General terms and conditions of purchase

GENERAL TERMS AND CONDITIONS OF PURCHASE

effective from ..............

1. Definition of Terms

• These General Terms and Conditions of Purchase (hereinafter referred to as the "GTCs") regulate the business obligations in the purchase of goods by the company HOXTER, a.s., Company Reg. No.: 28359542, having its registered office in Jinačovice, No. 512, post code: 664 34, registered in the Commercial Register maintained by the Regional Court in Brno, section B, file 5930, from the Seller. The GTCs shall be binding on all business dealings between the Buyer and the Seller. These GTCs form part of each Buyer's order and are published by posting on the Buyer's website available at https://www.hoxter.eu.

• "Buyer" for the purposes of these GTCs means HOXTER, a.s., Company Reg. No.: 28359542, having its registered office in Jinačovice, No. 512, post code: 664 34, registered in the Commercial Register maintained by the Regional Court in Brno, section B, file 5930.

•  "Seller" for the purposes of these GTCs means the entrepreneur who has entered into a contract with the Buyer.

• "Entrepreneur" for the purposes of these GTCs means anyone who independently carries out, on his/her own account and responsibility, a gainful activity as a trade or in a similar manner with the intention of doing so on a regular basis for profit. Unless otherwise agreed in writing, the Entrepreneur's employees are authorised, within the meaning of the provisions of Sec. 430 of Act No. 89/2012 Coll., the Civil Code (hereinafter referred to as the "Civil Code"), to enter into contracts with the Buyer on behalf of and in the name of the Entrepreneur in accordance with these GTCs as well as to accept performance under such contracts; the authorisation to act on behalf of the Entrepreneur according to this sentence shall also apply to persons apparently carrying out business activities in connection with the operations of the Entrepreneur's business establishment.
•  "Contract" for the purposes of these GTCs means a framework (purchase) contract, individual purchase contract or any other contract concluded between the Buyer and the Seller.
• "Goods" for the purposes of these GTCs means all the range of products offered for purchase by the Seller.
  
  
• "Delivery" for the purposes of these GTCs means the delivery of Goods or performance of services.
  
  
• The warehouse working hours for receiving Goods are: Monday to Friday from 6:00 a.m. to 2:00 p.m.
   

2.  Introductory Provisions

• These GTCs shall govern and apply to all deliveries of Goods that are supplied to the Buyer by the Seller under the Contract unless otherwise expressly stated in a particular Contract.
• According to the provisions of Sec. 1751 of the Civil Code, these GTCs form an integral part of every Contract concluded between the Buyer and the Seller and apply to the full extent unless the Seller and the Buyer agree on certain conditions otherwise. In such a case, the different provision of the Contract shall prevail over these GTCs.
• The Seller acknowledges the GTCs as binding on any performance to be provided under the Contract.
  
  
• The GTCs shall be effective as of the date specified in their heading. The Buyer is entitled to unilaterally amend or cancel the GTCs. The amended GTCs shall govern the legal relations concluded after the effective date of the amended GTCs.
  
  
• Any legal issues not provided for in the GTCs or in the Contract shall be governed by the relevant provisions of the Civil Code and other legal regulations of the Czech Republic. The application of the UN Convention on the International Sale of Goods of 11 April 1980 shall be excluded.
  
  
• The GTCs shall apply to all deliveries of Goods to the Buyer. Any terms and conditions stated or pre-printed on documents sent by the Seller shall not apply to the contractual relationship established by the Contract.

• The provisions of Sec. 1798–1801 of the Civil Code shall not apply.

3.  Conclusion of the Contract

• Orders of Goods shall be placed by the Buyer by letter, e‑mail or telefax on the basis of the Seller's quotation and shall include its identification data, the exact specification of the Goods ordered and their quantity, the price of the Goods, the place and date of delivery and the method of the Goods transport. These GTCs shall form part of the order.

• Once the Seller receives the Buyer's order, the Seller is obliged to confirm it in writing without undue delay, and no later than within 3 (three) working days of receipt of the order (hereinafter referred to as the "Order Confirmation"), or inform the Buyer of the impossibility to deliver the Goods ordered. By sending the Order Confirmation to the Buyer, the Seller is deemed to have accepted these GTCs in full.

• The Order Confirmation must contain in particular the Seller’s and the Buyer’s identification data, the exact specification of the Goods in terms of the type and quantity, the price of the Goods, the date and place of delivery and the method of the Goods transport.

• If the Order Confirmation contains the particulars specified in Art. 3.3 hereof and if these correspond to the data contained in the Buyer's order in accordance with Art. 3.1 hereof, the Contract is concluded once the Order Confirmation is sent to the Buyer. If there are any changes to the order and/or any changes, comments or reservations in the Order Confirmation, the Contract shall not be concluded and these constitute a new proposal for the conclusion of the Contract between the Seller and the Buyer. A new proposal by the Seller requires explicit confirmation from the Buyer. If the Buyer fails to do so within three (3) working days of receiving the new proposal, the proposal shall be deemed to have lapsed. This expressly excludes the application of the provisions of Sec. 1740 (3) of the Civil Code.

• In the event that the Seller is aware at the time of the receipt of the order that it will not be able to fulfil the order for objective reasons (in particular due to fluctuations in the exchange rate, short delivery time, etc.) in terms of the quantity of the Goods or the place or date of performance, it is obliged to notify the Buyer immediately upon receipt of the order of the need to change the order. Such action by the Seller creates a new proposal, which shall not be binding on the Buyer. A new proposal by the Seller requires written confirmation from the Buyer. If the Buyer fails to do so within three (3) working days of receiving the new proposal, the proposal shall be deemed to have lapsed.

4.  Purchase Price

• The price of the Goods specified in the Contract (hereinafter referred to as the "Purchase Price") is always a fixed price. A change in the Seller's costs shall have no effect on the agreed Purchase Price. The Seller assumes the risk of change of circumstances within the meaning of Sec. 1765 of the Civil Code.
  
  
• Unless otherwise agreed in the Contract, the Purchase Price includes all packaging costs, all necessary documents as defined in Art. 6.5 hereof, transport to the destination and insurance of damage incurred during transport of the Goods to the destination.
  
  
• The Purchase Price will be subject to value added tax in the amount specified by the applicable legislation as on the tax point date.

5.  Payment Terms

• The invoice and delivery note for the Delivery must include the Buyer's order number to which they relate. If the delivery note or invoice indicate Goods that are delivered on the basis of more than one Delivery, the delivery note and the invoice must clearly identify the Goods and their quantities associated with the individual orders.

• The invoice issued by the Seller shall contain the statutory particulars of a tax document, and at least the following elements:

1. the invoice identification and number,
2. the name and registered office of the Buyer and the name and registered office of the Seller,
3. the order number and the Order Confirmation under which the order was fulfilled,
4. the Goods delivered and the delivery date,
5. full identification of the financial institution and the account to which payment is to be made,
6. the date the invoice is sent and its due date,
7. the total amount invoiced,
8. VAT summary,
9. any other particulars required by applicable law.

• In the event that the invoice – tax document does not contain all the necessary (above mentioned) details and attachments, the Buyer is entitled not to accept it from the Seller or return it to the Seller without the Buyer being in default. In this case, the invoice shall be considered undelivered and a new due date shall start upon delivery of a corrected invoice.

• The preferred method of invoice delivery is electronically in PDF format, by e-mail at invoice@hoxter.euwith a CC to the e-mail address of the Buyer's relevant contact person. 

•  The Seller shall become entitled to issue an invoice on the date of the proper delivery of the Goods to the Buyer in accordance with the Contract.
  
  
•  The Buyer's obligation to settle invoices is fulfilled once the relevant amount is debited from the Buyer's account.
  
  
• In the event of default by the Buyer in making any payment, the Buyer shall pay in each case contractual interest on late payment in the amount of 0.05% of the amount due for each commenced day of delay.

• A set-off against the Buyer's outstanding claims is only permitted if the Seller’s claims are awarded by a final and enforceable decision of a general or arbitration court or arbitrator.

• The Buyer is entitled to set off its claims against the Seller arising from the Contract against the Seller's claims against the Buyer arising from the Contract.

• The Seller is entitled to assign claims against the Buyer under the Contract only with the Buyer’s prior written consent.

• Should insolvency proceedings be initiated against the Seller and/or should the Seller enter into liquidation, the Buyer shall be entitled to suspend the performance of all its obligations under the Contract until the Seller has duly fulfilled all of its obligations under the Contract. The Buyer shall not be liable to the Seller for any damage that may arise due to the suspension of performance under the Contract pursuant to this clause of these GTCs.

6.  Delivery of Goods 

• The place and date of delivery of the Goods are specified in the Contract. Unless otherwise specified in the Contract, the place of delivery is the Buyer's registered office and the delivery condition is according to INCOTERMS 2010: DPP Jinačovice, the Czech Republic. If it is to be a fixed obligation within the meaning of Sec. 1980 of the Civil Code, it must be expressly stated in the Contract.
• The Seller is obliged to deliver the Goods to the Buyer in the quantity specified in the Contract.
• The quality and design of the Goods delivered shall comply with the Contract. In the event that the quality and design of the Goods are not expressly specified in the Contract, the Seller is obliged to deliver the Goods in a quality and design that fully meet the purpose for which the Goods are delivered; if no such purpose is agreed, then the purpose for which the Goods are normally used. The Goods must comply with all technical requirements and technical and safety standards, both mandatory and recommendatory. The Goods and the components used in their manufacture must be new, unused and undamaged. If the Goods are supplied on the basis of samples, designs or drawings, they must fully correspond to such samples or drawings.
  
  
• The Goods shall be delivered in accordance with the laws, regulations and standards relating to health and safety, environmental protection and labour relations. The Seller shall not hold the Buyer liable and shall provide the Buyer with any assistance necessary to defend against any claims arising from a breach of this obligation. The Seller declares to bear all direct and indirect consequences of such a breach so that the Buyer is not affected in any way by the breach.
  
  
• Together with the Goods, the Seller is obliged to deliver to the Buyer all documents specified in the Contract, as well as all documents necessary for the acceptance, free disposal, possible customs clearance and use of the Goods, including declarations of conformity or certificates in accordance with applicable laws and technical standards (hereinafter referred to as "Documents").
  
  
• The Goods must be free from any legal defects and free from any liabilities, claims or rights of third parties. In the event of a dispute, including litigation, arising from infringement of the intellectual property rights of third parties, the Seller undertakes to enter into such litigation at its own expense and to defend the interests of the Buyer. The Buyer is obliged to compensate the Seller for any damage incurred in this context.
  
  
• The Seller is obliged to deliver the Goods in packaging that is suitable for this purpose and guarantees that the Goods will not get damaged or destroyed in transport.

• The obligation to deliver the Goods is deemed to be fulfilled once the Goods have been handed over to the Buyer at the Buyer's registered office specified in the Commercial Register unless otherwise agreed in the Contract. The Seller is obliged to attach a delivery note to each delivery of Goods, indicating the Buyer and the Seller, the type and quantity of the Goods and the date of delivery. The Buyer shall confirm the acceptance of the Goods on the delivery note and shall include the following particulars: the legible name of the person taking delivery, the signature of the person taking delivery, the date of acceptance and the Buyer’s stamp. The Seller is obliged to provide one copy of the delivery note to the Buyer.

• The Buyer shall not be obliged to accept the Goods if they are not delivered in the quantity agreed in the Contract and/or are defective and/or do not conform to the technical specifications or any other specifications under the Contract and/or if the packaging has been damaged in such a way that there is reasonable doubt as to the integrity of the Goods and/or if the Goods have not been accompanied by all Documents. In such a case, the Buyer is obliged to give or send the Seller a notice stating the reason for the refusal to accept the Goods and setting a deadline for their removal. Should the Seller fail to eliminate the stated deficiencies within the specified period, the Buyer is entitled to withdraw from the Contract. This shall be without prejudice to the Buyer's right to compensation.

• The title to the Goods and the risk of loss, damage or destruction of the Goods shall pass to the Buyer once the Goods are accepted and the delivery note is signed according to Art. 6.8 hereof.
• Should the Seller be delayed in the delivery of the Goods, the Buyer is entitled to demand a contractual penalty of 0.5% for each day of delay from the purchase price of the Goods delayed. The contractual penalty is not included in compensation for damage; the provisions of Sec. 2050 of the Civil Code shall not apply.
  
  
• The delivery date is a key condition of delivery. In the event of a delay in delivery of more than 7 working days caused by the Seller, the Buyer has the right to cancel the order, in whole or in part. All costs incurred in connection therewith (e.g. for the arrangement of a replacement delivery) shall be borne by the Seller. This shall be without prejudice to the Buyer's right to claim a contractual penalty. Payment of a contractual penalty shall not affect the Buyer's right to compensation for damage incurred in causal connection with the reason for which the contractual penalty is claimed.

• The Seller shall not be entitled to make partial deliveries of the Goods without the Buyer's prior written consent or without express provision in the Contract.

• The Seller is not entitled to perform the subject of the Contract through a subcontractor without the Buyer’s prior written consent or without express provision in the Contract.

7.  Warranty and Liability for Defects 

• The Seller undertakes that the Goods delivered will always be in full compliance with the terms and conditions and requirements for the Goods agreed in the Contract and, above all, that they will be delivered in the agreed quantity, quality and design, packed or provided for transport in the agreed manner and accompanied by the Documents.
  
  
• The Seller undertakes that the Goods will be fully fit for use for the usual or agreed purpose, will be functional according to all the Documents provided and will retain their usual or agreed characteristics throughout the warranty period of 24 months (hereinafter referred to as the "Warranty Period") commencing on the date of acceptance of the Goods by the Buyer unless otherwise agreed in the Contract by the Parties.
  
  
• The Seller undertakes to meet the Buyer’s quality requirements and to strive to continuously improve the quality of the Deliveries and to prepare suitable control methods for this purpose. If the Seller receives any instructions from the Buyer to improve the quality of the Deliveries, the Seller shall make every effort to comply with such requests.
  
  
• The Buyer shall exercise its rights under the liability for defects by submitting a written report on the defects in the Goods to the Seller no later than on the last day of the Warranty Period (hereinafter referred to as the "Complaint").
  
  
• In the event of delivery of defective Goods or in the event that a defect appears during the Warranty Period, the Buyer may make one or more of the following claims, regardless of whether the defect in the Goods constitutes a material or minor breach of the Contract:

1. to demand that the defects be rectified free of charge by delivering defect-free or replacement Goods or a missing part thereof,
2. to demand the removal of defects by repairing the Goods free of charge,

• to demand a reasonable discount on the purchase price of the Goods,

1. to demand that the non-conforming quantity be taken back and the purchase price refunded within 30 days,
2. to demand defective items to be sorted out,
3. to demand reimbursement of the Buyer's costs connected with sorting/dismantling/removing/disposing of defective items and repairing the defective condition if the Buyer concludes that it can repair the defects itself,

• to withdraw from the Contract.

The Seller undertakes to deal with the Buyer's complaint within 10 calendar days from the date of its receipt unless a different deadline is agreed by the Parties (hereinafter referred to as the "Complaint Processing Period").

• The Buyer is entitled to change the claims arising from defects made in the complaints procedure without the Seller's consent for the duration of the Complaint Processing Period. The Buyer shall notify the Seller of the change of the claim arising from defective Goods in the same manner as when notifying of a Complaint.
  
  
• The Seller is obliged to inform the Buyer about the delivery of the Complaint or changes to the claims arising from defective Goods according to Art. 7.6 hereof.
  
  
• Should the Seller be delayed in dealing with a Complaint pursuant to Art. 5 hereof, the Buyer is entitled to demand a contractual penalty of 0.5% for each day of delay from the purchase price of the Goods subject to the Complaint. The contractual penalty is not included in compensation for damage; the provisions of Sec. 2050 of the Civil Code shall not apply.
  
  
• Should the Seller fail to deal with the Complaint despite an additional period specified in the Buyer's notice after the expiry of the Complaint Processing Period, the Buyer is entitled to withdraw from the Contract. This shall be without prejudice to the Buyer's right to compensation for damage incurred.
  
  
• If the Complaint is settled by any of the methods specified in Art. 7.5 (i) and (ii) hereof, the new or repaired Goods, or a new or repaired part thereof, shall be subject to a new warranty period commencing on the date of their delivery to the Buyer unless the Parties agree otherwise.
  
  
• In the event of any claim arising from defects in the Goods, the Buyer shall also be entitled to reimbursement for the costs and expenses incurred in connection with the claim or claims arising from defects and to compensation for damage resulting from defects in the Goods.
  
  
• Should it be necessary to recall the final Goods from the Buyer’s end customer due to their defects, the Buyer shall decide on the further procedure after notifying the Seller thereof. In such a case, the Seller shall be obliged to compensate the Buyer for any damage incurred in connection with serial defects or the recall of the final Goods from the Buyer's end customer.
  
  
• The Buyer shall not be obliged to pay the Purchase Price of defective Goods, whether in full or reduced by the Buyer, and the Seller shall not be entitled to demand payment thereof before delivery of defect-free Goods or before concluding an agreement on a reasonable discount on the Goods.
  
  
• From the time the Buyer makes a Complaint until the Complaint is properly settled by the Seller, the Warranty Period is suspended.
   

8.  Force Majeure

• Both the Seller and the Buyer shall be entitled to suspend the performance of their obligations under the Contract for as long as the circumstances precluding liability continue (hereinafter referred to as "Force Majeure"). Under these GTCs, Force Majeure is considered to be an obstacle that has occurred independently of the will of the obliged Party and prevents it from fulfilling its obligation if it cannot be reasonably assumed that the obliged Party could avert or overcome this obstacle or its consequences, and that it could have foreseen this obstacle at the time of concluding the Contract. Force Majeure events include, but are not limited to: a strike, epidemic, fire, natural disaster, mobilization, war, insurrection, seizure of Goods, embargo, prohibition of transfer of foreign currency, incidental regulation of electricity consumption, terrorist attack, etc.

• Force Majeure excludes any claim for contractual penalties against the party affected by Force Majeure.

• The effect under Art. 8.1 hereof shall not arise if the Force Majeure event occurred at a time when the obliged Party was in default of its obligation or if it arose from its economic circumstances.

• The Party invoking Force Majeure shall immediately notify the other Party thereof in writing, no later than five (5) working days after the Force Majeure has affected it, and shall take all possible measures to mitigate the consequences of the non-performance of its contractual obligations.

• If the Force Majeure lasts for more than ten (10) days, either Party is entitled to withdraw from the Contract. Withdrawal from the Contract shall be made by written notice sent to the other Party and shall be effective upon its delivery.

9.  Confidentiality and Confidential Information

• The Parties shall keep confidential all information relating to the subject of the Contract which they have obtained directly or indirectly from the other Party in connection with the conclusion and performance of the Contract, which is contained in the Contract, which is communicated to them by the other Party in connection with the Contract, which concerns the Party or its business partners, which constitutes or may constitute a trade secret of the Party or any other confidential information known to the Party (hereinafter referred to as "Confidential Information") and shall not misuse the Confidential Information.

• Confidential Information is considered confidential within the meaning of Sec. 1730 of the Civil Code as well as a trade secret within the meaning of Sec. 504 of the Civil Code. The disclosure of information that is or becomes publicly known or publicly available for any reason other than by a breach of the Contract or that a Party is required to disclose or make available to an authorised person under applicable law shall not be deemed to be a breach of the obligation set out herein (and any information so disclosed or made available shall remain Confidential Information and the obligations of the Parties to treat it as Confidential Information under the Contract shall not be affected thereby).

• Both the Seller and the Buyer are contractually obliged to bind their employees and any persons to whom they entrust individual tasks in connection with the performance of the Contract to keep the Confidential Information confidential at least to the same extent as it is kept confidential by the Party concerned.

• The Seller further agrees not to disclose or use to its own benefit or to the benefit of any third party any Confidential Information without the Buyer’s prior written consent.
  
  
• The provisions of this article of the GTCs shall survive the termination or expiration of the Contract for a period of five years.
  
  
• In the event of a breach of confidentiality, the injured party is entitled to a contractual penalty of up to CZK 5,000,000 (in words: five million Czech crowns). The application of the penalty shall be without prejudice to the right to compensation.

10.  Delivery

• For the purposes of these GTCs, written communication between the Seller and the Buyer means communication by correspondence sent through the postal licence holder, by e-mail and by telefax.

• When delivering (sending) documents, messages and any other materials to the other Party, the delivery shall be made to the last known address of the other Party. In case of doubt, it shall be deemed to be the last address officially communicated to the other Party, at which correspondence is normally received, or the address specified in the Contract (identification of the Parties). E-mails shall be deemed to have been received if their delivery is acknowledged by the other Party by means of an automatic confirmation reply. A fax is deemed to have been received if it is addressed to the managing director, agent or authorised representative of the Party and a confirmation of successful transmission is issued by the transmitting device. All messages and communications to which the other Party responds shall be deemed to have been received.

• For the purposes of these GTCs, the date of delivery shall be deemed to be: a) no later than the third day from the date when the mail is deposited at the competent postal office in the case of delivery through the postal licence holder, even if the addressee has not become aware of the deposited mail; b) in the case of personal delivery, these effects shall occur upon acceptance or refusal of the document.
  
  
• Both the Seller and the Buyer are obliged to immediately inform the other Party in writing of any changes in the person of their responsible employee and any other data relevant for the provision of information to each other.
  
  
  

11.  Jurisdiction of the Court

• The District Court Brno-venkov in cases where the District Court decides in the first instance, and the Regional Court in Brno in cases where the Regional Court decides in the first instance, shall have jurisdiction to settle all disputes arising out of and in connection with the legal relations arising out of these GTCs and the Contract.

12.  Miscellaneous

• The unenforceability or invalidity of any provision of these GTCs or the Contract shall not affect the enforceability or validity of any other provision of the GTCs or the Contract. Should any provision become invalid for any reason (in particular, because of conflict with applicable laws and other legal standards), the Parties shall consult and agree on a legally acceptable way to implement the intentions contained in such invalidated part of the Contract or the GTCs.

13.  Contact Details

•  The following contact persons have been designated to deal with any problems regarding orders or quality of deliveries: