TERMS AND CONDITIONS OF PURCHASE
(“Terms and Conditions”)
1. INTRODUCTORY PROVISIONS
1.1. These Terms and Conditions relate to the conclusion of any Framework Agreement and the Sub-Contracts between the Customer and the Contractor and complete content of each Framework Agreement and/or Sub-Contract, if not otherwise explicitly agreed by the Parties. These Terms and Conditions also relate, among other things, to all Orders made by the Customer or contracts executed on the basis of these Orders and to all relations arising therefrom and to all of the Contractor’s offers regarding the Customer or contracts executed on the basis of them and to all relations arising therefrom. These Terms and Conditions also apply to relations arising from the Framework Agreements between the Parties, if not otherwise stipulated in the separate Framework Agreements. If the Framework Agreement or Sub-Contract expressly stipulates something different than what is set out in these Terms and Conditions, the provisions in the Framework Agreement and the Sub- Contract take precedence over the provisions of the Terms and Conditions with which they are in contradiction.
1.2. No general terms and conditions other than these Terms and Conditions nor any general terms of the Contractor shall be accepted unless expressly approved by the Customer in writing.
2. TERMS AND DEFINITIONS
2.1. The following terms and definitions apply to the Terms and Conditions:
“Copyright Act” means Act no. 121/2000 Sb., on copyrights, the rights associated with copyrights, and on changes to certain acts, as amended;
“Price” means the aggregate remuneration of the Contractor for providing the Supply, including all taxes and fees;
“Sub-Contract” means any agreement concluded by the Parties (with the exception of employment contracts and agreements on work performed outside employment, or similar agreements entered into under laws other than Czech law), the subject matter of which is the Contractor’s provision of a specific supply to the Customer;
“Contractor” means any entity that enters into or that has entered into a Sub-Contract with the Customer;
“Invoice” means a taxable supply document issued in accordance with Act No. 235/2004 Coll., on value-added tax, as amended;
“Licence” has the meaning set out in Article 9.1;
“New Terms and Conditions” means the updated Terms and Conditions that are supplemented or amended in the manner set out in Article 10.2;
“Civil Code” means Act no. 89/2012 Sb., the Civil Code, as amended;
“Customer” means Výzkumný a zkušební ústav Plzeň s.r.o. (hereinafter VZÚ Plzeň), with its registered office at Tylova 1581/46, Plzeň, Czech Republic, Postal Code 746 01, ID No. 47718684, VAT No.: CZ47718684, registered in the Commercial Register maintained by the Regional Court in Plzeň, Section C, Insert 3404;
“Order” means the written proposal of the Customer leading to the conclusion of a Sub-Contract, which is made based on the Framework Agreement, if concluded;
“Supply” means any supply provided by the Contractor to the Customer under the Framework Agreement and/or the Sub-Contract;
“Framework Agreement” means the framework agreement on the terms and conditions for deliveries entered into by the Customer and the Contractor;
“Contract” means the Sub-Contract and/or the Framework Agreement;
“Parties” means jointly the Customer and the Contractor.
3. ORDER AND CONCLUSION OF A SUB-CONTRACT
3.1. The Contractor’s delivery of the Supply to the Customer occurs under the Framework Agreement or the Sub-Contract, which is entered into, as a rule, based on the Customer’s Orders and in accordance with the Framework Agreement, if concluded.
3.2. An Order is a proposal for entering into a Sub-Contract, and no later than five business days after delivery of the Order in writing or by e-mail, the Contractor always undertakes to:
- send to the Customer acknowledgement of the Order; or;
- send to the Customer a rejection of the Order, including specification of the reasons for rejecting the Order; the Contractor is entitled to reject the Order only due to force majeure or for serious operational reasons on the part of the Contractor.
3.3. The Contractor hereby expressly declares and agrees that, if it does not notify the Customer of its acceptance or rejection of the Order by the deadline set out in Article 3.2 above, it expresses its tacit will to accept such Order in its full scope, whereby an Agreement is concluded, by which the Contractor and the Customer are bound.
4. PRICE AND PAYMENT TERMS
4.1. Unless otherwise stipulated in the Agreement or the Order, the Price for the Supply delivered under the Agreement is fixed and may not be changed. The Parties have agreed that the Price is always set as the highest possible price that cannot be exceeded and includes all costs relating to delivery of the Supply to the Customer in accordance with the agreed delivery terms, in particular, dispatch, packaging and handling, insurance, taxes, customs, and other fees and remuneration for provision of the Licence.
4.2. The Price will be paid based on the Invoice, which the Contractor is entitled to issue for 100% of the Price after delivery of the Supply.
4.3. The due date for the Price is sixty days from the date of delivery of the Invoice to the Customer for the relevant Price. If the due date falls on a non-business day, the due date is postponed to the next business day.
4.4. If the information on the Invoice is not correct or if it does not fulfil all the requirements of a taxable supply document under Czech law, the Customer is entitled to return the Invoice up to the due date. Returning the Invoice suspends the due date, and after delivery of the corrected Invoice, a new due date is established.
4.5. The Customer is entitled to unilaterally offset its claims against the Contractor. The Customer and the Contractor have expressly agreed that the Customer may also offset its claims against the Contractor prior to their due date, including unclear or unspecified claims. The Contractor is not entitled to unilaterally offset its claims against the Customer.
4.6. The Contractor is not entitled to assign or pledge any of its claims from the Agreement or the Order, not even partially, to a third party without the prior written consent of the Customer.
5. DELIVERY TERMS
5.1. The location for delivery of the Supply is the location agreed in the Agreement concluded on the basis of the Order. If the Parties do not expressly agree to such a location in the Agreement, the Supply will be delivered to the Customer’s registered office. If not otherwise agreed by the Parties, the DDP Incoterms 2010 delivery terms apply.
5.2. The Contractor undertakes to clearly indicate the contractual delivery terms and the exact place of delivery in all accompanying and dispatch documents.
5.3. The Contractor undertakes to deliver the Supply to the Customer by the deadline and according to the schedule agreed in the Contract. The agreed delivery terms are binding upon the Parties. The Contractor is entitled to deliver the Supply earlier than the delivery term agreed in the Contract only with the prior written consent of the Customer.
5.4. The Customer or its representatives shall have the right to inspect and test the Goods and inspect the provision of the Services, and the Contractor irrevocably grants the Customer the right to enter its premises for these purposes. IF as a result of such inspection or testing the Customer is not satisfied that the Goods or Services comply with the Contract / Order and the Customer so informs the Contractor then Contractor shall take all necessary steps to ensure compliance.
5.5. The Parties have agreed that the Customer is not obliged to accept partial Supply from the Contractor. The Parties have further agreed that the Customer is not obliged to accept any supply from third parties.
5.6. The Contractor is not entitled to deviate from the quantity of the supplied Goods set out in the Contract, provided that such a deviation is not agreed upon by the Parties.
5.7. If the Contractor foresees any difficulties with regard to the manufacture, the supply of material, the compliance of the delivery date or any other circumstances which might prevent him from delivering the Supply on schedule or in the contractual quality, the Contractor shall immediately inform the Customer in writing.
5.8. If the Customer accepts such delayed or deviating Supply without reservation, this shall not be deemed to be a waiver of any claims the Customer may have for delays in delivery of the Supply.
5.9. The Contractor is obliged to keep records of the realization of Goods or Services in cases where it is prescribed by the Law or it is usual with regard to the nature of the Goods or Services and to provide such records to the Customer upon request.
6. QUALITY GUARANTEE AND RIGHTS WITH RESPECT TO DEFECTIVE SUPPLY
6.1. The Contractor provides to the Customer a guarantee for the quality of the Supply for a period of twenty-four months.
6.2. The Customer is entitled to claim defects in the Supply against the Contractor at any time during the term of the Agreement, regardless of whether or not it is an apparent defect.
6.3. Claims from defects in the Supply are without prejudice to the entitlement to compensation for damage or a contractual penalty.
6.4. The Parties have agreed that delivery of the Supply with any defect, whether legal or material, apparent or hidden, is a gross breach of the Agreement. In such a case, the Customer is entitled, at its discretion:
- to request delivery of substitute or missing Supply, even partially, at the Contractor’s expense;
- to request repairs or remedy of the defect, if the defects in the Supply may be repaired or remedied, at the Contractor’s expense, or after lapse of the reasonable deadline for repairing or remedying the defect, to repair or remedy the defect itself at the Contractor’s expense;
- to request an appropriate discount on the Price;
- to request the removal of legal or other defects;
- to withdraw from the Agreement.
6.5. In the event of defective Supply, the Customer is immediately entitled:
- to withhold payment of the Price charged for the defective Supply until the claim is completely resolved;
- to postpone the takeover of the defective Supply and the remaining Supply (as well as halting payments on the relevant Prices) until the defects for this Supply have been remedied;
- to arrange for inspection of the defective Supply and the remaining Supply at the Contractor’s expense;
- to arrange for removal of the defective Supply or any other Supply that is no longer needed as a result of asserting the rights from defects, which the Customer has not removed by the set deadline upon the Customer’s request.
6.6. In the case of legal defects (incl. defects of title), the Contractor shall indemnify the Customer against any and all claims of third parties.
6.7. The Contractor shall reimburse the Customer for any loss, damage and expenses which the Customer incurs in connection with the defects in Supplies.
6.8. The Contractor shall be liable for any claims arising from a violation of industrial property rights and shall indemnify the Customer and its customers against any claims arising from the use of such industrial rights.
7. SANCTIONS, INDEMNIFICATION, AND DAMAGES
7.1. If the Contractor breaches its obligation to duly and promptly deliver the Supply, the Contractor is obliged to pay to the Customer for each case of breach a contractual penalty of 0.05 % of the overall Price of the Supply for each day of delay, up to a maximum of 10% from the order amount.
7.2. The contractual penalty is due no later than fourteen days after the obligation to pay the penalty arises.
7.3. Payment of the contractual penalties is without prejudice to the right of the Customer to full damages and to the Contractor’s obligation to fulfil a duty confirmed by a contractual penalty.
8. WITHDRAWAL FROM THE AGREEMENT
8.1. The contractual relations established under the Agreement may be terminated prematurely:
- by a written agreement of the Parties; or
- by withdrawal in writing of either of the Parties under law or for the agreed reasons, especially for a gross breach of the Agreement; or
- in the case of the framework agreement, by a written notice of the Customer with a six-month notice period, without providing reasons.
8.2. A gross breach is considered in particular:
- a breach of the obligations of the Contractor to duly and promptly deliver the Supply in accordance with the Agreement;
- a repeated breach (at least twice during one calendar quarter) of the agreed quantity (scope), type, term, or delivery location of the Supply;
- breach of some of the obligations relating to the quality guarantee or the obligations of the Contractor arising from the rights of the Customer relating to defects in the Supply;
- breach of the obligation of confidentiality under Article 10.3.
8.3. Lapse of the additional period to perform does not result in withdrawal from the Agreement without further exception, unless otherwise stipulated by the Customer when the additional period for performance is provided.
8.4. Withdrawal from the Agreement is without prejudice to the entitlement to compensation for any damage incurred by the Customer, including non-proprietary damage.
8.5. Termination of the contractual relations under the Framework Agreement is without prejudice to the duration of the contractual relations under the Sub-Contract, and vice versa.
9. INTELLECTUAL PROPERTY
9.1. If any intellectual property is delivered as a part of the Supply, the Contractor authorises the Customer to use such intellectual property, particularly the copyrighted work, pursuant to the Copyright Act, in its original and unaltered form, and to use any other intellectual property (the “Licence”).
9.2. The Licence is granted in the following scope:
- for the duration of the proprietary copyright;
- for any type of use;
- in an unlimited scope; and
9.3. The Customer is not obliged to use the Licence. In relation to the copyrighted work, the Contractor declares by accepting the Terms and Conditions that the authorised interests of the author may not be significantly and adversely affected by the fact that the Customer does not use the Licence or any part thereof.
9.4. The Customer is entitled to grant a sub-licence in the scope of the Licence and/or to assign the Licence to any third party without restriction, free of charge, and without any additional consent of the Contractor.
9.5. The Parties have agreed that, unless otherwise stipulated in a specific case or if it does not follow from the Agreement, the remuneration for providing the Licence and the Third-Party Licence is, from a financial standpoint and based on the agreement of the Parties, included in the Price, and therefore, the Licence is free of charge. By accepting the Terms and Conditions, the Contractor declares that, with respect to the nature of the revenue from the Licence, the remuneration for granting the Licence for the Copyrighted Work cannot be in explicit disproportion to the profit from using the Licence and the importance of the relevant Copyrighted Work for achieving such profit.
10. FINAL PROVISIONS
10.1. The Contractor assumes the risk of a change in circumstances.
10.2. These Terms and Conditions are valid and effective from October 1st, 2019 and expire when the New Terms and Conditions come into effect with a later date of issue, which replace and become the Terms and Conditions. The Customer is entitled to unilaterally change or amend these Terms and Conditions to an adequate degree if a reasonable need to change them at a later time arises. The Customer must notify the Contractor of the effective date of the New Terms and Conditions and send these New Terms and Conditions to the Contractor within a sufficient period of time prior to the effective date, however, at least fourteen days in advance. If the Contractor does not express in writing its consent to these New Terms and Conditions no later than on the expected effective date of the New Terms and Conditions, it consents to the New Terms and Conditions, and they become effective on the day of coming into effect. If the Contractor does not consent to the New Terms and Conditions, a) these do not come into force, and the original Terms and Conditions remain valid, and b) the Customer is entitled to terminate the Agreement by notice with a notice period of two months, unless otherwise agreed by the Parties, which however, does not occur earlier than the time the New Terms and Conditions should have come into force. These provisions are without prejudice to the rights and obligations arising prior to the effectiveness of the New Terms and Conditions.
10.3. The Contractor is obliged to uphold the confidentiality of all information that it has learned of during cooperation under the Agreement, and whose disclosure to a third party could cause damage to the Customer, especially information that is already a business secret, corporate information, or useful information for business activities even if it is not a business secret. The obligation of confidentiality also applies after termination of the Agreement for the entire period that such breach of confidentiality could cause damage to the Customer.
10.4. The Customer requires the Contractor to use appropriate management methods for its direct external providers and external subcontractors to ensure the meeting of requirements. The Contractor is aware of the Customer´s requirements defined in section 8.4.3 a-k of the EN 9100 standard, which the Customer may require depending on the type of purchased commodity.
The Contractor undertakes to allow access of the Customers, his customers and his legal authorities to its premises and to the documentation for the purpose of possible inspection.
The Contractor undertakes to ensure that all interested parties are aware of their contribution to the conformity of the product or service, their contribution to the safety of the product and the importance of ethical behavior.
10.5. If any of the provisions of these Terms and Conditions becomes ineffective, unenforceable, or ostensible, the remaining provisions of these Terms and Conditions will remain valid and effective. In such a case, the Parties will replace such ineffective, unenforceable, or ostensible provisions with provisions that correspond as closely as possible to the economic purpose of such ineffective, unenforceable, or ostensible provisions.
10.6. The Agreement or other relations arising thereunder are governed by the laws of the Czech Republic, with the exception of regulations relating to international private law (in particular, the UN Convention of the International Sale of Goods). Business practices do not take precedence over any provision of law, even over the provisions of law that do not have coercive effects.
10.7. Any disputes arising from or in relation thereto (including the invalidity, interpretation, implementation, or termination of rights) are to be resolved by the relevant Czech court (jurisdiction ratione loci and ratione materiae) according to the registered office of the Customer.
10.8. In the event of entering into the Agreement, and its amendments, a response to offer with addendum or a variation does not constitute an acceptance of such offer.
10.9. In case of any discrepancy between the Czech and English versions, the Czech version shall prevail.
These Terms and Conditions of Purchase came into effect on 1.11.2020