Contracts for the supply of goods and services concluded with entrepreneurs
This part of the General Terms and Conditions shall apply to contracts relating to the supply of goods and services, concluded in any way and in any form between Happy tails mermaids s.r.o. (hereinafter HTM) and the client, who is an entrepreneur, and to any obligations arising from these contracts.
PRICE AND PAYMENT TERMS
1.1. HTM supplies comply with the Incoterms 2010 delivery terms. The price means a price not including transport from manufacturer’s factory and not including packing costs (EXW clause according to Incoterms 2010). EXW clause of Incoterms 2010 will be applied both in international contractual relationship and for supply of goods in the territory of the Czech Republic, so even in case that the Contract is concluded only between subjects with residence or domicile in the Czech Republic.
1.2. Price is based on recommended prices of the manufacturer converted by the exchange rate, the amount of which is determined by the specific contract, to Czech crowns (CZK). Purchase price can be also agreed in other currency than in the Czech crowns. It is necessary to add VAT and eventually customs duty to the price, both in the amount according to the applicable tax and customs legislation.
1.3. Unless otherwise agreed in the contract, price is payable before the goods are delivered to the HTM account within 3 days from conclusion of the contract between the HTM and the client. In case of client’s delay with reimbursement of the price for performance according to the Contract, the client is obliged to reimburse HTM contractual fine amounting to 0,05 % of the amount due for each and started day of delay. Thus established contractual fine for breach of clients’ duties does not relate to eventual claim of HTM for damages or interests on late payments.
1.4. Payments are reimbursed in a way determined by HTM, preferably by transferring to a predetermined HTM account, non-cash via the GoPay payment system.
1.5. In case that the client arranges takeover of the goods by personal collection and does not collect them, all costs related to the reverse transport of the goods will be additionally charged to him. Storage charges in the HTM stores will be charged to the client as well, at least amounting to 0,25 % of the price of the goods for each day of storage. After being returned, the goods will be prepared for collection again and given over only after reimbursement of the full price of the goods including storage charges. Payment for the goods will be reimbursed on the basis of application for payment and a tax document as confirmation of receipt of payment will be issued only after reimbursement of the entire purchase price.
1.6. In case of non-compliance of application of payment within 3 days from conclusion of the contract between HTM and the client, the HTM will issue an advance invoice for the entire purchase price on the day when physical delivery of the goods is possible. The goods will be given over to the client only after reimbursement of this advance invoice, whereas performance of delivery on the part of HTM is ensured by issuing of this advance invoice for the entire purchase price. In case of non-compliance of due date of this advance payment, sanctions are the same as in point 1.3. of this part of the General Terms and Conditions and storage will be charged in addition to that, namely at least amounting to 0,25 % of the price of the goods for each day after maturity of this advance payment. In case of delay with reimbursement of the advance payment, HTM is further entitled to sell the goods to another interested party. The goods will be reordered and delivered to the original client at earliest after reimbursement of the invoice to the HTM account. In this case it is not a delay of delivery on the part of the supplier.
1.7. The client and HTM agreed that within their contractual relations, there are only two types of receivables creditable against HTM: either undisputable receivables or receivables that were acknowledged to the client by a cognizable and executable judicial decision. The client and HTM further agreed that within their contractual relationships, all due and undue receivables are creditable against the client, regardless of their possible limitation.
TERMS OF DELIVERY
2.1. Prerequisite for keeping terms of delivery are timely receipt of all necessary permits and data from the clients, compliance with the agreed payment terms and other liabilities from the part of the client. If these prerequisites are not timely and properly met, terms of delivery will be proportionally extended. It does not count in case that it is only HTM who bears responsibility for the delay.
2.2. Binding confirmation of the delivery date of the goods can be sent only after binding order of HTM from a foreign supplier and after his confirmation of the delivery date.
2.3. Unless otherwise stated in the contract, the goods from the part of HTM are delivered by their handing over to the first carrier for the purpose of their transport for the client.
2.4. If it comes after conclusion of the contract to a change in the manufacturing programme without possibility of delivery of the original type of goods or to such an innovation that changes the required parameters, functional properties or purchase price of the goods according to the Contract or to extension of the term of delivery against the above stated terms, HTM is obliged to announce this change to the client within 15 days after learning such a change. The client can in this case withdraw from the Contract without compensation or require change of the goods according to the current supply.
2.5. In case of non-compliance of terms of delivery from the part of HTM, the client can require reimbursement of the contractual fine amounting to 0,05 % of the price of the goods for each day of delay, at most up to the amount of 5 % of the price of the goods. It does not count if the delay was caused by the intervention of external power or for reasons beyond the sphere of influence of HTM, e.g. by natural disaster, energy layoff, strike, disturbances or a similar incident. Terms of delivery are proportionally extended in such a case. The client is not entitled to claim damages resulting from breach of duty, to which the contractual fine relates.
2.6. In case that intervention of external power or the reason beyond the sphere of influence of KWS disables partial or total fulfilment of the concluded Contract, HTM is relieved from its liabilities resulting from this Contract and it is not liable for any damages or other detriments caused thereby. It is not decisive whether such a cause existed at the time of conclusion of the Contract or it arose later, regardless of the fact whether it could be reasonably foreseen by any of the contracting parties while signing the contract.
2.7. Partial supplies are allowed, but their realization is subject to consent of HTM.
2.8. If the client is in delay for more than 3 days after due date, HTM can offer each supply, even partial one, to another customer and/or refuse further fulfilment. The goods will be reordered and delivered to the client in terms according to the relevant part of these General Terms and Conditions without claim to discount or to damage for late delivery.
RESERVATION OF OWNERSHIP AND RISK TRANSFER
3.1. The goods remain in the ownership of HTM even after the Contract comes into force and the goods are handed over to the client. Proprietorship to the object of the Contract passes to the client at earliest at the moment of full reimbursement of its price and fulfilment of all claims lodged by HTM against the client on the basis of mutual contractual relations (reservation of ownership).
3.2. For the duration of reservation of ownership, the client is not entitled to put the goods with reservation of ownership into pledge or dispose of the goods in any way in relation to third parties (resale etc.). In case of detention, seizure or other disposal of the goods or intervention of third parties, the client is obliged to notify HTM without delay.
3.3. If the client breaks his duties, especially when he is in delay with payment for more than 3 days and with reimbursement of his monetary liabilities, HTM is obliged to cancel the order, even without having to withdraw from the Contract. The client it obliged in such a case to give over the goods in question immediately and at his own expense to HTM on the basis of its challenge, namely by delivering them directly into the HTM premises or by handing them over to the carrier or to other person authorized by HTM for delivery. In the opposite case it is assumed that the client gives HTM consent to collect by itself the goods in question at client’s expenses from the place where the client put the goods.
3.4. Risk of damage to the goods passes to the client by handing the goods over to the first carrier, who does not have to be the first carrier for transport of the goods to the place of destination according to provision § 2123 of the Civil Code.
3.5. For supplies without transport to the client, risk of damage to the goods passes to the client in the moment when the supply was put to the place for transport or taken over by the client or by a person (eventually a third party) authorized by the client.
WARRANTIES AND CLAIMS
4.1. Warranty for the goods is provided in duration stated in the Contract.
4.2. Warranty does not apply to defects of supplies caused by unprofessional or unauthorized interference of the client or of third parties and to defects that were not proved to have arisen by use of faulty material, wrong construction or incomplete processing, nor to defects arisen by natural wear and tear, incorrect maintenance, non-compliance with operating regulations, excessive strain, use of unsuitable means of operation and conditions, chemical and electrolytic influences, atmospherics, improper storage and all other causes without fault of HTM. Warranty does not apply to any materials delivered by the client and to construction solutions used by the client and resulting safety and functionality of supplies. HTM is responsible for products (goods) of third parties delivered to HTM only within the extent of warranty terms of these third parties. Right to claim defects does not arise in case of insignificant deviations from agreed properties or negligible limitation of usability.
4.3. Eventual claim due to incompleteness of goods must be set up at latest within three days after delivery of the goods to the client. Claim due to damage to the goods during transport must be set up immediately when taking the goods over from the carrier and then it is necessary to inform HTM in writing, including making a relevant photo documentation. Claim due to apparent defect of goods must be set up at latest within three days after delivery of the goods to the client, in case of hidden defects at latest within three days after their discovery. Later claims will not be accepted.
4.4. A claim must be set up in writing. A written claim setup means an e-mail or a registered letter delivered within the relevant time limit for claim setup to HTM. Other forms of announcement of defect do not have an effect of claim. The client must state in the claim an exact description of the defect and photo documentation.
4.5. HTM is entitled through its representatives to convince itself in the place whether the claim is rightful or not and the client is obliged to enable it. If the claim is found as wrongful, the client is obliged to reimburse HTM all costs arisen in connection with claim setup, including the travel costs.
4.6. The client always first provides HTM an opportunity to additional fulfilment or to remove the defect within a reasonable time.
5.1. HTM has unlimited proprietorship and unlimited intellectual property rights to the price calculations, drawings and other documentation, processed in connection with fulfilment of supplies (hereinafter „documentation“). The documentation must not be made available by the client to third parties without consent of HTM. If the client breaks this provision, HTM has right to require contractual fine amounting to 100 % of value of the negotiated order. In case that the client and HTM do not conclude a contract for the supply of goods, the client is obliged to take all forwarded documentation for confidential from now on. If the client uses them for his business activities or for his private needs, he will have to give out HTM unjust enrichment.
5.2. All relevant disputes between HTM and the client are dealt with by the competent court in Prague, i.e. either District Court in Prague or Regional Court in Prague.
In Želivec 19.10.2017