General Delivery Terms and Conditions
of DUROtherm Thermoforming Czechia CZ s r.o.

1. Subject of the Contract and Scope of Performance

The business relationships and scope of performance between us and the customer shall be exclusively governed according to the order confirmed by us in writing, as well as according to the General Delivery Terms and Conditions specified below. They also apply to any future contracts, unless otherwise agreed.
Any changes in and amendments to the business relationships, including these General Delivery Terms and Conditions, must be exclusively made in writing. This also applies to the changes and amendments, which cancel the clause concerning the written form.
Other general business terms and conditions, especially the customer's business terms and conditions, are not the subject of the contract, even where not expressly rejected by us.

2. Contract Implementation / Rejection of Performance by the Customer

Offers and price calculations are not binding.
The contract between us and the customer shall only be concluded upon confirming the order content in writing on the basis of these General Delivery Terms and Conditions. Any public declarations, especially the promotional information, shall not be considered as data concerning the character of the item, and shall not establish any agreement about the character of the item or any commitment in regard to fitness for a particular method of use. We do not assume any guarantee to that sense, unless expressly specified in the order. Any collateral agreements not contained in the confirmed order do not form an integral part of the Contract.
If the customer rejects performing the Contract implemented according to the provisions specified below, we may at our discretion claim performance of the contract or withdraw from this Contract pursuant to legal provisions, and claim the respective damage we incurred. In lieu of claiming specific damage, we still have the option to claim a lump-sum compensation of damage in the amount of 10% of the contractual value, unless the customer proves that we have incurred no damage or a lower damage than the lump-sum compensation.

3. Delivery / Guarantee for Violation of Obligations

We are entitled to provide partial performance or partial deliveries, if acceptable for the customer.
The delivery date and periods specified in the confirmed order are considered as non-binding time information (approximate time data). Circumstances not caused by us, such as force majeure, import and export restrictions, war, strikes, delays in delivery of the main raw materials and any similar circumstances (force majeure) shall extend the delivery time for the period of existence of the aforementioned limiting circumstances. If it is expected that the delay in delivery due to force majeure will exist for more than 2 months, both contracting parties will have the right to withdraw from this Contract. We shall notify the customer as soon as possible of the beginning and the end of the delay with delivery in serious cases.
Violation of obligation to that sense, in particular a delay with delivery, shall only occur if the delivery dates and period specified in the confirmed order referred to in clause 3.2 (1) are exceeded for at least two weeks, and failure to observe the deadlines is on our side. If in such case the customer provides us with a reasonable grace period for delivery, which must be at least two additional weeks, with the declaration that after expiration of this grace period the customer shall reject accepting the delivery/performance, the customer will be entitled to withdraw from the Contract if this additional grace period is not adhered to. The customer will have the right to compensation of damage, especially damage resulting from delay in delivery and/or damage from failure to perform, as well as the damage from violation of the secondary contractual obligations in addition to the customer's right to withdraw from the Contract, only if the violation on our side was deliberate, due to a gross negligence, or if expressly agreed so between the contracting parties. The same regulation applies in the case of engagement of other cooperating persons. The aforementioned limitation of liability shall not apply, if the violation of obligations results in death or personal injury of the customer or any third party. In the case of Force Majeure, the rights to damages applied against us due to violation of obligations are excluded. This regulation shall also apply in cases, where the force majeure event occurs at the moment the obligations have already been violated, but the damage was caused as late as the force majeure event occurred.
If, contrary to the previous provisions, such guarantee could be considered, our responsibility for any damage shall be limited by the amount of the delivery price according to the Contract, except for cases of harm to life or health. The obligation to compensate indirectly incurred damage (particularly the lost profit, loss of turnover, etc. of the customer or any third party) shall not be thereby established.

4. Payment / Set-Off and Retention Money

Unless the confirmed order is otherwise modified, the prices specified therein are always quoted as prices exclusive of VAT; VAT shall be automatically added when invoiced. The legal provisions applicable at the moment of invoicing are decisive for the value added tax amount. In the case of deliveries abroad, the respective legal provisions concerning the value added tax shall apply.
If there is a period of more than 4 months between the confirmed order and delivery/performance, and if during this period the price is increased, particularly due to increase in wages, increase in costs of raw materials, general increase in prices due to inflation or any similar circumstances, we will be entitled to charge an adequately increased price.
Unless otherwise agreed, our invoices are due in net amount within 10 days after invoicing. No discount deductions are admissible.
In the case of any delay in payment of due amounts, we are entitled, without prejudice of claiming a specific damage, to claim interest at the statutory rate.
We only accept payments by bill of exchange or cheque on the basis of express and written prior agreement, without any fees and discount deductions. We do not guarantee timely presentation, protest, etc.
Unless the customer determines which customer's liability is covered by the provided payment, it shall apply that the provided payments shall preferentially cover the receivable's accessions (costs, interest) and then the oldest due amount.
Application of the right to retention money or declaration of set-off of our invoices against the customer's counter-receivables is inadmissible, unless the customer's counter-claims are indisputable or lawfully awarded.
Unless other facts are known to us, we assume that our customer is creditworthy at the moment of confirming the order. If the customer is in delay with payment of any due receivable, all the outstanding invoices, regardless of their maturity period, shall become immediately due and payable according to the previous provisions. For subsequent deliveries we will have the right to request advance payment. The same regulation applies to cases where the customer's financial standing after confirming the order will considerably worsen, or if it is determined after confirming the order that the customer's financial standing was considerably worse at the moment of confirming the order than presumed at that time. The same applies accordingly to insolvency proceedings against the customer. In other cases we have the right to request advance payment, if desirable based on the contract volume and if so agreed upon entering into the contract.

5. Reservation of Title

Any and all goods we deliver shall remain our property until all receivables from the business relationships, including accessions, are fully settled. This regulation particularly applies to payments by cheque or bill of exchange until they are cashed, and also in the case when all of our receivables or individual receivables were established within an overdraft (current account), the balance of which is apparent and acknowledged.
When goods under the reservation of title are processed, combined or mixed with other customer goods, we will hold the title to the new item proportionally to the value of the goods subject to the reservation of title to the invoiced value of the other goods. If our title terminates as a result of combining, mixing or processing the goods by the customer, the customer shall transfer to us the customer's ownership rights held at that moment by the customer, or the expected title to the new status or item to the extent of the invoiced value of the goods subject to reservation of title in the case of processing the goods, in the proportion of the invoiced value to the invoiced value of the other goods, and shall do so free of any charge for us. Our co-ownership rights have the validity of goods with reservation of title within the meaning of the previous regulations.
The customer may only alienate the goods subject to the reservation of title in the normal course of business under the customer's regular business conditions for the period, during which the customer is not in delay with their performance hereunder; all that under the precondition that the customer shall agree reservation of title with their buyer and that the receivable from resale of the goods shall pass to us within the meaning of these General Delivery Terms and Conditions. The customer has no right to dispose of the goods subject to the reservation of title in any other manner whatsoever. Resale of the goods shall also mean use of the goods subject to the reservation of title for the purpose of performing contracts for work and contracts for delivery of work.
Customer's receivables from resale of the goods subject to the reservation of title must be assigned to us by the customer. Such receivable shall be used to the same extent to secure our rights as the goods subject to the reservation of title within the meaning of clause 5.1.
If the Client further alienates the goods subject to reservation of title along with other goods, the customer shall assign the receivable based on further alienation to us in the proportion of the invoiced value of the goods subject to reservation of title to the invoiced value of the other goods. In the case of further alienation of goods, for which we acquired co-ownership rights according to clause 5.3 of the General Delivery Terms and Conditions, the customer shall assign to us a part of the receivable corresponding to our co-ownership share.
The customer is entitled to exact receivables from subsequent alienation of the goods, unless we revoke exaction of such receivables. Revocation of the right to exact receivables is then admissible and appropriate for the customer especially if the circumstances that occur after concluding the contract shall considerably deteriorate the customer's financial standing or if we learn of such deterioration of the customer's financial standing, which had existed before entering into the contract, and such deterioration of the financial standing will pose a threat to our rights to receive payment. Deterioration of the financial standing exists particularly in cases where any third party applies against the customer a measure to execute a decision, the cause for which the customer does not eliminate within 2 weeks from the execution, and/or if an insolvency petition is filed to initiate proceedings against the customer's property. In such cases we may require the customer to immediately inform their buyers about assignment of the receivables to our company, and to allow us to collect the necessary information and documentation. The customer shall immediately inform us about any execution or other restriction of rights by any third parties.
The customer is not entitled to assign their receivable.
In the case of violation of the important contractual obligations by the customer, especially in the case of delay with payment, we will have the right to retract the goods based on the previous reminder. The customer will be obliged to release the goods. In the case of withdrawing the goods from circulation as well as in the case of confiscation of the goods by us, withdrawal from the contract shall only be effected if we expressly notify the customer thereof.

6. Changes in Performance / Deviations of the Purchased Goods and Others / Guarantee

Minor and/or normal deviations in quality, colour, size, quantity and dimensions shall not be considered as reasons for complaint. Minor deviations in quantity shall mean deviations when the delivered quantity is 10% larger or smaller.
Unless specified otherwise, description of our goods does not represents any data on their character or data on their usability, and we do not assume any guarantee to that sense. If the respective composition of materials, design, etc. is agreed with the customer, we only guarantee the proper fabrication corresponding to the concluded agreement.
Complaints concerning larger or smaller quantity, deviations in dimensions as well as apparently visible defects must be filed immediately, within 8 days from accepting goods delivered by us at the latest; the date we receive the complaint will be considered as decisive. In the case of claiming defects other than those aforementioned, the complaint must be delivered to us within 8 days after the defects are identified. Any complaint filed with us must be made in writing.
If only a part of the delivery shows defects, this fact will not entitle the customer to file a complaint about the entire delivery, unless partial delivery is useless for the customer.
In the case of defects, the customer may only claim a payment discount (decrease) or withdraw from the contract if two offered attempts for new delivery (at our discretion – removal of defects or additional delivery) fail. This shall apply accordingly to claiming compensation of damage resulting from culpable violation of obligations on our side; in such case we are only liable to the extent according to clause 3.3 (7).
The goods claimed as defective must not be disposed of in any manner.
If the customer is an entrepreneur, our guarantee period will be one year after passage of the risk of damage to the goods.

7. Liability

Our liability, regardless of legal reasons, shall be limited to wilful or grossly negligent violation of obligations. This applies accordingly to cases of damage caused by cooperating persons we engaged. If, contrary to the previous provisions, such guarantee could be considered, the right for a compensation from our side shall be limited by the contracted amount, however by the damage anticipated at the moment the contract is entered into at maximum. Any damage beyond the aforementioned (especially indirect subsequent damage from defects, such as loss of turnover or lost profit), as well as damage that appears after combining or mixing our goods with other products, shall be excluded. The previous limitation of liability/guarantee does not apply in the case of death or personal injury.

8. Proprietary Rights and Copyrights

In implementing a job according to the customer's instructions we are not obliged to verify existence of possible proprietary rights of third parties (particularly patents, protection of utility designs, copyrights, etc.). In such case the customer assumes the responsibility that the rights of third parties shall not be limited, and shall hold us harmless from any claims of any third parties resulting from violation of such rights.
We reserve any and all copyrights claims and rights, including but not limited to the right to reproduce our designs, sketches, illustrations, drawings and written information. Their printing and/or reproduction is only permitted based on our express approval.

9. Moulds/Tools

The price of tools and moulds shall also include the costs of taking samples, unless otherwise agreed; however, it shall not include the costs of development, costs of inspection or machining equipment or changes made upon the customer's initiative after approval of technical drawings.
Unless otherwise agreed, we remain the owner of the tools and moulds manufactured by us or by our contractors for the customer. However, they will only be used for the customer's customers for the period the customer performs their obligations to pay and take deliveries of the goods. Our obligation to store the tools and moulds shall terminate two years after the last partial delivery produced by such tool or mould is completed. If the customer requires a tool or mould, regardless of the reasons, the remaining costs of production (if any) and as non-apparently proven costs of development of the tool (for example engineer performance, machinery accessories, etc.) shall become payable along with delivery of the tool or mould to the customer.
If the customer is to become the owner of the tool or mould, the ownership right shall pass to the customer after the purchase price of the tool or mould is paid. Handover to the customer shall be substituted by the obligation to store them according to clause 9.2. Regardless of the statutory rights to render an item, and the service life of the tool or mould, we are entitled towards the customer to exclusively possess the tool or mould by the time the agreed minimum quantity of the manufactured products is taken and/or a certain (agreed) period of time expires.
In the case of the customer's tool or mould according to the previous provisions or those lent to us by the customer, our liability in regard to custody and care shall be limited to the extent we provide such care to our own products. The costs of maintenance and insurance shall be borne by the customer.

10. Shipping / Passage of Risk

Unless otherwise agreed, the goods shall be shipped at the cost and risk of the customer. The type and method of shipping (especially choosing a carrier) shall be at our own discretion. Risk of loss, accidental destruction and/or damage to the goods shall pass to the customer, unless otherwise agreed, at the moment the goods are handed over to the carrier.

11. Place of Performance and Jurisdiction

The competent court for the supplier's registered seat will have the local jurisdiction.

12. Governing Law

The laws of the Czech Republic shall exclusively govern this contractual relationship. The usual clauses shall be interpreted according to the Incoterms version applicable at the moment the order is confirmed.

13. Severability Clause

If the individual regulations of these General Delivery Terms and Conditions become ineffective, such fact shall not affect the effectiveness of other regulations.

Statutory provisions shall replace the ineffective regulations.

In May 2014
DUROtherm Thermoforming Czechia CZ s r.o.

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