work the Seller performs in the Purchaser s premises and it shall state the measures to eliminate or lower such risks. This mutual familiarizing with risks must be done in writing Either a head worker of the group who shall sign the documents on training performed and shall receive similar documents for his subordinates whom he shall train and inform about risks etc. in a provable way or all the seller s workers shall be trained by the authorised worker of the Purchaser. Then he shall hand the documents over to a person responsible for work safety in the plant. The documents for training of the Seller s workers relating to work safety and health protection, environmental and fire protection are available for download on websites under the link The workers who have not been trained will not be permitted to the premises of Pramet Tools s.r.o The training and information must be provided in a comprehensible way (in Czech or English, even with participation of an interpreter if necessary). At the end of the training it is necessary to briefly test understanding and knowledge of the given issues verbally During handling with hazardous chemical substances and compounds the Seller shall arrange training of the persons handling with dangerous chemical substances and compounds and provide safety data sheets of such substances. The Seller shall equip its workers with necessary protective equipment and first aid means If the Seller orders a part of the services with a different company, the Seller is responsible for training of such workers and documentation of such training. The Seller shall inform the Purchaser s person responsible for work safety and health protection about this fact. The Seller is also responsible for observing the work safety and health protection of these workers 8.6. The Purchaser requires the Seller s workers to be visibly identified with the Seller s company name and to observe basic duties for using the personal protective working equipment (working clothes, shoes) in case of their entry into the Purchaser s premises The Seller shall enable the Purchaser to control its activity. In case a discrepancy with work safety and health protection legislative regulations is found, the Seller must remedy such discrepancy immediately. If the Seller does not remedy such discrepancy or if applicable legal regulations are violated repeatedly, the Purchaser can withdraw from the contract The Purchaser may set in writing other specific terms and conditions referring to the Seller's activities if necessary. 9. PAYMENT TERMS AND INVOICING 9.1. If not explicitly agreed in a general contract concluded between the Seller and the Purchaser or in individual Contracts otherwise, the following payment terms apply to the Subject Matter of Delivery: The invoices are due within 60 days since the date of issuing. The Seller is entitled to issue an invoice after a complete acceptance of the whole Subject Matter of Delivery by the Purchaser. The payment is effected by a payment order to the Seller's account, specified in the invoice A handover/takeover report signed by both contracting parties or its copy shall be attached to the invoice for the provided services or work If the Seller accounts the goods incorrectly, accounts the price incorrectly or any of the particulars required by legal regulations are missing in the invoice, the Purchaser is entitled to return an incorrect invoice to the Seller for correction before the due date without effecting the payment. The Purchaser shall state the reason for returning the invoice. The Seller shall issue a new correct invoice. If the Purchaser returns an incorrect invoice to the Seller, the original due period stops and it commences again on the day when a newly issued invoice is delivered to the Purchaser The day of payment is a day when the respective amount is debited from the ordering party's account If the Subject Matter of Delivery represents performance of work and work is carried out in parts the Seller shall not have the right to payment of the price for each part of work when such part of work is performed in accordance with Section 2610, Clause 2 of the Civil Code. The right to require an appropriate part of the price with regard to the costs spent shall also be excluded in accordance with Section 2611 of the Civil Code. 10. INTERESTS ON LATE PAYMENT in Ostrava, Section C, File no Page 3 of 5

4 10.1. In case of late payment of the financial amount, the party, which is in delay, shall pay the other party an interest on late payment amounting to 0.025% of the outstanding amount per each day of delay. 11. CONTRACTUAL PENALTY The Seller shall pay a contractual penalty to the Purchaser: a) In case of delay of delivery of the Subject Matter of Delivery including the documentation according to the Contract, in the amount of 0.5% per day for the period of such delay and up to the amount of 15% of the price of delivery without VAT. b) In case of delivery of faulty goods, in the amount of 20% of the price of the faulty goods. c) In case a smaller quantity of the goods is delivered, in the amount of 0.05% of the price of undelivered goods per day, without VAT. d) In case any damage is caused to property or health of the Purchaser or its employees, in the amount of CZK 100,000 for each individual case The contractual penalty shall be paid to the Purchaser s account by 5 working days since the call for its payment The Purchaser s right to claim compensation for damage from the Seller to full extent is not affected by exercising the right to the contractual penalty. The provision of Section 2050 of the Civil Code shall not be applied The Purchaser is entitled to include its claim for the contractual penalty in the due Purchaser's claim, primarily for the price of the delivered goods accounted in the Seller's invoice. The contracting parties further agree that the Purchaser is entitled to offset any claims against the Seller s claim, thus also Purchaser s claims against Seller s claims, which can be considered uncertain or indefinite in accordance with Section 1987, Clause 2 of the Civil Code. 12. TITLE TO GOODS, TRANSFER OF LIABILITY FOR DAMAGE OF GOODS The title to goods as well as the liability for damage of the Subject Matter of Delivery are transferred to the Purchaser by its acceptance in the place of delivery. 13. TERMINATION OF GENERAL CONTRACT AND CONTRACTS If a general contract is agreed between the Purchaser and the Seller, the Purchaser can withdraw from the contract in the following cases: a) An insolvency petition relating to the Seller was filed at the court; b) A decision on commencement of the Seller's liquidation came into effect; c) The Seller does not perform its obligations from the General Contract even within 30 days after it was notified of such fact by the Purchaser; d) The Seller violates its obligation from the General Contract or from individual purchase contracts repeatedly although the Purchaser notified the Seller of a former violation in writing, primarily if delivery of goods is delayed, the goods are faulty or a smaller quantity is delivered If a General Contract between the Purchaser and the Seller is concluded for an indefinite period of time, each of the contracting parties is entitled to terminate the General Contract with a notice period of three months, commencing on the first day of the month following the day when the notice was delivered to the other contracting party The Purchaser is entitled to withdraw from the individual purchase contracts in the following cases: a) An insolvency petition relating to the Seller was filed at the court; b) A decision on commencement of the Seller's liquidation came into effect; c) The Seller is delayed with delivery of the goods, or with delivery of the required documentation or delivered a smaller quantity than agreed; d) Always without a prior selection of different claim for defects of the goods, if more than 5% of the goods have such defects that prevent them from their regular using by the Purchaser, or if the goods do not confirm to the technical-qualitative requirements. The said defects of the goods are considered substantial violation of the contract; e) The Seller is delayed with removing the claimed defects of the goods By withdrawing from the General Contract or individual contracts all rights and obligations of the contracting parties arising from the respective contract cease to exist, except for claim for compensation of damage resulting from violation of the contract, claim for a contractual penalty, selection of the law and any further rights and obligations agreed for the event of the contract termination The provisions of these terms and conditions shall be applied to individual purchase contracts concluded before termination of the General Contract until full settlement of the mutual rights and obligations arising from such purchase contracts. 14. CONFIDENTIALITY OF INFORMATION Both the Seller and the Purchaser undertake to treat all non-public business and technical details which they learn in their business relations as business secret. All non-public business and technical details are considered confidential information None of the contracting parties shall disclose any confidential information to another person but to their special advisors and authorized personnel. The contracting party shall notify the other party immediately of any violation of confidentiality of information by any person The obligations to keep the information provided herein secret do not relate to the following information: a) The information which is or will become generally and publicly accessible otherwise than by violating the provisions provided herein by the receiver of the information. b) The information which is known to the receiver of the information and it was freely available to the receiver before the information was received from the other contracting party. c) The information which shall be disclosed to the receiver of the information consequently without being bound to secrecy by a third party which is not bound in relation to the information in any manner. d) The disclosure of the information is required by law. 15. FORCE MAJEURE The parties consider force majeure as such unusual circumstances (e.g. strike, natural disaster, etc.) which prevent from performing the duties stipulated by the contract temporarily or permanently and which occur after the contract comes into effect and which could not be foreseen or averted by the contracting parties. The party, which will not be able to perform its duties due to such circumstances, shall inform the other party about such circumstances immediately and shall submit the other party documents about such fact or information about these circumstances having substantial influence on performing the contractual duties. in Ostrava, Section C, File no Page 4 of 5

5 16. DELIVERY OF NOTICES Any notice shall be considered delivered to the addressee on the day when it is received by fax, or personally, and on the third day after it is posted using a postal service in the Czech Republic as a registered letter delivered to the addresses given in the General Contract, order or order confirmation The following documents shall be required to confirm the delivery of all notices that are supposed to be or can be made between the Seller and the Purchaser: a) If sent by fax, the printed record of the fax message confirming the delivery to the fax number given in the General Contract, order or order confirmation with faultless result. b) If sent by , the confirmation of the delivery to the e- address given in the General Contract, order or order confirmation. c) If delivered personally, written confirmation of the receipt. d) If sent by post, the postal receipt confirming posting the notice for delivery as registered post to the address given in the General Contract, order or order confirmation more than three days before. 17. SELECTION OF LAW All relations between the Seller and the Purchaser arising from the Contracts shall be governed by the Czech law. The legal relations which are not regulated by the Contract and these terms and conditions are governed by the provisions of Act no. 89/2012 Coll., Civil Code and relating legal regulations. 18. DISPUTE SETTLEMENT Any disputes arising from the Contracts, including the issue of their validity, shall be settled as per the provision of Section 89a of Act no. 99/1963 Coll. of the civil court regulations as amended, by a respective general court of the Purchaser, the address of which is given by the Purchaser s registered office. 19. OTHER PROVISIONS The Seller s right to claim to its benefit the data records about legal negotiations and other facts in the Purchaser s electronic system shall be excluded in accordance with Section 562, Clause 2 of the Civil Code. Next, the Seller s right to claim to its benefit the content and the time of display of written documents relating to the legal facts, which occur during normal operation of the plant, shall be excluded in accordance with Section 566, Clause 2 of the Civil Code If the Subject Matter of Delivery is performance of work, the parties shall exclude application of the provision of Section 2595 of the Civil Code the right to withdraw from the general contract or sub-contract in case that the Purchaser insists on performing the work according to an order or by use of objects, which are not suitable for performing the work according to the Seller The Seller is not authorized to submit or transfer the Contract or individual rights and duties from the contract without the Purchaser s prior written consent The contracting parties conclude a prolongation of the period of limitation for all rights pertaining to the Purchaser that occurred in accordance with the general contract and sub-contract and which are subject to limitation, for the period of 10 years By concluding the sub-contract the Seller accepts a risk of change in circumstances in accordance with Section 1765, Clause 2. The Seller accepts a risk of change in circumstances in accordance with Section 2620, Clause 2 of the Civil Code if the Subject Matter of Delivery is performance of work If any provision of the contract or these terms and conditions becomes void or ineffective, unlawful or unenforceable, the other provisions of the contract shall not be affected. In such case the contracting parties undertake to replace such void and/or ineffective provision with a new provision which would comply better with the originally intended purpose of the original provision An integral part of these GPTC is the BUSINESS PARTNER CODE OF CONDUCT, which is listed on under "Downloads". These GPTC are valid since 1 March. in Ostrava, Section C, File no Page 5 of 5