GENERAL PURCHASE TERMS AND CONDITIONS
GENERAL PURCHASE TERMS AND CONDITIONS
GENERAL PURCHASE TERMS AND CONDITIONS of HERN s.r.o.
1. GENERAL PROVISIONS
1.1. HERN s.r.o., with its registered office at Kliňanská 564, Námestovo 029 01, Slovak Republic, Company ID: 36 381 047, registered in the Commercial Register of the District Court of Žilina, Section: Sro, Insert number: 54196/L, issues, in accordance with section § 273 (1) and (2) of Act No. 513/1991 Coll., the Commercial Code, as amended, these General Purchase Terms and Conditions for the purchase of various goods (mainly, but not exclusively, finished products in the form of blanks, pressings, welds, products from profiles and rod material and assembly units) from suppliers of HERN s.r.o., based on purchase agreements and other agreements (hereinafter referred to as the "Terms and Conditions").
1.2. The Terms and Conditions govern the mutual rights and obligations between HERN s.r.o., as a buyer on the one hand, and the other Contracting Party, which enters into a contractual relationship with HERN s.r.o. as a Seller on the basis of the relevant Framework Agreement and/or any other agreement, the subject of which is the delivery of Goods (as that term is defined below).
2. DEFINITIONS
Unless the Buyer and Seller agree otherwise in the Framework Agreement and/or the Purchase Agreement, for the purposes of interpreting the Terms and Conditions, the Framework Agreement and the Purchase Agreement, the following terms marked with a capital initial letter have the meaning given below:
2.1. Price – means the price for the delivery of the Goods in the amount agreed in the Framework Agreement and/or the Purchase Agreement under the terms and conditions set forth in these Terms and Conditions;
2.2. Confidential Information - means (i) all and any information about the Buyer and/or relating to the Buyer and/or a Third Party (including information about their possible employees, advisors, business partners, customers, clients, representatives and/or related persons); (ii) all and any information about the business, business activities and business activity of the Buyer and/or a Third Party (including but not limited to information about their business techniques, practices and business policy, business partners, customers and clients, business plans, marketing plans and studies, agreements, contracts or other documents, permits, licences, consents, knowledge, concepts, internal processes, technological and other know-how, technological, commercial, financial, production and personnel procedures and matters of the Buyer and/or the Third Party, including any results of intellectual, creative and commercial activity, technology, architecture, inventions, designs, plans, sketches, presentations, schemes, drawings, technical documentation, manuals, reports, photographs, audio, video or audio-visual recordings, samples, programs, prototypes, price lists, product descriptions and all other information, as well as any objects or potential objects of the protection of intellectual property rights or other rights); (iii) all and any information about the economic status and accounting matters, assets, liabilities or economic prospects of the Buyer and/or the Third Party; or (iv) any information relating directly or indirectly to the Buyer and/or the Third Party that will be provided, published or otherwise made available to the Seller in any form (i.e. mainly, but not exclusively, in written form, verbally, electronically, by telephone, by email, by graphic or other display, by storage or sending on any medium) in connection with the delivery of the Goods, directly by the Buyer and/or the Third Party or on behalf of the Buyer and/or the Third Party by their employees, advisers, authorised persons, related persons, representatives, business partners and/or customers of the Buyer and/or the Third Party. The information specified above is confidential regardless of the fact (i) whether it is specifically designated as confidential, including pre-contractual relations, contracts, information, analyses, compilations, notes, studies, business plans, project documentation or other derivative documents that contain, reflect and/or refer to such information, and (ii) whether this Confidential Information is protected as a special type of secret under the relevant legal regulations or protected as the subject of legal relations;
2.3. Website – means the Buyer's web portal www.hern.sk;
2.4. Buyer – means HERN s.r.o., with registered office at Kliňanská 564, Námestovo 029 01, Slovak Republic, Company ID: 36 381 047, registered in the Commercial Register of the Žilina District Court, Section: Sro, Insert number: 54196/L;
2.5. Purchase Agreement – means a specific, implementation purchase contract concluded between the Seller and the Buyer in accordance with Article 3 of these Terms and Conditions;
2.6. Order – means a written document of the Buyer, which is a proposal for concluding a Purchase Agreement;
2.7. Commercial Code – means Act No. 513/1991 Coll., the Commercial Code, as amended;
2.8. Working day – means any day of the week except Saturday, Sunday, public holidays and non-working days of the Slovak Republic;
2.9. Seller – means a legal entity and/or a natural person of an entrepreneur who concluded a Framework Agreement and/or a Purchase Agreement with the Buyer;
2.10. Complaint Protocol – means a written document, the meaning of which is stated in Article 7 of these Terms and Conditions;
2.11. Framework Agreement – means a framework purchase contract concluded between the Selle, on the one hand, and the Buyer on the other, the subject of which is the Seller's obligation to deliver the Goods to the Buyer and to transfer the ownership right to them to the Buyer based on individual Orders, to which these Terms and Conditions form an annex;
2.12. Complaint Letter – means the Buyer's written document, by which the Buyer asserts its rights and claims against the Seller from the Seller's liability for Defects in the Goods;
2.13. Complaint – means the process of exercising the Buyer's rights and claims against the Seller due to Defects in the Goods described in Article 7 of these Terms and Conditions;
2.14. Goods – means specific movable items specified in the Framework Agreement and/or the Purchase Agreement, which the Seller undertakes to deliver to the Buyer in the quality and at the price agreed between the Seller and the Buyer and in the quantity defined in the Purchase Agreement and to transfer ownership right to these items, regardless of whether the goods are marked as goods, spare parts, material, raw materials, etc.;
2.15. Third Party – means any entity (both natural and legal entity, regardless of its legal form) to which the Buyer transfers ownership right to the Goods, including customers of this entity and/or to which the Goods are intended as the final customer.
2.16. Defect in the Goods – means deficiencies in the delivered Goods defined in point 7.1. of the Terms and Conditions;
2.17. Contracting Party – means the Seller and/or the Buyer.
3. CONCLUSION OF THE PURCHASE AGREEMENT
3.1. A written order is a draft Purchase Agreement. The Seller is obliged to confirm the Order within 5 days of its delivery to the Seller. In the event that the Order is not confirmed by the Seller, the Order is considered accepted by the Seller by the futile expiration of the period according to the previous sentence of this provision, without any reservations to the terms and conditions stated in the Order, i.e. in particular with the specified delivery date, Price, Goods in the specified quality and quantity, including the required accompanying/technical documentation.
3.2. The Purchase Agreement is concluded by confirmation of the Order by the Seller in the form of sending the Seller's signed Order to the Buyer or by the futile expiration of the deadline for confirmation of the Order by the Seller according to point 3.1. of the Terms and Conditions. The order must be confirmed in full and without any additions, reservations, restrictions or other changes compared to the wording of the Order sent to the Seller. The Seller is not entitled to reject the Order.
3.3. The Seller is entitled to raise objections and/or propose changes to the Order only if the Buyer's Order exceeds the quantity of the requested Goods by more than 20% compared to the quantity assumed in the Buyer's estimate determined according to point 5.7. of the Terms and Conditions and in the event that the Buyer does not inform the Buyer about the increase in the quantity of the requested Goods within the period specified in point 5.7. of the Terms and Conditions. The Seller is obliged to notify the Buyer in writing without undue delay of raising objections and/or proposing changes to the Order in accordance with the previous sentence. Hereby, the Buyer is bound by these differences only if it agrees to these differences in writing. Acceptance of the Goods is not considered to be an acceptance of any differences compared to the Order sent by the Buyer.
3.4. The Contracting Parties have agreed that the written form of the Order will be preserved, even if this action is performed by the Buyer in electronic form, by sending a scanned version of the signed document by email to the address specified by the Seller.
3.5. The Contracting Parties have agreed that the written form of confirmation of the Order will be preserved, even if this action is performed by the Seller in electronic form (including email), and sent to the Buyer by email to the address specified in the Framework Agreement and/or the Order.
4. PRICE OF GOODS, PAYMENT TERMS AND VAT
4.1. The Buyer is obliged to pay the Price for the properly and timely delivered Goods, including VAT applicable on the date of the invoice issued by the Seller, based on the invoice issued by the Seller.
4.2. The Contracting Parties have agreed that the Price includes all the costs related to the proper and timely delivery of the Goods, including the costs of packing the Goods, transporting the Goods, insuring the Goods, the costs associated with obtaining documents related to the Goods and the price for these documents (including the price for their translations), labelling and any other marking of the Goods and/or their packaging, customs duties, taxes, storage and other costs, unless otherwise stated in the Framework Agreement and/or the Purchase Agreement. The Seller undertakes to deduct, for the Buyer, a discount from the Price of the Goods to which the Buyer is entitled under the Framework Agreement and/or the Purchase Agreement, even if the Buyer does not ask the Seller to deduct the discount or calculate its amount. The Seller is responsible for the correct calculation of the discount.
4.3. Unless otherwise stated in the Framework Agreement and/or the Purchase Agreement, the Buyer is obliged to pay the Price for the Goods according to the invoice issued by the Seller in accordance with the Terms and Conditions within 60 Working days from the date of delivery of the original of the relevant Seller's invoice (including its attachments) duly issued in accordance with the Terms and Conditions, by non-cash transfer to the Seller's bank account specified in the invoice. Until the Seller delivers the original invoice to the Buyer, the Buyer is not in arrears with the fulfilment of the obligation to pay the Price charged by the invoice in question. The Contracting Parties have agreed that sending the scanned version by email to the address given by the Buyer is also considered a delivery of the original invoice. The Seller is entitled to draw up an invoice only after the proper delivery of the Goods to the Buyer. The Seller is obliged to deliver the invoice to the Buyer in person or by mail. In the case of correction of or addition to an invoice, the delivery of a proper invoice is considered to be the moment of the delivery of a new corrected or supplemented invoice.
4.4. The Seller's invoice must contain the details of the tax and accounting document, including the following: (i) Order number; (ii) the markings and specifications of the Goods, including the serial number of the Goods; (iii) the quantity of the Goods; (iv) the unit price of the Goods; (v) the amount of the discount to which the Buyer is entitled; and (vi) the total Price of the Goods, after the deduction of discounts. The Seller is obliged to attach to the invoice a document proving the proper delivery of the Goods, confirmed in writing by the Buyer, which is an integral part of the invoice.
4.5. The Contracting Parties have expressly agreed that the Price of the Goods can only be changed based on a written agreement of the Contracting Parties and the Seller is not entitled to unilaterally change the Price of the Goods.
4.6. In the case of non-cash payment, the day of payment of the Product Price to the Buyer is the day when the bank debited funds in the amount of the Product Price from the Buyer's account. The payment of the invoice by the Buyer does not result in recognition that the Goods were delivered to the Buyer properly and on time, nor does it waive the rights that belong to the Buyer.
4.7. The Buyer is entitled to unilaterally set off against the Seller's claims arising from the Framework Agreement and/or the Purchase Agreement and/or the Terms and Conditions and/or in connection with them, any of its own claims or claims acquired through assignment, both payable and unpaid, time-barred and non-time-barred. The Seller is not entitled to unilaterally offset any of the Seller's claims against the Buyer's claims against the Seller, resulting from the Framework Agreement and/or the Purchase Agreement and/or the Terms and Conditions and/or in connection with them.
4.8. If, by a decision, the tax authority orders the Buyer, as a guarantor, pursuant to § 69b of the VAT Act, to pay the Seller unpaid VAT, the Buyer shall notify the Seller of this fact. The Seller is obliged to provide the Buyer without delay, but no later than 3 days from the date of delivery of the Buyer's notification according to the previous sentence, with all information and documents on the basis of which objections can be raised against the Buyer's obligation, as a guarantor, to pay the Seller's unpaid VAT to the tax authority. If the tax authority imposes on the Buyer, as a guarantor, pursuant to § 69b of the VAT Act, the obligation to pay the Seller's unpaid VAT, the Buyer is entitled to use the unpaid amount from the Price of the Goods to pay such unpaid VAT. The Buyer, as a guarantor, pursuant to § 69b of the VAT Act, is entitled to use any unpaid Price of the Goods, including other unpaid receivables from other contractual relationships between the Buyer and the Seller, to pay the Seller's unpaid VAT based on a decision of the tax authority.
4.9. The Seller undertakes to make every effort to ensure that the Price of the Goods is competitive compared to other suppliers of the same and/or similar Goods. For this purpose, the Seller undertakes to make every effort to possibly reduce the costs of production and delivery of the Goods, especially, but not exclusively, through the optimisation of the Seller's internal processes.
4.10. The Buyer reserves the right to examine the Prices of the Goods in connection with their competitiveness in comparison with other suppliers of the same and/or similar Goods, and to present these results to the Seller. In this case, the Contracting Parties undertake to enter into negotiations in order to negotiate lower prices for the Goods than the agreed Price of the Goods. In the event that the Seller is unable to offer the Buyer prices for individual Goods that are charged by the Seller's competitors for comparable products, the Buyer is entitled to withdraw from the Framework Agreement and/or the Purchase Agreement.
4.11. In the event of any reduction in the costs of production and delivery of the Goods (especially, but not exclusively, in the case of a reduction in the prices of production materials for the Goods other than metallurgical material in accordance with the material clause), the Contracting Parties undertake to enter into negotiations in order to negotiate lower prices for the Goods than the agreed Price of the Goods.
4.12. In the event that, despite the agreed fixed Price of the Goods, the Seller demands from the Buyer a payment of a higher purchase price of the Goods than the Price of the Goods, the Seller undertakes to compensate the Buyer for all and any damage that the Buyer incurs as a result. Such damage may consist mainly, but not exclusively, in the price difference between the agreed Price of the Goods and the higher price actually paid, or it may be the result from the fact that the Buyer did not purchase the Goods from the Seller, who acted in violation of the Terms and Conditions, but from other sources, which caused further expenses and costs compared to the agreed fixed prices.
5. DATE OF PERFORMANCE AND OTHER TERMS OF DELIVERY OF THE GOODS
5.1. Unless otherwise agreed, the Seller is obliged to deliver the Goods to the Buyer in the quantity specified in the relevant Purchase Agreement, on the days and times specified by the Buyer, in accordance with the agreed terms of delivery, no later than the deadline specified in the Order. Unless otherwise agreed and/or if the Buyer does not specify otherwise, the Seller is obliged to deliver the Goods at the Buyer's headquarters on Working days during the Buyer's normal business hours from 6:00 a.m. to 6:00 p.m. On days and/or times other than those specified in the previous sentence, the delivery of the Goods is possible only on the basis of a prior email agreement between the Seller and the Buyer. The Seller's request to deliver the Goods at other times than those specified in the previous sentence of this point of the Terms and Conditions must be applied at least 24 hours before the scheduled delivery of the Goods.
5.2. The Seller is obliged to inform the Buyer about the date of delivery of the Goods on the same day as the day of handing over the Goods for transport.
5.3. The Contracting Parties have expressly agreed that the fulfilment of the Seller's obligation to deliver the Goods properly and on time will be achieved by handing over the Goods without Defects in the Goods, together with all the required documents relating to the Goods at the time and in the place of delivery set by the Terms and Conditions to the Buyer and/or a person authorised by the Buyer and by signing the delivery note or other acceptance document by the Buyer or a person authorised by the Buyer. The document proving the delivery of the Goods by the Seller to the Buyer is the delivery note signed by the Buyer, presented by the Seller to the Buyer upon delivery of the Goods, the original of which is handed over by the Seller to the Buyer. The Buyer is entitled to refuse to accept the Goods if the Goods have Product Defects, until the Seller delivers the Goods without Product Defects. Refusal to take over the Goods by the Buyer according to the previous sentence does not constitute a delay by the Buyer pursuant to paragraph § 370 of the Commercial Code.
5.4. The risk of damage to the Goods passes to the Buyer on the day of the actual acceptance of the Goods by the Buyer. The Buyer acquires the ownership right to the Goods at the moment of taking them over from the Seller.
5.5. In the event of the Seller's failure to deliver the Goods properly and/or on time in accordance with the Terms and Conditions, the Seller is obliged to pay the Buyer a contractual penalty equal to the full amount of all costs incurred by the Buyer as a result of the Seller's delay in properly delivering the Goods, including any sanctions imposed on the Buyer by its customers and/or applied by it, regardless of whether the sanction in question has been paid by the Buyer. The Contracting Parties have expressly agreed that, in the event that the Seller is in delay with the delivery of the Goods and/or part thereof, the Buyer is entitled not to pay any of its (even due) obligations to the Seller, without the Seller's possibility to apply any sanctions against the Buyer, namely until the time of the proper delivery of the Goods by the Seller.
5.6. The Contracting Parties have expressly agreed that the Buyer is not obliged to accept partial performance and/or performance on a larger scale and/or performance on a smaller scale.
5.7. The Contracting Parties have agreed that the Buyer is entitled to submit to the Seller on an annual basis estimates of the expected quantity of Goods that will be ordered in the following period. The Buyer's estimates according to the previous sentence are not binding for the Contracting Parties, but the Seller undertakes to ensure its production capacities and to maintain sufficient stocks of materials so that it is able to properly and timely deliver the Goods in the quantities indicated in the individual estimates increased by 20%, provided that the Buyer orders the Goods. The Contracting Parties have agreed that in the event of an increase in the quantities of the Goods by more than 20% and less than 50% compared to the quantities specified in the individual estimates, the Seller is obliged to ensure its production capacity and to maintain sufficient stocks of materials so that it is able to deliver the Goods properly and on time in the quantities indicated in the individual estimates increased by more than 20% and less than 50% compared to the quantities indicated in the individual estimates, provided that the Buyer informs the Seller of the increase by more than 20% 3 months before the scheduled date of delivery of the Goods.
5.8. For the avoidance of doubt, the Contracting Parties have expressly agreed that the Seller is obliged at its own expense, to ensure the transport and delivery of the Goods to the Buyer, unless otherwise expressly agreed by the Contracting Parties.
6. DOCUMENTS RELATING TO THE GOODS, THE QUANTITY, QUALITY, PRODUCTION AND PACKAGING OF THE GOODS
6.1. At the latest upon the delivery of the Goods, the Seller is obliged to hand over to the Buyer the documents required for acceptance, free loading, customs clearance and use of the Goods, in particular documents governing the technical conditions of installation, use and maintenance of the Goods and governing the conditions of storage of the Goods, as well as other documents expressly stated in the Framework Agreement and/or the Purchase Agreement. The Seller is obliged to hand over the documents required for taking over the transported Goods or for free handling of the Goods or upon importation for customs clearance to the Buyer at the Buyer's registered office, in a timely manner so that the Buyer can freely handle the Goods or take over the transported Goods at the time of their arriving at the place of delivery and to clear the imported Goods without undue delay.
6.2. Pursuant to point 6.1. of the Terms and Conditions, the Seller is obliged to deliver in particular, but not exclusively, a delivery note indicating the Order number, the ordered items of the Goods according to the numerical designation specified by the Buyer and the list of submitted documents, material attestation and certificates belonging to the Goods required by law for the Goods in question, in such a way that the Buyer always had a valid certificate at its disposal. Certificates according to this provision mean mainly declarations of conformity of products (i.e. the Goods), systems used, etc. Provided that in the production of the Goods supplied by the Seller, the technology of splitting, bending, mechanical processing, welding and/or surface treatments is used, the Seller is obliged to always have such systems and certificates available so that the Seller can perform all the processes mentioned in the previous sentence, and it is also obliged to have such systems and certificates that are listed in the technical documentation relating to the delivered Goods or in the Framework Agreement. The Seller is obliged to supply the Buyer with original certificates authorising the Seller to carry out the processes specified in this provision. In the event of any change to the technology system used by the Seller specified in this provision, the Seller undertakes to inform the Buyer of such change in writing without delay and at the same time to supply it with original certificates authorising the Seller to carry out processes in accordance with the change in question.
6.3. Any documents relating to the Goods, which the Seller is obliged to deliver to the Buyer, must be legible, clear, error-free and in the Slovak language version, unless otherwise specified by the Buyer. Documents must be delivered in originals and in written, printed form, which cannot be replaced by a record on an information data carrier. Based on the Buyer's request, the Seller is obliged to deliver the documents to the Buyer also in the form of a record on an information data carrier, in a freely accessible data format. The costs associated with the preparation and delivery of all documents in the required number, including their possible translation, corrections, additions or replacement delivery and delivery in the form of a record on an information data carrier, shall be borne by the Seller. By delivering the documents to the Buyer, they become the property of the Buyer, who is entitled to dispose of them freely.
6.4. Any costs, especially, but not exclusively, customs, storage or other fees incurred by the Buyer as a result of late delivery of documents without defects (i.e. errors) by the Seller shall be borne in full by the Seller, who undertakes to pay these costs in full. In the event that these costs were paid by the Buyer, the Seller undertakes to pay such costs to it within 10 days from the delivery of their invoice.
6.5. In the event that the documents that the Seller is obliged to hand over to the Buyer according to the Terms and Conditions are missing during the delivery of the Goods or these documents are incorrect or incomplete, the Buyer is entitled to refuse to accept the Goods delivered until the Seller has delivered all the documents according to the Terms and Conditions without defects. Refusal to take over the Goods by the Buyer according to the previous sentence does not constitute a delay by the Buyer pursuant to paragraph § 370 of the Commercial Code.
6.6. The goods delivered by the Seller must meet all technical and safety requirements established by legal and/or other binding regulations and/or standards and/or regulations having a recommendatory character, which establish technical and safety requirements for the type of Goods in question as well as for the type of final product of which the Goods delivered should be part. The Seller undertakes to use exclusively new, unused, undamaged materials and/or parts of the Goods for the production of the Goods. The Seller undertakes to produce the Goods and/or its components exclusively from high-quality material. If the Goods are delivered on the basis of samples, designs, drawings or any other technical documentation, they must fully correspond to these samples, designs, drawings or any other technical documentation. In the event of a discrepancy between samples, designs, drawings or any other technical documentation and the Framework Agreement and/or the Purchase Agreement, the determination in the Purchase Agreement and/or the Framework Agreement is decisive for determining the quality and execution of the Goods. The Goods must be capable of permanently providing standard performance in accordance with the characteristics and quality specified in the Purchase Agreement and/or the Framework Agreement and must fully satisfy the purpose for which it is delivered. The Goods cannot be burdened with any defects, including legal defects.
6.7. The Seller is obliged to inform the Buyer about the country of origin of the Goods, before the delivery of the Goods and/or at any time at the request of the Buyer. In the event that the country of origin of the Goods differs from the country of origin of the components or material from which the Goods are made and/or assembled, the Seller is obliged to provide data on the origin of the Goods as well as data on the origin of the components or material from which the Goods are made and/or assambled, according to the previous sentence. In the event of a breach of the Seller's obligations specified in this provision and/or in the event of an untruthfulness of the Seller's notification pursuant to this provision, the Seller is obliged to pay the Buyer a contractual penalty equal to the full amount of all costs incurred by the Buyer as a result of the breach of the Seller's obligations specified in this provision and/or in case of untruthfulness of the Seller's notification according to this provision, for every single case of violation of the Seller's obligation and/or for every single case of false disclosure of information by the Seller. At the same time, the Seller is obliged to compensate the Buyer for any damage caused by the Seller's breach of obligations in this point of the Terms and Conditions.
6.8. In the event that special tools or equipment are required for assembly, routine and extraordinary maintenance, repairs and/or use of the Goods, the Seller is obliged to procure the tools and/or equipment in question at its own expense, unless otherwise agreed in writing. In the event that the Buyer provides the Seller with special tools or equipment necessary according to the previous sentence, and the Buyer provides this to the Seller, the ownership right to the special tools or equipment thus provided does not pass to the Seller, however the risk of accidental damage to the tool and/or equipment in question or the risk of loss passes to the Seller. The Seller is obliged to take care of the special tools or equipment provided by the Buyer according to the previous sentence with professional care and is obliged to insure the tools or equipment in question at its own expense. After the end of the Framework Agreement and/or the Purchase Agreement, the Seller is obliged to keep the special tools and/or equipment procured by the Seller according to the first sentence of this provision for a period of 15 years from the end of the Framework Agreement and/or the Purchase Agreement. In the case of special tools and/or equipment provided by the Buyer in pursuant to this provision, the Seller is obliged to return the tools and/or equipment in question to the Buyer immediately after the end of the Framework Agreement and/or the Purchase Agreement, but no later than within 10 days from the end of the Framework Agreement and/or Purchase Agreement.
6.9. The Seller is obliged at its own expense to pack, secure or otherwise prepare the Goods for transport in a manner expressly stipulated by the Framework Agreement and/or the Purchase Agreement. In the event that the method of packing and securing the Goods for transport is not explicitly stated in the Framework Agreement and/or the Purchase Agreement, the Seller is obliged to pack and secure the Goods for transport in such a way that during transport, including loading and unloading, no damage to or deterioration of the Goods can occur.
6.10. The packaging used by the Seller must enable safe storage and delivery of the Goods to the Buyer without loss of quality or any damage. The packaging must be suitable for forklift handling and must allow efficient storage. The Goods must not protrude over the edges of the packaging and it must be possible to easily unload each item of the Goods without the need for any tools and time-consuming unpacking. The packaging of the Goods must contain, in a visible place, the legible markings of the Seller, the Buyer, the Order number, the identification number of the Goods, information of the quantity and type of the Goods according to the marking and breakdown specified in the Framework Agreement and/or the Purchase Agreement, information of the weight of the Goods and the dimensions of the packaging, and also comprehensible instructions for storage and safe handling of the Goods, in particular handling marks for marking transport packaging, identification markings for returnable packaging and data required by legal regulations governing the production, use and further processing of the Goods delivered (e.g. legal regulations governing hazardous and toxic substances). The Seller is obliged to use exclusively such packaging that is environmentally friendly, and in particular, but not exclusively, the Seller must not use polystyrene packaging containing freons or PVC or other harmful packaging. If the Seller uses returnable packaging, it is obliged to mark them with the packaging number, the owner of the packaging and the appropriate pictogram indicating that it is a returnable packaging. The Contracting Parties have expressly agreed that returnable packaging that is not marked in accordance with the requirements stated in the previous sentence will be treated as non-returnable packaging. The Contracting Parties have expressly agreed that if the packaging of the Goods does not contain all the details of the packaging defined in this point of the Terms and Conditions, it constitutes a Defect in the Goods.
6.11. The Seller is obliged, at its own expense and risk, to ensure the removal of all returnable packaging of which the Buyer has declared that it does not need it, from the place of delivery of the Goods, at the latest with the next delivery of the Goods, unless another date for the removal of the returnable packaging is specified by the Buyer. In the event that the Seller does not ensure the removal of the returnable packaging within the deadlines according to the previous sentence of this provision, the Seller is obliged to reimburse the Buyer for all costs incurred by the Buyer in connection with the storage of the returnable packaging, and these costs are payable within 10 days from the delivery of their invoice. The risk of damage to this returnable packaging is borne by the Seller, and the Buyer is not obliged to take care of the returnable packaging in question. In the event that the Seller does not ensure the removal of the returnable packaging even within 10 days from the date determined according to the first sentence of this provision, the Buyer is entitled to transport this returnable packaging to the Seller's registered office at the Seller's expense and risk.
6.12. The Seller is obliged to follow the Buyer's instructions, especially, but not exclusively, the instructions during the production of the Goods, the packaging of the Goods, their securing for transport and the delivery of the Goods. The Seller is obliged to notify the Buyer in writing, without undue delay, of the inappropriate nature of the Buyer's instructions given according to the previous sentence. In the event that the Seller does not notify the Buyer of the inappropriateness of the instructions in accordance with this provision, it is responsible for any damage caused by the execution of the Buyer's inappropriate instructions. The Seller agrees that all costs of packing, securing and arranging the Goods according to that provision are already included in the Price of the Goods.
6.13. The Buyer is entitled to unilaterally change the required quality and/or quantity and/or delivery date and/or place of delivery of the Goods ordered at any time after the conclusion of the Purchase Agreement, i.e. until the proper and timely delivery of the Goods, and the change in question will become effective on the day of sending the written notification to the Seller. The Seller is obliged to comply with the Buyer's requirements according to the previous sentence, without increasing the Price of the Goods, except in the case of an increase in the quantity of the Goods ordered. In the event of a change in the quality and/or quantity and/or delivery date and/or place of delivery of the Goods ordered, the Seller is not entitled to claim compensation for damages and/or any costs incurred in this connection. The Buyer reserves the right to change the technical specification of the Goods at any time and the Seller undertakes to implement the changes in question as soon as possible and to provide the Buyer with a sample of the Goods, which will reflect the implementation of the change requested by the Buyer for the purpose of its approval by the Buyer.
6.14. The Seller undertakes to provide the Buyer with any necessary information and documents important for the proper use of the Goods delivered for the purpose for which they are intended.
6.15. The Seller is obliged to designate in writing and notify the Buyer of a responsible person for direct communication in the operative solution of possible complications in connection with the delivery of the Goods, who is obliged to be available to the Buyer 24 hours a day, 7 days a week. The Contracting Parties have agreed that the communication between the Buyer and the above-mentioned responsible persons of the Seller within the operational problem solving will take place via email and/or telephone communication. The Seller is obliged to respond to all enquiries of the Buyer immediately after receiving the enquiry in question, but no later than within 4 hours.
7. WARRANTY AND LIABILITY FOR DEFECTS
7.1. If the Seller violates any of the Seller's obligations listed in Article 6 of the Terms and Conditions or any other obligation of the Seller relating to the quantity, quality and/or design of the Goods, arising from the Framework Agreement and/or the Purchase Agreement and/or the law, the Goods have Defects in the Goods. The delivery of goods other than those specified in the Framework Agreement and/or the Purchase Agreement and defects in any documents relating to the Goods pursuant to the Terms and Conditions are also considered Defects in the Goods. For the avoidance of any doubt, a Defect in the Goods also means a Defect in the Goods which became apparent only after the delivery of the Goods.
7.2. In the event that the Buyer discovers any Defect in the Goods on the Goods delivered, it is entitled at any time to exercise its rights from the Seller's liability for the Defects in the Goods arising from the relevant legislation and the Terms and Conditions, by notifying the Defects in the Goods in writing in the form of a Complaint Letter, which it delivers to the Seller together with an invitation to submit the Seller's proposal on the method of removing the Defect in the Goods and a proposal for corrective actions.
7.3. In the case of a Complaint, the Buyer shall provide the following information in the Complaint Letter:
(i) the delivery of defective Goods, i.e. the number of the delivery note proving the delivery of the Goods; and
(ii) a brief description of the claimed Defect in the Goods.
7.4. The Buyer is entitled to send the Complaint Letter to the Seller in writing to the address of the Seller's registered office or electronically to the Seller's email address specified in the Framework Agreement and/or the Purchase Agreement. The Seller is obliged to immediately confirm to the Buyer the delivery of the Complaint Letter.
7.5. The Seller is obliged, without undue delay, to fulfil some of the following obligations, at the latest within 24 hours from the delivery of the Complaint Letter in accordance with the Buyer's instructions:
(i) to arrive at the place designated by the Buyer for the purpose of inspecting the Goods and identifying the Defect in the Goods notified by the Buyer more closely, and within this period to notify the Buyer of a proposal for a specific procedure by which the Defect in the Goods will be removed; or
(ii) to notify the Buyer of a proposal for a specific procedure by which the Defect in the Goods will be removed, including the planned dates for the implementation of the determined measures for correction;
and all this at the expense of the Seller. At the same time, the Seller is obliged to provide all cooperation required by the Buyer.
7.6. The Contracting Parties have expressly agreed that the choice of the right regarding the Seller's liability for the Defects in the Goods and also the method of removing the Defects in the Goods belongs exclusively to the Buyer, who is not bound by the Seller's proposals. The Buyer, after the Seller's obligations according to point 7.5. of the Terms and Conditions are fulfiled, shall notify the Seller in writing whether:
(i) it agrees with the method of removing the Defect in the Goods proposed by the Seller and it will set a deadline for its removal; or
(ii) it does not agree with the method proposed by the Seller and determines the method and deadline for removing the Defect in the Goods; or
(iii) it applies a different right from the Seller's liability for the Defects in the Goods than the removal of the Defect in the Goods pursuant to provision 7.8. of the Terms and Conditions.
The method of removing the Defect in the Goods and the deadline for its removal determined by the Buyer pursuant to this point letter (i), (ii) as well as the choice of the right from the Seller's liability for the Defects in the Goods pursuant to letter (iii) are binding for the Seller.
7.7. In the event that the Seller is in delay with fulfiling the obligation pursuant to provision 7.5. of the Terms and Conditions, the Buyer is entitled to choose the right from liability for the Defects in the Goods and/or the method of removing the Defects in the Goods and the deadline for its removal at any time after the expiry of the deadline for fulfiling the Seller's obligation pursuant to point 7.5. of the Terms and Conditions.
7.8. Regardless of the nature of the Defect in the Goods and the seriousness of the breach of the Purchase Agreement by the Seller, the Buyer is always entitled to:
(i) demand free removal of the Defects in the Goods by delivering replacement Goods for the defective Goods and/or by delivering the missing Goods;
(ii) request the free removal of legal defects;
(iii) demand free removal of the Defect in the Goods by repairing the Goods, if the defect is repairable;
(iv) demand a reasonable discount from the Price of the Goods;
(v) withdraw from the Framework Agreement and/or the Purchase Agreement;
(vi) itself or through other persons and at the expense of the Seller, inspect the Goods, perform the necessary actions to identify the Defects in the Goods, sort, repair or ensure a replacement delivery of the Goods, without any impact of such measures, taken by the Buyer, on the warranty for the Goods delivered. The Seller undertakes to compensate the Buyer for these costs in full within 10 days of receipt of their invoice;
7.9. The Contracting Parties have agreed that the choice between claims pursuant to point 7.8. of the Terms and Conditions belongs exclusively to the Buyer. The Contracting Parties have expressly agreed that regardless of the selected claim pursuant to point 7.8., the Buyer is entitled to charge the Seller a lump sum compensation for the exercise of any right from liability for the Defects in the Goods, in the amount of EUR 200.00. The lump sum compensation is due within 10 days from the delivery of its invoice to the Seller.
7.10. In the event that it subsequently turns out that the Defects in the Goods are irreparable or that disproportionate costs are associated with the repair, the Buyer may request the delivery of replacement Goods.
7.11. In the event that the Buyer asserts a claim from the Seller's liability for the Defects in the Goods pursuant to provision 7.8. (i), (ii) or (iii) of the Terms and Conditions, and the Seller does not remove the Defects in the Goods in the manner and within the time limit set by the Buyer, or if it notifies the Buyer before the expiry of the period that it will not remove the Defects in the Goods, the Buyer is entitled to:
(i) withdraw from the Framework Agreement and/or the Purchase Agreement; or
(ii) request any other claim pursuant to the provisions of point 7.8. of the Terms and Conditions.
7.12. The Buyer is not obliged to pay the Seller the Price of the defective Goods, which has not yet been paid, until all the Defects in the Goods have been removed.
7.13. The Seller is obliged to process the Complaint of the Defect in the Goods within the time limit set by the Buyer, otherwise within 10 days from the date of delivery of the Complaint Letter by the Buyer.
7.14. After the removal of the Defect in the Goods, the Seller is obliged to indicate the method and date of handling the Complaint in a Report on the Complaint of the Defect in the Goods, the original of which, signed by the Buyer, must be handed over to the Buyer. The provisions of Articles 5 and 6 of the Terms and Conditions shall be applied accordingly to the handover of the repaired Goods and/or the Goods to be delivered on the basis of a Complaint made by the Buyer.
7.15. In the event that the subject of delivery or repeated deliveries are Goods of the same type, and at least 5% of the totally delivered Goods of this type on the basis of all Orders, have the same Defect in the Goods, such Defect in the Goods is considered a type defect (and all the Goods delivered so far of the same type is considered defective), while it does not prevent the Buyer from asserting claims from the Seller's liability for a type Defect in the Goods, even if the warranty period has expired for some Goods. If there is a type defect in the Goods delivered of the same type, and if the Buyer does not specify other claim in relation to part and/or the entire defective delivery of the Goods, the Seller is obliged to provide the Buyer with a replacement supply of the Goods at its own expense within 5 Working days of the occurrence of the type defect, which will fully correspond to the Purchase Agreement and/or the Framework Agreement. In the case of non-fulfilment of this obligation of the Seller, the Buyer is entitled to withdraw from the Framework Agreement and/or the Purchase Agreement.
7.16. In addition to the Buyer's claims from the Seller's liability for the Defects in the Goods, the Buyer is entitled against the Seller to the payment of a contractual penalty for the delay in fulfiling the Seller's obligations arising from liability for the Defects in the Goods in an amount equal to the full amount of all costs incurred by the Buyer as a result of the occurrence of the Defect in the Goods, including any sanctions imposed on the Buyer by its customer and/or applied by it, regardless of the fact whether the sanction in question has been paid by the Buyer, for each day of delay. The Buyer is entitled to the compensation for any costs that it incurs in connection with the exercise of its rights from the Seller's liability for the Defects in the Goods.
7.17. The Seller provides the Buyer with a lifetime guarantee for the quality and functionality of the Goods delivered. The Seller undertakes that during the warranty period, the Goods delivered will be suitable for use for the purpose specified in the Framework Agreement and/or the Purchase Agreement, otherwise for the usual purpose, that it will be free of any Defects in the Goods and that it will retain the properties stipulated in the Framework Agreement and/or the Purchase Agreement, otherwise usual properties.
7.18. For the avoidance of doubt, the Seller is also liable for the Defects in the Goods that occurred after the delivery of the Goods, regardless of whether they were caused by a breach of the Seller's obligations.
7.19. The Buyer's rights from the Seller's liability for the Defects in the Goods do not affect the right to compensation for damages or a contractual penalty.
8. CONTRACTUAL PENALTIES, LIABILITY FOR DAMAGE AND INDEMNIFICATION PROMISE
8.1. The Buyer has the right to claim against the Seller the payment of a contractual fine in the amount of EUR 2,000.00, even repeatedly for each violation of any of the following obligations of the Seller:
(i) violation of the agreed deadlines of the Seller (especially the deadline specified in point 5.1. of the Terms and Conditions);
(ii) violation of the Seller's obligation to provide cooperation to the Buyer in the cases foreseen in the Terms and Conditions and/or in the Framework Agreement and/or in the Purchase Agreement;
(iii) breach of the obligation to deliver the Goods in a proper and timely manner;
(iv) violation of the obligation to remove the Defects in the Goods in a proper and timely manner;
(v) breach of the obligation of confidentiality according to point 11.9. of the Terms and Conditions;
(vi) violation of the prohibition pursuant to point 11.10. of the Terms and Conditions;
(vii) breach of any obligation regarding know-how and rights from industrial or other intellectual property mentioned in points 11.1. – 11.8.;
(viii) violation of the obligation specified in point 10.3. of the Terms and Conditions.
8.2. The contractual penalty is due upon the Buyer's request for payment, within 10 days from the date of its delivery to the Seller. The application of a contractual penalty by the Buyer does not release the Seller from the obligation to fulfil its obligations under the Terms and Conditions, the Purchase Agreement and the Framework Agreement. Exercising the right to pay a contractual fine pursuant to these Terms and Conditions does not affect the Buyer's claim to compensation for damage caused by the Seller's breach of an obligation secured by a contractual fine exceeding the amount of the contractual fine, and the Buyer's claim to compensation remains fully preserved.
8.3. The Contracting Parties declare that they consider the amount of the contractual penalty specified in the Terms and Conditions to be customary and proportionate to the nature and importance of the secured obligation.
8.4. The Contracting Parties have agreed that the Seller's liability for damage caused to the Buyer, the Buyer's customers or Third Parties due to the violation of any obligation of the Seller, arising from the Terms and Conditions and/or the Framework Agreement and/or the Purchase Agreement, has been agreed upon as the absolute objective liability of the Seller, i.e. as a liability regardless of the Seller's fault and without any possibility of release. The Contracting Parties have agreed that the Seller is liable for any damage caused as a result of the Seller's breach of obligations towards the Buyer, the Buyer's customers or Third Parties, including damage that exceeds the damage that the Seller could foresee as a possible consequence of the breach of its obligations, including in the event of force majeure. The Seller is obliged to reimburse the Buyer, the Buyer's customers or Third Parties for all damages, including all amounts incurred by the Buyer, the Buyer's customer or a Third Party in connection with the Seller's breach of obligations from the Framework Agreement and/or the Purchase Agreement and/or the Terms and Conditions, the costs of court and/or other proceedings conducted in connection with the breach of the Seller's obligations from the Framework Agreement and/or the Purchase Agreement and/or the Terms and Conditions, as well as all the costs of the Buyer, the Buyer's customer or a Third Party, incurred in connection with the Defects in the Goods, including the costs of disassembly of the Goods, the costs of reassembling the Goods, the costs of decommissioning the Goods, the costs of withdrawing the Goods from the market, the costs of decommissioning the final product and/or withdrawing the final product from the market into which the defective Goods were incorporated. The Seller undertakes to pay the damage in full, within 10 days from the date of delivery of a written request of the Buyer or other affected entity.
8.5. If, as a result of violation, neglect or non-fulfilment of any obligation of the Seller, a sanction, fine or any other type of monetary or non-monetary penalty is imposed on the Buyer by any subject of private or public law, the Seller undertakes to indemnify the Buyer in full, i.e. to pay the Buyer an amount equal to these imposed sanctions, fines or other forms of punishment within 10 days from the date of delivery of the Buyer's request for payment of these sanctions, fines or other forms of punishment.
8.6. The Seller is not entitled to compensation for damage incurred by it in the event of withdrawal from the Framework Agreement and/or the Purchase Agreement by not taking advantage of the timely opportunity to conclude a replacement contract for the purpose of the Framework Agreement and/or the Purchase Agreement, from which the Seller withdrew.
8.7. In accordance with the provision of § 725 of the Commercial Code, the Seller hereby provides the Buyer with a promise of indemnification, according to which it undertakes, upon the Buyer's first written request, to indemnify the Buyer without undue delay (but no later than within 10 Working days from the receipt of the Buyer's written request) for all and any damages that the Buyer suffers in connection with conclusion of the Framework Agreement and/or the Purchase Agreement and by breaching the Seller's obligations arising from them. For the purposes of this provision, the Seller confirms that the Buyer was asked to conclude the Framework Agreement and/or the Purchase Agreement, while the Buyer was not obliged to do so. For the avoidance of doubt, the Contracting Parties to the Agreement have agreed that provision of § 728 of the Commercial Code shall not apply for the purposes of this promise of indemnification provided by the Seller.
9. TERMINATION OF THE FRAMEWORK AGREEMENT AND THE PURCHASE AGREEMENT
9.1. The Framework Agreement and/or the Purchase Agreement may be terminated by written agreement of the Contracting Parties.
9.2. The Buyer is entitled to withdraw from the Purchase Agreement and/or the Framework Agreement if the Seller has gone into liquidation or if it has filed for bankruptcy (as a debtor in the event of its bankruptcy) or if a motion to authorise restructuring or a motion for bankruptcy has been filed against it.
9.3. The Buyer is entitled to withdraw from the Purchase Agreement in the event of a material breach of the Purchase Agreement by the Seller. In particular, the following is considered a material breach of the Purchase Agreement:
(i) violation of the agreed deadlines of the Seller (especially the deadline specified in point 5.1. of the Terms and Conditions);
(ii) breach of the Seller's obligation to provide cooperation to the Buyer in the cases envisaged in the Terms and Conditions;
(iii) breach of the obligation to deliver the Goods in a proper and timely manner;
(iv) breach of the obligation of confidentiality according to point 11.9. of the Terms and Conditions;
(v) violation of the prohibition according to point 11.10. of the Terms and Conditions;
(vi) breach of any obligation regarding know-how and rights from industrial or other intellectual property mentioned in points 11.1. – 11.8.;
(vii) violation of the obligation specified in point 10.3. of the Terms and Conditions.
9.4. The Buyer is entitled to withdraw from the Framework Agreement in the event of a material breach of the Purchase Agreement by the Seller in the cases specified in point 9.3. above and/or in the event of a material breach of the Framework Agreement by the Seller.
9.5. The Seller is not entitled to withdraw from the Purchase Agreement and/or the Framework Agreement, unless expressly agreed between the Contracting Parties, or unless otherwise stated in the Terms and Conditions.
9.6. Withdrawal from the Framework Agreement must be in writing and it enters into effect on the day it is delivered to the Seller.
9.7. The Buyer is entitled to terminate the Framework Agreement and/or the Purchase Agreement without giving a reason, with immediate effect as of the date of delivery of the termination to the Seller.
9.8. The Seller is entitled to terminate the Framework Agreement and/or the Purchase Agreement without giving a reason. The notice period is 6 months and begins on the first day of the calendar month following the month in which the notice was given.
9.9. For the avoidance of doubt, an individual Purchase Agreements, i.e. individual implementation contracts, do not expire upon termination of the Framework Agreement. For the avoidance of doubt, the Framework Agreement does not expire upon termination of the Purchase Agreement.
9.10. By withdrawing from the Purchase Agreement and/or the Framework Agreement or by any other way of termination of the Purchase Agreement and/or the Framework Agreement, the following shall not cease: (i) the Buyer's claims arising from the Seller's liability for the Defects in the Goods; (ii) the arrangements of the Terms and Conditions, the Purchase Agreement and/or the Framework Agreement on the Seller's warranty and liability for the Defects in the Goods; (iii) agreements on the obligation of confidentiality, Confidential Information and the protection of know-how and trade secrets; (iv) the Buyer's claims for damages arising from the violation of the Framework Agreement and/or the Purchase Agreement; (v) the Buyer's claims for the payment of contractual fines or other monetary payments; (vi) other claims for which the relevant legal regulations so stipulate; (vi) the Seller's obligation stated in point 10.4. of the Terms and Conditions; and (vii) the provisions of points 12.3., 12.8., 12.9., 12.11. of the Terms and Conditions, as well as the provisions which, due to their nature, are to be preserved.
9.11. Unless stipulated otherwise, the Goods delivered, to which the ownership right passed to the Buyer before withdrawing from the Purchase Agreement and/or the Framework Agreement:
(i) remains in the possession of the Buyer after withdrawal from the Purchase Agreement and/or Framework Agreement. In this case, the Seller is entitled to a compensatory monetary payment up to the amount to which the Buyer benefited from the Goods in question, but at most up to the price of the Goods reduced by any claims of the Buyer for contractual fine, damage compensation and other claims; or
(ii) the Buyer may return the Goods delivered to the Seller after withdrawing from the Purchase Agreement and/or Framework Agreement. At the same time, the Seller is obliged to return to the Buyer the Price of the Goods paid to date or its part, including any claims of the Buyer for contractual fine, damage compensation and other claims.
9.12. In the event of withdrawal from the Purchase Agreement and/or the Framework Agreement, the Contracting Parties are obliged to settle matters among themselves in the manner and within the time limits set by the Buyer. The Buyer is entitled to notify the Seller in writing within 10 days, or within another period determined by the Buyer from the effective date of withdrawal from the Purchase Agreement and/or the Framework Agreement, in what manner and in what time periods the mutual relationships of the Contracting Parties will be settled. The settlement method and deadlines set by the Buyer are binding for the Contracting Parties. The costs incurred in connection with the withdrawal from the Purchase Agreement and/or the Framework Agreement and the possible return of the performance provided shall be borne by the Seller.
10. SPECIAL PROVISIONS
10.1. The Buyer is liable to the Seller for damage caused by the Buyer intentionally or by gross negligence. The Buyer's liability is limited to the actual damage, in the amount that the Buyer could have reasonably foreseen when concluding the Framework Agreement and/or the Purchase Agreement as a possible consequence of a possible breach of its obligations. However, the Buyer is not liable to the Seller, and the Seller is not entitled to demand from the Buyer compensation for lost profit, or compensation for other consequential, incidental or indirect damage, or compensation for damage caused by the interruption of business operations or other activities of the Seller in the form of loss of performance or, possibly, other financial loss. With regard to the extent of foreseeable damage, in the event of damage on the part of the Seller as a result of the Buyer's activities, the Seller is entitled to demand compensation from the Buyer in the maximum amount of EUR 2,000.00 per damage event and in the maximum amount of EUR 10,000.00 regardless of the number of damage events. The Provider is not liable for damages caused by direct or indirect action or negligence on the part of the Buyer, or its employees, representatives, or other Third Parties, nor for damages caused by errors in any documentation provided by the Buyer and/or a Third Party to the Seller.
10.2. When delivering the Goods, the Seller is obliged to comply with all relevant legal regulations and standards of the Slovak Republic and the European Union, especially regulations on environmental protection, hazardous substances and goods, and regulations on occupational safety and health protection at work, as well as generally recognised occupational safety rules and health protection at work. The Seller is obliged to inform the Buyer in writing about the required official permits and registration obligations regarding the import and operation of the delivery items.
10.3. The Seller is obliged to conclude an insurance contract with an insurer at its own expense and under conditions approved in advance by the Buyer, i.e. for (i) liability insurance for damage caused by the performance of the Seller's activities/operations, and (ii) liability insurance for damage caused by a defective product. At the same time, the Seller is obliged to ensure that such insurance contracts also cover the performance of Subcontractors according to the previous sentence. Insurance contracts may not be agreed on a lower insurance coverage than the following: liability insurance with a maximum level of insurance coverage of at least EUR 1,000,000.00 per insurance event (regardless of whether it is caused by the Seller or a subcontractor). The Buyer is entitled at any time to request the Seller to provide information regarding concluded insurance contracts, together with a summary of any insurance contract and evidence of paid insurance premiums, while the Seller is obliged to provide these documents within 7 days. The Seller is obliged to ensure that the Buyer is adequately informed in writing of any substantial changes in the amount of coverage that are continuously proposed in any insurance contract. The Seller is obliged to always comply with the terms of insurance contracts (including the payment of all insurance premiums and other monetary obligations, notification of circumstances justifying the occurrence of an insured event and notification of insured claims), and may not do or permit anything that could render any insurance contract invalid or objectionable, or which would entitle the insurer to refuse to pay any insurance claim or part thereof.
10.4. The Seller undertakes, for a period of 15 years from the termination of the Framework Agreement and/or the Purchase Agreement, to supply spare parts of the Goods at the request of the Buyer and/or a Third Party.
10.5. The delivered Goods must be in compliance with the applicable legal regulations and standards of the Slovak Republic and the European Union, in particular regulations on chemical substances. The Seller is obliged, based on the Buyer's written request, to provide the Buyer with a REACH, ROHS, CFSI declaration of conformity, a technical sheet and a certificate of compliance with the requirements and obligations of due diligence in the supply chain of the Union importers importing tin, tantalum and tungsten, their ores and gold originating in conflict-affected and high-risk areas.
10.6. If the Buyer provides the Seller with technical and other documentation in connection with the Goods for the purpose of performing the Purchase Agreement, the Seller is obliged to examine this technical and other documentation with professional care and without undue delay (even before the delivery of the Goods) and notify the Buyer of the inappropriateness or incompleteness of this documentation or of any errors in this documentation, otherwise it is liable for the damage caused to the Buyer.
10.7. Unless otherwise stated in the Framework Agreement and/or the Purchase Agreement, the Seller is obliged, at the written request of the Buyer, to make samples of the Goods, within the scope and according to the sampling methodology specified in the Framework Agreement and/or otherwise determined by the Buyer (e.g. according to PPAP). When delivering each sample, the Seller is obliged to hand over to the Buyer, in particular, but not exclusively, the following documents: measurement report, declaration of conformity and material certificate, and possibly also other documents required by the Buyer. Without approval of the samples of the Goods by the Buyer, the Seller is not authorised to start serial deliveries of the Goods.
10.8. The Buyer and/or Third Parties authorised by the Buyer are entitled to check compliance with obligations by the Seller and individual subcontractors at any time during Working days. The Seller is obliged to provide the Buyer and/or Third Parties authorised by the Buyer with the opportunity to perform an inspection of the progress of the production of the Goods and production equipment at the premises of the Seller and/or the subcontractors, directly at the facility where the production of the Goods takes place. For the duration of the guarantee for the last delivery of the Goods, the Seller is obliged to maintain the quality control system for the production of the Goods, at least within the scope and quality that existed at the time of the conclusion of the Framework Agreement and/or the Purchase Agreement.
10.9. The Seller undertakes and declares that it does not and will not violate the prohibition of illegal employment according to Act no. 82/2005 Coll. on illegal work and illegal employment, as amended, during the fulfilment of obligations arising from the Framework Agreement and/or the Purchase Agreement and/or the Terms and Conditions. In the event that the Seller violates the prohibition of illegal employment, it undertakes to pay the Buyer a contractual fine in the amount of EUR 10,000.00 for each violation of the prohibition of illegal employment separately. The contractual penalty is payable within 10 days from the delivery of the Buyer's request for payment of the contractual penalty. The Seller is obliged to provide the Buyer with all documents and personal data of natural persons by means of whom it supplies work or provides a service to the Buyer, which are necessary for the Buyer to be able to check whether the Seller violates the prohibition of illegal employment, within 10 days after the Buyer delivers to the Seller request for the provision of these documents and data. In the event that the Seller violates the obligation according to the previous sentence, it undertakes to pay the Buyer a contractual penalty in the amount of EUR 2,000.00 for each violation of the obligation separately. The contractual penalty is payable within 10 days from the delivery of the Buyer's request for payment of the contractual penalty. In the event that the Seller violates the obligation according to the first sentence of this point, the Buyer is entitled to withdraw from the Framework Agreement and/or the Purchase Agreement.
10.10. The Seller undertakes to deliver the Goods personally, in its own name, at its own responsibility and at its own expense, in accordance with the Framework Agreement, the Purchase Agreement and the Terms and Conditions. The Seller is entitled to entrust another person with the production and/or delivery of the Goods, but only on the basis of the prior written consent of the Buyer. When producing and/or delivering the Goods to another person, the Seller has the same responsibility as if it had produced and/or delivered the Goods itself.
10.11. The Seller is not entitled to transfer the rights and obligations arising from the Framework Agreement, the Purchase Agreement and the Terms and Conditions to another person.
10.12. The Seller undertakes to deliver the Goods correctly, on time, in accordance with the Buyer's instructions and under the terms and conditions stipulated in the Framework Agreement, the Purchase Agreement and the Terms and Conditions. The Seller is obliged to refrain from any action that would be in conflict with the interests of the Buyer and/or Third Parties, and/or action that could threaten the good reputation of the Buyer and/or Third Parties. The Seller is obliged to protect the good name of the Buyer and deal with Third Parties, other collaborators, business partners and other persons in such a way that the Buyer's interests are not harmed.
10.13. The Seller is obliged to inform the Buyer without delay about any facts that have and/or may affect the proper fulfilment of obligations from the Framework Agreement and/or the Purchase Agreement.
11. KNOW-HOW, INDUSTRIAL OR OTHER INTELLECTUAL PROPERTY RIGHTS AND CONFIDENTIAL INFORMATION
11.1. All technical and any other documentation that the Buyer hands over to the Seller in connection with the Goods remains the exclusive property of the Buyer and/or a Third Party. The exclusive property of the Buyer and/or a Third Party includes all technical solutions and other solutions and procedures contained in the technical and any other documentation, and the Buyer does not grant the Seller a licence in connection with the above-mentioned know-how and does not grant any rights related to intellectual property.
11.2. The Seller is not entitled to disclose or make available to any party the technical and other documentation according to point 11.1. of the Terms and Conditions, nor to use them for the benefit of any Third Party. The Seller is entitled to use this documentation exclusively in connection with the Goods for the purpose of fulfiling the Framework Agreement and/or the Purchase Agreement. After the fulfilment of the Framework Agreement and the Purchase Agreement and/or their termination in any other way and/or at any time at the request of the Buyer, the Seller is obliged to return this documentation to the Buyer and destroy all copies that he made for the purpose of fulfiling the Framework Agreement and/or the Purchase Agreement.
11.3. The Seller undertakes not to disclose or make availabe to any Third Party any other technical and other documentation not mentioned in point 11.1. of the Terms and Conditions (especially the documentation developed by the Seller for the purpose of fulfiling the Framework Agreement and/or the Purchase Agreement), the development of which the Buyer participated in or financed or co-financed, nor to use them for the benefit of any Third Party. The Seller is entitled to use this documentation exclusively in connection with the Goods for the purpose of fulfiling the Framework Agreement and/or the Purchase Agreement. After the fulfilment of the Framework Agreement and the Purchase Agreement or their termination in any other way and/or at any time at the request of the Buyer, the Seller is obliged to return this documentation to the Buyer and destroy all copies that it made for the purpose of fulfiling the Framework Agreement and the Purchase Agreement.
11.4. The Seller undertakes to ensure that the provisions of the Framework Agreement and/or the Purchase Agreement or their application do not unduly interfere with the intellectual or industrial property rights of any Third Parties.
11.5. The Seller hereby expressly declares that it is fully authorised to dispose of the industrial and intellectual property rights over the Goods, and undertakes to ensure the proper and undisturbed use of the Goods by the Buyer and/or Third Parties and the transfer of the Goods by the Buyer to Third Parties. The Seller declares that the Goods belong to the Buyer from the day the Buyer takes the Goods over with the exclusive, unrestricted right to use the Goods to the widest extent possible in accordance with the relevant legal regulation of the relevant type of industrial or intellectual property. The right to use the Goods is unrestricted in terms of time and territory, it is transferred as a free right, a transferable right with the right of sublicence and an assignable right without the need for the consent of the originator or owner of industrial or intellectual property. Any remuneration for granting these rights is included in the Price of the Goods.
11.6. The Seller undertakes to ensure that, as a result of any breach of obligations on the part of the Seller stipulated in this article, or as a result of untruthfulness of the Seller's statements mentioned in this article, there is no damage to the Buyer or other person. The Seller expressly undertakes to compensate the Buyer and/or a Third Party for all damages caused by the breach of these obligations or by the untruthfulness of the Seller's statements, as well as all damages and costs incurred by the Buyer and/or a Third Party as a result of the exercise of the rights of Third Parties against the Buyer and/or a Third Party. In such a case, the Seller will also be obliged, at its own expense and responsibility, to immediately ensure such a legal or factual remedy that the given facts and/or statements become correct and true in their entirety. The Seller undertakes to provide redress in the sense of the previous sentence by any suitable means and actions, in particular by settling any claims of Third Parties against the Buyer, or by possible defence and advocacy against claims of Third Parties toward the Buyer due to infringement of intellectual property rights or other rights of a Third Party, which will at any time be raised in the future in connection with the use of the Goods by the Buyer and/or Third Parties.
11.7. If, due to a breach of the Framework Agreement and/or the Purchase Agreement and/or the Terms and Conditions on the part of the Seller on the basis of an enforceable decision of a court or other authority, the Buyer and/or a Third Party is prohibited or otherwise prevented from using the Goods (or any part thereof) and/or documents related to them, the Seller undertakes, at its expense and responsibility, to immediately replace, exchange or change the relevant part of the affected Goods, or documents related to them and/or part of them so that they do not infringe the intellectual property rights or other rights of Third Parties and that the rights of the Buyer and/or a Third Party to the relevant part of the Goods, or documents related to them, remain preserved.
11.8. The Seller is obliged to inform the Buyer in writing about the nature and extent of the copyright and industrial protection of the Goods or technical documentation, at the latest upon the delivery of the Goods to the place of delivery.
11.9. In relation to the Confidential Information, the Seller undertakes to (i) treat the Confidential Information as personal and strictly confidential information and not to disclose or otherwise make them available to any persons without the prior written consent of the Buyer, with the exception of the Seller's employees, advisors and representatives, who are bound by the obligation to preserve confidentiality to the same extent as the extent of the Seller's obligation to maintain confidentiality under the Terms and Conditions, and these persons are approved by the Buyer before any Confidential Information is provided to them (hereinafter referred to as "Authorised Persons"); (ii) use the Confidential Information exclusively for the purpose of fulfiling the Framework Agreement and the Purchase Agreement by the Seller; (iii) not to copy or otherwise reproduce the Confidential Information without the prior written consent of the Buyer; (iv) return all documents containing Confidential Information to the Buyer without undue delay and destroy all copies, analyses, data collections, extracts, summaries, studies or other documents (including information stored in a computer or any other electronic form) prepared by or for the Seller for its internal purposes, which are prepared from, or in any other way take into account and reflect Confidential Information in the event of termination of the Framework Agreement and the Purchase Agreement and/or at the request of the Buyer. At the same time, the Seller undertakes to confirm such destruction of these materials to the Buyer in writing within 5 days from the date of delivery of the Buyer's respective request. No copies of these materials may subsequently be kept by the Seller and/or the Authorised Persons; (v) ensure that the Authorised Persons are aware of the arrangements regulated in the Terms and Conditions regarding the scope of protection of Confidential Information, and ensure that the Authorised Persons are bound by confidentiality in relation to Confidential Information and protect it to the same extent as if they were a party to the Framework Agreement and/or the Purchase Agreement instead of the Seller and were at the same time responsible for any violation (and its consequences) of the Terms and Conditions as well as the Buyer; (vi) not to misuse Confidential Information for own personal benefit or the benefit of any Third Party, not to allow this information to be used in any way contrary to the interests of the Buyer and/or a Third Party, especially to be used in any way by the Seller or any Third Party without the prior written consent of the Buyer, and not to misuse Confidential Information in a way that would or could result in a change, disruption, or termination of (a) business relations of the Buyer and/or a Third Party with clients and/or their business partners and/or their customers, and/or (b) employment relationships of the Buyer with the Buyer's employees or persons in a similar relationship; (vii) refrain from any action, the subject of which would be the direct or indirect addressing of employees and/or clients and/or business partners and/or customers of the Buyer identified within and/or in connection with Confidential Information and/or by performance under of the Framework Agreement and/or the Purchase Agreement; (viii) immediately inform the Buyer of a possible violation of this point of the Terms and Conditions and (ix) take all measures to prevent the leakage of Confidential Information.
11.10. The Seller undertakes, during the duration of the Framework Agreement and/or the Purchase Agreement and also after their termination, to refrain from any action, the subject of which would be the direct or indirect addressing of employees and/or business partners and/or customers of the Buyer identified within and/or in connection with the delivery of the Goods to the Buyer with an offer of employment, business or other cooperation, as well as any other action that would or could result in a change, disruption or termination of (i) the Buyer's business relationships with customers and/or its business partners and/or (ii) employment relationships of the Buyer with the Buyer's employees or persons in a similar relationship.
12. FINAL PROVISIONS
12.1. Contact details of the Buyer for the Seller:
HERN s.r.o.
Address for delivery of documents: Kliňanská 564, Námestovo 029 01, Slovak Republic
Phone: +421 43 5509352
Email: hern@hern.sk
12.2. Any request or other notice to be made or given to the Contracting Party pursuant to the Purchase Agreement and/or the Framework Agreement and/or the Terms and Conditions shall be made or given in writing, in the form of an email or in any other manner specified in the Terms and Conditions. Such a request or other notification will, unless otherwise stated in the Purchase Agreement and/or the Framework Agreement and/or the Terms and Conditions, be considered properly given or made to another Contracting Party, if it is delivered in person, by registered mail, courier service or email to the address of the relevant Contracting Party, or to the email address of its representative or to another address specified by the relevant Contracting Party in a written notification sent to the other Contracting Party, as well as by rejecting to take over a request or other notification. If, in the case of delivery via a postal company, the mail that is being delivered is returned as undelivered or undeliverable (or the addressee is unknown), such mail is considered delivered on the day the mail is returned to the sender.
12.3. The Terms and Conditions constitute an integral part of the Framework Agreement and/or the Purchase Agreement. In the event of a conflict between the Purchase Agreement and/or the Framework Agreement and the Terms and Conditions, the provisions of the Purchase Agreement and then the Framework Agreement take precedence. In such event, the Terms and Conditions apply without the excluded provisions or with the modified provisions. The delivery or other business conditions of the Seller are not taken into account; this does not apply if the Buyer has expressly accepted them in writing. Any reference or link in the Seller's Order and/or price quotation to any documents of the Seller does not imply acceptance of the Seller's business terms and conditions or its other terms and conditions stated in any of the Seller's documents.
12.4. The Buyer is entitled to change and supplement the Terms and Conditions at any time. The change in the Terms and Conditions is valid, effective and therefore binding on both Contracting Parties, unless a later date is specified, on the first Business Day following the day when the changed Terms and Conditions were published on the Website. By accepting the next Order, the Seller expresses its consent and acceptance of the changed Terms and Conditions.
12.5. If any provision of the Terms and Conditions becomes invalid, ineffective or unenforceable, this invalidity, ineffectiveness or unenforceability does not affect the other provisions of the Terms and Conditions and this invalid, ineffective or unenforceable provision shall be replaced by the Buyer with a valid, effective and enforceable provision, preserving the same economic and legal purpose and meaning of the contested provision.
12.6. The Seller declares that it is fully capable of legal acts, that the text of the Terms and Conditions is a certain and understandable expression of its serious and free will to be bound by them, and that it has read the Terms and Conditions before concluding the Framework Agreement and has fully understood them.
12.7. The Seller confirms that the Terms and Conditions, together with the Purchase Agreement and the Framework Agreement, express its will on how the mutual contractual relationship between the Contracting Parties should be governed.
12.8. The rights and obligations of the Contracting Parties, including the conclusion of the Purchase Agreement and the Framework Agreement, its validity and effectiveness, are governed by the legal order of the Slovak Republic (with the exception of its conflicting provisions), in particular by the Commercial Code and other relevant legal regulations. The Contracting Parties have agreed on the exclusion of the application of the United Nations Convention on Contracts for the International Sale of Goods (Vienna Convention) to their obligation-legal relationship to which the Terms and Conditions apply. The general court of the Buyer in the Slovak Republic will be the competent court to decide disputes arising from the obligation-legal relationship to which the Terms and Conditions apply.
12.9. If the Framework Agreement and/or Purchase Agreement contains a reference to a specific INCOTERMS clause, the provisions contained in this INCOTERMS clause become part of this agreement. If the Framework Agreement and/or the Purchase Agreement contains a reference to INCOTERMS 2010, this means a reference to the international rules for the interpretation of delivery clauses INCOTERMS 2010, a publication of the International Chamber of Commerce in Paris.
12.10. In the case of an event of force majeure, the deadlines for fulfiling the obligations of the Contracting Parties set forth in the Framework Agreement, the Purchase Agreement or the Terms and Conditions are extended by the duration of the event of force majeure. The Seller is obliged to inform the Buyer in writing of the occurrence and cessation of the force majeure event without undue delay. The Seller is also obliged to inform the Buyer in writing about the occurrence and cessation of the force majeure event related to subcontractors without undue delay. In particular, events such as lockout, delay in deliveries of subcontractors (unless they are caused by force majeure events), insolvency, lack of manpower or material are not considered force majeure events. Events of force majeure are primarily events such as an earthquake, flood, large-scale fire or war.
12.11. For the avoidance of any doubt, the Contracting Parties have agreed that if any arrangement in the Terms and Conditions and/or the Purchase Agreement and/or the Framework Agreement is in direct or indirect conflict with any provision of the law that can be excluded, modified or from which it is possible to deviate by agreement, depending on the nature of the matter, it applies that the given provision of the law has been excluded or modified accordingly so that the full effectiveness of all provisions of the Terms and Conditions and/or the Purchase Agreement and/or the Framework Agreement is preserved. The Contracting Parties have agreed that the following legal provisions will not apply to their contractual relationship established by the Purchase Agreement and/or the Framework Agreement: § 374, § 379 second sentence, § 385, § 420 to § 422, § 424, § 426, § 427, § 428, § 436, § 437, § 438, § 440 paragraph 1 second sentence and paragraph 2, § 441, § 442 paragraph 2 of the Commercial Code.