General Business Terms of ALUTECH Systems, s.r.o.
with its registered office at Bor, Nová Hospoda 19, district of Tachov, 348 02, Czech Republic, ID No.: 290 89 077, incorporated in the Commercial Register kept on file at the Regional Court in Plzeň, Section C, Insert 24004
- Scope of General Business Terms
1.1. These General Business Terms (hereinafter the "Terms") form an integral part of all the trade agreements concluded between ALUTECH Systems, s.r.o. (hereinafter "ALUTECH" or the "Company") and the signed counterparty (hereinafter the "Customer"). ALUTECH shall deliver goods, provide services, and submit proposals exclusively on the basis of these Terms.
1.2. Any general terms, business terms or other documents of the Customer shall not be binding on ALUTECH irrespective of whether or not ALUTECH has raised an objection to such provisions or conditions of the Customer.
1.3. Any departures from these Terms if there are any shall be drawn in written form and signed by both parties.
- Conclusion of Sales Contract
2.1. No business offers of ALUTECH shall be binding.
2.2. Each order placed by the Customer shall specify at least the type and number of the ordered goods, catalogue number of the goods (if any), unit prices, total price, and proposed delivery date. The order shall be irrevocable and binding on the Customer for a period of 15 days after the date on which it is received by ALUTECH. The Sales Contract between the Customer and ALUTECH for the supply of the ordered goods for the price and under the terms given in the order shall be concluded in the form and on the date of: (i) the delivery of the written confirmation of the order issued to the Customer by ALUTECH or (ii) the delivery of the advance payment invoice or the final invoice for the ordered goods issued to the Customer and signed by ALUTECH, provided that such confirmation or such invoice is delivered to the Customer within the time limit mentioned in the preceding sentence. Orders, invoices, and confirmations under this Article 2.2 shall be executed in writing and shall be delivered by e-mail, fax, post or courier. ALUTECH shall not be under any obligation to confirm any order.
2.3. After entering into the Sales Contract under Article 2.2, the Customer shall be entitled to change or cancel the order only with the written consent of ALUTECH. Should that consent be granted, the Customer shall pay ALUTECH a cancellation fee amounting to 10% of the total value of the cancelled order. In addition to that cancellation fee, ALUTECH shall be entitled to require the payment of the full price of the goods already produced by ALUTECH at the time of the change/cancellation of the order and the reimbursement of all other related costs. If the Customer has made any advance payment for the goods affected by the change/cancellation of the order, ALUTECH shall be entitled to set off the advance payment against the payments which the Customer shall make under the preceding sentence. If ALUTECH does not agree with the change or cancellation of the order, the Parties shall fulfil the Sales Contract concluded in compliance with Article 2.2 to the full extent in accordance with the original order of the Customer.
2.4. The standard prices include the costs of the preparation and packing of the goods under the rules of ALUTECH. Should ALUTECH receive from the Customer the order with the requirement for the supply of the goods in non-standard packaging or other non-standard requirements, ALUTECH shall contact the Customer without undue delay and inform the Customer of a price increase related to that non-standard packaging or other adjustments which shall be performed in order to fulfil the order. Subsequently, the Customer of ALUTECH shall place a new order taking into account the price increase and other adjustments required by ALUTECH; failing that, ALUTECH shall be entitled to reject the original order.
2.5. Any illustrations and drawings and the data concerning the dimensions and weights given in the orders of ALUTECH shall not be binding.
- Prices and Terms of Payment
3.1. All the prices of ALUTECH are calculated in EUR without VAT. Statutory VAT amounting to the corresponding value of the purchased goods as of the date of issue of a tax document - invoice shall be added to the net price calculated in that manner.
3.2. Should the total costs of the inputs required for the production of the goods in accordance the order of the Customer be increased as compared to the total costs of the inputs at the time of the confirmation of such order by ALUTECH (e.g. as a result of an increase in the prices of raw materials or other costs), ALUTECH shall be entitled to increase the price of the order in an appropriate manner provided that ALUTECH shall inform the Customer of such price increase without undue delay. If the Customer does not agree with that, it shall be entitled to withdraw from the contract.
3.3. Payment of the invoices issued by ALUTECH shall be due in full prior to dispatch of the goods unless otherwise agreed in writing by the parties. The Customer shall make the payment for the goods and services by transferring the full amount of the outstanding invoice to the bank account of ALUTECH within the time limit specified by the invoice. The payment shall be deemed to have been made on the date on which the bank account of ALUTECH is credited with the amount due. All the costs related to the wire transfers of the payments of the invoices issued by ALUTECH shall be borne by the Customer.
3.4. Unless otherwise prearranged in writing, the Customer hereby waives its right to set off the invoices of ALUTECH against its own claims.
3.5. Should the payment in favour of ALUTECH not be made until the due date, ALUTECH shall be entitled to charge lawful interest on late payments (hereinafter "Interest") for each day of default until the making of the payment. Any payment of Interest shall be without prejudice to the duty of the Customer to settle its obligations arising from the contract. Should the Customer be in delay with any payment for the supplied goods for longer than 90 days, the Customer shall pay ALUTECH in addition to Interest also a penalty stipulated in the amount of 2% of the amount due for each day of delay or a part thereof, however, not more than 100% of the price of the unpaid goods or services. Any payment of Interest and the penalty by the Customer shall be without prejudice to the right of ALUTECH to claim compensation for damage.
- Terms of Delivery
4.1. The terms of delivery are included in the business proposal of ALUTECH and shall be approved for each Customer individually. Should the Parties fail to agree expressly on the terms of delivery when entering into the Sales Contract, the delivery terms shall be Incoterms 2000 EXW (Bor, Czech Republic).
4.2. Should ALUTECH fail to observe any binding time limit agreed in the Sales Contract under Article 2.2 or confirmed in writing, the Customer shall provide the Company in writing with the maximum legally permissible grace period. However, should the supply not be made within the provided grace period, the Customer shall be entitled to withdraw from the Sales Contract affected by the delay and to receive all the payments made under this Sales Contract.
4.3. The circumstances excluding liability under Section 374 of the Czech Commercial Code, such as natural disasters, floods, fires, earthquakes, and other similar events which are beyond the control of ALUTECH and which could not have been foreseen or avoided by ALUTECH, including state export or import embargo for which ALUTECH is not responsible, shall relieve ALUTECH of its duty to observe the delivery date. Should the circumstances exist for longer than six (6) months and should it not be possible to establish whether they will cease to exist during the future six (6) months, both Parties shall be entitled to withdraw from the Sales Contract affected by the circumstances and return to each other the performances hitherto received under such contract.
4.4. On condition that the supply is executed at the expense of ALUTECH, the Customer shall receive the supplied goods on the given date including, without limitation, to provide technical support in the unloading of the goods and to unload the goods at the place of destination.
4.5. If the Customer causes any delay in the acceptance of the goods or the Customer fails to comply with any other of its obligations connected with the unloading of the goods, the Customer shall compensate ALUTECH for all the actual costs connected with the unloading, storage, re-loading, transport delays, and onward transfer resulting from the failure of the Customer to ensure the unloading.
4.6. During the unloading, the Customer shall perform the inspection of the quality and quantity of the goods. The goods shall be transferred to the Customer on the basis of the document concerning delivery (bill of delivery). If the bill of delivery is signed by both Parties without reservation, it means that the Customer has received the goods or an agreed part thereof specified by the bill of delivery and that the goods do not show any apparent defects.
- Liability for Defects, Guarantee
5.1. The Customer shall check the quantity and quality of the supplied goods upon the receipt of the goods. Any complaints concerning the quantity may be filed within three (3) working days of the date of the receipt of the goods and any complaints concerning the quality in terms of apparent defects may be filed within thirty (30) working days of the date of the receipt of the goods; the provision of Article 4.6, the second sentence, shall remain unaffected. Should the complaints not be filed within the above-mentioned time limits, all the claims of the Customer in relation to the quantity or apparent defects shall expire.
5.2. When filing a complaint, the Customer of ALUTECH shall submit all the required information including photographs, an accurate description of problem, a copy of the label or information given on it (description, classification, item, code of the specifications of the working parameters), the quantity of the missing or defective goods, and the date of delivery.
5.3. The Customer shall (i) enable ALUTECH to inspect the goods complained of by sending the goods or their samples for inspection to ALUTECH and (ii) keep the original packaging of the goods so that it is possible to use them for transport back to ALUTECH. Unless the original packaging is available, the customer shall use its own packaging for transporting the goods. The Customer shall bear all the costs incurred by the Customer as a result of the dispatch of the goods complained of or samples thereof to ALUTECH. Should the complaint be admitted by ALUTECH, ALUTECH shall compensate the Customer for such costs.
5.4. ALUTECH shall check the complaint within 14 days of the receipt thereof. Should it be necessary to send the goods complained of or samples thereof for checking purposes to ALUTECH, ALUTECH shall check the complaint within 14 days of the receipt of the goods or samples. In its statement concerning the complaint, ALUTECH shall notify the customer of whether or not the complaint is admitted.
5.5. Should the complaint be admitted, ALUTECH shall repair the defects by means of the repair or replacement of the defective goods by the sound goods or by means of the provision of the additional goods as compensation for the missing goods, within a time limit of thirty (30) days of the date on which the complaint is admitted. Should the procedure not be possible or should it result in unreasonable costs, ALUTECH shall offer and agree with the Customer on a deduction from the price or refund of the total amount for the defective or missing goods. In case of the refund of the payment for the defective goods, the Customer shall bear the costs of the disposal thereof.
5.6. ALUTECH provides the guarantee for hidden defects for a period of twelve (12) months after the delivery of the goods to the Customer, provided that the Customer shall use the goods only in the manner and for the purposes agreed in the Sales Contract or, in the event that no such contract has been concluded, in the usual manner and for standard purposes. Any tolerances defined by the DIN standard shall not substantiate the right to complain and shall not be deemed defects. The guarantee shall not apply to the defects of the goods arising from fair wear and tear, incorrect use or improper storage. The complaints within the guarantee shall be filed and settled in compliance with the provisions of this Article 5.
- Limitation of Liability
6.1. ALUTECH shall not be held liable for any defects arising from fair wear and tear, incorrect use, or improper storage or incorrect maintenance or for any damage to the goods occurring after the delivery of the goods to the Customer, except for the cases falling under the scope of guarantee under 5.6 of the Terms.
6.2. The total liability of ALUTECH towards the Customer for any damage, including the actual damage and lost profit, arising from any breach of any Sales Contract concluded under Article 2.2 (including any breach of these Terms) by ALUTECH or any breach of the statutory obligations of ALUTECH connected with such contract shall be limited by the total amount corresponding to the total price of the goods affected by that breach. Such agreement on the limitation of the extent of damages constitute the foreseeable and reasonable extent of damages which ALUTECH could expect when entering into the respective Sales Contract as a possible consequence of any breach of its obligations arising from such Sales Contract or breach of its statutory obligations connected with the contract and which could be expected within the given facts and purpose of such Sales Contract.
- Transfer of Title to Goods
7.1. ALUTECH shall remain the owner of all the supplied goods until the Customer has settled all its outstanding obligations towards ALUTECH, including any additional costs connected with transport, interests on late payments and/or a penalty. ALUTECH shall be entitled to suspend the supply of the goods until all the outstanding obligations of the Customer have been settled. Should the Customer act on behalf of third parties or as an agent, the Customer shall assume the responsibility for the consequences arising from the fact that ALUTECH remains the owner of the goods until the settlement of all the outstanding obligations of the Customer, provided that the Customer shall notify the principal or the end buyer of that fact.
7.2. The goods which remain in the ownership of ALUTECH shall not be pledged in favour of any third parties or provided as security. The Customer shall use such goods in the usual manner and for standard purposes and shall take all the necessary measures to protect the goods against any damage.
7.3. Should the Customer breach any of its obligation under this Article 7 or should the Customer fail to settle all its outstanding obligations within 30 days of the receipt of the warning about the breach of the contract, ALUTECH shall be entitled to withdraw from all the sales contracts related to the goods which have remained in its ownership and take the goods back into its possession which shall not be obstructed by the Customer in any manner. The right of ALUTECH to claim compensation for damage shall not be affected by such taking the goods into possession or payment of penalties.
- Governing Law and Jurisdiction
8.1. These Terms shall be governed by the UN Convention on Contracts for the International Sale of Goods and UNIDROIT Principles of International Commercial Contracts. To the extent not regulated by the said provisions the provisions of the Czech legal regulations, especially Act 513/1991 Coll., the Commercial Code, as subsequently amended, shall apply.
8.2. All disputes that may arise from and/or in connection with these Terms and/or any Sales Contract under Article 2.2, and/or the execution, breach, termination or invalidity hereof, which the Parties fail to solve amicably within 20 days, shall be finally settled by arbitration in accordance with the Rules for Expedited Arbitrations of the Arbitration Institute of the Stockholm Chamber of Commerce. The seat of arbitration shall be Prague, Czech Republic. The language of the arbitration shall be English. If an arbitration is commenced concerning a legal relationship in respect of which an arbitration between the parties is already pending, the parties hereby agree to consolidate the new claims with the pending proceedings.
8.3. At any time before the commencement of the arbitration proceedings under Article 8.2, ALUTECH shall be entitled to refer any dispute with the Customer at its own discretion to the competent state court of the country in which the Customer has its place of business.
8.4. Should the arbitration proceedings be commenced under Article 8.2, ALUTECH shall no longer be entitled to refer the dispute concerning this particular delivery and/or possible counterclaims to state courts within the meaning of Article 8.3. Should the proceedings before any state court under Article 8.3 be commenced, both Parties shall no longer be entitled to institute the arbitration proceedings and in such case all the disputes between the Parties concerning this particular delivery and/or possible counterclaims shall be referred to the given state court.
8.5. This Article 8 shall not prevent either Party from seeking an interim order from the competent state court to the extent deemed to be appropriate by the respective Party.
In Bor, July 2010 ALUTECH Systems, s.r.o.