Version: 2023/01cz
Effective from: 26 June 2023
I. Introductory Provisions
The purchase and sale of goods shall be governed by the concluded purchase agreement (hereinafter also referred to as the "PA"). These General Terms and Conditions of Sale and Delivery (hereinafter also referred to as the "GTCSD") form an integral part of the PA.
These GTCSD shall apply to all purchases from ALFUN a.s. (hereinafter also referred to as the "Seller").
The Buyer is obliged to return the confirmed draft PA or send a counter-proposal to the Seller for confirmation promptly, but no later than the validity date of the draft PA. If the Seller does not receive this, the proposal to conclude the PA shall expire and the Seller shall no longer be bound by it, unless the Seller confirms that the goods will be delivered anyway.
The Buyer shall send the confirmed draft PA to the Seller by post or e-mail.
Deviating arrangements in the PA shall take precedence over the provisions contained in the GTCSD.
The signing of the PA shall terminate any binding nature of all preliminary negotiations and correspondence (declarations of intent) concerning the scope of the PA.
II. Basic Contractual Conditions
The Seller undertakes to deliver the goods and the Buyer undertakes to take delivery of the goods and to pay the purchase price for the delivered goods in accordance with the agreed conditions.
Information on prices is considered confidential within the meaning of § 1730 of the Civil Code.
The Seller is not obliged to deliver goods to the Buyer within the time limits specified in the concluded PAs if the Buyer is in default with any payment; the delivery period on the part of the Seller shall be automatically extended by the period of such default.
The Buyer undertakes to notify the Seller of any change in address, collection, and tax data without delay (but no later than 15 days) from the date of the change.
In the event of a breach of the obligations arising from the PA or the GTCSD, the Buyer is obliged to pay a contractual penalty of 30% of the price of the goods forming the subject of the PA. If the Seller withdraws from the purchase agreement pursuant to Art. VI, para. 1, then Art. VI, para. 3 shall apply.
III. Price and Payment Terms
Unless otherwise agreed in the PA, prices are set on the basis of EXW the Seller's registered office, including transport packaging. INCOTERMS 2020 shall apply to the agreed clauses.
The Seller shall issue a tax document according to the actual quantity of goods delivered. For the purpose of price calculation, the quantity data at the moment the goods are taken over by the carrier shall be decisive.
The Buyer shall pay the purchase price on the basis of a tax document (hereinafter referred to as the "invoice") issued by the Seller.
If the method of payment specified in the PA is an advance payment, the Buyer shall pay the purchase price on the basis of a pro-forma invoice issued by the Seller. If an advance payment has been agreed, the Seller is not obliged to deliver the goods to the Buyer until the agreed price has been paid.
If a security payment instrument (e.g., bank guarantee, bill of exchange, etc.) has been agreed in the PA, the Seller is not obliged to deliver the goods to the Buyer until complete and accurate documents have been received.
The due date is specified in the PA and is linked to the date of issue of the invoice.
In the event of late payment, the Seller is entitled to charge the Buyer contractual interest on late payment at the rate of 0.05% of the outstanding amount for each day of delay.
The Buyer is not entitled to withhold the purchase price or any part thereof, or claimed goods intended for return for any reason, or to unilaterally set off such claims, including claims from filed complaints. The loss, theft, or damage of the goods that occurred after the risk for the goods passed to the Buyer, nor a filed complaint, shall not release the Buyer from the obligation to pay the purchase price.
IV. Delivery of Goods
The transport of goods shall be carried out by road truck transport according to the Buyer's request and instructions specified in the PA.
The Buyer is entitled to arrange for transport itself, at its own expense; in which case it is obliged to demonstrably notify the Seller of this fact no later than the time of dispatch of the goods by the Seller. In the case of arranging its own transport, the Buyer undertakes to collect the goods within 7 calendar days of receiving a notice from the Seller. If the Buyer fails to take delivery of the goods within the time and at the place agreed in the PA after being requested to do so by the Seller, the Seller is entitled to claim compensation for the damage caused by the delayed acceptance; in particular, it may sell the goods and claim the difference between the originally agreed purchase price and the amount obtained from the sale of the goods.
The Seller reserves the right to deliver goods with a quantity (weight) tolerance of +/-10% for aluminum and stainless steel and +/-20% for steel.
If the delivery date for the goods has passed, the delivery period shall be extended by a further 25 days from the original delivery date, unless the Seller receives a written notice from the Buyer pursuant to Art. VI.2.c) of the GTCSD no later than the 5th day after the expiry of the original delivery date. In the event of an extension of the delivery period under this paragraph, the Seller shall not be liable to pay a contractual penalty for the delay.
The Seller reserves the right, after written notice to the Buyer, to suspend all deliveries of goods to the Buyer until full payment of the Buyer's due liabilities to the Seller. This action by the Seller shall not be considered a delay in delivery by the Seller and shall not entitle the Buyer to contractual penalties, damages, or withdrawal from the PA.
The risk of damage to the goods shall pass to the Buyer at the moment of loading the goods at the Seller's plant.
The seller assumes that the buyer knows the basic rules for handling the goods and their protection against damage, especially corrosion; the buyer is obliged to comply with at least these rules. The basic rules established by the seller are also available on the seller's website www.alfun.cz.
In the event of the Seller's delay in delivering the goods, the Buyer is entitled to a contractual penalty of 0.05% of the purchase price of the undelivered goods per day. The total amount of the contractual penalty charged shall not exceed 10% of the purchase price of the undelivered goods, subject to the provisions of § 2050 of the Civil Code.
V. Retention of Title
The Seller retains title to the goods specified in the PA until the purchase price for the goods and all due receivables of the Seller have been paid in full. Until the purchase price for the goods is paid, the Buyer is obliged to take care of the goods and protect them from damage or theft.
In the event that the Buyer is in default with the payment of the purchase price and is in possession of goods owned by the Seller, the Seller has the right to:
a) free access for the Seller's representatives to the Buyer's premises and the right to access data on the handling of the goods,
b) any proceeds of the Buyer arising from the unauthorized handling and disposal of the goods until all of the Seller's receivables have been paid.
In such a case, the Buyer's debtor is obliged to perform directly to the Seller, and the Buyer is entitled to demand payment from the debtor only to the Seller's account.
VI. Termination of the Purchase Agreement
1. The Seller is entitled to withdraw from the PA if:
a) the Buyer is in default with the payment of any monetary obligation to the Seller, or if a credit insurance company refuses to provide a sufficient insurance limit for insuring receivables against the Buyer;
b) insolvency proceedings have been initiated against the Buyer;
c) the Buyer has breached the PA otherwise than under letter a) and, despite a notice from the Seller to remedy the breach, has failed to do so within 20 days of delivery of the notice.
2. The Buyer is entitled to withdraw from the PA if:
a) the Seller is more than 40 days late with the delivery of the goods;
b) bankruptcy has been declared against the Seller;
c) the Seller has breached the PA and, despite a written notice from the Buyer to remedy the breach, has failed to do so within 20 working days of delivery of the notice.
3. In the event of withdrawal from the PA by the Seller for a reason stated in paragraph 1, the Buyer is obliged to pay the Seller a contractual penalty of 10% of the agreed purchase price of the goods under the PA in the case of unmanufactured goods, and a contractual penalty of 65% of the agreed purchase price of already manufactured goods to which the withdrawal relates.
4. In the event of withdrawal from the PA by the Seller, the Buyer is entitled to compensation for proven additional costs incurred as a result of the withdrawal, up to a maximum of 30% of the value of the goods that were the subject of the terminated PA.
VII. Defects of Goods and Claims
1. The Buyer's right arising from defects in the goods shall expire if the Buyer fails to notify the Seller in writing of the nature of the defects within the following time limits:
a) apparent defects of the goods (e.g., corrosion) and defects in the quantity of the goods, at the latest upon delivery,
b) hidden defects – immediately after their discovery, but no later than 30 days from delivery.
2. The Buyer must notify the Seller in writing of any defects in the goods within the time limits specified in paragraph 1 of this Article. Together with the notification of defects, the Buyer must, within the same time limit, provide documents and photographic evidence demonstrating the validity of the claim and deliver a completed claim report. Otherwise, the Buyer's right arising from defects in the goods shall expire.
3. In the event of discrepancies in quantity or damage to the goods during transport, the Buyer is obliged to submit to the Seller the original written record of the takeover of the goods from the carrier, together with photographic documentation. At the same time, the Buyer is obliged, at the Seller's request, to prove compliance with the basic rules for handling the goods pursuant to Art. IV.7 of the GTCSD.
4. Damaged, claimed goods must be stored separately, in their original condition, and must not be handled without the prior written consent of the Seller until the claim is fully resolved.
5. If the claim is accepted, the Seller may, at its own discretion:
a) remedy the identified defects within a reasonable period,
b) make a supplementary or replacement delivery under the original conditions,
c) request the return of the goods with a subsequent refund of the purchase price,
d) reduce the price.
VIII. Liability and Force Majeure
1. The Seller is entitled to compensation for damage caused by a breach of the PA, in addition to the right to the agreed contractual penalty. The party that has breached an obligation arising from the PA is obliged to compensate the other party for the damage incurred, but only up to the value of the goods.
2. A party shall not be liable for damage caused if it proves that the failure to perform its obligation was due to unforeseeable and unavoidable circumstances of an extraordinary nature which could not have been foreseen at the time of the conclusion of the PA and which could not be prevented, avoided or overcome (also referred to as "force majeure"). Force majeure shall be deemed to include in particular: war, whether declared or undeclared, civil wars, riots and revolutions, acts of piracy and sabotage, natural disasters, explosions, fires, destruction of machinery, production and other facilities, boycotts, strikes and embargoes of any kind, occupation of plants and their branches which occurred at the Seller's, manufacturer's, or its subcontractors' premises, and interventions by state authorities. The circumstances of force majeure may be proven, for example, by a certificate from the Chamber of Commerce.
3. The party affected by force majeure is obliged to notify the other party of this fact and its consequences without undue delay after becoming aware of it; otherwise, it shall be liable for the damage caused in its entirety. The exclusion of liability shall be effective for the duration of the force majeure or its consequences. If force majeure prevents the Seller from fulfilling the terms of the PA, it has the right to extend the delivery date of the goods appropriately.
4. Events of force majeure shall release the obligated party from the obligation to pay damages, penalties or other contractually agreed sanctions, with the exception of paying interest owed to the other party, for as long as the reason for their payment exists.
5. If the force majeure event lasts for more than 3 months, either party has the right to withdraw from the PA, or part thereof, without further claims.
IX. Final Provisions
1. Legal relations arising in connection with this agreement shall be governed by the laws of the Czech Republic, in particular Act No. 89/2012 Coll., the Civil Code ("CC").
2. All disputes arising from the PA and in connection therewith shall be finally settled by the Arbitration Court attached to the Economic Chamber of the Czech Republic and the Agrarian Chamber of the Czech Republic in accordance with its rules by a single arbitrator appointed by the President of the Arbitration Court. The seat of arbitration shall be Olomouc. Alternatively, the Seller is entitled to turn to a regular court.
3. The PA and its amendments and supplements must be made in writing and signed by the authorized representatives of both parties.
4. These GTCSD are available on the Seller's website www.alfun.cz
