General terms and conditions for sale

 

1. DEFINITIONS

 

In these conditions of sale (“Conditions“):

 

“Buyer”	means the party (whether a person, firm, company, corporation or otherwise) purchasing or agreeing to purchase of Goods;
“Contract”	means the contract for the sale and purchase of the Goods between the Seller and the Buyer formed by the confirmation and acceptance of the Order
“Goods”	means goods or any part of such goods which are the subject of this Contract and which the Buyer agrees to buy from the Seller;
“Order”	means the Buyer’s instructions to the Seller to supply the Goods;
“Order Confirmation”	means the confirmation and acceptance by the Seller of the Order as evidenced by this order confirmation and on and subject to these Conditions;
“Price”	means the price of the goods (exclusive of carriage, packing, insurance, VAT and any other duties and taxes);
“Seller”	means DELIPRO s. r. o., Vrbovská cesta 17, 921 01,  Piešťany, Slovak Republic

 

2. ACCEPTANCE OF ORDER

 

1. An Order is accepted by Seller upon dispatch of this Order Confirmation and exclusively upon these Conditions. All other terms and conditions, including any terms or conditions which the Buyer may purport to apply under any purchase order or confirmation of order or other similar document, are hereby excluded. No variation of these Conditions shall be effective unless agreed to in writing between the Seller and the Buyer.
2. No Order which has been accepted by the Seller may be cancelled by the Buyer except with the agreement in writing of the Seller and on terms that the Buyer shall indemnity the Seller in full against all loss (including loss of profits), cost (including the cost of all labour and materials used), damages, charges and expenses incurred by the Seller as a result of cancellation.

 

3. PRICE

 

1. The Price of the goods shall be the price quoted by Seller to the Buyer and as confirmed in this Order Confirmation. Unless otherwise agreed in writing by the Seller, the Price is quoted EX WORKS Piešťany.
2. For Goods which involve special designs and specifications, the Seller reserves the right to increase the price within reasonable limits as well as to adequately vary the quantity agreed upon for delivery within reasonable limits, and the Buyer shall accept such reasonable increase in Price and reasonable surplus or shortfalling quantity.
3. In addition and without prejudice to condition 3 b/, the Seller may by giving notice to the Buyer at any time up to 7 days before delivery increase the Price of the goods to reflect any increase in the cost to the Seller which is due to factors occurring after the making of the Contract which are beyond the reasonable control of the Seller including, without limitation, material fluctuations in foreign exchange rates, taxes, duties, cost of labour materials and other manufacturing cost and any change in delivery dates, quantities or specifications for the goods which is requested by the Buyer, or any delay caused by any instructions of the Buyer or failure by the Buyer to give the Seller adequate information or instructions. Provided that the Buyer may cancel this Contract within 3 days of any such notice from the Seller, and if no such cancellation notice is received by the Seller, the Buyer shall be deemed to have agreed to the increased Price.
4. The Price is exclusive of GST. In addition to the Price, the Buyer shall pay to the Seller GST.

 

4. DELIVERY

 

• The Buyer shall promptly obtain all necessary import and other licence, clearances and other consents for the purchase of the Goods by the Buyer.
• Any delivery date quoted by the Seller is approximate only and the Seller shall not be liable for any damage or loss whatsoever arising directly or indirectly out of any delay in delivery howsoever caused. Without limiting or prejudice to the foregoing, due to the risks and peculiarities in the working of glass, the Seller’s obligations shall be subject to and conditional upon the due, proper and timely performance by the Seller’s sub-contractors of their sub-contractual obligations.
• The Goods shall be delivered to the Buyer upon delivery of the Goods to the forwarding agents selected by the Seller. The risk in the Goods shall pass to the buyer upon such delivery taking place.
• Where the Goods are to be delivered in instalments, each delivery shall constitute a separate contract and failure by the Seller to deliver any one or more of the instalments in accordance with these Conditions or any claim by the Buyer in respect of any one more instalments shall not entitle the Buyer to treat the Contract as whole as repudiated.
• Unless otherwise specifications, agreed in writing between the Buyer and the Seller, packing material cannot returned.
• If the Buyer fails to take delivery of Goods or fails to give the Seller adequate delivery instructions at the time stated for the delivery (otherwise than by reason of the Seller’s fault) then, without prejudice to any other right or remedy available to the Seller, the Seller may: 
  -   store the Goods until actual delivery and charge the Buyer for the reasonable costs of storage (including insurance); and/or
  -   Sell the Goods at the best price readily obtainable and (after deducting all reasonable storage and selling expenses) account to the Buyer for the excess over the Price under the Contract or charge the Buyer for any shortfall below the Price under the Contract
• The place of fulfilment for our obligations (particularly for our payments) shall be Piešťany.

 

5. PAYMENT

 

1. The terms of payment shall be as specified in the Order Confirmation. The time for payment shall be of the essence.
2. Unless otherwise specified in writing by the Seller, payment for the Goods shall be made in EUR or the currency in which the Price was quoted.
3. If the Buyer fails to make any payment on the due date then, without prejudice to any other right or remedy available to the Seller, the Seller shall be entitled to:
   -   cancel the Contract or suspend or cancel any further deliveries to the Buyer, whether under the same Contract or a different contract and to charge the Buyer cancellation charges for such cancellation;
   -   appropriate any payment made by the Buyer to such of the Goods (or the goods supplied under any other contract between the Buyer and the Seller) as the Seller may think fit (notwithstanding any purported appropriation by the Buyer); and
   -   charge the Buyer interest (both before and after any judgement) on the amount unpaid from the date until payment in full is made, at the rate which is 3% per annum above the average prime lending rate charge by the Seller’s bankers.

 

6. RISK AND PROPERTY

 

1. Risk of damage to or loss of goods (whether the Contract is expressed as carriage paid of otherwise) shall pass to the Buyer on delivery.
2. In spite of delivery having been made property in the Goods shall not pass from the Seller until:
   -   the Buyer shall have paid the Price plus GST in full; and
   -   no other sums whatever shall be due from the Buyer to the Seller
3. Until property in the Goods passes to the Buyer in accordance with condition 6 b/ the Buyer shall hold the Goods and each of them on a fiduciary basis as bailee for the Seller. The Buyer shall store the Goods (at no cost to the Seller) separately from all other goods in its possession and marked in such a way that they are clearly identified as the Seller’s property.
4. Notwithstanding that the Goods (or any of them) remain the property of the Seller, the Buyer may sell or use the Goods in the ordinary course of the Buyer’s business at full market value on the account of the Seller. Any such sale or dealing shall be a sale or use of the Seller’s property by the Buyer on the Buyer’s own behalf and the Buyer shall deal as principal when making such sales or dealings. Until property in the Goods passes from the Seller the entire proceeds of sale or otherwise of the Goods shall be held in trust for the Seller and shall not be mixed with other money or paid into any overdrawn bank account and shall be at all material times identified as the Seller’s money.
5. The Seller shall be entitled to recover the Price (plus GST) notwithstanding that property in any of the Goods has not passed from the Seller.
6. Until such time as property in the Goods passes from the Seller, the Buyer shall upon request deliver up to the Seller such of the Goods as have not ceased to be in existence or resold. If the Buyer fail to do so the Seller may enter upon any premises owned, occupied or controlled by the Buyer where the Goods are situated and repossess the Goods. On the making of such request the rights of the Buyer under condition 6 d/ shall cease.
7. The Buyer shall not pledge or in any way charge the Goods (or any of them) by way of security for any indebtedness or do or allow to be done any act whereby any distress, execution, attachment or other analogous legal process may be levied or issued against any of the Goods which are the property of the Seller. Without prejudice to the foregoing, the Buyer shall immediately notify the Seller or any threatened or actual distress, execution, attachment or other analogue legal process (collectively called “Attachment”) against the Goods which are the property of the Seller and shall take immediate steps to prevent the Attachment or obtain the release of the Goods and all costs incurred shall be paid by the Buyer to the Seller on demand.
8. The Seller shall be entitled at any time after a default has been made by the Buyer on any payment by the due date to require the Buyer by written notice to deliver up to the Seller or, as instructed by the Seller, place at the Seller’s disposal any Goods to which title has been reserved by the Seller under these Conditions and to pay over the Seller any proceeds of sale in respect of the Goods, and the goods or products into which the Goods have been assembled or incorporated, which have been sold by the Buyer. Any action so taken by the Seller shall not prejudice the rights of the Seller either with respect to the Goods concerned or any other goods or with respect to the Seller’s action for the Price.

 

7. SPECIFICATIONS

 

1. The Goods shall be supplied in accordance with the Seller’s specifications provided always that:
   -   all data containing specifications of weights, dimensions, quantities and other similar information (including weights and dimensions of shipments) which are contained in the Seller’s catalogue or other brochures are hereby declared to be approximate only (and where tolerances are prescribed, to be subject to those tolerances) and shall be subject to reasonable variations and differences; and
   -   the Seller may from time to time make changes in the specification of the Goods which are required to comply with any applicable safety or statutory requirements or which do not materially affect the quality or fitness for purpose of the Goods.
2. All terms conditions and warranties (whether implied or made expressly) whether by the Seller or its servants agents or otherwise (other than as expressly set out in these Conditions) relating to the quality and/or fitness for purpose of the Goods of any of the Goods are excluded. All terms, conditions an warranties whether implied by statue or otherwise are excluded to the fullest extent permitted by law.
3. The specifications and designs of the Goods (including the copyright, design right or other intellectual property in them) shall as between the parties be the property of the Seller. Where any design or specification has been supplied by the Buyer for manufacture by or to the order of the Seller then the Buyer warrants that the use of those designs or specifications for the manufacture, processing, assembly on supply of the Goods shall not infringe the rights of any third party and shall indemnity and hold harmless the Seller against any claim for infringement by any third party.
4. The Buyer shall inspect the Goods and shall within 14 days of delivery notify the Seller of any alleged defect, shortage in quantity, damage or failure to comply with the Contract. The Buyer shall preserve the Goods intact and in the condition that they were delivered and for a period of 14 days after receipt by the Seller of the Buyer’s notification, the Buyer shall grant access to the Seller, its agents or servants to inspect the Goods. If the Buyer shall fail to comply with these provisions the Buyer shall be deemed to have accepted the Goods.
5. If the Goods are not in accordance with the Contract for any reason the Buyer’s sole remedy shall be limited to the Seller replacing such Goods or, at the Seller’s sole discretion, refunding a proportionate part of the Price provided always that the Seller shall only be liable under this condition if the quantity rejected is in excess of 3% of the quantity delivered under the Contract. Without limiting the foregoing quantities of Goods actually delivered which 10% of the quantities specified in the Order Confirmation shall be accepted by the Buyer as due and proper delivery of the Goods in accordance with the Contract.
6. The Seller’s liability to the Buyer, whether for any breach of contract, shall not in any event exceed the Price and the Seller shall not be liable for any direct or indirect loss, damage and/or expense suffered by the Buyer or for any liability to third parties incurred by the Buyer.
7. Damage, shortage, loss or other non-conformity of the Goods which is present only in a proportion of the Goods or (where delivery is made by instalments) in some only of the instalments shall entitle the Buyer to the remedies given by this condition only in respect of that proportion of those instalments.
8. No Goods delivered to the Buyer shall be returned to Seller without the prior written approval of the Seller.

 

8. GENERAL EXCLUSION AND LIMITATION

 

In the event of any breach of this Contract by the Seller the remedies of the Buyer shall be limited to damages. Under no circumstances shall the liability of the Seller exceed the Price of the Goods. The Seller shall be under no liability whatever to the Buyer for indirect loss and/or expense (including loss of profit) suffered by the Buyer ansing out of a breach by the Seller of this Contract.

 

9. TERMINATION OF THE CONTRACT BY THE SELLER

 

1. The Seller may terminate the Contract forthwith by written notice to the Buyer upon the occurrence of any of the following events:
   -   where full payment in respect of the Goods or any instalments of the Goods has not been received by the Seller in accordance with condition 5: or
   -   where the Buyer, being an individual, commits any act of bankruptcy or if any petition in bankruptcy is presented against the Buyer, or being a corporation, is unable to pay its debts as they fall due or if any resolution is passed or petition is presented to wind up the Buyer or a receiver and manager is appointed over all or any of the Buyer’s assets of if the Buyer shall suffer any analogous proceedings under any foreign law; or
   -   where the Buyer is in breach of any of these Conditions; or
   -   where the Buyer is not in breach of any other contract with the supplier
2. The granting by the Seller to the Buyer of time or any other indulgence forbearance or concession shall in no way prejudice or constitute a waiver of the Seller’s entitlement to enforce any of its rights under the Contract except and to the extent that it shall constitute a variation of these conditions which has been made in accordance with condition 2 a.
3. If the Seller terminates this Contract, then all sums outstanding in respect of the Goods shall become payable immediately and the Seller may in its absolute discretion and without prejudice to any other nights which it may have, exercise its right under condition 6 h/If the Seller terminates this Contract, then all sums outstanding in respect of the Goods shall become payable immediately and the Seller may in its absolute discretion and without prejudice to any other nights which it may have, exercise its right under condition 6 h.

 

10. CONFIDENTIALITY

 

All specifications and information supplied to one party to the Contract by the other in connection with the Contract and all other material of a similar nature supplied for any other purpose whatsoever shall:All specifications and information supplied to one party to the Contract by the other in connection with the Contract and all other material of a similar nature supplied for any other purpose whatsoever shall:

 

-   remain the property and copyright of the party supplying the same; and
-   be treated as confidential by the party supplied with the same.

 

11. ASSIGNMENT

 

The Contract is personal to the Buyer, who shall not assign or charge the benefit thereof or otherwise dispose of any of its rights or obligations under this Contract without the Seller’s prior express written consent.

 

12. FORCE MAJEURE

 

Neither party shall be liable for any default due to any act of God, war, strike, lock/out, industrialisation, fire, flood, drought, tempest or other event beyond the reasonable control of that party.Neither party shall be liable for any default due to any act of God, war, strike, lock/out, industrialisation, fire, flood, drought, tempest or other event beyond the reasonable control of that party.

 

13. NOTICES

 

1. Notices shall be made in writing and transmitted or posted in a first-class pre-paid envelope to the Buyer’s or Seller’s telefax number or address, as the case may be, as shown respectively on the Order an Order Confirmation or such telefax number and/or address as last notified in writing by the addressee to the other party.Notices shall be made in writing and transmitted or posted in a first-class pre-paid envelope to the Buyer’s or Seller’s telefax number or address, as the case may be, as shown respectively on the Order an Order Confirmation or such telefax number and/or address as last notified in writing by the addressee to the other party.
2. A notice shall be deemed to have served, in the case of telefax, immediately upon transmission (or, if that day is not a business day in the country of receipt, then the first business day in the country of receipt following transmission) and, ain the case of posting, on the 5th day alter posting (or, if that day is not a business day in the country of receipt, then the next business day).A notice shall be deemed to have served, in the case of telefax, immediately upon transmission (or, if that day is not a business day in the country of receipt, then the first business day in the country of receipt following transmission) and, ain the case of posting, on the 5th day alter posting (or, if that day is not a business day in the country of receipt, then the next business day).

 

14. SEVERABILITY

 

If any provision of these conditions shall be void or illegal or unenforceable than the same shall be deemed to be have severed from the other provisions with consequential amendments, if necessary, and the other provisions shall otherwise remain in full force and effect.

 

15. APPLICABLE LAW AND DISPUTES

 

The legal relations between the parties shall be subject to law of the Slovak Republic, excluding the conflict of law rules. Application of the UN Convention on Contracts for the International Sale of Goods (CISG) shall be excluded.

 

The ordinary courts of the Slovak Republic shall have the jurisdiction to decide all disputes arising from the legal relationship between the parties. Unless prescribed by mandatory law otherwise the ordinary court of the Seller shall have jurisdiction; however, the Seller shall also be entitled at its discretion to initiate proceedings at the court in the location where the Buyer has its registered seat, place of business or headquarters, even when such court is not located in the Slovak Republic.

 

 

These General Terms and Conditions of Sale of DELIPRO, s.r.o. are valid from October 4, 2007.