GENETAL TERMS AND CONDITIONS
1. General Provisions
1.1. These General Terms and Conditions (“GTC”) form an integral part of a proposal, purchase contract and/or contract for work (the “Contract”) concluded between Elya Solutions s.r.o., with its registered office Podnikatelská 558, Běchovice, Postal Code 190 11, Prague 9, identification number 28239911, registered in the Commercial Register maintained by the Municipal Court in Prague, File No. C 134619 (the “Company” and a customer (the “Customer”; the Company and Customer jointly as the “Parties”).
1.2. The GTC form an integral part of each concluded Contract. The GTC are available at www.elya.cz. The Parties may alter or exclude individual provisions of these GTC by written agreement in a Contract. For purposes of these GTS, e-mail is also considered as a written form. If the recipient so requests, documents sent by an e-mail will also be sent as a printed document signed by the authorized person. In that case the document is considered as delivered on the date of delivery of the printed and signed document.
1.3. Legal relations not regulated in the Contract, individual orders or these GTC are regulated by respective provisions of Act No. 89/2012 Coll., the Civil Code, as amended (the “Civil Code”).
2. Conclusion of the Agreement
2.1. Based on the range and form of individual transactions, the following types of contracts are being concluded:
- a) contracts concluded based on a telephone order;
- b) contracts concluded based on a confirmed written order; and
- c) written contracts.
2.2. Contract concluded based on a telephone order
The Customer can order goods not exceeding the value of CZK 20,000 telephonically without sending a written order to the Company. In this case the Contract is concluded on the date the Customer receives the issued invoice based on the telephone order.
2.3. Contract concluded based on a confirmed written order
A Contract is deemed to be concluded the moment the Customer receives from the Company a written confirmation of its order. If the Company makes a written offer to the Customer, the Contract is concluded the moment the Company receives a written acceptance of the offer from the Customer. If the Company set in the offer a term for its acceptance, the Contract is deemed to be concluded if the Customer sends the Company a written acceptance of the offer within that term, and this acceptance is delivered to the Company not later then one week after the end of the term.
2.4. Written contract
For selected transactions, the Parties conclude standard written contracts. A written contract is concluded only when both of the Parties agree to it.
The Parties can also conclude a framework agreement, allowing for terms to be agreed once for regulating the mutual rights and obligations of the Parties during repeated delivery of goods. Individual deliveries are made based on confirmed orders and under the terms set out by the framework agreement.
2.5. If, under the laws of the country of origin of the offered goods or its part, issuance of an export or re-export license is required, the effect of each offer, order or contract, as well as the following delivery of goods, is subject to issuance of such license. Until the issuance of that license, the Company is not in arrears with delivery of the goods.
3. Drawings and supporting documents
3.1. Information on weight, dimensions, performance parameters, prices set in catalogues and price sheets provided by the Company to the Customer are preliminary and informative. They become binding, if explicitly stated in the Contract.
3.2. Upon the request of the Customer, the Company will deliver, not later than at the beginning of the warranty period (in accordance with clause 11 of the GTC), information and drawings (except for the production drawings) with details sufficient for the Customer to put the delivered equipment into operation and maintain it.
3.3. The owner and holder of the intangible rights related to the drawings, technical supporting materials, software and other objects and materials that the Company gave to the Customer before or after conclusion of the Contract remains the Company’s (or a supplier of the Company or another third party) and disposing with them is regulated by the provision of clause 3 of the GTC.
4. Delivery Terms
4.1. Unless agreed otherwise between the Parties in writing, the place and term of delivery are EXW according to INCOTERMS 2010 published by the International Chamber of Commerce in Paris.
4.2. Storage fees – if the Customer does not take over the ordered goods within the agreed term, the Company will charge it a storage fee in the amount of the actual costs for the storage incurred for the period after the handover deadline. If the goods are stored for longer than 20 business days, the Company will charge the storage fee in the form of advance payments after each calendar month. If an advance payment for goods is agreed in the Contract and the ordered goods cannot be sent to the Customer because the advance payment wasn’t made, this will be considered as storage for reasons on the side of the Customer as described in the text above, and all the consequences stated in this respect apply.
5. Transfer of Risk (risk of property damage)
Transfer of risk is set by the EXW rule of INCOTERMS 2010, published by the International Chamber of Commerce in Paris, unless agreed otherwise in writing.
6. Delivery Term
6.1. The Company shall deliver the goods by the terms agreed in the confirmation of the order or in the written Contract.
6.2. If the delivery term is set in days, weeks or months, it begins after the later of the following events occurs:
- a) signing of the Contract or delivery of the acceptance of the offer of the Company; or
- b) acceptance of the order by the Company, or
- c) obtaining of all formalities and all required permissions and guarantees by the Company;
- d) obtaining of clarified technical specifications by the Company, if a subsequent handover was agreed; or
- e) receipt of the agreed advance payment from the Customer; or
- f) obtaining of all necessary spare parts or samples by the Company, if their delivery was agreed.
6.3 If the delivery term in the Contract is determined as a specific date and the Customer is in delay with fulfillment of an obligation agreed in the Contract or stated in these GTC, the delivery term will be extended by the same number of business days as the delay of the Customer.
6.4. If any of the events stated in clause 13 of the GTC (Force Majeure) occur, or if delivery is delayed for reasons on the side of the Customer, the delivery term will be extended adequately. This also applies when the reason for the delay occurs after expiry of the delivery term stated in the Contract.
6.5. If the Company does not meet the delivery term stated in the Contract (or determined in line with the provision of clause 6 of the GTC) and does not deliver the goods within 30 calendar days from expiry of the agreed delivery term, the Customer shall give the Company an adequate additional delivery period that is no less than 60 calendar days. If the Company does not meet the new delivery term, the Customer has the right to withdraw from that part of the Contract related to the delivery the Company is in delay with.
6.6. For the Company’s not meeting the delivery term the Customer shall have no other rights than those rights and claims expressly stated in this clause 6 of the GTC.
6.7. If the Customer is in delay with takeover of the goods and the Company has the goods, the Company shall ensure their storage. The Customer shall bear the costs of the storage and risk of property damage to the goods. Upon the Customer’s request the Company shall insure the stored goods at the expense of the Customer. The Company is entitled to retain the goods until the Customer pays the costs that incurred directly to the Company in connection with the storage and related costs described above. The Customer is obliged to fulfill the payment terms under the Contract as if the goods were delivered.
7. Pricing and Payment Terms
7.1. Unless expressly agreed otherwise, all prices are exclusive of VAT, packaging, storage fees, transport, customs, insurance and any other similar payments.
7.2. Unless agreed otherwise in the Contract, the Customer shall pay the price to the Company as follows:
- 60% of the price within 15 calendar days from the conclusion of the Contract, and
- 40% of the price within 15 calendar days from the delivery of goods.
7.3. For deliveries of goods not exceeding the value of CZK 100,000, which do not require installation and training of the Customer’s staff, the Customer shall pay to the Company 100% of the price within 15 calendar days from the conclusion of the Contract.
7.4. Payments other than for delivery of goods or services (storage fees, waiting time, etc.) are due within the agreed term, however, at least within seven calendar days from issuance of the invoice.
8. Ownership Right and Intellectual Property Rights
8.1. The Company remains the owner of the goods until they are fully paid under the terms of the respective Contract.
8.2. While the Company is the owner of the goods, the Customer shall at its own expense duly maintain the delivered goods and shall have them insured against loss, theft, damage and destruction resulting from any event possible. Until the moment of full payment of the price the Customer is not entitled to transfer the ownership right to a third party or otherwise encumber the goods.
8.3. The Company and/or its suppliers or any other third persons remain the holders of any intellectual property rights (such as copyrights, patents, inventions, utility and industrial designs, trademarks, etc.) related to any supply of goods. The Customer is entitled to use the subject of the supply for its own use. Transfer of any intangible rights must be explicitly agreed in writing. In particular the Customer is not entitled to further trade, publish, make any copies of, imitate, in any way alter, modify or combine with any other author’s works, inventions, patents, etc., objects protected by intellectual property rights (e.g. software, patents, industrial designs, objects and materials stated in clause 3 of the GTC). Exceptions to the above are changes, modifications and copies that are non-material in content and scope made by the Customer solely for its internal use and which are necessary for proper use of the supply. The Customer is obliged to comply with all licensing and other similar arrangements related to the supply, which the Customer was notified of by the Company, or which were handed over to the Customer by the Company as part of the delivery.
8.4. If, to ensure delivery, the Company provided to the Customer supporting documents protected by any intellectual property rights, the Company guarantees that the provision or use of such supporting documents breaches no rights of third parties.
8.5. To the extent of its liability stated in clauses 3 and 8.4 of the GTC the Customer is obliged to directly settle any legitimate claims of third parties and reimburse damages incurred to the Company, if caused as a result of breach of intangible rights of the Company or any third parties.
8.6. If a third party makes a claim towards the Company based on a violation of intangible rights to the supply, and such claim will be recognized by a court or the Company, the Company shall at its own expense and in its own discretion:
- a) ensure the license for the Customer, or
- b) adjust the supply so that rights of third parties would not be violated, or
- c) replace the supply with other consideration, which will not violate rights of third parties.
In the event, none of the procedures stated above would be possible or would be unreasonably expensive and the Customer cannot be justly required to bear such costs, the Company shall return the supply and return the price of the supply to the Customer.
8.7. The Company is not responsible for a breach of intangible rights of third parties, if:
- a) caused by any reason on the side of the Customer; or
- b) it is a result of such manner of use of the delivery which the Company could not have foreseen.
8.8. Any claims of the Customer arising from a breach of intangible rights of third parties to the supply, other than claims stated in clause 6 of the GTC, are excluded, unless the breach of the intangible rights of third parties was caused solely by the Company.
9. Testing and Acceptance of Goods
9.1. Before delivery, the supply is tested in line with the Company’s regulations. The Parties shall agree in the Contract in advance any different scope of testing or other way of reimbursing the costs of testing.
9.2. As soon as possible after the risk of property damage to the supply passes to the Customer, the Customer shall inspect the supply and without undue delay notify the Company in writing about detected defects. If the Company is liable for the defects, it shall remove the reported defects as soon as practicable by choosing at its own discretion either to repair the defect, if repairable, or deliver the missing goods/services, taking into account the character and scope of the defect. The Customer shall allow the Company to do so.
9.3. The Parties shall agree in the Contract whether the Company will test and put the supply into operation or another qualified person.
9.4. Performance of the handover tests requires a special written agreement.
9.5. As a result of defects in a supply of any type, the Customer shall not have any other rights than those rights and claims stated in this clause 9 and clause 11 of the GTC.
10. Putting the Goods into Operation
10.1. If putting the supply into operation is part of the supply, the following conditions should be fulfilled:
- a) All mounting and installation works carried out under the Company’s instructions should be finished before the supply is put into operation, if such works were not carried out directly by the Company. Upon the request of the Customer, the Company shall confirm in a handover protocol the fulfillment of all the necessary conditions for putting the supply into operation.
- b) When the supply is put into operation, the workers of the Company shall have free daily access to the delivered goods at least from 6am to 6pm.
- c) The Customer shall ensure electrical power supply, in the parameters set by the Company, at the place where the supply is put into operation and shall further ensure that the surroundings conform to the requirements of the goods, in line with the Company’s specifications, in respect of the levels of dust, noise, humidity and temperature.
- d) The Customer shall make available, at no additional cost, to the workers of the Company one person who is well acquainted with the surroundings and can assist the workers of the Company while the supply is being put into operation.
10.2. The Company has the right to charge the Customer for all waiting times which are not caused by workers of the Company. These prices will be charged in line with market prices in Prague at the time the goods are put into operation.
10.3. The Customer shall bear the costs related to preparing the surroundings for putting the goods into operation and fulfilling any other conditions related to putting the goods into operation.
10.4. Unless explicitly provided otherwise in the Contract (or offer), the price of the supply does not include services of the Company related to transport, installation or putting the goods into operation. The Company shall charge for such services an amount corresponding to market prices in Prague as at the time the goods are put into operation.
11. Quality Guarantee
11.1. The guarantee period is 12 months from the date of handover of the goods to the Customer. The guarantee period starts the day the goods are handed over at the specified place. If the Company puts the goods into operation at a specified place, the guarantee period starts the date the goods are put into operation in accordance with the Agreement. Any time during which the Customer cannot use the goods because of its defects is excluded from the guarantee period.
11.2. The Customer can execute its rights under this clause only if, without undue delay after detection of the defects, it notifies the Company in writing about all detected defects and provides the Company an opportunity to inspect the respective goods and remove the defects.
11.3. At the moment of delivery of the substitute goods or repaired defective goods a new guarantee period starts for those goods for the term stated in clause 1 of the GTC. If the Customer does not take over the new goods, the guarantee period starts on the date of notification of the Customer that the goods are ready for shipment.
11.4. The Company is not liable for defects caused by external events after the risk of property damage to the supply passes to the Customer, and such damage was not caused by the Company or persons which helped in carrying out the delivery. Within the meaning of the previous sentence, the guarantee does not apply to defects caused by:
- a) unprofessional interference,
- b) improper storage,
- c) improper external connection,
- d) effects of electrical supply of an inadmissible magnitude,
- e) unprofessional installation or incorrect adjustments, or
- f) improper operation.
11.5. Any other defects resulting from reasons for which the Company cannot be accountable, are exempt from the guarantee. These are in particular defects where it cannot be proved that they resulted from the use of improper materials, faulty construction, incomplete processing (i.e. defects caused by normal wear and tear, faulty maintenance, failure to comply with the operation regulations, excessive strain, use of inappropriate operation materials, chemical and electrolytic influences, construction and installation works that were not performed by the Company, etc.).
11.6. The guarantee does not cover defects on delivery fiber, external laser optics, lenses, cover slides, nozzles, filters, collimators, hose, “o” rings, gaskets and insulation.
11.7. The Customer is not entitled to execute its rights resulting from defects if, without undue delay once the defect was detected, it did not take all necessary measures to prevent the defect or its worsening or the creation of further defects and damage, or if the Customer did not allow the Company to remove the defect.
11.8. The Customer shall have no other rights resulting from defects in the quality of the supply (including defects of material, construction, building and/or installation works made by the Company) than those rights and claims stated in this clause 11 of the GTC.
12. Damages and Contractual Penalty
12.1. If the Customer is in delay with payment of the price of the supply, it shall pay to the Company a contractual penalty of 0.05% of the outstanding amount per day. The Company is further entitled to retain or stop delivery of the goods and/or services until payment for the respective delivery has been received.
12.2. The right of the Company to claim damages is not affected by payment by the Customer of the contractual penalty.
12.3. Contractual penalties are due within 15 calendar days from delivery of a reasoned written notice to the respective Party. For purposes of this provision delivery by normal e-mail is not considered as a delivery in writing.
12.4. The Company is not responsible to the Customer for any breach of its obligations if it was caused by a delay or any other breach of the obligations of its suppliers.
12.5. The Customer is entitled only to damages which were incurred directly to the supply and the Customer is not entitled to damages incurred as a result of production outage, in particular loss of profit, etc. These limitations do not apply if the damage was fully caused by the Company, or if this were in breach of imperative provisions of the Civil Code.
13. Force Majeure
13.1. The Parties are not liable for full or partial failure to fulfill any of their obligations if the failure is caused by circumstances such as flood, fire, earthquake or other natural disasters, as well as war or acts of war and other similar events, if it cannot be reasonably expected that the obliged Party could have overcome the obstacle or its consequences, and also that it could have anticipated the occurrence of the aforementioned obstacle at the time the contractual obligation commenced (i.e. at the time of entering into the Contract) provided that the circumstance arose irrespectively of this Party’s will, that it did not arise by virtue of the Party’s personal circumstances or at a time when it was already in delay with performance of its obligations, and that it is not a circumstance that had to be overcome by this Party under the Contract (force majeure event).
13.2. The Party that is not able to fulfill its obligation for force majeure reasons shall immediately notify the other Party in writing, however no later than seven calendar days after the occurrence of the aforementioned circumstances, and it shall also notify the other Party in writing of the end of the circumstances within seven calendar days.
13.3. If an obstacle due to force majeure lasts for period not exceeding three calendar months, the Parties shall fulfill their obligations under the Contract, while the period for fulfillment of the obligations will be postponed for the duration of the force majeure event. If, during the term of the Contract, the obstacle of force majeure lasts for a period exceeding three calendar months, each of the Parties is entitled to withdraw from the Contract. In the event of force majeure, sections 2006 and 2008 of the Civil Code do not apply.
13.4. Circumstances which arose only after the obliged Party had been in delay with fulfillment of its obligations or due to the obliged Party’s economic situation are not considered as force majeure circumstances.
14. Withdrawal from the Contract
14.1. The Customer is entitled to withdraw from the Contract only in cases set out in the Contract, these GTC and in the following situations:
- a) The Company is in arrears with delivery of the goods or with putting the goods into operation or with training the Customer’s staff for more than 90 calendar days, provided that the obligations were not fulfilled despite the Customer having notified the Company thereof and having set an adequate additional period of no less than 60 calendar days.
- b) The Company does not remove, within 60 calendar days after expiration of the agreed deadline, any defects of the goods which make it unusable for the purpose set out in the Contract, provided that the defective condition is not remedied despite the fact that the Customer notified the Company thereof and set an adequate additional period of no less than 30 calendar days.
- c) The Company breaches other provisions of the Contract or these GTC repeatedly. Repeated breach means that the Contract or these GTC had already been breached in the past, the Company was notified thereof and the defective condition was not remedied even within an adequate additional period set by the Customer which is no less than 30 calendar days.
14.2 In addition to the legally defined reasons for withdrawing from the Contract, the Company is also entitled to withdraw from the Contract in cases set out in the Contract, these GTC and in the following situations:
- a) The Customer is in arrears with payment of its due monetary obligations under the Contract for more than 30 calendar days, whereas the Parties have agreed explicitly to exclude the application of section 2133 of the Civil Code.
- b) The Customer becomes insolvent, bankrupt or the Company might assume that such situation may occur imminently, in particular if insolvency proceedings or similar proceedings have been initiated under the law applicable to the Customer;
- c) The Customer breaches the provision of clause 2 of these GTC by transferring the goods to a third person before full payment of the price of good was made.
- d) The Customer breaches other provisions of the Contract or these GTC repeatedly. Repeated breach means that the Contract or these GTC had been breached by the Customer in past and the Company notified it of that breach.
- e) The Customer does not allow the Company to install the goods within 30 calendar days from the moment of its delivery to the Customer.
- f) The Customer is in delay with performance of its obligations under the Contract or these GTC and the delay was not remedied even within an adequate additional period set by the Company.
14.3. Withdrawal from the Contract requires the form of a registered letter delivered to the address of the registered office of the relevant Party. If this document is not actually served to the respective Party upon expiry of 10 calendar days following its dispatch it will be deemed to be served in due manner upon expiry of the tenth day following its dispatch. In the event of withdrawal the Parties will return any considerations they provided each other up to then within 30 calendar days, taking into account potential wear and tear of the goods in accordance with the Contract and the period of its use; the amount to be returned by the Company to the Customer will be reduced by the amount corresponding thereto. The Parties will not return to each other any accepted contractual penalties or damages, if incurred. Thereafter, the Customer shall return the received performance within 30 calendar days after the withdrawal became effective. If the performance has already been accepted, the Customer shall allow the Company to enter the premises where the goods are located, shall enable the Company to dispose with the goods and shall provide assistance to the Company. This means, among other things, that the Customer shall ensure conditions for disassembly and transport of the goods from its current location to the address of the registered office of the Company or another location determined by the Company. The Party that caused the other Party to withdraw from the Contract shall bear all costs related to the assistance described above in this section 3.
15.1. The Customer agrees to treat all information that will be made available to it and any other information and facts that will be disclosed to it in writing, electronic form or orally by the Company, its employees, members of statutory bodies, representatives or external advisors (the “Representatives”) in connection with the Contract, before and after conclusion of the Contract as confidential (the “Confidential Information”). The Customer further acknowledges that any information and facts of a commercial, production, technical or economical character related to the business activity of the Company are also deemed as Confidential Information. This includes, in particular, information related to production or other procedures, analyses and memoranda, business methods, strategic and business plans, know-how, copyrights, software, content of databases, all data in software applications, accounting and tax facts of the Company. Information indicated by the Company as confidential is also deemed as Confidential Information.
15.2. The Customer shall maintain the confidentiality of all Confidential Information. The Customer also acknowledges that some of the Confidential Information is also protected by provisions of the Civil Code as trade secrets, and that this clause does not exclude the protection provided to the above information by the Civil Code.
15.3. The Customer shall not disclose the Confidential Information without the prior written consent of the Company to any third party save for its employees. The Customer is obliged to ensure that any third party shall protect the Confidential Information at least to the extent to which the Customer is bound itself. The Customer is liable for any breach caused by such third parties as if it was caused directly by the Customer.
15.4. The Confidential Information does not include information:
- a) which was publicly known and available at the time of its disclosure to the Customer or its Representatives;
- b) which will become publicly known and available after its disclosure to the Customer, other than as a result of a breach of the Customer’s obligations;
- c) which was available to the Customer or its Representatives before its disclosure;
- d) which the Company confirmed in writing is not Confidential information as of the moment stated thereof; and
- e) which must be disclosed in accordance with requirements of generally binding laws, or a decision of a public authority, however only upon the condition that the Customer will immediately notify the Company in writing about such disclosure.
15.5. The obligation of confidentiality in accordance with this clause of the GTC survives the termination of the Contract.
15.6. For each breach of any obligation stated in this clause the Customer shall pay a contractual penalty of CZK 100,000.
16. Final Provisions
16.1. The Contract and any legal relationships connected to it are governed by the laws of the Czech Republic. The application of conflict of law rules and the Vienna Convention on the International Sale Of Goods are excluded. All conflicts arising under the Contract which cannot be settled amicably, will be resolved by the general courts of the Czech Republic.
16.2. The Customer does not have the right to assign any of its claims under the Contract or a part thereof to a third person without the prior written consent of the Company.
16.3. If any provision of the Contract or GTC becomes invalid, null, illegal or unenforceable, the validity or enforceability of the other provisions of the Contract or GTC will not be affected. The Parties hereby agree to replace such invalid, null, illegal or unenforceable provision by a new valid, legal and effective provision that will lead best to the fulfillment of the original commercial intent of the Parties.
In Prague on 25.10. 2016