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General commercial conditions

General, conclusion of a contract

These General terms and conditions of sale and delivery shall form an integral part of the Purchase Agreement. Any contradictory or differing terms or any other limitations of the Buyer shall only apply if they have been recognized by the Seller expressly and in writing.

The Purchase Agreement comes about with the written confirmation of the order by the Seller or with the delivery of goods if a confirmation of the order is not made by way of exception. The content of the confirmation of the order is decisive for the mutual rights and obligations, and in case of the immediate delivery the content of the invoice is decisive, which then shall be deemed as the confirmation of the order. If the General terms and conditions of sale and delivery of the Seller should be annulled, even partially, the Buyer has to express it in a timely and clear manner so that the delivery by the Seller can still be stopped. If the delivery by the Seller cannot be stopped, the applicability of the General terms and conditions of sale and delivery cannot be excluded.

Quantitative and other divergencies of the delivery cannot be completely ruled out for technical reasons and therefore they have to be accepted by the Buyer, insofar it does not affect the intended use. In such a case the sales prices shall be then adjusted accordingly. 

Payment terms, breach of contract

The invoices of the Seller are mostly due for payment by bank transfer free of charge within 30 days after the invoice date without deduction. Other payment terms shall apply only if they have been agreed with the Seller in written form. In the evet of a default in payment the Seller shall be entitled to levy a daily default interest equal to 0.5% of the sales price.

Prices are understood without value added tax, unless otherwise provided for. It shall be calculated at the rate valid respectively at the time of delivery. Prices are understood excluding transport costs, packing, insurance and other auxiliary costs, provided that nothing to the contrary is agreed. The Seller shall be entitled to accordingly increase the prices if an increase of normal market costs of a product by more than 10 % has occurred after the conclusion of the contract in the event that more than four months have passed between order and delivery according to the Purchase Agreement. In so far as the Seller increases the price due to increase in costs, the Buyer has the right of withdrawal. In such a case the Buyer has to declare the withdrawal in writing to the Seller within two weeks after receipt of the notification about the price increase, otherwise the price increase shall be considered as approved. Furthermore, INCOTERMS (EXW) in the version in effect at the time of conclusion of the contract shall apply to deliveries abroad.

If after the conclusion of the contract the Seller becomes aware of circumstances that give rise to serious doubts about the creditworthiness of the Buyer (bankruptcy, rejection of the application for bankruptcy due to lack of funds and similar reasons), and if the Buyer is not willing to pay in advance or to present a suitable collateral for the service incumbent upon him despite corresponding request, the Seller shall be entitled to withdraw from all the contracts which have still not been fulfilled completely. In such a case all the outstanding claims become due with immediate effect without impeding the validation of other rights. The same shall apply when judicial intervention is required because of the failure to pay an invoice. Independently of a withdrawal the Seller shall also be entitled in the above cases to forbid the Buyer to resale the goods delivered by the Seller, and the Buyer is obliged to comply with this prohibition.

In the event of a breach of the contract the Buyer has to compensate to the Seller the damage that occurs to the Seller resulting from this. This also includes necessary dunning, court and lawyers' fees. 

Delivery 

The Seller always chooses the transport route and the mode of shipment. The wishes of the Buyer can be taken into consideration if it is compatible with the operation procedure. The extra costs caused thereby will be borne by the Buyer. The same also applies to the increase of freight rates, any additional costs for redirection, storage costs and similar costs occurring after the conclusion of the contract. However, this will apply only if the deliveries have been agreed with freights charges or on the basis of a not exclusive carriage paid delivery.

The risk of lost, destruction or damaging of the goods passes to the Buyer on departure from the manufacturing site of the Seller at the latest, even if the Seller has assumed further services like dispatch or transport.

Delivery dates are met when the goods have been despatched from works within the periods fixed or when the readiness for dispatch has been indicated, but the delivery has been delayed for reasons for which the Seller is not responsible.

The Seller shall be entitled to make partial deliveries.

The Buyer is in default with regard to the payment of the purchase price if the payment is not made within 30 days after receipt of the invoice or equivalent payment claims at the latest, unless otherwise agreed in writing.

Regardless of the legal rights the Seller is authorized to cancel the contract in the event of force majeure which makes for him unacceptable or impossible to provide the service (lack of raw material, breaks in production, strike, traffic breakdowns, orders from higher authorities, war effects, etc.).

Delivery times and delivery terms shall be suspended as long as the Buyer in arrears with a liability.

In case of delivery delay by the Seller a contract penalty for each full week of delay in the amount of 0.5 %, not exceeding 5 % of the order value of the part of the goods affected by the delivery delay is agreed. The claim for indemnification is repealed by the contract penalty.

In so far as the Seller has assumed the shipment of his goods, the delivery is executed partially by third parties. Therefore, it is generally not possible to check the suitability of the receiving device.

Retention of title

The goods delivered to the Buyer remains the property of the Seller until the full settlement of all corresponding outstanding claims. An outstanding claim refers also to conditional receivables, e. g. from a purchase of bill of exchange given or endorsed to the Buyer on the occasion of the purchase, as long as we can be claimed against as a result of this bill of exchange by way of a recourse. The Buyer shall be entitled to dispose of the reserved goods in the ordinary course of business. Any pledging, transfer of ownership by way of security or any other transfer or limitation of ownership is forbidden to him

If the goods of the Seller have been processed, combined or mixed with the items not belonging to him, this shall take place by order of the Seller with a result that the Seller shall acquire a proportional co-title to this new item corresponding to the percentage of his product (invoice value). If the goods of the Seller are partly or entirely consumed during the manufacture of new items, without being incorporated in these items, the above shall apply accordingly. No claims of the Buyer against the Seller shall result from processing of the reserved goods and their storing.

If the Buyer sells the goods under retention of title to third parties, he has to assign his claim against third parties from reselling the goods delivered by the Seller respectively processed by the Buyer to the Seller partly or as a whole. A partial assignment takes place if further materials have also been used for processing. In such a case the portion assigned to the Seller corresponds to the part of his delivery in the finished product.

If the value of the securities existing for the Seller exceeds the claims to be secured by more than 20 %, the Seller shall, upon request of the Buyer, release the securities accordingly at his own discretion or he shall cause them to be released.

If the goods under retention of title should be claimed by third parties, the Buyer has to inform the Seller immediately specifying precisely the facts. Any costs to defend against the third-party interventions shall be borne by the Buyer, unless the Seller is guilty of gross negligence.

The Buyer shall support the Seller in every way acceptable for him to exercise the rights of security of the Seller. He shall in particularly undertake the processing, etc. of the products of the Seller and the sale of the finished products manufactured with the goods of the Seller in such a manner that the rights of the Seller can be ascertained actually and according to the books. Furthermore, he shall provide the Seller with the information necessary for the asserting of his rights.

The enforcement of the retention of title shall not be held to be a withdrawal from the contract.

Packaging

If the delivery is executed in returnable containers, the assertion of claims for the damages caused by a faulty condition of returnable containers are excluded, in so far as the Seller cannot be found responsible for gross negligence or the infringement of an essential obligation resulting from the nature of the contract as well as this disclaimer does not severely disturb the allocation of risks in the contract.

The Seller provides returnable containers rent-free for two months from the date of despatch. They have to be sent back free of charge for the Seller to the address of his corresponding delivery plants.

The risk of damage and the costs of returning the containers are borne by the Buyer. Small casks are invoiced at cost price and shall not be taken back. If the delivery is agreed in tank wagons or in containers of the Buyer, the Seller is not liable for damages incurred by the faulty condition of containers, devices and equipment. 

Defects

Subject to agreements to the contrary, only the quality of individual products and services, specifications and indications which has been described by the Seller shall be deemed to be a contractually agreed quality of products and services.

If necessary, the Buyer has to verify, by applying a sample test, whether the delivered goods are faultless and suitable for the agreed use. Any complaints regarding quality or quantity have to be raised immediately providing order details and invoice numbers. Visible defects must be reported without delay (confirmation of the deliverer / notification to HA CZ). Latent defects have to be reported within 8 days in writing. Thereafter, the right to claim is forfeited. the application of regulations according to § 2099 – 2117 of the Civil Code, Law Gazette No. 89/2012, is expressly excluded.

The warranty shall be implemented either by repair or replacement delivery or, after a mutual agreement, by a price rebate (discount). If the Seller fails to replace, the Buyer can reduce the purchase price or, at his own discretion, terminate the contract. The claims on the part of the Buyer for necessary expenses for the purpose of subsequent rectification, in particular transportation, travel, labour and material costs, are excluded.

Repairs, replacement deliveries or the renewed provision of a service by the Seller shall take place principally on a goodwill basis and without acknowledging any legal liability.

The Buyer is obliged to inform the Seller if a regress claim occurs at any stage in the supply chain immediately after he becomes aware of such. The statutory rights of the Buyer against the Seller shall exist only in so far as the Buyer has made no agreement with his customer exceeding the claims for defects allowed by the law.

The storage capability of chemical products is generally limited. Especially synthetic resins have to be stored in cool and dry rooms and be protected from direct sunlight. No more than ten bags of bagged products are allowed to be stacked on top of each other. Further details are provided by the sales department of the Seller. Furthermore, the appropriate regulations for storage and accident prevention must be observed. The Seller cannot accept complaints resulting from storage damages. 

Liability including product liability

The Seller shall be liable for damages and reimbursement solely based on the following conditions.

Without prejudice to any other limitations of liability the liability of the Seller – irrespective of the legal grounds (contract, offense, indemnity claims or any other legal ground) – for damages and reimbursement regarding the loss of use or of production, the loss of profits or revenues, losses due to business interruption and financing or capital costs as well as indirect and subsequent damages is excluded.

Additionally, the liability of the Seller for all the claims from or in conjunction with a delivery – irrespective of the legal grounds – is limited to the maximum level corresponding to 3 monthly revenues from the reciprocal trade relations.

The above limitations of liability do not apply to the liability according to § 2939 - 2943 of the Civil Code, Law Gazette No. 89/2012, because of wilful misconduct or gross negligence, of culpable injury to life, body or health, because of the assumption of a guarantee for the quality of an item or because of the violation of essential contractual obligations, that is of such contractual obligations whose fulfilment facilitates the proper performance of the contract in the first place and the observation of which the Buyer regularly relies on and may rely on. However, the compensation for the breach of essential contractual obligations is limited to foreseeable damage typical for the contract, provided that there was no malicious intent or gross negligence or for injury to life, body or health according to the Product Lability Act.

No change of burden of proof to the disadvantage of the Buyer is connected with the preceding liability provisions.

To the extent that the liability of the Seller is limited, this shall also apply to the corresponding personal liability of our employees, auxiliary persons, and legal representatives.

To maintain high security standards of the products of the Seller, the Buyer will inform the Seller without delay about any claims or other significant facts in connection with the products of the Seller.

The Buyer will support the Seller in every way which is acceptable for him in the defence of claims relating to the product liability. Furthermore, the Buyer will provide the Seller the necessary information about the methods of processing the products of the Seller as well as the share of materials which the Seller has correspondingly delivered in the products which the Buyer has manufactured.

Statute of limitation

In cases of mandatory liability limitation periods shall be governed by statutory law. Imperative legal provisions regarding limitation periods and liability such as liability when offering a warranty, liability for deliberate and gross negligence, for damages to life, body or health, the breach of essential contractual obligations, the legal liability remaining unaffected. 

Paten law

With the delivery of the products of the Seller the Seller does not guarantee an off-patent use exceeding warrant regulations, the contract and the laws. The Buyer alone is responsible for examining if the use infringes third-party property rights. 

Offsetting, withholding, assignment

he withholding of payments due to disputed or not legally ascertained counterclaims of the Buyer is excluded. The offsetting with such counterclaims is possible with the consent of the Seller. The assignment of the claims against the Seller is excluded. 

Quality of goods, technical consultancy, use and processing

Only the quality of individual products and services, specifications and indications which has been described by the Seller shall be deemed principally to be the quality of products. The information on the properties which is listed in public statements, recommendations or advertising cannot be taken into account and is not binding.

Any verbal or written - technical and based on experiments - advice of the Seller is provided to the best of knowledge but is only considered to be a non-binding advice, also in respect to any third-party property rights, and does not set the Buyer free from his duty to check the products delivered by the Seller for their suitability to the intended procedures and purposes. Application, use and processing of the products take place beyond the Seller's control and are therefore in the sole responsibility of the Buyer.

If the Seller includes an analysis certificate into the delivery, the values stated therein contain no guarantees.

The requirements of EN 10204 do not apply to the analysis certificate of the Seller, unless an agreement to the contrary is made explicitly; analysis certificated and inspection documents from upstream suppliers of the Seller are not required to be submitted to the Buyer; upstream suppliers are not required to be named to the Buyer by the Seller.

Liability for returns

The Seller delivers his products to the Buyer in various containers. Generally, the Buyer returns these containers to the Seller. The Buyer warrants that the returned containers of this kind contain only the substances as residual quantities which the Seller had delivered. The container must be visibly emptied except a small residual quantity that may remain in the filling spouts due to design. If it is revealed that a container contains other substances than those that have been originally delivered by the Seller, the Seller is entitled to clean and to dispose these quantities at the expense of the Buyer without setting any deadline or filing a complaint. The following cost framework is agreed for this purpose:

The costs of the analysis are borne in this case also by the Buyer. If the residual quantity is exceeded, the Seller is entitled to charge the Buyer with proportional disposal costs. In such a case the Buyer pays a part of the disposal costs which corresponds to the proportion of the actual residual quantity to the contractually agreed residual quantity. 

Confidentiality / data protection

The Buyer commits himself to a strict confidentiality in accordance with the following rules and will obligate his auxiliary persons, employees and legal representatives to maintain secrecy to the same extent. The own use or disclosure or granting of permission to use or to disclose (i) the information about processes concerning the products or service provision or (ii) any information coming to the knowledge of the Buyer while meeting the obligations within this contractual relationship regarding the processes, commercial agreements or financial matters of the Seller are forbidden without the express prior written consent of the Seller. This obligation to maintain secrecy shall not apply to the disclosure of the information: (i) which at the time of disclosure has already become known due to other factors than a breach of above obligations; or (ii) which becomes publicly known at a later stage without a breach of above obligations; or (iii) whose disclosure towards a person who is legally authorized for that as the law stands or which is prescribed by a regulation; or (iv) whose disclosure becomes necessary by the rules of a recognized exchange.

The Seller may collect and recover (also electronically) personal data of the Buyer if he is a natural person as well as those of his employees, legal representatives and auxiliary persons in order to be able to supply the Buyer with the required products and services, in order to be able to otherwise fulfil his contractual obligations and orders, in order to initiate and to enter the payment of sums of money due by the Buyer in connection with the orders and with the contracts agreed on with the Seller (or of the means which the Seller owes to the client) as well as to claim and to safeguard the rights of the Seller. The Buyer is obliged to handle any personal data of the Seller's employees to which he gains access within the contractual relationship in conformity with the Data Protection Basic Regulation (EU) 2016/679 as well as with the requirements of corresponding national data protection codes.

The customer data are for internal use only, unless their transfer to a third party is a legal requirement or is considered to be necessary for the fulfilment or for the administration of orders or contracts with the Seller at the reasonable discretion of the Seller. In this connection the Seller may transmit certain personal data to financial institutions in order to initiate payments.

Exports / use of products

The deliveries and services (contractual performance) are under the provision that for the fulfilment of the contract there are no impediments arising out of national or international regulations, particularly export control regulations as well as embargos or other sanctions. The Buyer undertakes to provide all the information and documents which are necessary for the export/introduction/import. Delays due the export checks or approval procedures suspend the delivery terms and deadlines.

The Buyer undertakes to observe all directions or orders issued by a competent authority with reference to the deliveries and services that are covered by the contract.

The Buyer undertakes not to use or to resale the products for military purposes or for the manufacture of arms.

The Buyer shall indemnify the Seller from all the claims as a result of a wrongful failure to perform or to perform improperly his obligations according to this provision. 

Place of performance, place of jurisdiction, applicable law

Place of performance for the delivery is the respective shipping station of the Seller, Děčín being for the payment. Any disputes shall be arbitrated by a court in the Czech Republic having local jurisdiction and jurisdiction over the subject-matter. The formation and implementation of the contract are regulated by the law of the Czech Republic. 

Final clause

Should individual terms of these Terms and conditions of sales and delivery be partly or fully void or inexecutable, this does not affect the efficiency of the remaining clauses. The parties are to replace an ineffective provision by one that is effective and most closely approximates the commercial purpose of the invalid provision.