GENERAL TERMS AND CONDITIONS

NIVEKO s.r.o., seated at Nivnice, U Dvora 219, postal code 687 51, Czech Republic, Identification No.: 607 45 801

I. Introductory Stipulations

1. These General Terms and Conditions (hereinafter referred to as “GTC” only) regulate the contractual relationship between the Purchaser – a business person (individual or legal entity) and NIVEKO s.r.o., seated at Nivnice, U Dvora 219, postal code 687 51, Czech Republic, identification no.: 607 45 801, a company registered in the Commercial Register kept by the Regional Court in Brno, sectionC, insert 18771 (hereinafter referred to as the “Seller” only). These GTC form an integral part of the contract of sale or framework contract of sale concluded between the Purchaser and the Seller (hereinafter referred to as the “Contract” only); the subject-matter of the Contract being the supply of goods by the Seller to the Purchaser according to relevant provisions of Act No. 89/2012 Coll., the Civil Code. By signing the Contract or an Annex thereto, the Purchaser confirms to be aware of the text of these GTC, to accept the GTC and to agree to follow their stipulations.

2. In case of any contradictions between individual stipulations of the GTC and individual stipulations of the Contract, the stipulations of the Contract shall prevail.

II. Formation of Contract

1. The goods shall only be delivered to the Purchaser on the basis of his written order; the order is based on Seller´s valid pricelist.

2. The Purchaser must place an order for goods. Every Purchaser´s order must contain at least the following essential data:
a) Seller´s and Purchaser´s identification, their trade name/name and surname, seat/place of business, identification number;
b) Reference to framework contract, if existing;
c) Description of ordered goods;
d) Required quantity of goods, including its technical specification;
e) Contractual price if known to Purchaser from Seller´s pricelist;
f) Required date and place of delivery; unless agreed otherwise Seller´s seat is the place of delivery;
g) Information concerning who arranges and pays for transport;
h) Signature of a person authorized to act for the Purchaser in this affair.

3. Written orders must be delivered to the Seller by post, fax or by means of electronic communication (e-mail). The Purchaser is bound by his order – Contract proposal – for 7 (seven) days from its delivery to the Seller. If the Purchaser orders goods by phone, the Seller shall subsequently send the Purchaser a contract proposal and the Purchaser must confirm the contract proposal no later than within 7 (seven) banking days. In case the Purchaser fails to confirm the offer or in case the Purchaser confirms the offer later, the Seller need not deliver the goods to the Purchaser. Nevertheless, the Seller may deliver the goods to the Purchaser in spite of that if the Purchaser confirms the order upon the receipt and acceptance of the goods.

4. After the Seller receives Purchaser´s order, the Seller shall send the Purchaser order confirmation or a new contract proposal. Order confirmation or new contract proposal usually contains elements as specified by Art. II (2) hereof. Unless order confirmation or a new contract proposal is sent to the Purchaser within 7 (seven) days from the reception of order, the order shall expire. Orders may be confirmed by post, fax or by means of electronic communication (e-mail). The Seller need not confirm Purchaser´s order. Acceptance of Seller´s offer with an appendix or deviation on the Purchaser´s part altering or modifying conditions of Seller´s offer, including minor and non-essential alterations or modifications, does not constitute acceptance of Seller´s offer. The Contract is not concluded until agreement on all its elements has been reached. Acceptance of Seller´s offer made by the Purchaser must not contain any appendices, restrictions, objections, deviations or other changes and must not refer to any terms of trade other than the GTC. If the Contract is made in a form other than written form, the Contract shall only be valid with such content as agreed by the Parties or with such content which was confirmed by the Seller to the Purchaser in his confirmation.

5. A Contract is made between the Parties when order confirmation is delivered to the Purchaser or when Seller´s new offer is accepted by the Purchaser unconditionally. If the Seller confirms the order in respect of a part of goods only, a Contract is made between the Parties in respect of the confirmed part of the order only. If order confirmation contains a change other than mere reduction of the quantity of goods subject to the particular contract, it shall be considered a new offer for such a particular contract. The other Party may accept such an offer within the same period and in the same manner as the Seller did with Purchaser´s order.

6. Any changes of the content of the Contract may only be made in writing based on an annex to the Contract signed by both Parties (e-mail delivery is sufficient). Before the annex to the Contract is made, the amount of extra costs, if any, occurred in association with the annex, shall be calculated and approved mutually, and the amount corresponding to agreed extra costs shall be indicated explicitly in the annex to the Contract. By signing the annex, the Purchaser undertakes to pay the extra costs to the Seller.

III. Fulfilment of Delivery of Goods

1. The Seller shall deliver goods to the Purchaser within the time-limit as agreed in the Contract. The Seller reserves a right to extend the delivery period in special cases originated by Act of God as specified under Art. IX (1) hereof or in cases where it is impossible to carry out delivery within anticipated time due to objective reasons or to withdraw from the Contract in cases specified under Art. IX (1) hereof.

2. The Seller delivers goods based on delivery condition INCOTERMS 2010 – EXW Nivnice, unless agreed otherwise. If the Purchaser fails to accept delivered goods duly and in due time, the Seller may charge the Purchaser with related costs; the Seller may also sell the goods.

3. The Purchaser is fully liable for acceptance of goods under the Contract made. In case the Purchaser authorizes a third person or a carrier to accept the goods under the Contract (hereinafter referred to as “Commissioned Person” only), the Purchaser shall be fully liable for such correct commission as well as for actions of the person commissioned to accept the goods. The Seller shall not be liable for damage caused to Purchaser by the Commissioned Person.

4. In case the Seller or a carrier chosen by the Seller hands over goods under the Contract at the place of delivery/destination specified in the particular individual contract (differently from Art. III (2) hereof or at the place of delivery as specified under Art. III (2) hereof), to a person claiming to be commissioned by the Purchaser, it holds good that the Seller or the carrier chosen by the Seller acted in good faith concerning identity of such a person. The Seller shall not be liable for any consequences occurred in relation to the Purchaser in case it comes out that in fact such a person was not commissioned by the Purchaser to accept the performance under the Contract.

5. Risk of damage to goods (e.g. losses or deteriorated quality of goods) as well as any additional costs shall pass to the Purchaser from the Seller upon delivery of goods at the place of delivery as specified in the particular contract. Unless stipulated otherwise by the particular contract, the risk of damage to goods shall pass to the Purchaser at the place of delivery as specified under Art. III (2).

IV. Quality of Goods, Warranty

1. Goods shall be delivered in usual standard quality corresponding to the type of delivered goods unless agreed otherwise between the Parties.

2. The Seller shall only provide warranty for delivered goods to the Purchaser if agreed so explicitly in the particular contract and/or if a warranty certificate is handed to the Purchaser, within such duration and scope as specified therein. In such a case the warranty period starts running on the date of delivery of the goods.

3. Assertion of rights derived from defects of goods or from the quality warranty, if provided in the particular case, is conditioned by fulfilment of Purchaser´s duty to send the Seller the original receipt of goods delivery (delivery certificate, bill of freight, CMR), confirmed by Purchaser´s own hand.

V. Price

1. The purchase price of goods follows Seller´s pricelist valid as on the date of the Contract.
The Seller may change the pricelist unilaterally. The price of goods becomes binding when the Contract is made. The price in the Contract is stipulated on condition that the delivery of goods takes place as a single operation, fluently and without any interruption for reasons on the Purchaser´s part. If any extra costs arise for reasons on the Purchaser´s part, the Purchaser undertakes to pay such extra costs to the Seller in their full amount. The price of goods does not include costs to transport the goods to the place specified by the Purchaser. The Seller shall only arrange transport of goods based on Purchaser´s order and upon Purchaser’s costs unless agreed otherwise.

2. If Purchaser´s duty to pay an advance to the Seller has been agreed in the Contract, the Seller need not start performance unless the Purchaser has paid the advance. If the Purchaser is in default of the payment of the advance, the Seller cannot be in default of his performance and the period to deliver the goods to the Purchaser shall be extended by the period of Purchaser´s default.

3. The price of goods does not include assembly, installation of goods and subsequent servicing. The servicing of goods (i.e. including purchase of any spare parts) shall be arranged by the Purchaser upon his own costs. Costs associated with delivery of spare parts, if any, to the Purchaser shall be paid by the Purchaser. Assembly, installation and servicing of goods shall only be arranged by the Seller based on Purchaser´s order and upon Purchaser´s costs unless agreed otherwise.

VI. Payment Conditions

1. Payments agreed to be made by bank transfer between the Parties shall be considered made upon being credited to Seller´s account. Payments agreed to be made in cash between the Seller and the Purchaser shall be considered made upon being given to the person charged with it by the Seller.

2. The Purchaser has to pay the remaining part of the price under the Contract, having deducted the advance paid, based on an invoice – receipt of tax deductible expenditure issued by the Seller unless the payment was made beforehand based on an advance invoice in its full amount. The Purchaser has to make the payment within the maturity period specified in the invoice.

3. If the Purchaser fails to pay the price or any part thereof on the maturity date, the Purchaser shall be in default starting on the following day. If the Purchaser is in default of payment of the price or any part thereof, the Purchaser has to pay the Seller a contractual fine in the amount of 0.05% of the due amount for each started day of default. Agreed contractual fine is without prejudice to Seller´s right for compensation of damage, in its full extent. The Parties have agreed that in case of Purchaser´s default the Seller has a right for damages, besides interests on late payment.

4. The Purchaser shall only acquire the title to the goods upon the full payment of the purchase price to the Seller.

VII. Liability for Defects, Warranty Claims

1. Seller´s liability for defects shall be governed by relevant provisions of the Civil Code as amended unless agreed otherwise in the Contract or herein. The Parties have agreed that assertion of rights derived from defects of goods or from quality warranty, if provided in the particular case, is conditioned by Purchaser´s compliance with his duty to hand the Seller confirmed original delivery certificate (delivery certificate, bill of freight, CMR).

2. The Purchaser has to inspect the goods as soon as possible upon and after the transfer of risk to damage to the goods (i.e. after the delivery of goods to the Purchaser) and check their condition, quantity and completeness and notify any and all discovered defects to the Seller without unnecessary delay after the receipt of goods – by an entry in the delivery certificate.
Defects discovered later, if any, must be asserted against the Seller in writing with exact description of the defect, identification of the goods and Purchaser´s contact information. At the same time, the Purchaser must enclose a photo of asserted defects. Furthermore, the Purchaser has to prove that the goods suffered from defects which are subject to the defects liability claim upon the transfer of risk of damage to the goods, i.e. upon the delivery of the goods. If the Purchaser fails to comply with any of the conditions of the claim for liability for defects procedure as specified in the Contract and/or under Art. VII hereof, the Seller will not admit the claim for liability for defects to be justified.

3. Purchaser´s right derived from defective performance is created by a defect which was present in the goods upon transfer of risk of damage to the Purchaser, i.e. upon delivery of the goods to the Purchaser. Furthermore, the Seller is liable for defects originated during the warranty period after the goods are handed to the Purchaser if warranty was provided in the particular case and if the Purchaser proves that defects were caused by a breach of Seller´s duties. The warranty does not cover failure to observe assembly or installation instructions, common wear and tear, unsuitable use or maintenance of goods, cases of wilful damage of goods or damage by Act of God.

4. Costs incurred in association with the warranty claim shall be borne by the Seller if the warranty claim is justified while they shall be borne by the Purchaser if the warranty claim is not justified. In such a case the obliging party shall cover such costs to the obligee no later than 30 days from the delivery date of the invoice where such costs are duly specified and accounted for.

5. If the Contract is breached by defective performance non-substantially, the Purchaser only has a right for elimination of such defects or a right for reasonable discount, at the Seller´s discretion. The provision of Section 2107 (3) of the Civil Code shall not apply. Creation of such a right is conditioned by Purchaser´s claiming of such defects with the Seller in writing, without unnecessary delay after discovering the defects. In case it comes out that elimination of such defects is associated with unreasonable costs, the Purchaser shall be entitled, in respect of such defects, for rights derived from defects as specified under Art. VII (7) hereof. It shall be exclusively the Seller who shall assess whether the breach of Contract due to defective performance is substantial or non-substantial as well as it shall be exclusively the Seller who shall assess whether costs associated with elimination of defects were reasonable. The Seller has to inform the Purchaser in writing of the result of such assessment (e-mail notification shall be sufficient).

6. If the Contract is breached substantially due to defective performance, the Purchaser shall exclusively have a right for elimination of such defects (including, but not limited to elimination by repair or by delivery of new perfect performance) or a right for reasonable discount, at the Seller´s discretion. Creation of such a right is conditioned by Purchaser´s written notification of such defects to the Seller without unnecessary delay after the defects are discovered.

7. The Seller shall not be liable for defects caused by transport (if arranged by the Purchaser), by incorrect use or storage of goods, non-professional intervention or neglect of necessary maintenance of goods or mechanical or chemical damage. Furthermore, the Seller shall not be liable for damage to goods caused by failure to observe prescribed or usual forms of use. Duration of warranty, if granted, is conditioned by the fact that all maintenance and repairs of goods during the warranty period must be carried out exclusively in compliance with Seller´s instructions. The Seller shall not be liable for defects of goods caused by non-professional maintenance and assembly of goods.

8. In case of Purchaser´s default of payment of the price under the Contract, the Purchaser loses its right for any quality warranty under these GTC and the warranty confirmation (warranty certificate) irreversibly, without any further actions. The warranty is not provided in such a case. The provisions of Section 2108 of the Civil Code shall not apply.

9. The Seller shall not be liable for damage caused to third parties due to Purchaser´s wrong instructions or incorrect assembly carried out by the Purchaser or a person commissioned by the Purchaser. The Purchaser may not assert a right for compensation of damage, if any, together with a defects liability claim.

VIII. International Element

1. If the Purchaser is an individual or a legal entity with its place of business/seat outside the territory of the Czech Republic (hereinafter referred to as “Foreign Purchaser” only), the following stipulations shall also be applied to the Contract concluded between the Seller and the Foreign Purchaser and these stipulations shall have preference over the remaining stipulations hereof.

2. The Legal relationship created between the Seller and the foreign Purchaser on the basis of this Contract as well as based on each individual contract of sale between the parties shall be governed by valid Czech legislation except for the conflict rules. The Parties thus make their choice of the law applicable to this Contract according to Art. 3 of Regulation (EC) No. 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (“Rome I Regulation”) and Czech law shall be the chosen law. Czech courts of general jurisdiction are exclusively competent to decide all disputes, disagreements, questions of interpretation or expertise and any possible claims arising from/out of this legal relationship, this framework contract as well as each individual contract of sale between the parties. The UN Vienna Convention on Contracts for the International Sale of Goods of 11 April 1980, published for the Czech Republic under No. 160/1991 Coll., shall not be applied.

3. If assembly of goods is not needed or if assembly of goods is to be carried out by the Foreign Purchaser under the Contract, the Seller shall have complied with his duty to deliver the goods when the Seller hands the goods to the Foreign Purchaser at any of Seller´s plants for Foreign Purchaser´s own transport or when the Seller hands the goods for transport to the carrier designated by the Foreign Purchaser or carrier upon whom the Foreign Purchaser and the Seller have agreed. The costs of transport shall always be borne by the Foreign Purchaser unless agreed otherwise. The Seller delivers its goods based on a delivery clause according to Incoterms 2010 – EXW Nivnice, unless agreed otherwise.

4. Risk of damage to goods (e.g. losses or deteriorated quality of goods) as well as any additional costs shall pass from the Seller to the Purchaser upon handover of the goods to the Purchaser or upon handover of the goods to the carrier specified by the Purchaser unless agreed otherwise.

5. These GTC have been executed in the Czech language. In case other language versions of these GTC or of individual contract are executed, Czech version shall always prevail.

IX. Final Stipulations

1. If non-removable obstacles preventing Seller from discharging its obligations towards the Purchaser appear on Seller´s part and such obstacles were not caused by the Seller, the Seller may withdraw from the Contract unilaterally in writing and has to return immediately the amount paid by the Purchaser so far, reduced by costs spent for Purchaser´s benefit. The Seller shall not be liable to the Purchaser for his failure to discharge his duties derived from the Contract or for damage caused by such failure if the failure was caused by unexpected and unavoidable events that could not have been avoided by the Seller (in particular due to Act of God events). The Seller shall not be liable to the Purchaser for damage caused based on contracts made between the Purchaser and other persons, including, but not limited to subsequent and indirect damage.

Act of God includes (but is not limited to): mobilization, war, natural disaster, civil uprisings, power failures, etc.. Unless the Seller withdraws from the Contract due to an obstacle preventing the Seller from discharging his obligations under the Contract, the period determined for the discharge of duties shall be extended by reasonable time, assessed according to the nature of the obstacle. The Seller shall inform the Purchaser of the obstacle as soon as the Seller is able to do so, specifying the nature of the obstacle and determining a time-limit by which the Seller shall be able to discharge his duty/duties additionally.

The Seller may also withdraw from the Contract one-sidedly in cases specified in the Contract or by law. The Seller may withdraw from the Contract if the Purchaser enters liquidation or if insolvency proceeding is commenced against the Purchaser. The Seller may further withdraw from the Contract or he may suspend delivery of ordered Goods in case the Purchaser is in default with the payment of any due obligation against the Seller for more than 30 days. Furthermore, the Seller may withdraw from the Contract if the Purchaser commits a serious or repeated breach of any of his obligations resulting from the Contract although the Purchaser was warned of such a fact in writing and failed to remedy the situation during reasonable period which was additionally granted and which was no less than 10 calendar days.

In case of withdrawal from the Contract, the Contract shall be terminated on the day following the day when the written notice of withdrawal is delivered to the other Party. The withdrawal is to be delivered by registered post to the address of the other Party. The withdrawal shall also be considered delivered on the date when the notice sent by registered post returned as undeliverable or upon being explicitly refused to be received by its addressee.

Termination of the Contract by withdrawal shall be without prejudice to duties of the Parties to pay contractual fines, compensate damage or other loss or to other stipulations of this Contract which are to survive the termination hereof.

2. The Purchaser declares to have sufficient funds to pay the price of the goods in its full amount. The Purchaser may not set off any of his obligations against the Seller unilaterally against any of his claims against the Seller.

3. By signing a Contract with the Seller, the Purchaser undertakes to refrain from any competitive actions against the Seller which might impair Seller´s business activities, for the term of validity of the Contract; in particular, the Purchaser shall not do the following without previous explicit approval, licence or other authorization granted by the Seller:
a) Manufacture goods subject to the Contract and individual contracts made on its basis;
b) Copy, imitate or otherwise make use of technical solutions used by the Seller to manufacture the goods or refer such technical solutions to third parties;
c) Present Seller´s goods as Purchaser´s own goods or goods of another entity;
or commit any other practices of unfair competition against the Seller.
In case of breaching any single duty specified in this Art. IX (3) hereof by the Purchaser, the Purchaser has to pay the Seller a contractual fine in the amount of EUR 20,000.00 (in words: twenty thousand euros). Payment of the contractual fine shall be without prejudice to other Seller´s rights.

4. The Purchaser grants its consent to the Seller to process his personal data within the scope as provided to the Seller. The Purchaser agrees that his data might be kept in Seller´s database during the term of its business undertaking upon observing conditions stipulated by Act No. 101/2000 Coll.

5. Unless stipulated otherwise herein, relevant provisions of Act No. 89/2012, the Civil Code, as amended, shall apply to Contracts made based on these GTC. The Parties have agreed that Czech court under the district in which Seller´s seat is situated shall have jurisdiction to settle disputes between the Parties.

6. By confirming Seller´s offer or by signing the Contract or an annex to the Contract, the Purchaser expressly acknowledges to be aware of and to accept the current version of the GTC and to agree to observe its stipulations.

7. The Seller may propose changes hereof unilaterally anytime due to (including, but not limited to) changes of legislation. The Seller shall inform the Purchaser of proposed changes of these GTC at least 1 month in advance via Seller´s web pages or by e-mail, specifying when such changes are to become effective. The Purchaser has to make himself familiar with proposed text of the changes. Unless the Purchaser refuses proposed changes of the GTC in writing one day before proposed effective date of such changes at the latest, it shall hold good that the Purchaser accepts proposed changes of the GTC as on the effective date proposed by the Seller. If the Purchaser refuses the draft of new GTC in writing, the original text of the GTC shall remain valid. If the Purchaser refuses the draft of new GTC, the Seller may revoke the Contract with a six-month period of notice.

8. Where not contrary to legal regulations, the Purchaser agrees that all Seller´s rights and obligations in respect of the Purchaser shall be subject to the statute of limitations of 15 (fifteen) years.

9. The Purchaser agrees that the Seller may set off Seller´s due monetary claim against the Purchaser to any Purchaser´s monetary claim against the Seller, irrespective of currency of the claim and legal relationship it is based on. The Purchaser agrees that the Seller may set off its claims against Purchaser´s claims that have not become mature, that cannot be subject to enforcement, that cannot be applied before the court or that are subject to the statute of limitations.

10. Without Seller´s previous written consent the Purchaser may not transfer (including security by cession or transfer of title as security) or put his claims against the Seller in pledge or transfer the Contract or any part thereof or any rights and duties resulting from the Contract.

11. In case any Article of these GTC or of the Contract becomes invalid, ineffective or unenforceable or appears to be in contradiction with valid legislation, it shall hold good that such Article is fully separable from the remaining Articles of the document and the remaining Articles of these GTC or the Contract shall thus remain fully valid and effective.

12. The GTC and the Contracts, of which the GTC form an integral part, have been executed in the Czech language. If other linguistic versions of the GTC or the Contract are made (before or after the Contract is made), the Czech language version shall always prevail.

13. These General Terms and Conditions become effective on 1.1.2014