GENERAL TERMS AND CONDITIONS
AMCON Europe s.r.o.
I. Area of validity
- These General Terms and Conditions (hereinafter the “GTC”) shall apply to any and all supplies provided by AMCON Europe s.r.o., Id. No.: 24831115, with registered seat Za Tratí 207, 252 19 Chrášťany, Czech Republic, registered in the Commercial Register kept by the Municipal Court in Prague, Section C, File 178375 (hereinafter “the Seller”), to its customers or other business Partners (hereinafter the “Buyer”). The term “supply” comprises supply of any and all goods manufactured and/or offered by the Seller (hereinafter “Goods”), and any related services provided by the Seller. The Seller is entitled to deliver its supplies through third parties.
- These GTC shall apply to all types of contracts that may be entered into with the Seller, in particular, but not exclusively sales contracts (hereinafter “Contract”).
- Business terms and conditions of the Buyer shall not apply and are excluded. Such business terms and conditions shall apply only based on explicit prior written agreement.
II. Conclusion of the Contract
- The Seller makes an offer for conclusion of the Contract to the Buyer by delivering a quotation to the Buyer (per email or by any other means agreed upon or customary for communication between the parties), which includes a specification of the Goods purchase price, payment and delivery conditions.
- The quotation is subject to acceptance by the Buyer. The quotation may be revoked or altered by the Seller within the time or limit for its acceptance. Should the time or limit for its acceptance not be expressly stipulated, the reasonable time or limit regarding business usage or the practise established between the parties shall apply.
- Any unilateral amendments, changes or supplements of the quotation made by the Buyer shall be null and void. The Seller hereby expressly excludes the application of Section 1740 (3) of Act No. 89/2012 Coll., the Czech Civil Code, as amended (hereinafter “Civil Code”).
- Once the quotation has been accepted by the Buyer, the parties sign a written Contract, which will include a reference to the quotation number. The Contract shall be considered concluded once it has been signed by both Seller and Buyer.
- After acceptance of the quotation by the Buyer with signature to the Contract, the Buyer shall not change, alter or cancel the order or conditions included in the quotation without an explicit approval of the Seller.
- In case of cancelation of the order or any of its part by the Buyer, the Seller may charge the Buyer a cancellation charge of thirty five percent (35%) of the total price of the order or of the proportional part of the price of the order. The Seller shall not be liable for any delays due to order changes.
- The specification of the Goods manufactured according to the design or requirements of the Buyer are based on Specification sheets provided by the Seller and approved by the Buyer in writing, The Specification sheets will be provided by the Seller at the latest by signing of the Contract. Once the Buyer has approved the Specifications, any changes in Specifications requested by the Buyer are not possible without revising the Specification sheets and written approval of the Seller. All and any additional costs incurred by change(s) of the Specification sheets requested by the Buyer shall be borne by the Buyer. The purchase price can be increased and the delivery time can be prolonged consequently.
III. Purchase price, payment
- The Buyer agrees to pay the applicable or agreed prices to the Seller for the purchase of Goods and any other services provided. This shall also apply to services and payments by the Seller to third parties as arranged by the Buyer.
- The Seller may change the agreed purchase prices or price for services provided that the Buyer requests additional changes in the supply or in the services and the Seller has approved such changes.
- Unless expressly agreed otherwise, the purchase price does not include any additional costs, such as taxes (e.g. VAT) and customs, if accrued, costs of transportation or special requirements concerning packaging requested by the Buyer. Any taxes or customs, if accrued, shall be borne by the Buyer. Unless expressly agreed otherwise, the additional services such as installation of Goods, training or maintenance will be invoiced separately.
- The Seller is entitled to request a reasonable advance payment or security upon entering into a Contract or later. Should the advance payment amount to the purchase price, Article X hereof does not apply.
- Unless an invoice issued by the Seller states otherwise or if it does not specify the due date, the invoice shall be payable within 14 days of delivery to the Buyer. The Seller is entitled to declare advance payments payable at any point and request their immediate payment.
- If the method of payment is cash-free, the Buyer is obliged to indicate a payment reference number while transferring the purchase price. If the method of payment is cash-free, the obligation of the Buyer to pay the purchase price is fulfilled in the moment, when the relevant amount is credited to the bank account of the Seller.
- The Buyer shall bear any bank transfer fees connected with the payment.
- In case of default with the payment, the Seller is entitled to charge the penalty 0,2% of default payment for each day of delay. The Buyer shall pay a fee of CZK 200 to the Seller for every default notification sent by the Seller to the Buyer. Besides that, the Buyer shall also compensate the Seller for any and all further costs incurred in connection with recovery of the Buyer’s debt, in particular the cost of legal representation.
IV. Transportation and delivery of the Goods
- The Seller shall deliver the ordered goods to a specific address indicated in the quotation, otherwise to the address of the Buyer’s establishment.
- Should the Contract refer to any Incoterms rule, it is presumed to be the last version of Incoterms.
- In the event that due to reasons on the part of the Buyer, repeated attempts to deliver the Goods have been made or the Goods have had to be delivered in a manner different to the manner specified in the quotation, the Buyer shall be obliged to cover all expenses incurred due to the repeated delivery attempts or due to delivery having taken place in a different manner.
- The risk of damage to the Goods passes to the Buyer upon takeover of the delivery or, if he does not do so in due time, from the time when the Goods are placed at his disposal and he commits a breach of Contract by failing to take delivery.
- The transfer of right of ownership is independent from the passing of risk according to Article IV. (4) hereof. The right of ownership to the Goods is transferred by the Contract itself upon its effective date.
- The Buyer shall examine the Goods as soon as possible after the passage of the risk of damage to the Goods.
- If the Goods are redirected in transit or redispatched by the Buyer without a reasonable opportunity for examination by him and at the time of the conclusion of the Contract the Seller knew or ought to have known of the possibility of such redirection or redispatch, examination may be deferred until after the Goods have arrived at the new destination.
V. Related services
- If stipulated between the parties, the Seller may provide the Buyer with services related to the delivered Goods, such as installation of the Goods, training of Buyer’s staff or any other kind of technical assistance.
- Unless expressly agreed otherwise, the Buyer shall bear for all reasonable costs, in particular, but not exclusively costs of transportation, accommodation and other reasonable expenses incurred by the Seller by providing such services.
- The Buyer must inform the Seller about all possible risks and other circumstances which could have an impact on quality and/or time of the provision of the services, before the commencement of the provision of the services by the Seller.
- The Buyer must provide the Seller with necessary cooperation while providing the related services, in particular, but not exclusively the Buyer must enable the Seller to enter its premises where the Goods have been installed or ensure the Seller access to the Goods in other way.
- Any damage claims of the Buyer relating to the provision of services according to this article are excluded. Exceptions include death, bodily harm or other damage to health, damage caused by intentional breach of obligations or gross negligence on the part of the Seller or its employees.
VI. Rights and duties of the Seller
- The Seller shall deliver the Goods to the place of delivery stipulated in the Contract, free from defects and in due time.
- The Seller shall pack the Goods in accordance with Seller’s standard packing procedure, which shall be suitable to permit shipment of the Goods to the final destination, provided, however, that if the Buyer requests a modification of those procedures, the Seller shall make the requested modification and the Buyer shall bear any reasonable expenses incurred by the Seller in complying with such modified procedures which are in excess of the expenses which the Seller would have incurred in following its standard procedures.
- The Seller is obliged to hand over the Goods and any documents relating to them to the Buyer.
- The Seller must deliver Goods which are of the quantity, quality and description required by the Contract and which are contained or packaged in the manner required by the Contract.
- If the Seller has delivered Goods before the date for delivery, he may, up to that date, deliver any missing part or make up any deficiency in the quantity of the Goods delivered, or deliver Goods in replacement of any defected Goods delivered or remedy any defect in the Goods delivered.
VII. Rights and duties of the Buyer
- The Buyer is obliged to pay the purchase price to the Seller in accordance with the payment terms stipulated in the Contract and these GTC.
- The Buyer is obliged to take the delivery over. The Buyer shall do all the acts which could reasonably be expected of it in order to enable the Seller to make delivery and to hand the Goods over to the Buyer.
- In case that the Buyer does not fulfill its duty arising from Article VII (2) hereof in due time, and unless agreed otherwise, the Seller will store the Goods free of charge for the Buyer for fifteen (15) days after the delivery date stipulated in the Contract. From the sixteenth (16th) day, the Buyer shall pay a contractual penalty in amount of 0.1% of the purchase price for each day of the storage of the Goods to the Seller. The storage fee shall be due in full upon receipt of invoice for storage fee, regardless of whether the Buyer has been invoiced or has paid for the Goods. The payment of the contractual penalty does not affect the right of the Seller to claim damages caused by the breach of the duty.
VIII. Warranty and claims for defects
- The Seller is liable in accordance with the Contract and these GTC for any defect which exists at the time when the risk passes to the Buyer.
- On top of that, the Seller provides the Buyer with warranty, under which the Seller undertakes that the Goods will be fit for use for the usual purpose for a warranty period of 24 months. The warranty period commences upon the delivery of the Goods to the Buyer. The warranty does not apply on any chemical products manufactured and/or offered by the Seller.
- The scope of the warranty may be defined more precisely in the warranty certificate, which may be provided by the Seller to the Buyer by delivery of the Goods.
- The warranty shall not apply to the extent that any defect is caused by: (i) any modification, repair or alteration of the Goods by the Buyer or any third party, except as expressly authorized in writing by the Seller; (ii) use contrary to the documentation accompanying the Goods or the Goods’ intended use; (iii) any failure related to the Goods arising out of an incorporation or combination with a component, material or the Buyer or third party product by the Buyer or any third party; or (iv) the Buyer or any third party attempt to repair, misuse, willful misconduct, negligence or accident with regard to the Goods.
- The Buyer shall inform the Seller about defects of the Goods within a reasonable time after he has discovered them or ought to have discovered them, at the latest 10 days after takeover of the Goods or 10 days after the occurrence of the defect, otherwise it loses any rights for claiming defects in accordance with these GTC.
- The notice within the meaning of Article VIII (5) hereof must concretely specify the nature of the defect by description of the character and scope of the defect.
- If a defective performance constitutes a fundamental breach of Contract, the Buyer has the right to:
i) have the defect removed by having a new defect-free item or a missing item supplied,
ii) the removal of the defect by having the item repaired,
iii) a reasonable reduction of the purchase price, or
iv) withdraw from the Contract if the defect is not removed within reasonable time frame.
- The Buyer may not change the choice made without the consent of the Seller. This does not apply if the Buyer requested the repair of a defect which proves to be irreparable.
- The Buyer shall notify the Seller of the right he has chosen upon the notification of the defect or without undue delay thereafter, at the latest 1 week after the notification of defects.
- No Goods may be returned for credit or otherwise unless the Buyer receives the express authorization of the Seller. The Goods must be returned in good condition, in its original packaging with completed identification and with all supporting documentation detailing of any claimed defect as required by the Buyer. The costs of the delivery of the returned Goods shall be prepaid by the Buyer. The returned Goods may be subject to a restocking charge. The returned Goods must be securely packed in its original packing materials and adequately insured and protected to reach the Seller without damage. All costs incurred by the Seller to restore the Goods will be charged to the Buyer, including any handling charges. Goods manufactured according to the design or specification of the Buyer may not be returned for credit.
- The Seller, its affiliates, and their officers, directors, employees and agents shall not be liable for any indirect or consequential damages, including, without limitation, loss of profits, loss of use, downtime, loss of goodwill, business interruption, delay in performance, or lost opportunities. This does not apply in case that the damage was caused to the natural rights of an individual, intentionally or due to gross negligence of the Seller.
IX. Termination of the Contract
- Besides statutory reasons, the Seller may withdraw from the Contract in the event that an agreed or required advance payment under Article III (4) hereof has not been paid even within a reasonable grace period of time set by the Seller.
- The Seller is likewise entitled to withdraw from the Contract for objectively justifiable reasons, in particular:
i) if the Seller is unable to perform the Contract due to force majeure or other circumstances for which the Seller is not liable; as force majeure should be understood any event beyond the reasonable control of the Seller and affecting its performance including, without limitation, governmental regulations or orders, war, riots, fire, strikes, lockouts, immediate threat of terroristic attack or any other similar causes;
ii) if the Buyer provides misleading or false information needed to execute the Contract or for the Seller to provide a proper delivery or service, e.g. as regards the identity of the Buyer or the purpose;
iii) if the Buyer has declared inability to pay or if bankruptcy or insolvency proceedings against the Seller has been initiated;
iv) in the event of a breach of Article VII (1) or Article VII (2) hereof.
- If the Seller withdraws from the Contract for legitimate reasons, the Buyer is not entitled to seek any compensation.
- In case of withdrawal from the Contract, the Seller is entitled to compensation for the corresponding part of the purchased price for Goods delivered or services provided before the termination of the Contract.
- The parties agreed on a transfer of ownership right on Goods as a security for fulfillment of duty of the Buyer arising from Article VII (1) hereof. The transfer of ownership as security comes into effect the day after the day of effectiveness of the Contract.
- The transfer of ownership right as security is presumed to be a transfer with a resolutive condition of payment of the entire purchase price.
- During the time of duration of the transfer of ownership right as security, the Seller shall carry out solely the simple administration of the Goods within the meaning of Sec. 1405 et seq. of Civil Code.
- The parties agreed on loan for use within the meaning of Sec. 2193 et seq. of Civil Code with a suspensive condition as of the day of the handover of the Goods to the Buyer in accordance with the Contract and these GTC. The contract of loan for use is terminated in the moment of extinguishment of the transfer of ownership right as security in accordance with Article X (5) hereof or in case that the transfer of ownership right as security becomes unconditional according to Article X (7) hereof. In case of termination of the transfer of use due to the application of Article X (7) hereof, the Buyer is obliged to return the Goods to the Seller without undue delay after the termination of the contract of loan for use.
- The transfer of ownership right as security is extinguished at the time of the payment of the entire purchase price. As a result thereof, the Seller shall allow the Buyer to exercise its rights arising from the ownership of the Goods in full extent.
- The parties agreed on exclusion of Sec. 2044 of Civil Code.
- If the duty of the Buyer arising from Article VII (1) hereof is not fulfilled within an additional time limit of 3 months after the delay with such duty, the transfer of ownership as security becomes unconditional and the Seller is entitled to exercise its rights arising from the ownership of the Goods in full extent, including sale of the Goods to any third person.
XI. Unfair competition and resales
- The Buyer shall not manufacture the copy or imitation of the Goods.
- The Buyer shall not disassemble or alter the Goods without prior written consent of the Seller.
- The Buyer is not entitled to remove or alter the original designation of the Goods by resales.
- By resales, the Buyer shall provide its customers with original documentation accompanying the Goods.
- With exclusion of resales, the Buyer is not entitled to use the registered trademark of the Seller without prior written consent of the Seller. For the purposes of resales, the Buyer is only entitled to use the trademark of the Seller in reference to the Goods purchased from the Seller. The Buyer is not entitled to use the trademark in connection with any other Goods not manufactured by the Seller.
XII. Confidentiality and references
- Information concerning the business undertaking and/or affairs of the parties, which parties disclosed to each other during negotiations of a Contract or hereafter, particularly those, which can be considered as a trade secret pursuant to Section 504 of Civil Code are confidential and may not be disclosed to any third party, unless it concerns information:
i) that is or becomes public knowledge other than as a direct or indirect result of the information being disclosed in breach of the Contract or these GTC or in breach of any other confidentiality obligation of any third party;
ii) that was found out from a source not connected with the parties and that the source is not under any obligation of confidence in respect of such information or
iii) regarding to which the party agrees in writing that it does not constitute confidential Information.
- The parties may disclose confidential information as defined in Article XII (1) hereof:
i) to professional advisers, such as lawyers, accountants or any other advisers parties agreed on;
ii) as required by mandatory law, order of any court of competent jurisdiction or any competent judicial, governmental or regulatory body;
iii) to persons approved by the other party in writing.
- The parties shall assure protection of confidential information as defined in Article XII (1) hereof by its employees and cooperating persons or entities of any party.
- Notwithstanding anything herein to the contrary, the Seller may use the name of the Buyer and the results of the performance of Goods in its marketing and publicity materials, as an indication of its experience, and in internal data systems.
XIII. Final provisions
- Oral agreements shall be binding only if confirmed in writing. Amendments and supplements to Contracts, this article, acceptance of a quotation by the Buyer, or these General Terms and Conditions shall be in writing.
- The Buyer is not entitled to transfer any right or obligation, or the Contract as a whole, to any third party without the express written consent of the Seller.
- Any and all notifications or declarations relating to the Contract shall be made in Czech or English by electronic communication (email) or by any other mean resulting from the practice established between the parties. This does not apply to notifications or declarations causing termination of the Contract and notice within the meaning of Article VIII (6) hereof, which shall only be done by registered mail or to the notifications or declarations which should be done in writing.
- Any and all Contracts entered into between the Seller and the Buyer shall be governed by the Czech laws. The application of the United Nations Convention on Contracts for the International Sale of Goods (the Vienna Convention) and rules governing conflicting laws shall be excluded.
- Any and all disputes shall be resolved exclusively by competent courts with jurisdiction applicable to the Seller with regard to its registered address.
- These GTC constitute an integral part of all Contracts entered into by and between the Seller and the Buyer. In case of discrepancy between the provisions hereof and the provisions of the Contract, the provisions of the Contract should prevail.
- Invalidity or ineffectiveness of any provision hereof shall be without prejudice to the validity and effectiveness of other provisions. Other matters shall be governed by statutory provisions. Any invalid provisions hereof shall be replaced with statutory provisions with a sense and meaning closest to the invalid provisions.
- The individual assenting to or executing any documents or orders, whether as a hard copy or online, on behalf of the Buyer acknowledges, represents and warrants that he or she has read and understands these GTC and has been duly authorized by the Buyer to execute such on behalf of the Buyer and bind the Buyer to these GTC.
- The failure of the Seller to insist in any one or more instances, upon the performance of any of these GTC as set forth herein or the failure of the Seller to exercise any of its rights hereunder shall not be construed as a waiver or relinquishment of any such terms, conditions or rights thereunder and shall not affect Seller’s right to insist on strict performance and compliance with regard to any future performance of these GTC.
- These GTC shall enter into effect on 01.09.2017.