Terms and Conditions of Sale, Delivery and Payment
Valid from: 01.09. 2011
§ 1 Scope of Validity
1.The provisions of the present Terms and Conditions of Sale, Delivery and Payment (hereinafter the Terms and Conditions) shall be applicable to all deliveries effected by the Seller. The Terms and Conditions shall be an integral part of all contractual documents based on which Kronospan (hereinafter the Seller) delivers goods. The Term and Conditions shall be binding even if both parties do note explicitly state so. The Purchaser confirms the validity of the Terms and Conditions by taking over the goods from the Seller.
2.Any changes to the Terms and Conditions or agreement with the Purchaser’s terms and conditions shall always require a written consent of the Seller.
§ 2 Offers and Conclusion of Contract
1.The Seller’s offer shall not be binding as regards pricing and delivery terms. Images, dimensions and weights or other product properties shall only be binding if confirmed independently in writing by the Seller.
2.A Purchaser’s order placed shall be considered binding on his part. The Seller shall be entitled to accept this offer and confirm the order in writing within three weeks of its receipt.
3.A purchase agreement shall come into existence by a written order confirmation according to the provisions of s. 2, par. 2 hereof.
§ 3 Price and Payment Conditions
1.Unless agreed otherwise, the price shall be price ex works, not including packaging, freight, customs, import duties and other charges and payments. The price shall include the value added tax as per valid legal regulation. Price increases are valid from date of shipment.
2.Shall the input (material, energy, wages, etc.) change during the period from order confirmation according to the provisions of s. 2, par. 2 hereof to the delivery deadline to the Seller’s disadvantage, the Seller shall be entitled to increase unilaterally the agreed purchase price by the increased price of the input.
3.Payment of the purchase price shall mean crediting the financial amount to the Seller’s account. Any default in payment of the purchase price may be penalised with late interest. The interest is set at zeropointzerofivepercentage points also for each day of delay. In the event of default in payment of the purchase price or a part thereof, the Seller shall be entitled to stop further goods delivery. All accounts receivable by the Seller from the Purchaser shall become payable as of the date when default in payment of the purchase price of any invoice occurs.
4.Payment by cheque or by bill shall be agreed upon in writing in advance, specifying any conditions of acceptance thereof.
5.Shall the Seller learn – after a confirmation of an order – any information indicating, independently or in connection with other information and regardless of the fact whether they existed at the time of order acceptance, that the payment morals of the Purchaser deteriorated or his chances to get a business credit diminished, the Seller shall be entitled to determine new terms and conditions for goods sale. The Seller may demand advance payment, or security provision to ensure that the purchase price will be paid, or the Seller may withdraw from the contract. As of the date of service of the above mentioned Seller’s written notice (intention) to the Purchaser, all Seller’s accounts receivable from the Purchaser shall become payable. The Seller shall be entitled to demand payment of costs incurred by the withdrawal from the contract.
6.Regardless of the Purchaser’s opinion, the Seller shall be entitled to offset payments received against the oldest Purchaser’s debt. In the event of late interest and other accounts receivable (claims), the Seller shall be entitled to offset any payments received against said interests and accounts receivable first. Upon a written request, the Seller shall inform the Purchaser of any offset applied.
7.The Purchaser shall only be entitled to offset any claims for defects or other mutual claims if the claims have been awarded by a court of law or the Seller agreed with the Purchaser in writing to do so. The Seller shall be entitled to offset any claims against the Purchasers claims, also receivables acquired for this purpose, by assignment from other creditors.
§ 4 Delivery and Delivery Terms
1.Unless agreed otherwise, the goods delivery shall be from the Seller’s factory (ex works).
2.The delivery terms shall be specified within a confirmation of the Purchaser’s orderand shall be met by the Seller, if possible. If an order is not confirmed, agreed written terms of goods delivery shall apply. The delivery term may be exceeded by two weeks. Upon expiry of said period, the Purchaser shall give the Seller a reasonable deadline for goods delivery or he shall be entitled to withdraw from the contract. Withdrawal from contract shall be in writing.
3.While there are circumstances beyond the Seller’s control, including force majeur, preventing him from ensuring raw materials, transportation, or causing production failures, or in the event of fires, strikes, unrest, and natural disasters, the Seller shall not be in default in fulfilling his obligation to deliver the goods. Agreed deadlines shall be extended by the period of existence thereof. The Purchaser shall be entitled to suggest to cancel the effects of the contract if it is not reasonable and just to demand the Purchaser to take over the goods. During the existence of said circumstances, the Seller may withdraw from the contract. Claims for damages shall be assessed within the meaning of the provisions of s. 8 hereof.
4.The Seller shall be entitled to partial delivery of the goods ordered.
5.In the event of collection of goods on call, the Purchaser undertakes to take over the goods no later than 28 days of their production date; failing this shall mean the Purchaser is delayed taking over the goods. In the event of delay in goods takeover, the goods shall be stored at the Purchaser’s cost, or sold. The risk of goods damage shall pass over to the Purchaser as of the date on which the delay in the goods takeover occurs. The Purchaser shall be liable to the Seller for any damages incurred.
§ 5 Transfer of risk
1.Unless agreed otherwise, the goods delivery shall be done at the Purchaser’s cost and the risk of goods damage shall pass to the Purchaser as of the moment of goods conveyance to the shipper; or in the event of transport by the Purchaser himself, as of the moment when the goods leave the warehouse.
2.If goods delivery is not carried out by an agreed deadline for reasons that are not on the Seller’s side, the risk of goods damage shall pass over to the Purchaser as of the date when the Purchaser’s obligation to take over the goods arises.
3.The Purchaser undertakes to take over the goods on an agreed date. Upon a breach of this obligation, the Seller shall be entitled to claim damages incurred and usual storage charges.
§ 6 Defect Liability
1.The Purchaser shall be obliged to claim any goods defects with the Seller in writing in the delivery note and in CMR sheet on the day of goods receipt. The Purchaser shall be obliged to claim any hidden defects in writing within 7 days after a discovery thereof. The Purchaser’s duties under article 30 of the CMR Convention shall not be prejudiced by this. By neglect of the deadline specified, the Purchaser’s right from goods defects shall be extinct. The Purchaser undertakes to control the properties of the material before its treatment or processing. The purpose of said control shall be to verify – if lacking sufficient expertise, also with the help of a third person – whether the goods are suitable for intended processing and use. This obligation shall not cease to exist even when the Purchaser has previously inspected given material samples.
2.The Purchaser shall not be entitled to claim goods defects in the event of minor discrepancies in goods dimensions and make. Discrepancies complying with relevant standards shall not be goods defects. The Purchaser shall be entitled to claim defects when defects exceed 4 % of the purchase price of the goods delivered. For orders of goods of exact dimensions, the Purchaser shall be entitled to claim defects if the defects concern more than 10 % of individual products (boards).
3.The Purchaser shall be entitled to claim goods if inspection of defects is enabled to the Seller or a person authorised by him, and/or retrieval of the goods delivered is enabled. A precondition for any defect liability claim shall be that the Purchaser shall be able to demonstrate that the goods defect has existed in the moment of risk transfer. The goods may only be returned based on a written agreement of the contracting parties.
4.Unless the parties agree otherwise in writing, the Purchaser’s right to claim defects shall be preferentially settled with a supply of replacement goods. Claim for damages shall be assessed according to s. § hereof.
5.Defect liability shall cease to exist when the delivered goods have been processed, treated or unsuitably handled or stored.
6.Liability for defects of laminated goods shall only arise outside European countries if the Seller has been demonstrably aware of the intended use of given goods and has confirmed the suitability of the goods for intended processing and use to the Purchaser in writing.
7.The Seller shall be liable for defects for 12 months from the transfer or risk, unless another statutory period is specified by law.
§ 7 Transfer of Title
1.The title shall pass over to the Purchaser upon full payment of the purchase price. Any default in paying the purchase price to another person forming a concern with the Seller may be considered a failure to pay the purchase price agreed upon with the Seller. In the event of payment by a cheque or a bill, the title to the goods shall not pass over to the Purchaser until a reimbursement of the cheque or bill is paid to the Seller.
2.Upon processing, working or treating the goods (hereinafter goods processing) or parts thereof, the title shall not pass over unless the purchase price has been paid as per the provisions of s. 7.1 hereof. The total value of the goods processed shall be a security of payment of the purchase price to the Seller. Shall the Seller be a co-owner of the processed goods, the security to pay the purchase price shall be up to the value of the purchase price of the goods delivered and VAT.
3.The Purchaser undertakes only to sell the goods or processed goods in a way which ensures that the title to said goods will not pass over to third persons until the purchase price is paid in full to the Seller. The Purchaser assigns any future receivables with accessions, which he shall have from third persons from the sale of goods or sale of processed goods. In the event of a due claim of title to the processed goods by another supplier, the Purchaser undertakes to assign a part of the receivables amounting to the purchase price of the goods delivered and VAT to the Seller.
4.If the goods or processed goods of which the Seller is an owner (co-owner) are subject to bank conditions according to a current account agreement, the Purchaser shall assign any receivables from the bank according to said agreement to the Seller up to the value of the purchase price of subject-matter goods.
5.In the event of default in paying the purchase price or winding-up of the Purchaser, initiation of insolvency proceedings or any other reason for failing to meet the Seller’s right to payment of the purchase price, the Purchaser shall cease to be entitled to collect on his account the purchase price of the goods whose title did not pass over to the Purchaser in the intention of paragraphs 2 and 3 of this provision. If in doubt, the right to collect the purchase price on behalf of the Seller shall have been cancelled as of the first day of default in paying the purchase price; in the event of insolvency, as of the date of service of a petition to respective court. In the event of extinction of licence, the Purchaser undertakes to mark the Seller’s ownership legibly and permanently on the goods. Further, the Purchaser undertakes to inform the Seller of the goods (quantity, type) for which the title did not pass over to the Purchaser. If said goods were processed, the Purchaser undertakes to furnish the Seller with a list of receivables (debtor name, amount receivable, due date, invoice number) assigned by the Purchaser to the Seller because of his title to the subject-matter goods. The Seller shall be entitled to verify the information provided directly on the Purchaser’s premises and the Purchaser undertakes to provide the Seller with necessary co-operation during control of said information. The Seller shall be entitled to enter the Purchaser’s premises and buildings for the purpose of goods inspection and retrieval. The Seller shall also be entitled to require free goods loading and transport or to load and transport the goods at the Purchaser’s cost and liability to the place of their storage or sale. The Seller shall be entitled to sell the goods in auction or in direct sale without any restrictions. Any financial amount thus acquired shall be offset – after deduction of all costs incurred by the Seller – against any unpaid purchase price of the goods delivered.
6.As to the damage liability transfer, the Purchaser shall be obliged to handle the delivered goods as a careful manager. Unless agreed otherwise, the Purchaser shall be obliged to properly insure the goods against loss, theft and damage (destruction). The Purchaser undertakes to tie up insurance indemnity to the Seller’s benefit up to the value of the purchase price of the goods for which the title did not pass over to the Purchaser. If the insurance company does not pay indemnity or pays it only partially, the Purchaser undertakes to pay any difference up to the value of the purchase price and VAT.
7.The Purchaser shall not be entitled to secure liability compensation towards third parties with the goods owned by the Seller. The Purchaser shall be obliged to notify the Seller of any claims (rights) of third parties executed on said goods and take reasonable measures to prevent execution of the third party’s rights over the Seller’s property. The Purchaser shall be obliged to pay any costs incurred by the Seller in connection with exercise of his title to given goods.
8.The Seller shall be entitled to transfer his title to the goods to the Purchaser or refuse to accept assigned receivables in the meaning of the above provisions. The Seller shall be entitled to do so on the Purchaser’s request or even without such a request.
9.At his own cost and liability, the Purchaser undertakes – in particular in the destination country of the goods – to take all measures to make sure the steps of the contracting parties in the intention of the above provisions hereof are valid and effective, i.e. enabling the transfer of title only upon payment of the purchase price and assignment of the Purchaser’s receivables from goods sale or sale of processed goods or parts thereof according to the present Terms and Conditions to the Seller.
§ 8 Liability for Damages
1.The Seller shall be liable for damage to health caused by him, including simple negligence. For all other cases, the Seller’s liability shall be excluded, regardless of the cause or circumstances of its origination. (Legal provisions on damages shall not be applicable.) This shall not be applicable if the damage occurred wilfully or due to active negligence. The Seller shall be liable for damage even upon a substantial breach of the contractual duties under the jurisdiction of the Supreme Court of the CR. In said cases of liability, the Seller shall be obliged to compensate for the damage by restoration to the original state; if this is not possible, to reimburse the actual damage at the amount determined as of the date of conclusion of the purchase agreement.
2.Liability for defects and statutory liability for damage which could not have been prevented by the parties shall not be prejudiced by the above stated provision.
3.The contracting parties agree that – while further processing the Seller’s product – the Purchaser shall take over the liability for the processed product from the Seller, under the Product Liability Act, if the damage occurred due to the reasons on the Purchaser’s part and if the Seller is liable in relation to any third parties for the damages as the manufacturer under the statutory provisions concerning product liability. Said agreement shall particularly apply to a final product which is defective or a product containing defective or incomplete instructions for the end-user. The Purchaser shall take over the liability to satisfy third party claims in the scope of product liability assumed and shall provide sufficient security to meet such a liability upon the Seller’s request.
§ 9 Court Jurisdiction, Governing Law, Place of Performance, Data Processing, Partial Invalidity
1.All disputes shall be settled according to the material law in force in the CR.
2.The court venue shall be an ordinary court of the Seller. However, the Seller shall also be entitled to file a suit with an ordinary court of the Purchaser.
3.The place of performance of obligations from the goods delivered shall be exclusively CZ-58704 Jihlava, na Hranici 6, Czech Republic.
4.In compliance with the legal regulations in force in the CR, the Seller shall be entitled to process and maintain data on the Purchaser and his employees for the purposes of meeting the obligations from the purchase contract. The Purchaser states that he informed his employees of this authorisation and that they agreed with said authorisation in writing.
5.Partial invalidity or voidness of the present Terms and Conditions or a purchase contract shall not affect the validity of the remaining part. In such an event, the contracting parties undertake to replace the invalid or void provision with a new provision to best correspond with the hitherto intention of the parties. The same shall also apply if respective rights and duties of the contracting parties fail to be specified in a contract.