General Commercial Terms and Conditions
These General Commercial Terms and Conditions of Klimex Hutnícky materiál, s.r.o. (hereinafter referred to as “GCTC”) regulate the relationship between Klimex Hutnícky materiál, s.r.o. as the Seller and its customers and Buyers in the sale of metallurgical material and related services.
I. INTRODUCTORY PROVISIONS
1. These General Commercial Terms and Conditions (hereinafter referred to as“GCTC”) are an integral part of each and every purchase contract concluded between the trading company Klimex Hutnícky materiál, s.r.o. as the Seller and the Buyer according to provisions of Section 409 et. seq. of the Act No. 513/1991 Coll. the Commercial Code.
II. CONDITIONS FOR ESTABLISHMENT OF CONTRACTUAL RELATIONSHIP
- These GCTCregulate the Seller’s and the Buyer’s mutual rights and obligations from the contractual relationship established under the purchase contract concluded between the Seller and the Buyer, including framework purchase contracts, or the relationship that was established on the basis of the Buyer’s order accepted by the Seller (any of the above mentioned contractual relationships hereinafter referred to as “contract”) having as its subject the sales of metallurgical material and related services according to the Buyer’s requirements, which are objects of Klimex Hutnícky materiál, s.r.o.
- These legal relations between the Seller and the Buyer established upon the purchase, delivery of goods, and defect complaints shall be, depending on their contents and purchase participants, governed by the provisions of applicable legal regulations of the Slovak Republic, particularly of the Civil Code of the Slovak Republic and the Commercial Code of the SR, as appropriate. TheseGCTCalso regulate the obligations of contracting parties from the time of conclusion of the purchase contract.
- The written and other implied “Order Confirmation” is deemed by the contracting parties as the conclusion of a proper purchase contract, where theseGCTCof the Seller are an integral part thereof. The order confirmed by the Seller has to be approved by the Buyer according to point 9. of this Article. Should the contracting parties conclude a separate written contract for the same deliverables, contractual arrangements from this purchase contract apply together with theGCTCof the Seller who is the trading company Klimex Hutnícky materiál, s.r.o. Should an order be concluded on behalf of the Buyer by a person in the Buyer’s establishment, such an action obliges the Buyer directly according to the provision of Section 16 of the Commercial Code.
- The fundamental obligation of the Seller is to deliver the agreed goods and services at the agreed time and in the agreed quality, and it is the fundamental obligation of the Buyer to take over and pay the agreed purchase price in full and within the agreed maturity period.
- Should the Buyer require to have a separate requirement, i.e. the cutting of material, as the subject of the purchase contract or order confirmations, it is necessary for the Buyer to state such a requirement in the purchase contract or order and to announce the withdrawal of goods at least one day in advance to the commercial officer stated in the purchase contract. Cutting of material means “commercial” cutting, i.e. with an accuracy of -0 / +50mm (cutting, shearing) and -0 / +100 mm (burning) from the required length. The agreement about the cutting (type, date, preliminary price) have to be part of the contract as a source for the assessment of the liability for a potential defect. The trimming that is part of delivery and originates from the agreed cutting and is smaller than the smallest delivered dimension is considered by the Seller as trimming of the material with a dimension smaller than that of the required element, i.e. the remainder after cutting. As far as circular steel with diameters above 100mm is concerned, what is considered by the Seller as trimming after cutting is a material remainder shorter than 500mm. The Seller shall not cut fasteners delivered in boxes, mesh in packs, drawn steel and the goods delivered by the manufacturer with their final surface treatment (not metal plating) and in the final shape (e. g. secondary products).
- If transport is demanded by the Buyer, the Buyer is obliged to state the followingin the order:
transport subject and mode (own pick-up, other forwarders, transport arranged by the Seller, groupage, post, railway),
• precise shipping instructions,
• the person authorized to take over the goods,
• time of performance.
The earliest possible time of transport by Seller’s vehicles is 24 hours after the conclusion or the service of the signed purchase contract, which, however, shall not apply to items up to 1,000 kg. With the transfer to the Seller’s bank account as the payment method, this time limit starts to lapse from the day on which the Seller’s bank account has been credited with the agreed purchase price. In exceptional cases, such as cash payment, technical defect on the vehicle, and special transport requirements, the Buyer is obliged to ask the transport controller for the transport of the goodsat the time of the contract conclusion,. Should such terms agreed in writing fail to be met by the Buyer, the costs related to the futile ride shall be paid by the Buyer.
- Should the Buyer require to have the accompanying documentation, i.e. a test certificate, Declaration of Conformity, Declaration of Parameters or the demand to have the origin of goods marked, delivered together with the ordered goods the Buyer is obliged to state this requirement in the order so that it could be incorporated into the purchase contract or Order Confirmation.
- The Buyer undertakes to return to the Seller the signed written draft purchase contract not later than 5 days after the day of service thereof to the Buyer.
- The Buyer is obliged to serve the order confirmation signed by it to the Seller’s address within 5 days from the date of delivery thereof to the Buyer. Should the confirmed written order fail to be delivered, the Seller shall not be obliged to accept the Buyer’s order.
- Should the Buyer receive the written draft purchase contract from the Seller, with the subject thereof being delivery of goods and services stated in the Buyer’s order, the contracting parties believe that through vain expiration of the time-limit of 5 days as from the date of service of the draft written purchase contract to the Buyer, it applies that the contracting parties have expressly agreed upon the conclusion of the purchase contract, where the Buyer’s order is deemed as a motion for conclusion of a contract, and the Seller’s motion for conclusion of a written purchase contract is deemed as acceptance of the Buyer’s motion for the conclusion of the purchase contract.
- The Buyer shall not be authorized to demand from the Seller further specifications or terms unless they are stated in the purchase contract or in the written order confirmation by both contracting parties.
- The Seller is authorized to refuse the delivery of goods to the Buyer if the Buyer is included in the list of persons for whom reasons for cancellation of registration have occurred according to Section 81 (4)(b) of the second point of the Act No. 222/2004 Coll. on value added tax, published on the portal of the Financial Directorate of the Slovak Republic.
III. DELIVERY OF GOODS, DELIVERY TERMS, CONDITIONS OF CARRIAGE, AND COSTS OF DELIVERY
- If no time limit has been agreed between the parties for the time of performance and transport, the contracting parties are obliged to fulfil their obligation without undue delay.
- The change of shipping instructions can only be permitted by the transport dispatcher of the company. If the Seller has fulfilled its obligation from the order by giving the goods over to another forwarder, the change of shipping instructions or of the contract of carriage shall be ensured by the Buyer at its own expense directly with this forwarder.
- The Seller’s delay is not deemed as breach of contract if it has been caused by reasons that could not be prevented by the Seller and that are beyond its control (e.g. delayed or damaged subdeliveries, obstacles to the transport, etc..); such obstacles do not exclude the Seller’s liability for the damage incurred by the Buyer by such the delay.
- Upon the take-over of goods, the Buyer is obliged to prove to the forwarder its identity by means of valid identity documents (an identity card or passport) without being invited to. The Buyer’s identity and the right to the takeover of goods must be obvious therefrom. Otherwise the goods shall not be handed over by the Seller/forwarder. The collection of goods by a person other than the Buyer (e.g. by the agreed forwarder) requires a document proving the right to the takeover of goods, stating the name, surname and identity card (passport) number of the entitled person, otherwise the goods shall not be issued. The takeover of goods has to be confirmed by the entitled person on the delivery note or in the vehicle record stating the name and surname, signature, identity card (passport) number, possibly the stamp.
- The Buyer is obliged to ensure that the unloading of the vehicle starts within 15 minutes after the checking in of the vehicle crew on the place that is stated in the shipping instructions. Should this condition not be met, the Seller has the right to charge demurrage because of waiting according to the current pricelist. The Buyer undertakes to unload the goods with its mechanisms and own staff unless it has otherwise agreed with the Seller.
- The access road to the place stated in the shipping instructions has to meet the criteria of minimum 3rd class road or of a local highway functional class C3 where the judgment of the passability thereof lies within the authority of the vehicle driver, in consideration of the vehicle type, its current technical condition, kind of loaded goods, and weather conditions at that time.
- If it happened that there is no one present in the place stated in the shipping instructions, the driver shall have the vehicle record confirmed by an impartial person (e.g. the municipal office) and he shall transport the goods back to the Seller’s stock. The Buyer is obliged to pay the costs related to the vain ride and storing of the goods incurred by the Seller thereby. Should the Buyer fail to take over the goods delivered by the Seller at the agreed time and in the place of the goods takeover, the Seller shall have the right to a contractual penalty of05% of the purchase price agreed in the purchase contract for the quantity of goods stated in the purchase contract or order, for every commenced day of delay.
- Should the Buyer unjustifiably refuse to take over the goods or fail to take it over repeatedly and unjustifiably, the Buyer is obliged to pay to the Seller all costs incurred by it hereby.
- The Seller is obliged to deliver the subject of sale in its usual packaging so that it would not get damaged during transport. The Buyer is obliged to inform the Seller about the damage to the subject of sale incurred duringtransport owing to inadequate packaging immediately after the receipt of the subject of sale from the forwarder.
- The packaging can be charged by the Seller as a separate item with goods. The Buyer can return undamaged packaging at its own expense within 1 year after the shipment of goods, stating the numbers of invoices they relate to. The freight for the return of packaging is paid by the returning party. The packaging of commercial goods delivered according to the purchase contract has to be handled according to the Act No.223/2001 Coll. on Wastes as amended.
- The Seller is authorized to charge freight to the Buyer according to the current transport price list.
IV. TERMS OF PAYMENT
- The Buyer is obliged to pay the price in cash or by a cashless transfer in one of these ways stipulated in the contract:
- on the basis of a pro forma invoice prior to the delivery of goods,
- by a direct debit payment on the day of delivery of goods,
- after the delivery of goods against an invoice with the maturity stipulated in the contract.
- The Buyer is obliged to communicate its legitimate objections against the payment document to the Seller within the maturity period.
- If the Buyer fails to pay to the Seller the agreed purchase price for goods within the maturity stated in the tax document – invoice on the basis of the purchase contract orGCTC, the Seller is entitled
- to demand from the Buyer the payment of a contractual penalty amounting to 0.05% of the outstanding amount for each commenced day of delay.
- to immediately suspend further deliveries by the time of the full payment thereof.
- to withdraw from the contract.
- The contracting parties agree that if the total amount of the Seller’s receivables from the Buyer from the contract or several contracts including VAT (regardless of their maturity) has reached the height of the credit limit, the Seller shall not be obliged todeliver goods to the Buyer (the right to refusal of performance by the Seller). The credit limit is Euro 10,000, unless otherwise agreed in the contract.
- The contracting parties agree that the Seller is not obliged todeliver goods to the Buyer if there are any (also from other contractual relationships) overdue Seller’s receivables unpaid by the Buyer.
- The Seller is authorized to offset any of its, even immature, receivables against the Buyer from the contract or herefrom against any (also from other contractual relationships) Buyer’sreceivables against the Seller.
- The Seller and the Buyer agree that if the price of goods or service has been reduced after the day of the chargeability of tax, the Seller shall not correct the tax base and the tax according to Section 25 (6)of the Act No. 222/2004 Coll. on VAT.
- If the transport from the territory of the Slovak Republic into another member state is carried out by the Buyer, or if the transport is arranged by the Buyer through a third party, the Buyer is obliged to deliver to the Seller a certificate of take-over in another member state not later than 3 months from the date of take-over of goods from the Seller. Should the Buyer fail to meet this obligation, it is obliged to pay to the Seller a contractual penalty amounting to the VAT rate according to applicable regulationfrom the invoiced price of goods (tax rate / 100 multiplied by theinvoiced value of goods). The Buyer is obliged tonotify the Seller of any changes related to its VAT registration that affects the purchase price according to the purchase contract. In the event of breach of this obligation, the Buyer is obliged to pay to the Seller a contractual penalty of 10% of the price of the subject of sale. The Buyer declares that no reasons have occurred to him leading to the cancellation of the registration according to Section 81 (4) (b) of the second point of the Act No. 222/2004 Coll. on the value added tax. Should reasons for the cancellation of registration according to the previous sentence occur on its part, the Buyeris obliged to advise the Seller thereof in writing.In the event that the Buyer’s declaration according to the first sentence of this point and Article hereofproves false, or if the Buyer commits a breach of its obligation to advise the Seller according to the second sentence of this point and Article hereof, The Buyeris obliged to pay to the Seller a contractual penalty of Euro…. and to reimburse to the Seller all the costs it has incurred in connection with this breach of obligations.
- The transfer of rights and obligations from purchase contracts or Order Confirmation to a third party is only possible with a written consent of the Seller.
V. ACQUISITION OF THE OWNERSHIP RIGHT
- The right of ownership to delivered goods passes to the Buyer at the time of full payment of the purchase price. Till the time of the full payment of the purchase price, the Buyer is not allowed to transfer the right of ownership of products to a third party.
- The risk associated with the damage to products passes to the Buyer at the time of delivery of the subject of sale. After the receipt of unpaid goods, the Buyer is obliged to take proper care of them and to store them in such a way that no potential damage thereto or theft thereof can occur. In the event of breach of any duty, the Buyer undertakes to pay to the Seller the incurred damage in full.
VI. FORCE MAJEURE
1. The Seller and the Buyer are not liable for their full or partial failure to comply with their contractual obligations from the purchase contract or Order Confirmation if it is the result of circumstances of force majeure beyond the Seller’s control, that make their fulfilment impossible or make their fulfilment inadequately complicated. Such circumstances include particularlyunforeseen weather change, natural disaster, fire, floods, earthquake, accident, disruptions in supplies of energies,shortage of energies or raw materials, failure of production equipment, armed conflicts, blockades, import/export ban, official bans and interventions, strikes, traffic collision, inoperability of railway transport, labour disputes, as well as the loss of an important, hardly replaceable supplier or other circumstances that will directly influence the performance of the purchase contract or Order Confirmation. In such a case, the time allocated to the fulfilment of obligations from the purchase contract or Order Confirmation shall be prolonged by the time during which these circumstances persist, unless otherwise agreed.
VII. LIABILITY FOR DEFECTS
- The Seller is liable for the defects of goods according to the applicable legal regulations.
- The person authorised to take over the goods is not allowed to make the take-over of an obviously undamaged consignment subject to the inspection of the contents, quantity and type thereof in front of the vehicle crew.
- The Buyer is obliged tonotify the Seller of delivery defectsin writing (as a complaint – necessary data: invoice number and specification of the defects of goods, and what right it is claiming on the basis of the defect complaint) without undue delay not later than 14 calendar days from the takeover of delivery. The rights from defects of goods or services that might be discovered later by exerting professional care have to be claimed by the Buyer not later than 6 months after the delivery of goods under the conditions stated in the provision of Section 422 et. seq. of the Commercial Code.
- If the Buyer returns the commercial goods under complaint, itis obliged toproceed according to the Seller’s instructions requested in advance. The Buyer has to state in the shipping documents that those are goods under complaint and state the relevant complaint number.
- Difference in weight of up to +/- 1%between the delivered and invoiced quantity of goods (referring to an item) is not considered as a defect and it cannot become subject of a complaint.
- Filing of a complaint by the Buyer shall not give rise to the Buyer’s right not to pay the purchase price in full. Despite the complaint, the purchase price is payable in full at the time agreed in the Seller’s tax document – in the invoice or according to the contract. In the event that the Seller admits the Buyer’s claim from the complaint, the Seller shall issue a credit note for the received performance in the extent of admitted complaint, unless otherwise agreed by the contracting parties.
- In the event that the Buyer has filed a complaint unjustifiably, it shall be obliged to pay the costs related to the settlement of the complaint incurred by the Seller.
- If the Seller has not received any written reply to its written opinion on the complaint from the Buyer within 30 days, the Seller’s opinion is deemed as confirmed.
VIII. SAFETY AND HEALTH PROTECTION
- In the event that the entry of the Buyer or a person authorized by it into the Seller’s premises is necessary for the performance of the contract, such persons are obliged to use personal protection equipment according to applicable legal regulations and the Seller’s regulations. The personal protective equipment shall be procured by the Buyer.
- Service of any documents (including invoices) under this contract or in connection therewith between the contracting parties (hereinafter referred to as “document”) means the service of a document by registered mail with return receipt attesting the service to the address stated in the header of this contract, service by courier (courier service) or personal service by the relevant contracting party. It is not necessary to send invoices by registered mail.
- The date of service of the document means
- a) also the date on which the contracting party, who is the addressee, refuses to accept the document (regardless of the chosen method of service as per point 1), or
- b) if the document is served to the contracting party by mail as the contents of the mail box also the date, on which
- ba) vainly expires the depositing time determined by the post office for the collection of that postal item, or
- bb) a remark that “the addressee has moved”, “the addressee is unknown” or another remark with similar meaningis verifiably made on this postal item by a postal clerk.
- For the purposes of service by mail, the addresses of contracting parties stated in the header of the contract or order confirmation shall be used, unless the addressee of the document has notified the sending party in writing of another address for service of documents. In the event that the address for the service of documents has been changed in any way, the relevant contracting party undertakes to inform the other party about the address change in writing without undue delay; in such a case, the new address duly communicated to the party prior to the sending of the document is decisive for the service.
X. FINAL PROVISIONS
- The contractual obligations of the Seller and the Buyer from the concluded purchase contract or order confirmation and those not regulated thereby are governed by the provisions of the Commercial Code (Act No.513/1991 Coll.) as amended and other general mandatory legal regulations of the Slovak Republic.
- In the event that the contract contains an international element, the court with the territorial jurisdiction shall be determined according to the Seller’s registered address. If there are several language versions hereofor of the contract, the wordings of these GCTC and of the contract in the Slovak language shall always prevail. The governing law is the legal system of the Slovak Republic.
- As far as possible, the Seller and the Buyer undertake to settle any disputes from the purchase contract or order confirmation out-of-court. If no agreement has been reached in the out-of-court proceeding, any contracting party can submit the dispute to the court with territorial jurisdiction in the Slovak Republic, according to the Seller’s place of operation, to decide.
- The Buyer as a natural person, or natural persons acting on Buyer’ behalf with their signature in the contract, are granting to the Seller their express consents in writing for the processing of their personal data stated therein or otherwise provided to the Seller for an unlimited period of time, till the written withdrawal thereof, however, for the minimum time of the term of contract by the time of the final settlement of all rights and obligations from the contract, for the purpose of processing thereof by the Seller in is own information system.
- To ensure the fulfilment of all Buyer’s obligations from the contract and herefrom, the contracting parties agree that the Buyer shall arrange a third-party guarantee in the contract. The person signed as the guarantor in the contract declares that it fully agrees with the contract and herewith and that it shall satisfy all Seller’s receivables from the Buyer under the contract and hereunder, if they have not been satisfied by the Buyer.
- The Seller and the Buyer confirm with their signatures in the contract that they have concluded the contract expressly so that no breach of anti-corruption legal regulations or criminal regulations is committed. Any breach of these obligations by the Buyer shall be deemed as a substantial breach of contract that entitles the Seller to withdraw from the contract anytime with an immediate effect.
- With their signatures in the contract, the Buyer and the guarantor are giving to the Seller their permission to publish their business names, company ID numbers, registered addresses and the amount owed in the case of the Buyer’s delay in the payment of the purchase price.
- TheseGCTCcome into force and effect on1st June, 2015.