1. Introductory Provisions
1.1 These General Commercial Terms and Conditions (“GCTC”) of NOARK Electric Europe s.r.o., having its registered office in Prague 9, Horní Počernice, Sezemická 2757/2, postcode: 193 00, registered in the Commercial Register kept by the Municipal Court in Prague, Section C, file No. 181277 (the “Seller”), define the mutual rights and obligations of the Seller and the person (the “Buyer”), who is interested in purchasing the goods offered by the Seller (the “Goods”) in the current price list of the Goods (the “Price List”).
1.2 Where no general agreement (the “General Agreement”) specifying different arrangements under the particular points has been concluded between the Seller and the Buyer (jointly referred to as the “Parties or each individually as the “Party”), these GCTC and the Purchase Contract (as defined below) shall constitute the entire and final agreement between the Parties on the terms and conditions for the delivery and acceptance of the Goods. Any matters not covered herein shall be governed by the relevant provisions of Act No. 89/2012 Coll., the Civil Code, as amended (the “Civil Code”).
2. Purchase Order for the Goods
2.1 The Buyer was made acquainted by the Seller with the contents of these GCTC and, on the basis of these GCTC and other information provided by the Seller, the Buyer has expressed, by means of a purchase order (the “Purchase Order”) its wish to purchase the Goods from the Seller for the price as indicated in the Price List or as otherwise agreed (the “Purchase Price”).
2.2 A Purchase Order shall always include: (a) identification data of the person authorized to represent the Buyer, (b) description (code) of the ordered Goods pursuant to the Price List and their quantity, and (c) method of delivery of the Goods and where applicable, other particulars which the Parties have agreed on. The completed Purchase Order shall be delivered by the Buyer to the Seller in person, sent by postal service to the Seller’s registered office address or to the address indicated in the General Agreement, or shall deliver the Purchase Order to the Seller by e-mail or deliver it to the Seller in another manner agreed by the Parties. The Purchase Order shall be deemed to constitute a proposal to sign an individual purchase contract and, consequently, shall become binding upon its delivery to the Seller. By sending the Purchase Order, the Buyer gives its explicit consent with the purchase contract (and any and all obligations arising therefrom) being governed by the GCTC. The Seller shall be obliged to mark the date of this receipt on the delivered Purchase Order. The purchase contract shall be concluded upon the signing of the delivered Purchase Order by the Seller (the “Purchase Contract”).
3. Purchase Price, Invoicing, Payment Terms and Conditions
3.1 For the Goods delivered, the Buyer shall be obliged to pay to the Seller the purchase price determined pursuant to the valid Price List or otherwise agreed by the Parties plus VAT. In order to rule out all doubts, it is agreed that purchase prices are stipulated in the Price List exclusive of VAT.
3.2 The Seller shall be entitled to make changes to the Price List at any time and on a unilateral basis; however, any change or modification to the Price List shall not apply to any Goods ordered based on the Purchase Orders that were delivered to the Seller prior to the date of such change or modification. An updated Price List indicating the effective date shall be published on the Seller’s website or sent to the Buyer by means of an e-mail message.
3.3 Unless agreed otherwise between the Seller and the Buyer, the Purchase Price shall not include the costs of packaging, transport, handling, installation and commissioning of the Goods, or the packaging disposal and recycling costs (“Other Costs”). The amount of Other Costs shall be indicated in the Price List and added to the Purchase Price.
3.4 The Purchase Price shall be due and payable within seven (7) days after the issue date of the respective tax document (pro forma invoice), which must meet the particulars required by Act No. 235/2004 Coll., on Value Added Tax, as amended. The respective amount shall be paid by the Buyer by bank transfer to the Seller’s account as indicated in the relevant invoice or otherwise notified to the Buyer. The Purchase Price shall be deemed to have been paid on the date when the full amount is credited to the respective account of the Seller.
3.5 If the Buyer is in delay with the payment of any invoice, the Seller shall be entitled to claim a contractual fine amounting to 0.05% of the amount due for each and every day of delay.
4. Delivery of the Goods
4.1 The Goods may only be delivered once the Purchase Price has been paid in full. The delivery period shall be thirty (30) days from the payment of the Purchase Price unless the Seller determines otherwise. The Seller shall be entitled to suspend the delivery period for the Goods for the duration of the delay by the Buyer with the payment of any amount due arising from the General Agreement or the Purchase Contract. The Seller shall assume no responsibility for such delay.
4.2 The Seller shall be obliged to deliver the Goods to the Buyer by sending them to the Buyer’s address as indicated in the Purchase Contract or, as the case may be, to another address notified to the Seller in writing (the “Shipment”). The Seller’s obligation shall be deemed to have been duly performed and the Goods to have been delivered to the Buyer upon the moment when the Shipment is handed over for transport to the first carrier. The Shipment shall always be clearly and sufficiently marked as a shipment intended for the Buyer; the delivery of the Goods shall thus be effective upon the handover of the Shipment to the first carrier for transportation. In consistence with the Civil Code, the risk of damage to the Goods shall be transferred to the Buyer upon the handover of the Shipment to the first carrier for transport to the place of delivery.
4.3 Unless otherwise set out in these GCTC or otherwise agreed between the Seller and the Buyer, the Goods shall be delivered under the CIP term in accordance with INCOTERMS 2010. The place of shipment and place of destination shall be agreed upon in the particular case between the Seller and the Buyer.
5. Acquisition of the Title to the Goods
5.1 The Buyer shall acquire the title to the Goods upon their handover to the Buyer, provided that the Purchase Price has been paid in full by the Buyer.
6.1 The Seller shall provide a quality warranty for the Goods to the Buyer; the warranty period shall be five (5) years after the date of acceptance of the Goods by the Buyer (the “Warranty Period”). With the quality warranty, the Seller undertakes that the Goods purchased by the Buyer shall be fit for the agreed purpose of use throughout the specified Warranty Period.
6.2 The Warranty shall particularly not apply to defects caused by or arising from:
(a) Improper storage of the Goods prior to their installation and commissioning;
(b) Inappropriate, incorrectly designed or wrongly performed installation of the Goods, or improper use of the Goods;
(c) Wear and tear related to the natural life cycle of the Goods and their regular use (e.g. the varistor of surge voltage protectors);
(d) Excessive use of the Goods, i.e. their use contrary to the recommendations or instructions by the Seller (e.g. by exceeding the number of the declared operating cycles);
(e) Any change or modification to the Goods that was carried out by the Buyer or any third person, except for persons designated or approved by the Seller;
(f) External factors outside of the control of the Seller;
(g) Force majeure, covering particularly flooding, fire, lightning, earthquake, strikes or civil riots.
6.3 Exclusions from the Warranty are specified in detail in the claims handling rules, which are available at the Seller’s website (the “Claims Handling Rules”). In case of discrepancies between the provisions of the Claim Handling Rule and these GCTC the GCTC shall prevail.
6.4 Any returning of the Goods by the Purchaser to the Seller is subject to the Seller’s consent. The Goods may be returned only if the Goods is complete and not damaged including packaging no later than two (2) years from their delivery. The price for which the Seller buys such Goods shall be determined by the Purchaser on the basis of a check performed by the Seller. All costs associated with the back sale (postage, packaging fee etc.) to the Seller shall be borne by the Purchaser. At the Seller’s request the Purchaser shall pay the Seller a service charge in order to cover other additional costs incurred by the Seller in connection with the returning of the.
7. Claims and European Warranty
7.1 The Buyer shall be entitled to exercise rights arising from defective performance in connection with any defects of the Goods occurring during the Warranty Period (the “Claim”) at any branch office of the Seller indicated in the list, which was submitted to the Buyer upon the purchase of the Goods and which is available at the Seller’s website (the “List”). Under the terms and conditions defined in the Claims Handling Rules, the Buyer shall be entitled to file the Claim also outside of the territory of the country, in which the Goods were purchased.
7.2 The Buyer shall exercise the rights arising from defective performance concerning the delivered amount of the Goods no later than fourteen (14) days from the delivery of the Goods.
7.3 Upon its acceptance the Buyer shall inspect the Goods to the possible extent and report defects (if any) by means of the transporter’s protocol. The rights arising from defective performance concerning defects the Purchaser could have discovered during the acceptance of the Goods shall cease to exist upon the acceptance of the Goods in which case the Claim will not be accepted. However, the Seller shall be authorised but no obligated to accept the Claim even in such an event.
7.4 The Buyer hereby acknowledges that the exclusions from the Warranty, the terms and conditions for filing the Claim, and the circumstances under which a Claim will not be accepted as justified shall be governed by the Claims Handling Rules, the contents of which were made known to the Buyer prior to concluding the Purchase Contract.
8. Personal Data Processing
8.1 Any personal data of the Buyer in terms of Section 4 (a) of Act No. 101/2000 Coll., on Personal Data Protection, as amended (the “PDP Act”), which were provided by the Buyer to the Seller in connection with the conclusion and performance of the General Agreement or the Purchase Contract or which were obtained by the Seller in other legitimate ways or, as appropriate, created by the processing of such obtained data (the “Personal Data”), shall be processed by the Seller or by a processer authorized by the Seller for the purposes of using such Personal Data in relation to the Seller’s sphere of business, i.e. for activities directly or indirectly related to the Seller’s commercial activities, including commercial offers and customer care, in automated manner (using computer technology) as well as manually. The Personal Data shall be processed by the Seller throughout the duration of the contractual relationship established by the General Agreement or the Purchase Contract as well as for the period of time required by generally binding legal regulations. The Buyer declares to be aware of the scope, method, purpose and duration of Personal Data processing as defined in the General Agreement, the Purchase Contract and these GCTC and, by signing the General Agreement or the Purchase Contract, the Buyer gives an explicit consent to the Seller with such Personal Data processing. In addition, the Buyer agrees that the Personal Data can be processed and transmitted by the Seller and any other administrator, to be understood as also among them or by third parties (including to a third country), in order to duly perform the General Agreement or the Purchase Contract, improve customer care in relation to the Buyer, perform marketing activities or inform other administrators about the Buyer’s solvency and trustworthiness.
9. Sending of Commercial Communications
9.1 The Buyer hereby acknowledges that commercial communications in terms of Section 2 (f) of Act No. 480/2004 Coll., on Certain Information Society Services, as amended, can be send by the Seller using electronic means to the addresses provided by the Buyer to the Seller in connection with the General Agreement or the Purchase Contract and, by signing the General Agreement or the Purchase Contract, the Buyer gives an explicit consent to the Seller to do so.
10.1 Unless specified otherwise, any and all notices, messages or other communications between the Parties must be made in writing. The Parties shall be obliged to deliver written documents to each other to the addresses indicated in the General Agreement or the Purchase Contract or otherwise notified by the Parties: (a) by personal delivery with receipt confirmation; (b) by registered letter; (c) by a courier service with receipt confirmation; or (d) by e-mail. Any acts affecting the commencement, modification or termination of the General Agreement or the Purchase Contract must be delivered strictly in writing to the address of the registered office or the address indicated in the General Agreement. Any notice shall be deemed duly delivered to the respective Party upon its reaching the addressee’s disposition sphere. Notices shall be deemed to have been delivered under Section 570 of the Civil Code also if the Party that is the addressee intentionally frustrates their delivery. Notices sent with the use of a postal services provider shall be deemed to have been delivered on the third (or the 15th in case of notices sent abroad) business day following their dispatching.
10.2 The Parties undertake to notify each other in writing and without delay on any changes in any data indicated in the General Agreement or the Purchase Contract. In the event that either of the Parties violates this obligation, any correspondence sent to the last known address of such Party shall be deemed to have been delivered although the recipient is no longer staying at that address and, consequently, has not had the opportunity to make itself acquainted with the contents of the shipment.
11. Final Provisions
11.1 The General Agreement and the Purchase Contract (including the relationships arising therefrom) shall be governed by the laws of the Czech Republic.
11.2 The Parties undertake to settle any and all mutual disputes related to the General Agreement or the Purchase Contract in an amicable way. In the event that an amicable settlement cannot be reached within thirty (30) days after the date when either of the Parties informed the other Party in writing about the rise of a dispute and requested an amicable settlement thereof, such dispute or controversy shall be finally settled by three (3) arbitrators of the Arbitration Court attached to the Economic Chamber of the Czech Republic and the Agricultural Chamber of the Czech Republic, having its seat in Prague (the “Arbitration Court”), in accordance with the Rules of the Arbitration Court. The place of venue of the arbitration shall be Prague. The arbitration proceedings shall be held in Czech language. Each Party shall appoint one (1) arbitrator. Within thirty (30) days after their appointment, the two (2) arbitrators appointed by the Parties shall appoint a third arbitrator to act as the chairman of the arbitration panel. If either of the Parties fails to appoint an arbitrator within the period of thirty (30) days after the receipt of the request of the other Party to appoint an arbitrator, or if the already appointed arbitrators fail to appoint a third arbitrator within the period of thirty (30) days after the appointment of the second arbitrator, the respective arbitrator(s) shall be appointed by the Chairman of the Arbitration Court. The arbitration award shall be binding for the Parties. The Parties undertake to comply with the obligations arising from the arbitration award. This arbitration clause shall be enforceable separately. In the event that certain disputes are excluded from the jurisdiction of the Arbitration Court pursuant to the applicable legal regulations of the Czech Republic, they shall be settled before the competent court.
11.3 These GCTC shall be valid and effective as of 1 January 2015.