General terms and conditions of METAL STEEL INDUSTRY s.r.o.
Valid from: 1.10.2013
I. Conclusion of contract
1.1 Client shall send order to supplier in writing, including electronic means of communication.
1.2 Order for goods received by supplier shall be binding, unless if it is clear in accordance with the content of notice that it is only letter of interest for the product to be manufactured as the output of the services to be provided under paragraph 1.3. of these conditions.
1.3 Order for services (application for preparation of technical specifications and drawings of the product) is binding only for the service, does not require the client to purchase goods to be manufactured according to documents processed.
1.4 Order for goods under section 1.2. of present GTC is the proposal to conclude a contract of sale of goods, Order for services under paragraph 1.3. is the proposal to conclude a service contract.
1.5 Offer to conclude a contract is accepted by the supplier, if after receipt of orders:
a) confirms the order,
b) arrives at the construction site or place of work of the contract,
c) take any other explicit or implicit action, willing to perform the contract.
1.6. Order´s changes and additions to the orders, have effect only in the case of mutual confirmation by both parties.
1.7 Bid submitted with documentation processed according paragraph 1.3. of this GTC is deemed to be offer to conclude a binding contract, the subsequent order of goods is an acceptance of the offer.
II. Object and nature of the contract
2.1. The object of the Contract of sale of goods is the delivery of goods by the supplier to the client, including the order for production.
2.2 The object of the Services Contract is to create technical drawings and specifications of the product, which is the basis for ordering goods, along with bid as provided for in the paragraph 1.7. of the present GTC.
2.3. Range of the Order can be established also via copy of the documentation from the client´s record or a third party record on services delivered.
III. Price and payment terms
3.1 The client is obliged to pay to supplier duly and timely the agreed or determined price. For the service, the prices published by the supplier before time of order is applicable. For the sale of goods purchase price contained in the supplier´s catalogue in force prior to receipt of order is applicable, for the bid, the price specified in the bid is binding.
3.2. The price is payable on as provided in the invoice, unless otherwise agreed. Invoice due date unless the parties agree otherwise, shall be 10 days from receipt of the invoice in written or electronic form.
3.3 Supplier reserves the right to change pricesin the case of change of the price of raw materials and energy, the exchange rate or currency transactions compared to the supplier currency from the date of the contract to date of taxable transaction by more than 4%.
IV. Retention of title
Goods covered by the contract on sale of goods, remains the property of the supplier until the goods are paid for the full purchase price. Ownership of the goods passes to the Buyer only upon payment of the full price under the relevant provisions of the law applicable on the retention of title.
V. Delivery of goods, warranty, liability for damages, remedies
5.1 The supplier undertakes to deliver the goods correctly and timely, in the ordered quantity and quality to the place ordered by the client. The client must confirm receipt of goods. In the case where the goods are handed over to the transport forwarding company, with proven correct client name, it is taken as delivery of such goods, without acknowledgment of receipt and supplier reserves right to charge the cost of packaging and transport.
5.2. The supplier must deliver the goods within the time mutually agreed with the client. Supplier will ensure the delivery of goods at least within three weeks after the contract if not otherwise agreed in the order.
5.3. If the client has to make payment to the supplier prior to delivery of the goods, the period for delivery run only from the date of crediting of the payment to the bank account of the supplier.
5.4 Remedies based on apparent defects of the goods, as well as the quantity and type of goods, shall client apply upon receipt of the goods, if there is no other arrangements.
5.5 Application for defect performance remedies during warranty limitation period, shall be submited to the supplier in writing or electronically at the agreed electronic address. In the case of mechanical damage to the goods which occured after the signing of the bill of delivery warranty does not cover such mechanical damages. In the case of mechanical damage under this paragraph, the client takes note that he is entitled to damages only against persons who caused the damage.
5.6 Warranty does not cover defects caused by transport, improper storage, storage of goods without original packaging, improper handling, improper installation conditions violation assembly factors and the suppliers reach.
5.7 Warranty ends at the moment when the culient or a third party carries out adjustments or repair of the goods, or any interferences to individual parts of the goods without the prior written consent of the supplier.
5.8 The supplier is not liable for damages caused by breach of the instructions for installation, commissioning and operation.
5.9 Post-warranty service is performed by the sponsor, who installed the product to a third party.
5.10 The supplier provides a guarantee to the client to the extent of warranty limits periods set up by applicable law, for this guarantees supplier does not issue a warranty.
5.11 Installation must be made by a person qualified and certified for installation.
5.12 Other obligations of the parties in connection with defect performance,shall be governed by law applicable to the liability for defects, however client is always required to demonstrate that he has taken appropriate measures to prevent improper use of the goods or its use contrary to its purpose.
VI. Delay with payments
6.1 In case of the late payment the supplier is entitled to payment for non-compliance under Article 9:509 of the Principles of European Contract Law agreed as pro rata 1% of the amount due for each day of delay, which is due on the day following the receipt of the demand for payment, even if the appeal relates only to the principal claim. Payment are not limiting nor excluding right to damages.
6.2 In case of delay with payment parties agreed default interest of 0.5% per day of delay. Contractual interests are not limiting nor excluding right to damages.
VII. Information duty
7.1 The Client agrees that in the event that he or any person relevant for any lawsuit for avoidance of actions in fraudem creditoris under the applicable law, establishes a company as a partner, or participate in its establishment as the agent or managing director, or he will be in a society grant of a proxy shall notify the supplier. For each day of violation of this obligation supplier is entitled to the agreed payment for non-compliance under Article 9:509 of the Principles of European Contract Law of 1000 EUR per week of any of such failures.
7.2 The Client undertakes to notify supplier on client´s payment inability, as well as to the bankruptcy, windup or liquidation, within ten days since the decisive event occurred, otherwise, the Supplier is entitled to the agreed payment pro rata 1% for each day of failure, however at least 5000 EUR.
VIII. Solidary obligations and settlement of multilateral disputes
8.1 If any member of the group of entrepreneurs under the applicable law, including property-related companies and entrepreneurs who show an group identity in the use of common distinctive features in the business name , send order to the Supplier and then ordered goods are:
a) accepted by the other members of the group,
b) accepted by some of the members of the group in the premises, place of business or registered office of another member of the group,
c) accepted in the premises in joint operation of the more members of the group,
such event is deemed as proper confirmation of solidary obligation under Art. 10:102 Principles of European Contract Law.
8.2 The Parties agreed that solidary obligation from contract is properly ascertained and confirmed between Client, its representatives and persons authorized for business management, regardless of the method of representation, if any such person signed order or delivery notice.
8.3 The Parties agreed on that solidary obligation from contract is properly ascertained and confirmed between Client and the natural or legal persons who, at the time of the contract or at the time of performance, or delay, are in such a relation to the client, or the statutory body of the Client which is relevant according to the avoidance of mutual legal actions between such a persons, if such actions will occurre in relevant meantime, regardless whether the other conditions for avoidance proceeding are met.
8.4 For disputes from solidary obligations or multilateral disputes in connection with the preceding paragraphs, Article IX. of present General Terms and Conditions.
IX. Draft arbitration agreement for disputes with third parties
9.1. Client by signing / sending orders and accepting the present GTC at the same time offers the arbitration clause under Art. X to all persons who are bound by a solidary obligations.
9.2. The Supplier by signing / submitting a bid with reference to the present GTC, or the order confirmation offers an arbitration clause under Art. X to all persons who are or will be bound by solidary obligations with the Client.
9.3. Proposals of arbitration clause under paragraph. 9.1. and 9.2. is binding and irrevocable, and by the acceptance of any of the solidary obliged persons is concluded arbitration agreement under Art. X.
X. Settlement of disputes
10.3. The parties agreed expressly that the arbitration award will be deemed delivered within the agreed venue, disregard where it was signed, sent, received or to any other action by the arbitral tribunal.
10.4. Parties expressly take notion that for the enforcement provisions of the bilateral agreement between Switzerland and the State, which is sought enforcement in the case of Austria, Belgium, the Czech Republic, Germany, Italy, Slovakia, Spain, and Sweden are applicable.
10.5. Language of the proceedings shall be:
a) slovak if the Client is based in Slovakia, or has expressly declared knowledge of slovak language,
b) german and english based on preferrence of claimant, if the Client is based in Austria, Germany and Switzerland,
c) english otherwise.
XI. Additional determination and stabilization clause
11.1.If a difference arises between the parties on the additional determination of contractual terms under Art. 6:106 PECL difference shall be resolved by third person, umpire agreed in Article X under proceeding provided for in the JSM PCA Rules. The parties expressly declare that the terms deliberately left open for determination of the contractual terms is not a condition effectiveness of the contract.
11.2. If any provision of agreement according this GTC will be declared void, or even one of the parties objected to any terms of this GTC or respective agreement as offending good morals, or used trade practice, parties are obliged to replace such provision with another arrengement to the legal extent closest to the original content and purpose, within 30 days upon decisive event. If parties can not reach agreement in such a period, any party is entitled to request determination of new arrangement by third person stated above. (Article 10.1.)
XII. Final provisions
12.1. Present GTC binding from the date of publication on the website of the Supplier or the publication of JSM PCA at www.aaa-arbitration.org, as of the date of first publication.
12.2. General Terms and Conditions are applicable in the version in which they are published on the website of the Supplier at the date of dispatch of order of the Client. These GTC are based on the free will of both parties, and the parties declare that the changes of optional provisions of laws which governed the contractual relationship shall not affect their validity. The Parties consider the contents of these terms for concordant with good morals and in the accordance of the principle non venire contra factum proprium declares that in the future will not claim voidance of these conditions with good manners, except via remedies set up in Article XI. of present GTC.
12.3. The Client placing an order is ipso facto granting the Supplier with consent in accordance with the Slovak Act no. 428/2002 Coll. on privacy protection, to the processing of his personal data stated in order, for the purpose of concluding the contract under present GTC, and its performance, including electronic means of communication. Consent is granted until withdrawal by Client.
12.4. The parties specifically agreed choice of law for all contractual relationships, and agreed the Principles of European Contract Law as primary law applicable.
12.5. For questions not addressed in the PECL applicable is law of the Contracting Party, which has the closest relationship to the subject matter, however such law shall be:
a) in matters of avoidance of actions, law of the state in which is established that party whose action is challenged,
b) in the case of compensation of damages, law of the state where is the seat of the damaged party,
c) in the issues of formal validity, the law which requires fewer formal requirements,
d) in the issues of material validity, the law with fewer statutory or case law interferences against principle of freedom of contract and the principle of non venire contra factum proprium,
e) in the case of claim for judicial penalty, provision of UPICC Art. 7.2.4.