General Terms and Conditions
BUSINESS TERMS AND CONDITIONS of FAIVELEY TRANSPORT CZECH a.s.
Tax ID No. 25213423
With a registered office at U Přivaděče 1315/3, Černice, 326 00 Plzeň
(Hereinafter referred to as OP)
Scope of the Business Terms and Conditions
1.1. These OP determine a part of the contents of a purchase contract, the subject of which is the purchase of goods (movable assets), where there is FAIVELEY TRANSPORT CZECH a.s., tax ID No. 25213423, with a registered office at U Přivaděče 1315/3, Černice, 326 00 Plzeň (hereinafter referred to as the Purchaser) on the side of the purchaser, and an entrepreneurial natural or legal person concluding the contract (hereinafter referred to as the Seller) on the side of the seller, and which refers to these OP.
1.2. Deviating provisions in the contract prevail over the wording of these OP.
1.3. Utilization of the Seller’s business terms and conditions is ruled out.
1.4. These OP are available to all the Purchaser’s business partners at the website http://www.ft-czech.cz/. These OP may be enclosed to the draft of the purchase contract separately, e.g. in the form of a reference stating the above Internet website.
Subject and Form of the Purchase Contract
2.1. By entering into the purchase contract in accordance with these OP, the Seller pledges to hand over the subject of purchase to the Purchaser, and to allow him to acquire ownership rights to it, and the Purchaser pledges to accept the subject of purchase and to pay the purchase price to the Seller (hereinafter referred to as the Contract).
2.2. An object specified by the Contract is the subject of purchase.
Means of Entering into the Contract
3.1. The Contract is concluded by way of the Purchaser accepting the Seller’s draft of a purchase contract. The Contract is generally entered into in the form of an order issued by the Purchaser, referring to these OP, and confirmed by the Seller (in writing, by fax, in the form of an e-mail message).
3.2. The Seller may also confirm the order by behaving according to it, namely by delivering the subject of purchase to the Purchaser in accordance with the contents of the order prior to the expiry of the time limit for accepting the order. In such case, the Contract is being entered into by means of accepting the subject of purchase and confirming the delivery note on the side of the Purchaser.
4.1. Purchase price is generally defined in the order. In case the purchase price is not defined in the order and the negotiations of the parties do not imply that it was arranged for in another way (e.g. as a framework arrangement regarding prices), the Seller’s price list valid at the time of entering into the Contract shall be used to determine the purchase price, as long as such price list is known to the Purchaser. Should the parties enter into the Contract without defining a purchase price, then the usual price of the object or of a comparable object at the time of entering into the Contract is used as the arranged purchase price.
4.2. VAT at the statutory amount shall be added to the purchase price.
4.3. Besides the price of the actual subject of purchase, the purchase price namely includes the following items:
(a) Costs of transporting the subject of purchase to the place of performance and costs related to handing the subject of contract over to the Purchaser (assembly, alignment, setting-up, training, etc.),
(b) Price of packaging, unless stipulated otherwise in case of returnable packages,
(c) Travelling expenses of the Seller’s employees, accommodation, boarding costs, etc.
(d) Costs of testing, certificates, tests, revision reports, protocols and other similar documents necessary for accepting and using the subject of purchase on the side of the Purchaser,
(e) Costs of insurance of the Seller and/or the subject of purchase,
(f) Other necessary, usual, communicated or expected costs necessary for handing over the subject of purchase and for transferring the ownership rights to it according to the Contract.
4.4. The Seller is entitled to require the purchase price upon handing over the subject of purchase to the Purchaser and transferring ownership rights regarding the subject of purchase onto the Purchaser. The Seller is not entitled to condition the handing over of the subject of purchase or documents relating to it by the payment of the purchase price or a part thereof.
Payment Conditions and Invoicing
5.1. The Seller shall exercise the right to the payment of the purchase price by delivering an invoice to the Purchaser. The invoice must have the prerequisites of a tax and accounting document, and it must at least contain the following:
(a) Invoice number
(b) Identification of contractual parties and the registered offices thereof
(c) Tax ID No. and VAT ID No. of the contractual parties
(d) Number of Contract (order)
(e) Name of the purchase officer stated on the order
(f) Subject of taxable fulfilment according to the Contract (order)
(g) Amount invoiced, without VAT
(h) Rate and amount of VAT
(i) Total sum invoiced
(j) Bank account details of the Seller
(k) Date of taxable fulfilment
(l) Date of issue of the invoice
(m) Document confirming the acceptance of the Purchaser (confirmed delivery note, hand-over protocol, worksheet, etc.)
5.2. The invoices must be issued in an electronic form in an ISDOC file format, or in a PDF file format in case of a format incompatibility on the side of the Seller. The file format must always guarantee credibility of the origin and integrity of the contents of the invoice. The invoices shall be sent to the Purchaser’s e-mail address: firstname.lastname@example.org. If it is impossible to send the invoice to the designated e-mail address, the Seller is obliged to inform the Purchaser about this as of the date of entering into the Contract, at the latest; in such case, the Seller shall send invoices in a documentary form to the address of the Purchaser’s registered office.
5.3. Due date of the invoice is given by the date of delivery of the invoice to the Purchaser and by the negotiated payment conditions.
5.4. In case the invoice fails to include the set prerequisites, the Purchaser has the right to return it for corrections without the occurrence of the due date. The time limit for payment starts anew as of the date of delivery of a corrected or newly issued invoice.
5.5. Due date of the purchase price is sixty (60) days after a demonstrable delivery of a due and complete invoice to the Purchaser.
5.6. The purchase price shall be paid via bank transfer. The purchase price is considered as paid as of the date of the sum being subtracted from the Purchaser’s bank account.
Term and Place of Performance
6.1. The term of handing over the subject of purchase to the Purchaser in the place of performance is generally defined in the order. If the term is not defined in the order, then it shall amount to five (5) working days from the date of delivery of the order to the Seller.
6.2. Seller’s delay in handing over the subject of purchase within the negotiated term exceeding five (5) working days shall be considered as a substantial violation of the Contract.
6.3. Should the Seller find out that he is unable to meet his obligation to hand over the subject of purchase within the negotiated term to the Purchaser, he shall inform the Purchaser immediately, including the information regarding the reason and length of the expected delay. The negotiated term of performance is not affected thereby.
6.4. Place of handing over the subject of purchase to the Purchaser is defined as the Purchaser’s plant at the following address: U Přivaděče 1315/3, Černice, 326 00 Plzeň, unless stipulated otherwise in the order.
6.5. Delivery rules of INCOTERMS 2010 apply for handing over the subject of purchase – DDP: U Přivaděče 1315/3, Černice, 326 00 Plzeň.
6.6. In case it is necessary to provide for building or assembly preparedness in the place of performance in order to assemble the subject of purchase, it is provided for by the Seller at his expense, unless the order stipulates that the Purchaser is to provide for it.
Acquiring ownership rights, transfer of damage risks on the objects
7.1. The Purchaser acquires the ownership rights to the subject of purchase by accepting it from the Seller.
7.2. Accepting the subject of purchase means especially the handing over thereof to the Purchaser within the place of performance with all the parts, accessories and documents, and the marking of acceptance by the Purchaser on the delivery note or other accompanying documents.
8.1. The Seller shall hand over to the Purchaser documents needed to accept and use the subject of purchase, as well as other documents defined in the Contract (order).
8.2. The Seller shall hand over the documents to the Purchaser no later than upon handing over the subject of purchase, unless the Purchaser stipulates an earlier handing over thereof.
8.3. Documents needed to accept and use the subject of purchase are namely the following:
(a) Documents needed for acceptance (e.g. consignment note, warehouse note, carriage document, etc.),
(b) Documents needed for utilization (e.g. instructions for use, technical documents, certificates, maintenance instructions, service documents, etc.),
(c) Other documents arranged for (e.g. list of guarantee/post-guarantee repair shops, lists of spare parts according to the length of operation, etc.).
8.4. The documents shall be elaborated in Czech, unless other language versions have been arranged for.
8.5. The documents become the property of the Purchaser upon being handed over to the Purchaser.
8.6. The Seller is responsible for the quality of the documents, for the correctness and completeness thereof, for their compliance with the conditions of the delivery in question, for no errors and omissions, regardless of the fact whether or not the Purchaser approved the documents handed over.
8.7. In case of any damages incurred by the Purchaser due to poor quality or incompleteness of the documents (property damages, lost profit, excess costs, reputation damage, etc.), the Seller is obliged to compensate the Purchaser for the damages.
Quality and Realization
9.1. The quality and the realization of the subject of purchase must namely comply with:
(a) Valid legal regulations,
(b) Drawing documentation handed over by the Purchaser to the Seller for the purpose of delivering the subject of purchase,
(c) ČSN and EN Standards, SQ 900, SQ 901, SQ 906, and SQ 908 Standards or other standards defined in the Contract (order), valid at the time of handing over the subject of purchase to the Purchaser, regardless of the recommending or binding nature thereof,
(d) Purchaser’s internal regulations and/or standards, as long as the Seller knows about them,
(e) Technological regulations.
9.2. Should the Seller find conflict between the supporting documents named in the previous paragraph, he is obliged to inform the Purchaser immediately, marking this conflict and suggesting means for resolving it.
9.3. For the subject of purchase, the Seller may only use materials and products with qualities guaranteeing the required functionality of the subject of purchase throughout the expected life of the subject of purchase, given regular maintenance.
9.4. Should the subject of purchase be delivered according to a sample or a model, the Seller is obliged to deliver it with the qualities of the sample or model, approved by the Purchaser.
9.5. In case of a conflict between the determination of quality or realization of the subject of purchase according to this sample or model, and the specification of the subject of purchase according to the Contract, the approved sample prevails. If there is no conflict in these determinations, the subject of purchase is to have the qualities according to both these determinations.
9.6. The Purchaser shall not be obliged to accept the subject of purchase not meeting the requirements according to this Section, and in such case, the Seller is obliged to make the subject of purchase compliant with the provisions of this Section at his own expense.
Defects on the Subject of Purchase
10.1. The subject of purchase is defective especially in the following situations:
(a) It fails to meet the requirements stipulated by statutory regulations valid and effective in the Czech Republic, especially the requirements regarding safety, technology, quality and health,
(b) It fails to meet the requirements stipulated by the respective binding or recommending ČSN, EN, SQ Standards or other negotiated standards),
(c) It fails to yield the qualities stated in the order,
(d) It fails to yield the qualities stated in the drawing documentation,
(e) It fails to yield the qualities of which the Seller explicitly ensured the Purchaser, or which the Purchaser postulated,
(f) It fails to yield the qualities suitable for the negotiated purpose or for common purpose.
10.2. The subject of purchase has a legal defect, in case a third person asserts the right to it, even if the Purchaser knew about such limitation.
10.3. In case of finding obvious defects of the subject of purchase upon its delivery, the parties elaborate a list of these defects, arranging for the term and means of removing the defect at the same time, or eventually arranging for another way of settlement of rights of the Purchaser from the defective performance.
10.4. The Purchaser has rights from a defective performance, even if he knew about the defect at the time of accepting the subject of purchase, or if he had to recognize the defect upon asserting usual care.
10.5. In case of a manifested defect on the subject of purpose, to which the provided quality guarantee does not apply, even if the defect manifests itself only after the risk of damages passes on to the Purchaser, the rights of the Purchaser from the defective performance and the assertion thereof abide by the respective stipulations of the Civil Code, unless stipulated otherwise below.
11.1. The Seller shall provide quality guarantee to the Purchaser regarding the quality of the subject of purchase. The Seller pledges that the subject of purchase (all its parts) shall be fit for the arranged or usual purpose throughout the guarantee period, and that it shall maintain the arranged or usual characteristics.
11.2. The period of guarantee amounts to twenty four (24) months, and it starts as of the date of launching the subject of purchase or the final product in which the subject of contract is processed into operation. The period of guarantee shall not exceed thirty six (36) months after the date of the Purchaser accepting the subject of purchase.
11.3. The period of guarantee shall be extended without further ado in the following cases:
(a) The Purchaser accepts the subject of purchase with defects, for a time till the removal of the last of these defects,
(b) A defect subject to guarantee occurs on the subject of purchase within the guarantee period, for a time till such defect is removed.
11.4. Repaired or replaced parts of the subject of purchase are subject to new period of guarantee lasting twenty four (24) months.
Rights of the Purchaser regarding Quality Guarantees
12.1. The Purchaser is entitled to inform the Seller about an occurrence of guarantee defect, as well as about a manifestation of a defect existing at the time of handing over the subject of purchase, and assert his rights from such defect throughout the entire period of guarantee, regardless of when the Purchaser found this defect, or when the Purchaser should have or might have found the defect given regular care. If the Purchaser informs the Seller about the defect throughout the period of guarantee, the said defect is considered to be reported in time.
12.2. In case of a defect subject to guarantee, the Purchaser is always entitled to:
(a) a removal of the defect via delivery of a new defectless part of the subject of purchase or via delivery of a missing object,
(b) a removal of the defect via repair,
(c) a reasonable discount from purchase price,
(d) withdraw from the Contract, unless it is quite inadequate given the nature of the defect.
12.3. The Purchaser shall inform the Seller about the right he chose upon notifying him about the defect or after notifying him about the defect at any time during the guarantee period. Individual rights from defects may be mutually combined, as long as their nature allows for it.
12.4. If the Purchaser asserts the right to a removal of the defect of the subject of purchase, the Seller shall take up work on removing the defect no later than within three (3) working days after being notified, being obliged to remove the defect within five (5) working days after being notified or to provide acceptable substitute solution (e.g. a compensatory object with similar qualities), at the same time carrying out measures to prevent the occurrence of further damages to allow for the utilization of the subject of purchase by the Purchaser.
12.5. The Seller is obliged to initiate the removal of the announced defect even in case he does not acknowledge the rights of the Purchaser from the announced defect. The Seller is obliged to always use new and original spare parts during the guarantee repairs. Throughout the period of removing the defect, the Seller is responsible for the risk of damages to the object.
12.6. The costs of removing the announced defect shall be borne by the Seller in questionable cases, until it is proven whether or not the Purchaser’s rights from the defective performance were asserted legitimately. If it is proven in questionable cases that the Purchaser asserted the right from the defective performance illegitimately, he is obliged to settle to the Purchaser all costs rationally exerted in connection with removing the defect.
12.7. Contractual parties shall elaborate a protocol on the removal of the announced defect via repair, in which they shall confirm the removal of the defect, or the Purchaser shall state reasons for refusing to accept the subject of purchase after the repair.
12.8. Should the same defect of the subject of purchase reoccur repeatedly after removal (twice and more), the Purchaser is entitled to change his right from defective performance; he is namely always entitled to request the removal of the defect via delivery of a new, defectless part of the subject of purchase, and to require reasonable discount from the purchase price.
12.9. Should there be more different or identical defects on the subject of purchase (more than 4), the Purchaser is entitled to change his right from defective performance; he is namely always entitled to request the removal of the defect via delivery of a new subject of purchase.
12.10. In case the Seller is in delay with the performance of any obligations according to the Contract, especially with removing the announced defects, the Purchaser is entitled to provide for such performance himself or via a third person at the Seller’s expense. In such case, the Purchaser is also entitled to change his right from defective performance.
12.11. Until the defect is removed, the Purchaser is not obliged to pay a part of the purchase price estimated to adequately correspond to his right to a discount.
Compensation for Damages
13.1. The Seller shall compensate the Purchaser for damages incurred due to the violation of obligations of the Seller according to the Contract, especially:
(a) Costs necessarily exerted by the Purchaser due to an existing defect on the subject of purchase, which would not be exerted in case of due performance (costs of necessary measures adopted by the Purchaser in order to duly meet his obligations towards his contractual partners, especially the costs of increased personnel, capacity or material demandingness of manufacturing at the PURCHASER’s plant, costs of express transport, etc., the so-called additional costs),
(b) Costs exerted by the Purchaser in vain due to an existing defect on the subject of purchase, which would not be exerted in case of due performance (e.g. depreciation for further materials within the Purchaser’s manufacturing process),
(c) Debts incurred by the Purchaser due to existing defects on the subject of purchase, which would not occur in case of due performance (obligation to pay contractual penalties or to compensate Purchaser’s contractual partners for damages, or obligation to pay penalties or other sanctions imposed by a public authority on the Purchaser); in such case, the Purchaser is entitled to re-invoice all the debts claimed by his contractual partners due to a defect on the subject of purchase, and the Seller is obliged to relieve the Purchaser of such debts,
(d) Lost profit due to the necessary shutdown of production by the Purchaser or his contractual partners due to existing defects on the subject of purchase.
13.2. Damage is compensated for in money, unless the Purchaser requires restoring into previous state.
13.3. The Purchaser hereby informs the Seller that the subject of purchase delivered by him shall be used by the Purchaser for further processing and shall become a part of a higher assembly unit used in the manufacturing and assembly of electrical transport vehicles (track and road) designated for cargo and passenger transport and operated abroad (the U.S.A., Canada, China, etc.) among else, where in case of any damages (to life, health or property) the amount of damages incurred may vary significantly depending on the social-economic specifics of the given country.
13.4. The Purchaser hereby informs the Seller that the Purchaser himself is with respect to the higher assembly units manufactured by him in the position of a supplier, and that his clients are significant subjects, including from abroad, and the rules of the deliveries are determined by mutual contracts including significant sanctions for violating the Purchaser’s obligations, including the obligations partially or fully dependent on the due meeting of the Seller’s obligations according to the Contract.
13.5. The Purchaser hereby informs the Seller that overall damages incurred by the violation of the Purchaser’s obligations according to the Contract may amount to a level usual in the given segment of the market, i.e. at the level of tens of millions of EUR.
14.1. The Seller is obliged to pay a contractual penalty of 0.5 % of the purchase price to the Purchaser for each day of delay with handing over the subject of purchase, including all its parts, accessories and documents to the Purchaser.
14.2. The Seller is obliged to pay a contractual penalty of 0.5 % of the purchase price to the Purchaser for each day of delay with removing the defect, in case the Purchaser asserted his right to the removal of defect on the subject of purchase..
14.3. The Seller is obliged to pay a contractual penalty of CZK 1,000,000 to the Purchaser in case of violating the obligation to preserve and honour the trade secret and to remain silent regarding the Purchaser’s confidential information according to these OP, for each individual case of such violation.
14.4. The Seller is obliged to pay a contractual penalty of CZK 1,000,000 to the Purchaser in case of violating the obligation to take up insurance according to these OP.
14.5. Contractual penalties are due within fifteen (15) days of the delivery of the invoice issued due to the incurrence of the right to the contractual penalty to the party in violation of the Contract.
14.6. The payment of the contractual penalty does not affect the right to the compensation for damages. The injured party is entitled to require compensations for damages besides the contractual penalty, as well as in the amount exceeding the contractual penalty.
Withdrawal from the Contract
15.1. The Purchaser is entitled to withdraw from the Contract in the following cases:
(a) Substantial violation of the Contract by the Seller, especially in case the Seller is in delay with handing over the subject of purchase for a period exceeding five (5) working days,
(b) The Seller is in delay with meeting any of the obligations ensuing from the Contract, which the Seller was notified about in writing and he fails to meet such obligation within thirty (30) days after being notified,
(c) Insolvency proceedings were initiated with the Seller, unless they were initiated based on an insolvency motion filed by a creditor, which is clearly chicanery.
15.2. The withdrawal takes effect as of the date of delivery of the written notice of withdrawal to the other contractual party; this notice must state the reason for withdrawal.
15.3. The withdrawal does not affect the rights of the contractual parties ensuing from the Contract, especially the rights to receive compensation for damages or contractual penalty.
15.4. In case of withdrawing from the Contract, the Seller is obliged to return to the Purchaser the paid up part of the purchase price within fifteen (15) days after the delivery of the withdrawal. The Purchaser shall return the subject of purchase to the Seller within fifteen (15) days after receiving the returned paid up part of the purchase price. The Purchaser shall return the subject of purchase to the Seller in the form of allowing him to manipulate with it at the place of performance, and informing him about it.
15.5. If the paid up part of the purchase price is not returned to the Purchaser as a result of withdrawing within the above time limit, the Purchaser has the retaining right to the subject of purchase, being entitled to encash it under the conditions stipulated by law and satisfy his entitlement to the returned part of the paid up purchase price via the profit from such encashment.
15.6. The costs related to the withdrawal from the contract (disassembly of the subject of purchase, packaging, transport, etc.) are always borne by the Seller.
Trade Secret, Confidential Information
16.1. All essential information relating to the Contract or the Purchaser’s plant, which the Seller finds out about in relation with the performance of the Contract (work procedures, technical and other documentation, know-how, etc.), is subject to the Purchaser’s trade secret. The Seller is obliged to preserve and honour the trade secret of the Purchaser, even upon the expiry (completion) of obligations from the Contract.
16.2. The Seller is obliged to remain silent about all confidential information of the Purchaser or companies forming FAIVELEY global concern together with the Purchaser, which the Seller finds out in connection with performing the Contract.
16.3. Confidential information is all information of technical, economic, legal and manufacturing nature in tangible or intangible form, especially in the form of contracts, budgets, calculations, reports, projects, drawings and other documents, including the form of source codes, files, digital data, photographic, sound or audio-visual records, regardless of the way they were provided, communicated or captured, held, stored or recorded.
16.4. Further on, any notes, summaries, copies, translations, abstracts or extracts of the above information are also considered to be confidential.
16.5. Any models, prototypes, sample products or parts thereof are also considered to be confidential for the purposes of performing this Contract.
16.6. All the ownership or other property rights of the Purchaser regarding the supporting materials handed over, which contain confidential information, remain with the Purchaser.
16.7. When handling confidential information, the Seller shall:
(a) Treat and handle all the confidential information provided as confidential and secret, and keep them secret,
(b) Use any confidential information only and exclusively for the purposes of performing the Contract,
(c) Refrain from communicating and making available any confidential information to any third person without a prior written consent of the Purchaser,
(d) Refrain from making any copies or abstracts from the supporting materials received from the Purchaser without a prior written consent of the Purchaser,
(e) Refrain from acquiring any photographs, drawings or any visual records of models, prototypes, sample products or parts thereof provided by the Purchaser to the Seller without a prior written consent of the Purchaser, except for acquiring, processing and subsequent utilization of these records while performing the Contract,
(f) Refrain from using confidential information for his own benefit or for the benefit of third persons, and shall not use confidential information in any way that might cause damage to the Purchaser,
(g) Maintain records of all the supporting materials in his possession, which he provided with the previous written consent of the Purchaser to any third person, and hand over such records to the Purchaser,
(h) Keep secret the fact that he has confidential information in his possession,
(i) Ensure, based on a written request of the Purchaser, that all third persons he provided with confidential information with the Purchaser’s consent stopped using this confidential information,
(j) Return all the supporting materials handed over by the Purchaser based on a written request of the Purchaser within the time limit of ten (10) working days in an original form or in other, modified material form.
Compensations for Patent Clarity
17.1. The Seller is obliged to compensate the Purchaser for any and all damages, claims, titles, losses and expenses the Purchaser may suffer due to any violation or pretentious violation of any rights, registered constructions and/or manufacturing and/or assembly and/or constructional processes, trade name, copyright or other intellectual property in connection with preparing and/or realizing the Seller’s performance
17.2. Should there be any process or application of any claims against the Purchaser as a result of matters stated in the previous paragraph, the Seller shall be obliged to conduct such processes or deal with such claims at his own expense and on behalf of the Purchaser, and to negotiate the settling of such processes or claims.
18.1. The Seller is obliged to take up liability insurance for damages caused by a defect on the product, as well as liability insurance for damages caused by exercising entrepreneurial activities (professional liability insurance), and to maintain the insurance valid at least throughout the period of quality guarantee.
18.2. Minimum amount of insurance coverage shall be CZK 10,000,000.
18.3. Insurance coverage must correspond to the nature and extent of the delivery.
18.4. Insurance must fully cover financial damages as well.
18.5. The Seller shall present to the Purchaser upon his request at any time a copy of the insurance certificate and/or the insurance contracts entered into by the Seller.
18.6. The validity and effectiveness of insurance contracts must not be limited in any way, it must cover insurance risks throughout the world, regardless of where the damages occur.
19.1. The Contract abides by Czech legal order, especially by Act No. 89/2012 Sb., the Civil Code.
19.2. A dispute, which cannot be settled amicably, shall be resolved by Czech courts; in such case, territorial jurisdiction of a public court of the Purchaser shall apply.
19.3. Changes or amendments to the Contract may only be concluded in the form in which the Contract was concluded, or in a more strict form.
19.4. The Seller shall not be entitled to unilaterally figure in his outstanding debts towards the Purchaser occurring from the Contract against his debts occurring from the Contract.
19.5. The Seller shall not be entitled to unilaterally assign outstanding debts occurring from the Contract to a third person.
19.6. These OP take effect as of 1 April 2016.
FAIVELEY TRANSPORT CZECH a.s.