Commercial and delivery terms of POLDI Hütte s.r.o. valid since 01. 04. 2011
I. Effectiveness
1.
These General Business Conditions apply to all deliveries and obligations resulting from individual purchase agreements, work contracts and other agreements on the delivery of goods concluded by the business company POLDI Hütte, s. r. o., registered office: Průmyslová 1342, Kladno, postcode: 272 01, Company Identification Number: 25649787, registered in the Commercial and Trade Register administered by the Municipal Court of Justice of Prague, Section C, File No. 58044 (hereinafter only the “Seller”). The price conditions specified in the Seller’s price list will be applied to all business transactions conducted with any third party (customer, buyer or order party; hereinafter referred to as the “Buyer”). The Buyer’s purchase conditions will be applied to such transactions only if approved in advance by the Seller in writing. Written contractual conditions agreed by the Buyer and the Seller will be given priority over the terms defined herein.
2.
The Seller’s offers will not be regarded as binding, unless specified otherwise therein. Verbal arrangements and promises made by the Seller’s employees will become binding only when confirmed by the Seller in writing.
3.
In the event of any doubts, the current version of INCOTERMS will be used for the interpretation of the applied provisions.
4.
All particulars of the Seller, such as dimensions, weight, pictures, descriptions, assembly sketches and sample book drawings in sample books, pricelists and other printed documents, are intended for orientation only unless otherwise specified. However, the Seller shall always try to ensure their maximum possible conformity. All models and drawings shall remain the Seller’s exclusive property.
II. Prices
1.
Unless agreed otherwise, all prices are understood to be ex-works prices or prices charged for collection at the Seller’s warehouse, i.e. excluding packaging costs, transport expenses, customs duties and other fees. The Seller shall bear all fees payable within the territory of the Seller´s country. The Buyer shall bear all expenses, customs duty and other fees payable outside the territory of the Seller´s country.
2.
Should the taxes and fees or other external expenses included in the agreed price change after the conclusion of the agreement with the Buyer or should these be newly introduced, the Seller will be entitled accordingly to modify them unilaterally. If so, the Seller shall be entitled and obliged to inform the Buyer of the new price and request acknowledgement of the new price or payment of the whole price in advance. Should the Buyer fail to acknowledge the request, the Seller shall be entitled to withdraw from the agreed contract.
3.
Prices are usually agreed upon in one of the following ways in a contract.
a) Effective (final) price: The agreed effective price includes all the costs incurred by the Seller for the production and/or purchase of articles, whereas the Seller specifies the effective price according to the price level as of the day it submits an offer to the Buyer. The Seller is entitled to increase the agreed effective price of undelivered products as a result of any possible change in the prices of raw materials and/or the economic situation and/or other reasons dramatically affecting the production and/or purchase cost of such products in comparison with the original price offer made by the Seller. In such case, the Seller shall be authorized and obliged to notify the Buyer of the new price and request at its discretion either written acknowledgement of the new price or payment of the whole price in advance. Should the Buyer fail to meet the Seller´s request, both the Seller and the Buyer will have the right to withdraw from the agreed contract. Provided the terms for the Buyer´s withdrawal from the contract due to an increase in the effective price are met, the Buyer shall be entitled to require that the Seller offer a “basic price plus extra charges” to it instead of the effective price. Should the Buyer fail to accept such newly set price, both the Seller and the Buyer will have the right to withdraw from the contract.
b) “Basic price plus extra charges”: The contract specifies the basic price, i.e. the price covering the Seller´s costs related to the production and/or purchase of articles, however, without extra charges for alloying addition (hereinafter the “LZ) and without extra charges for scrap (hereinafter the “SZ”). The total price shall be specified by adding the LZ and SZ charge effective for the specific type of steel as of the day the articles should be delivered to the Buyer. Consequently, modifications to the LZ and SZ cannot lead to a withdrawal from the contract by either Party. The amount of the LZ and SZ shall be governed by the data published by Deutsche Edelstahlwerke at www.dew-stahl.com.
III. Payment and Settlement of Account
1.
The payment of the price must be credited to the Seller’s bank account by their maturity date or settled in cash at the Seller’s headquarters. All settlement-related expenses shall be borne by the Buyer. The Buyer will be entitled to exercise possible retention rights, rights of lien and mutual offset of liabilities only on condition that its claims are accepted as indisputable (i.e. by both contracting parties) or recognised by a court of justice.
2.
Should the Buyer fall behind on any due payment, the Seller will be entitled to claim punitive interest amounting to 0,05% of the outstanding amount for each day of the Buyer’s delay. This provision in no way affects the Seller’s right to claim damage compensation.
3.
Should the Buyer fall behind towards the Seller in any payment exceeding CZK 100,000.00 (or € 3,000.00) or an equivalent of CZK 100,000.00 if in another currency, fall behind on any payment for more than 30 days or fail to settle a promissory note upon its presentation, or should other circumstances indicate serious deterioration of the Buyer’s economic situation that could negatively affect the Seller’s ability to recover its receivables resulting from the legal relationship between the Seller and the Buyer, the Seller will be entitled to request that all its receivables be settled immediately and that all future deliveries and/or services be paid in advance, unless the Seller is able to provide adequate assurance/security for the payment. In addition, the Seller will also be entitled to withdraw from the agreement concluded with the Buyer.
4.
The aforementioned provisions in no way affect the relevant legal regulations governing debtors’ default.
IV. Deliveries and Delivery Times
1.
The obligation to supply the goods is conditioned by timely and correct cooperation of the Buyer and correct and timely executed sub-delivery, except for cases where the Seller itself bears the blame for possible incorrect or delayed deliveries.
2.
All delivery times are regarded as approximate only, always starting on the day the contract is entered into. A contract is entered into at the moment the Seller provides a Draft Agreement to the Buyer upon the Buyer´s inquiry and the Buyer confirms the draft and delivers it back to the Seller. Individual delivery deadlines are valid only on condition that the Parties agree on all order essentials on time and in full and on condition that the Buyer meets all its obligations, such as obtaining all the necessary official certificates and licenses, provision of L/C, securities, guarantees, advance payments. Unless otherwise stated by the Seller, the Seller´s draft agreement shall cease to have effect unless accepted by the Buyer within 10 days of the date it was delivered to the Buyer (by accepting is understood the delivery of the acceptance to the Seller). Whether the seller wishes to accept such later acceptance of the draft or not is at its discretion.
3.
Any product intended for export outside the Czech Republic may be collected by the Buyer or its authorised representative only upon the presentation of the valid tax export certificate (document). Otherwise, the Buyer will be obligated to pay the Seller the relevant Value Added Tax as in the case of deliveries intended for customers in the Czech Republic.
4.
Delivery times will be regarded as duly met if the products are dispatched from the Seller’s factory or warehouse on time. Should it be impossible to dispatch the products on time due to objective reasons, their delivery shall be regarded as duly executed at the moment the Buyer is informed of the fact that the products are ready for collection in the Seller’s factory or warehouse.
5.
Possible force majeure will entitle the Seller to postpone its deliveries until the relevant obstacles have been eliminated and production activities properly re-assumed. The same applies to force majeure occurring in the course of delivery default. Force majeure includes above all currency-related, business-related, political and other administrative and governmental measures, strikes, expulsion of strikers from factories, production interruptions beyond the Seller’s control (for instance, fires, breakdowns of machines or mills, shortages of raw materials or energies, etc.), traffic restrictions, delayed import customs clearance as well as all other circumstances, regardless of their character, that are beyond the Seller’s control, significantly aggravating or frustrating its activities. Whether such circumstances affect the Seller, its suppliers or their sub-contractors is irrelevant. Should either contracting party be unable to meet its principal contractual obligations due to the aforementioned circumstances for more than 6 months, it will be entitled to withdraw from the agreement.
V. Retention of the title
1.
All supplied products shall remain the Seller’s property (hereinafter the “reserved products”) until the moment the Buyer settles the agreed contractual price and all other outstanding financial amounts owed to the Seller in full. The same applies to conditional Seller´s receivables (Buyer´s liabilities) or occurring in the future (for instance, related to co-accepted bills of exchange, collaterals, etc.).
2.
Should the products with the retention of the Seller´s title (hereinafter only the “reserved products”) be further modified and processed by the Buyer, this is done for the Seller as the manufacturer without any further obligations for the Seller resulting from that. Modified or processed products are regarded as reserved products in compliance with Section V.1 of these General Business Terms and Conditions. In the course of processing, modification, mixing or joining the reserved products with other products the Seller becomes a proportionate co-owner of the resulting products in accordance with the invoiced value of the reserved products and that of other products used for this purpose. Should the Seller’s title expire as a result of processing, joining or mixing, the Buyer shall transfer to the Seller the relevant title corresponding to the invoiced value of the reserved products, free of charge. The Buyer is entitled to sell the reserved products in current business transactions under normal business conditions and only if it is not in delay with its settlement of any payment due to the Seller. In addition, it is obligated to transfer all receivables resulting from such sale to the Seller in accordance with Sections V.3 and V.4 of these General Business Terms and Conditions. The Buyer is not entitled to dispose of the reserved products in any other way.
3.
All receivables resulting from further sale of the reserved products are pledged for the Buyer to secure the Seller´s receivables for the payment of the price of the reserved products at the moment the reserved products are sold. The said receivables are used for security purposes in the same extent as the involved reserved products. Should the Buyer sell the reserved products together with other products not purchased from the Seller, it shall pledge to the Seller only those receivables corresponding to the proportion of the reserved products in the overall invoicing value of all sold products. When selling goods of which the Seller is a co-owner in compliance with Section V.2 of this Article, the amount corresponding to the Seller’s co-ownership share will be pledged for the Seller. Should the Buyer use the reserved products in connection with a work agreement or an agreement on custom production, it will be obligated to pledge to the Seller its (the Buyer´s) receivables resulting from this agreement on work on custom production at the moment the goods/work are/is duly delivered.
4.
The Buyer is entitled to recover all receivables resulting from further sales. The said entitlement may be revoked by the Seller as a result of the Buyer’s failure to settle any due payment on time and/or to settle any promissory notes or if a petition for bankruptcy is filed against the Buyer as an insolvent debtor. The Seller shall exercise its right to revoke the Buyer’s entitlement only on condition that it is familiar with the circumstances indicating serious deterioration of the Buyer’s economic situation considerably threatening timely settlement of the Seller’s receivables. By the Seller’s request, the Buyer will be obligated to inform its customers that its receivables have been pledged to the Seller and to forward all documents necessary to recover such receivables to the Seller without unnecessary delay. The possible transfer of receivables from further sales is not admissible, except transfers in the form of factoring to be settled to the Seller´s account, of which the Seller is informed in advance, with the achieved factoring gain exceeding the value of the Seller’s secured receivable. The Seller’s receivable owed by the Buyer will become due as soon as the Buyer receives its payment.
5.
The Buyer is obligated to inform the Seller immediately of any possible confiscation of the reserved products or any other restrictions imposed by third parties. The Buyer will be obligated to bear all expenses related to the possible removal of restrictions or return of the reserved products, unless such expenses are settled by the involved third party.
6.
Should the Buyer fall behind on its settlement of obligations, or settlement of due promissory notes upon their presentation, the Seller will be entitled to reclaim the reserved products (even by entering the Buyer’s business premises). The same provision would be applied if the circumstances indicated that the Buyer’s economic situation had deteriorated, with the Seller’s chances of recovering its receivables seriously jeopardised as a result. The possible withdrawal of goods will not be regarded as withdrawal from the agreement concluded by the Seller and the Buyer.
7.
Should the invoicing value of all existing guarantees exceed the value of the secured receivables, including all additional due amounts, such as interest, expenses, etc., by more than 50 per cent, the Seller will be obligated to release the security of certain receivables according to its choice, if asked to do so by the Buyer.
VI. Quality, dimensions and weight
1.
Both the quality and individual dimensions are governed by DIN standards or by the relevant material sheets. Where no DIN standards or material sheets are available, the relevant Euro-standard will be applied. Commercial usage will be applied to all other cases. Neither possible reference to standards, material sheets or manufacturer’s test certificates nor indication of quality, dimensions, weight and applicability will be regarded as a promise or statement of compliance, manufacturer’s declaration or relevant marks (such as CE or GS).
2.
The weight of products – supported by the relevant weighting certificate – is always determined by the Seller. If possible in compliance with valid legal regulations, the weight can be specified without weighting according to DIN standards. Such an arrangement in no way affects possible additions and deductions (commercial weight) applied within the European Union to transactions involving steel. The numbers of units, bundles, etc. specified on expedition advice notes are not binding in the case of products invoiced in accordance with their weight. Unless usual unit weighting process takes place, the overall consignment weight will be regarded as definitive. Any difference in comparison with the calculated unit weight will be distributed evenly among individual weights.
VII. Collection of Goods
1.
If the collection of the goods within the Buyer´s business premises is agreed, the Buyer will be obligated to collect the goods in the Seller’s factory or in the Seller’s warehouse only, immediately after being informed of their readiness. All collection-related personnel costs will be borne by the Buyer, with material expenses invoiced in compliance with the Seller’s valid price list (or factory price list). Unless agreed otherwise in writing, all transportation costs will always be settled by the Buyer.
2.
Should the Buyer fail to collect the products on time or to collect them at all, the Seller will be entitled to send them to the Buyer at the Buyer’s expense and risk or to store the products at the Buyer’s expense and risk and claim customary storage costs of the Buyer.
VIII. Shipment, Transfer of Risks, Packing, Sub-deliveries, Progressive Stock-out
1.
The Seller decides on the method and means of shipment as well as on the transportation and selection of forwarders.
2.
The collection of products that have been reported as ready for shipment in accordance with the agreement concluded by the Seller and the Buyer must be cancelled immediately, otherwise the Seller will be entitled to send them to the Buyer at the Buyer’s expense and risk or to store the products at the Buyer’s expense and risk and claim customary storage costs of the Buyer.
3.
Should it become impossible to forward the goods in the agreed manner or to the agreed place of destination at the agreed time due to objective circumstances, the Seller will be entitled to forward the goods in an alternative manner or to another place of destination, with all additional costs resulting from such an arrangement borne by the Buyer. However, the Buyer will first be given a chance to express its opinion.
4.
All related risks (i.e. damage, loss, destruction, theft or confiscation) shall be transferred from the Seller to the Buyer when the products are handed over to the sender (forwarder), but upon their release from the Seller’s warehouse or factory at the latest. This provision applies to all transactions, including carriage-free consignments and consignments sent franco to the Buyer’s address. The Seller shall insure the products only if asked to do so by the Buyer and exclusively at the Buyer’s expense. All unloading costs shall be borne by the Buyer.
5.
Individual products are supplied unpacked and without anti-corrosion protection. However, some products are supplied wrapped in compliance with business usage. Packaging and/or protective transportation gear will be provided by the Seller in accordance with its experience at the Buyer’s cost. The Seller shall not reimburse the Buyer for its expenses related to the possible return of goods or disposal of packaging materials.
6.
The Seller is entitled to perform partial deliveries in a reasonable extent. Increased or reduced deliveries of the agreed volume customary within the industry are also acceptable.
7.
If progressive expedition is agreed, the Seller must be informed of individual deliveries and recalls and individual consignments must be classified in accordance with the various types of products and divided into approximately identical allotments to be forwarded each month. Otherwise, the Seller will be entitled to decide on this matter independently, according to its own discretion.
8.
Should individual recalls exceed the contracted volume, the Seller will be entitled – but not obligated – to deliver larger volumes of goods. The Seller will also be entitled to charge the price valid at the moment the consignment is recalled or delivered.
IX. Liability for Defects
The Seller shall be liable for all defects of its products and for possible failure to meet the agreed product specification in accordance with the following provisions:
1.
All defects must be reported in writing immediately after their detection, but no later than seven days after dispatch (delivery).
2.
The Seller is not liable for defects that could have been detected by the Buyer upon acceptance.
3.
The Seller shall accept all products rightfully claimed on time, replacing them with impeccable goods. However, the Seller is also entitled to try to repair damaged products. Should repairs prove to be ineffective or should the replacement goods also be defective, the Buyer will be entitled to withdraw from its agreement concluded with the Seller (in case of a material breach) or to request a price reduction (in minor breaches of the agreement) in compliance with valid legal regulations.
4.
Should the Buyer fail to enable the Seller to assess the situation (above all, by failing to produce the claimed products or samples thereof upon the Seller’s request), all its rights to claim compensation will expire.
5.
The Buyer will not be entitled to make any compensation claims in the case of product quality reduction (for instance, materials classified as IIa) related to the cause of such reduction and/or defects that can be reasonably expected.
6.
The Seller shall guarantee all replacement and/or repaired products in the same manner as the original products.
7.
Unless indicated otherwise herein, the Buyer is not entitled to make any additional claims, regardless of the legal reasons. The Seller bears no liability for damage incurred as a result of objective circumstances, and it especially shall not be responsible for lost profit or other (direct or subsequent) damage incurred to the Buyer’s property.
8.
The aforementioned provisions precluding liability will not be applied if the damage is proven to have been caused deliberately or as a result of the Seller’s gross negligence.
9.
Should the Seller breach any of its fundamental contractual obligations, its liability will be limited only to damage that could have been anticipated. Any other liability is precluded in compliance with Section 7 of this Article.
10.
The Seller’s liability preclusion or reduction shall be applied to its managers and authorised personnel accordingly.
X. Damage Compensation
1.
The Seller shall bear no liability other than that specified in Article IX of these General Business Terms and Conditions, regardless of the legal character of possible claims. The Parties have agreed that the total scope of compensation for damage, being the responsibility of the Seller under the Agreement, shall be limited to the total price of the subject matter. The Seller shall not be responsible for any lost profit or other direct or indirect damage incurred to the Buyer related to the delivery.
XI. Location of Delivery, Jurisdiction and Governing Law
1.
Individual consignments shall be collected by the Buyer either in the Seller’s production plant/workshop or in the Seller’s warehouse according to the agreed delivery terms. The contracting parties have agreed that all disputes related to and/or resulting from this Agreement will be arbitrated by the District Court of Justice in Kladno or the Regional Court of Justice in Prague. However, the Seller is also entitled to file a suit against the Buyer at its general court of justice at its own discretion.
2.
All legal relations between the Seller and the Buyer are governed by Czech legal regulations.
XII. Effective Date
These General Business Conditions shall become effective on 1 April 2011.
