Sales and Delivery General Terms and Conditions of KOVACO, spol. s r. o.
1. Introductory provisions
- The subject of these Sales and Delivery General Terms and Conditions of KOVACO, spol. s r. o. (hereinafter referred to as “SDGTC”) is a regulation of relations between the Manufacturer – KOVACO, spol. s r. o., with its registered office at Mostová 2, 811 02 Bratislava – Old Town, Company ID No.: 36 038 911, registered in the Commercial Register of the Municipal Court Bratislava III, Section: Sro, Insert No. 167483/B (hereinafter referred to as the “Manufacturer”) and a natural person, a natural person – entrepreneur, or a legal person as a customer (hereinafter referred to as the “Customer”) in the sale of a product or the creation of a work by the Manufacturer (hereinafter referred to as the “Delivery” or the “Product”).
- The SDGTC shall form an annex to and an integral part of the framework agreement, contract (hereinafter referred to as the “Contract”), binding purchase order or quotation. Confirmation of a binding order by the Customer constitutes the Customer’s acceptance of these SDGTC without any reservation. No other special conditions shall take precedence over the SDGTC unless accepted in writing by the Manufacturer.
- The contractual terms and conditions for the supply of services by the Manufacturer shall always be governed by a separate contract. If a separate contract addresses an issue differently from the SDGTC, the provisions of the contract shall prevail.
- Any deviation from these SDGTC shall only be valid if agreed in writing by the Manufacturer. Any changes to these SDGTC may only be agreed in writing. The Customer’s SDGTC application is excluded.
- The purchase or other terms and conditions of the Customer shall not be taken into account. This does not apply if the Manufacturer has specifically accepted them in writing. Any requirement or condition of the Customer that is inconsistent with this SDGTC is void.
- The parties are bound by the following order of precedence:
- the provisions contained in the text of the Contract,
- Incoterms® 2010 (unless otherwise specified in the Contract),
- Council Directive 2006/112/EC on the common system of value added tax,
- legal regulations of the Slovak Republic, in particular, the Slovak Commercial Code.
2. Proposal for the conclusion of a Contract
- The Manufacturer submits a Contract proposal to the Customer in a quotation, which usually specifies the type and quantity of the Product offered, as well as the expected delivery date of the Product. The quotation shall be in writing and shall be valid for the period defined in the quotation, normally not exceeding 7 calendar days from the date of submission.
- The proposal to conclude a Contract shall lapse if it has not been accepted by the Customer within the specified period.
- The Customer is not entitled to provide the Contract proposal, or parts thereof, to a third party without the Manufacturer’s consent.
- The Manufacturer creates a binding order on the basis of a quotation accepted by the Customer.
- Pricing information provided orally, by telephone, as well as information obtained via the Internet relating to Product prices, is indicative only and shall not be deemed to constitute a proposal for the conclusion of a Contract.
- Quotations made by the Manufacturer prior to confirmation of a binding order are non-binding and the Manufacturer is not obliged to enter into a Contract with the Customer under these conditions.
- The Manufacturer is not obliged to confirm a binding order.
3. Conclusion of the Contract
- The Contract means an agreement for the delivery of a Product entered into between the Customer and the Manufacturer within the meaning of the provisions of this SDGTC.
- The Contract under these SDGTC is concluded at the moment when the Customer delivers a signed/confirmed binding order to the Manufacturer within a specified period of time, which is in full compliance with the Manufacturer’s previous quotation. A binding order shall be deemed to be duly completed if it contains the following information: quotation number, Contract identification or other identification if issued by the Manufacturer, precise identification of the type and quantity of the Product ordered, purchase price of all items and the price for delivery of the Product if the Manufacturer provides the transportation of the Product on the basis of the quotation or a valid written agreement, the Customer’s business name, address of the Customer’s registered office / place of business, Company ID number, Tax ID number and VAT ID number if the Customer has one, e-mail and telephone contact of the Customer, name and surname of the contact person for the Customer, address and place of delivery of the Product.
- In the event that the Customer delivers a binding order to the Manufacturer without the Manufacturer’s prior specific quotation, or does not match the previous specific quotation, the Contract shall be deemed to be concluded at the moment when the Manufacturer confirms the Customer’s acceptance of the binding order.
- The Manufacturer shall consider the dates and the delivery terms and conditions specified in the confirmation of the binding order accepted by the Customer.
- All notifications and clarifications of the parties in the negotiation of the Contract or its implementation always require a written form, in which case electronic communication is sufficient if properly addressed. The above also applies to the delivery of invoices to the Customer, as well as to the delivery of any Product complaints to the Manufacturer. It is the Customer’s responsibility to notify the correct address and any changes in address.
- The Contract may also be concluded by electronic means using a guaranteed electronic signature, if the Customer has one.
- Product ordered incorrectly is non-refundable. Additional changes to the concluded Contract are only possible with the prior consent of the Manufacturer. The Manufacturer may agree to the return of a Product ordered incorrectly. In this case, the Manufacturer is entitled to demand from the Customer the payment of a contractual penalty of 25% of the purchase price if it is a standard Product, and 70% of the purchase price if it is a special Product design, non-standard designs or outgoing types.
- In the event that the Customer withdraws from the binding order before the Product is delivered, it is obliged to pay the Manufacturer a contractual penalty of 25% of the purchase price for the ordered Product if it is a standard Product, and 70% of the purchase price if it is a special Product, non-standard designs or outgoing types, from the order of which it withdraws, no later than the date on which the Product should have been delivered in accordance with the binding order.
4. Price and payment terms
- The Manufacturer is subject to VAT. VAT will be added to the purchase price at the legal rate.
- The price shall be determined in accordance with Incoterms® 2010 (EXW Veľká Lehota, unless otherwise specified in the Contract), based on the agreement of the parties. No amount may be deducted from the payment of the price of the Product.
- All Product prices and any other costs are quoted in Euro currency excluding VAT. The prices of the Product do not include the cost of shipping and packaging and any other services covered by the Manufacturer’s terms of delivery (hereinafter referred to as the “Delivery Terms and Conditions”) pursuant to Article 5.
- The amount of the purchase price stated in the binding order is determined in accordance with the current and valid price list of the Manufacturer or the valid price offer sent by the Manufacturer. The Manufacturer is entitled to grant the Customer a discount on the purchase price at its discretion. The value of the purchase price, agreed by acceptance of a binding order or otherwise agreed, is only binding provided that the Manufacturer procures raw materials and services at a price corresponding to its calculation at the time of delivery of the Product. This provision takes precedence over contractual arrangements between the Customer and the Manufacturer.
- In the event of justified and demonstrable changes in the price of energy, raw materials, performance or legislative changes affecting the price of the Product, the Manufacturer shall have the right to unilaterally adjust the price of the Product by written notice to the other party.
- Where the transport of the Product is provided by the Manufacturer, the amount of the costs associated with the transport of the Product shall be governed by the Delivery Terms and Conditions in Article 5 or as agreed between the Customer and the Manufacturer. In the event of any increase or decrease in current market freight rates of more than five percent (5%), the Manufacturer shall be entitled to unilaterally make the same change in freight rates, by written notice delivered to the Customer.
- The Customer shall without undue delay also pay the Manufacturer other customary costs and charges communicated to him/her by the Manufacturer, in particular, the price of the packaging of the Product, handling charges, including administrative charges, if any. The purchase price shall further mean the price for the Product including costs as set out in this clause.
- The purchase price is payable within the time and in the currency specified on the Manufacturer’s invoice.
- The Manufacturer will send the invoice to the postal or e-mail address provided by the Customer. Failure to deliver the invoice to the Customer due to non-notification of change of address, the change of e-mail address or any other reason not attributable to the Manufacturer shall not affect the due date of the invoice, in which case the invoice shall be deemed to have been received on the third working day from the date of dispatch.
- The Manufacturer is entitled, before fulfilling the obligation to deliver the Product by means of an advance invoice, to call upon the Customer to pay an advance payment of the purchase price, the transport costs, if the transport is provided by the Manufacturer, and other related payments, up to their full amount. The Manufacturer is not obliged to deliver the Product until payment has been duly made and is not in default of this obligation.
- The Manufacturer reserves the right to require from the Customer an advance payment of up to 100% of the agreed price.
- In the event that partial payment is agreed in advance, an advance invoice will be issued, payable within 14 calendar days of the date of issue, unless otherwise agreed. Such an advance payment shall not be considered as a deposit.
- The Customer shall make invoice payments in EUR to the Manufacturer’s bank account indicated on the relevant invoice. All fees and other costs associated with making a payment shall be borne by the Customer.
- The Customer is not entitled to reduce the payment or to make the payment conditional on the fulfilment of conditions not expressly agreed in the Contract.
- The date of payment by the Customer shall be deemed to be the date on which the agreed amount is credited to the Manufacturer’s bank account. If, in relation to the bank which is decisive for the day of payment, the last day of payment of the invoice falls on Saturday, a public holiday or a bank holiday, the last day of payment of the invoice is the next working (banking) day after the weekend, after a public holiday or after a bank holiday of the bank in question.
- The Customer acquires the ownership right to the delivered Product only upon full payment of the purchase price. Unilateral set-off or assignment of the Customer’s claims against the Manufacturer is only valid with the prior written consent of the Manufacturer.
- In the event of non-payment of the price of the Product by the Customer within the agreed due date, the Manufacturer is entitled to charge the Customer default interest at the rate of 0.05% of the unpaid amount for each day of delay.
- The Manufacturer shall be entitled to payment by the Customer of a contractual penalty (in addition to full claimed damages) in the amount of twenty percent (20%) of the price of the total volume of the Product under the Contract for each individual breach of the Contract by the Customer, payable on the day following the date of delivery of the contractual penalty invoice to the Customer.
- If the Customer fails to fulfil his/her obligations under the Contract (e.g., fails to pay an advance payment or other invoice on time), the Manufacturer shall be entitled to:
- suspend other deliveries,
- postpone the performance of its obligations until the Customer has fulfilled its obligations,
- withdraw from the Contract and claim damages.
5. Delivery Terms and Conditions
- The Delivery Terms and Conditions shall be determined in accordance with Incoterms® 2010 (EXW Veľká Lehota, unless otherwise specified in the Contract), based on the agreement of the parties.
- Before concluding the Contract with the Manufacturer, the Customer is obliged to indicate the valid VAT identification number (if assigned) under which the Product will be purchased (VAT ID number) when delivering the Product within the territory of the Slovak Republic (hereinafter referred to as the “SR”), as well as when delivering the Product intracommunity to the Member States of the European Union (hereinafter referred to as the “EU”). The Customer is obliged to immediately notify the Manufacturer in writing of any change or cancellation of the Customer’s VAT ID number. If the transport of the Product is arranged or carried out by the Manufacturer, the Customer is obliged to confirm the receipt of the Product delivery directly on the transport document proving the transport of the Product to another EU Member State (except Slovakia). If the transport is arranged or carried out by the Customer, the Customer is obliged to provide the Manufacturer immediately after the delivery of the Product with documentation relating to the transport of the Product (if the transport is arranged by the Customer – the transport document containing the destination of delivery of the Product with the name and signature of the carrier; if the transport is carried out by the Customer – the Customer’s confirmation that it has transported the Product and received it in another EU Member State with the legally required particulars: name and address of the Customer, quantity and type of the Product, address of the place and date of completion of the transport, name and surname of the driver of the motor vehicle in block letters and his/her signature, and registration number of the motor vehicle; in the case of export of the Product outside the EU – SAD (Single Administrative Document – JCD in Czech) of export of the Product by truck certified by the competent customs office). At the end of the calendar month, the Manufacturer shall issue a receipt for the Product, which shall include a list of all deliveries of the Product for the calendar month during which the Product was delivered to the Customer, unless otherwise agreed by the parties (e.g., electronic data transmission). This document must be acknowledged by the Customer within five (5) days of receipt and returned to the Manufacturer. If the Customer is in breach of its obligations set out in paragraph 5.2, the Customer shall pay the additional VAT and penalties levied on the Manufacturer by the relevant tax authorities no later than ten (10) days from the date of delivery of the Manufacturer’s invoice to the Customer.
- In the case of deliveries of a Product to a Customer who is subject to VAT in another EU Member State, if the delivery condition is according to Incoterms® 2010 with an agreed place of delivery in Slovakia, the Manufacturer will invoice the delivery of the Product with Slovak VAT if, at the moment of issuing the invoice, the Manufacturer does not have available from the Customer a declaration of transport or a transport document proving the transport of the Product to another EU Member State.
- If the Customer submits to the Manufacturer documents confirming the transport of the Product to another EU Member State and yet does not transport the Product to another EU Member State, but carries out reworking, modification or otherwise increasing the value of the Product on the territory of the Slovak Republic, and subsequently the tax administrator assesses the Manufacturer additional VAT and imposes a penalty on account of failure to prove the delivery to another EU Member State, the Customer undertakes to pay the additional VAT as well as the assessed penalty in the form of compensation to the Manufacturer in full within ten (10) days of receipt of the bill by the Customer.
- If the export of the Product to a third country (outside the EU) is arranged by the Customer, the Customer is obliged to execute the export no later than by the end of the sixth (6th) calendar month following the month in which the invoice was issued. If the Product is not exported within the stipulated period, the Manufacturer will additionally apply the relevant VAT to the price according to laws in force in the Slovak Republic. The Customer undertakes to pay the additional tax as well as any penalty levied by the tax authority for late payment of VAT as compensation to the Manufacturer in full within ten (10) days of receipt of the invoice by the Customer.
- If the deliveries of the Product to the Customer will be made in a combined manner (both directly and through a warehouse), the VAT ID number assigned in the Slovak Republic will be used by the Manufacturer for direct deliveries of the Product, and the VAT ID number of the country where the warehouse is located will be used for deliveries through a warehouse located in an EU Member State where the Manufacturer is registered as a VAT payer.
- The Manufacturer shall not be obliged to deliver the Product to the Customer unless the Customer provides the Manufacturer with one or more of the following warranties upon the Manufacturer’s request: an irrevocable bank guarantee; an irrevocable documentary letter of credit; a promissory note; payment in advance; a corporate guarantee; or other form of security approved in writing by the Manufacturer or as agreed in the Contract.
- The Manufacturer shall not be obliged to deliver the Product to the Customer and shall have the right to cease Production of the Product ordered or to withdraw from the Contract if the Customer is in default in the payment of any claims of the Manufacturer (irrespective of their legal title) against the Customer under any contract. Such action shall not be deemed to be a default by the Manufacturer.
- If the Customer is in default of payment of the price of the Product, the Manufacturer is entitled to unilaterally change the payment terms, and, at the same time, the Manufacturer reserves the right to regain possession of the Product or re-export the Product. The Customer is obliged to provide the Manufacturer with all assistance required by the Manufacturer to regain possession of the Product or to re-export the Product. The cost of regaining possession of the Product or re-exporting the Product will be for the account of the Customer.
- In the event of a complaint, the Customer is not entitled to withhold any payments to the Manufacturer or the Product to be returned to the Manufacturer or to unilaterally set off his/her claims against the Manufacturer. The Customer’s claim(s) shall be dealt with separately in such a way that it does not affect the Customer’s obligation to pay the Manufacturer the purchase price for the Product on or before the agreed due date.
- Partial deliveries of the Product are permissible.
- Delivery times are only binding if they have been expressly confirmed by the Manufacturer in the Contract or order confirmation in individual cases, but not before the Manufacturer has received all information and documents from the Customer for the proper performance of the Contract.
- Unless otherwise agreed in writing, the place of Delivery of the Product shall be the Manufacturer’s registered office. The Manufacturer shall allow the Customer to take over the delivery at the Manufacturer’s place of business on the agreed date. The moment of delivery shall be deemed to be the acceptance of the Product by the Customer.
- If the Customer undertakes to arrange for the transportation of the Product, the Customer is obliged to take over the delivery of the Product from the Manufacturer within five (5) days from the date of receipt of the notice from the Manufacturer.
- If the Customer violates the previous paragraph 5.14, the Manufacturer is entitled to:
- dispatch the Product at the Customer’s expense and risk; or
- store the Product at the Customer’s expense and risk in the Manufacturer’s warehouse or in the warehouse of any third party. In the case of storage of the Product in the Manufacturer’s warehouse, the Manufacturer is entitled to charge the Customer storage costs of 0.1% of the purchase price for each day of storage. In the case of storage of the Product in the warehouse of a third party, the Manufacturer shall be entitled to charge the Customer for the storage costs charged by such third party.
- The Customer is obliged to inspect the delivery of the Product before taking it over and to inform the Manufacturer immediately by telephone in the event of a discrepancy between the information given in the Delivery note, invoice or in the event of damage to the Product or its packaging, which may have been caused by the carrier, being detected.
- The Customer is obliged to inform the Manufacturer in writing of any apparent defects in the Product no later than within three working days after delivery of the Product. Later claims of this kind will not be accepted by the Manufacturer.
- Clause 5.17 does not apply in the case of personal collection of the Product by the Customer at the place of delivery.
6. Transport aids and transport layout
- Waterproof tarpaulin, stops, wooden pallets and any other packing material of the Product are non-returnable transport aids and the cost of their disposal and storage is at the Customer’s expense.
7. Warranty and liability for Product defects
- The Manufacturer produces the Product according to agreed (international, domestic or other) technical specifications for dimensional, mechanical, physical, surface or other agreed characteristics. In order for the technical specifications and/or any other additional requirements of the Customer to be contractually binding, they must be clearly set out in the Contract. Only such technical specifications shall be contractually binding on the Manufacturer in relation to the quality and characteristics of the Product, and, at the same time, no other warranties or obligations of the Manufacturer in relation to the quality and characteristics of the Product shall arise.
- The Manufacturer warrants that the delivered Product will be fit for use for the agreed, otherwise usual purpose for at least 24 months from the date of delivery, or that it will retain the agreed, otherwise usual characteristics, unless otherwise stated in the datasheet or the User Manual for operation and maintenance.
- The Customer is obliged to inspect the Product, or arrange for its inspection as the case may be, as soon as possible after delivery of the Product. The Customer must notify the Manufacturer by telephone of any damage to the Product immediately after receipt of the Product. The Customer must inform the Manufacturer in writing of any apparent defects in the Product no later than 3 working days after their discovery.
- The Customer is obliged to store the defective Product at his own expense for a reasonable period of time, at least 30 days from the notification of the defect, for the purpose of examination of the defect by the Manufacturer or a third party designated by him. The elimination of Product defects by the Customer before the Product has been examined by the Manufacturer is a reason for the non-recognition of the Product defect claim or the rejection of the claim by the Manufacturer. The same shall apply mutatis mutandis if the Product is sent to a third party for examination by the Customer prior to the examination of the Product by the Manufacturer.
- The use of the Product must comply with the relevant legislation. The Customer is fully responsible for compliance with the legislation applicable to the use of the Product.
- The Manufacturer is not responsible for defects in the Product caused by:
- failure to comply with the recommendations for the Customer in the User Manual for operation and maintenance.
- substandard, unqualified, or improper storage, use, installation, or testing of the Product,
- reasons related to the assembly of the Product with another unauthorised Product,
- attempts to modify or repair the Product without prior written authorization from the Manufacturer,
- reasons related to improper handling, transport or storage of the Product; or
- for any reason other than the normal use of the Product.
- The warranty is only valid provided that the Customer notifies the Manufacturer in writing of any defects without undue delay.
- The warranty shall terminate immediately if the Customer or a third party fails to comply with the proper storage requirements of the Product, makes modifications or repairs to the Product or any part thereof without the prior written consent of the Manufacturer.
- The Manufacturer shall not be liable for any damages in the event of non-compliance with the instructions for storage, assembly, operation and commissioning.
- In the event of damage caused by either party, the injured party shall not claim compensation for loss of profit. In the event of a legitimate claim within the warranty period, the Product will be repaired or replaced by the Manufacturer at its option. The repair of the defective part or replacement with a new one will be carried out within 30 days after the Customer has been notified of the method of handling the complaint.
- In the event of an unjustified claim, the Manufacturer is entitled to reimburse the Customer for the costs incurred in connection with the assessment of the claimed Product defect, in particular, the costs of laboratory tests of the Product, transportation of the Product and personnel costs.
- No Product complaint shall entitle the Customer to refuse to make payment or to refuse to take over further deliveries from the Manufacturer.
- The Manufacturer’s liability to the Customer in the event of damages is limited to the amount of the price paid by the Customer to the Manufacturer under the relevant Contract.
- Further information about Warranty and Complaints Conditions, which are an integral part of the Sales and Delivery General Terms and Conditions, is available on the Manufacturer’s website at https://www.kovacocompany.com/dokuments/.
8. Installation and commissioning
- The Manufacturer shall not provide instruction, installation and other activities related to the use of the Product unless agreed in writing by the parties.
- If the delivery of the Product according to the Manufacturer’s offer also includes delivery of services consisting in the installation of the Product, the Customer is obliged to provide the necessary cooperation, in particular, to provide an authorized person for the time and place of installation agreed in writing. The obligation to deliver the service shall be deemed to be fulfilled on the date of commissioning of the installed Product.
- The Customer is obliged to provide the following at the agreed time of installation:
- the installation location and, in particular, the power source and operating environment required in the Manufacturer’s User Manual for operation and maintenance for the Product,
- a competent contact person to work with the Manufacturer’s technicians during installation,
- in the case of a requirement to connect to the computer network of an IT specialist,
- unrestricted access to the installation site by the operator’s technicians.
9. Force Majeure
- Neither party shall be liable for delay or for total or partial non-performance of its obligations under the Contract to the extent that performance is prevented, delayed or hindered as a result of an event of an exceptional nature beyond the reasonable control of the party concerned which could not reasonably have been foreseen or avoided, including events such as: acts of God, wars, military operations of various kinds, riots, civil commotions, sabotage, revolutions, acts of piracy, explosions, fires, floods, general strikes, lockouts, official interventions of a legal or illegal nature, or other circumstances occurring independently of the party’s will, beyond the party’s control, which could not have been prevented, or which could not have been averted or overcome (each such event hereinafter referred to as a “Force Majeure Event”).
- A party affected by a total or partial inability to perform its obligations under the Contract as a result of a Force Majeure Event shall notify the other party in writing of the occurrence/termination of such Event by e-mail notification within ten (10) days of the occurrence/termination, and such a notification is to be confirmed by the original notification sent within a further ten (10) days. Upon request, the affected party shall produce a certificate of such Force Majeure Event issued by the local Chamber of Commerce or prove its existence by other credible means.
- In the event that the Force Majeure Event lasts less than sixty (60) consecutive calendar days, the parties shall retain their rights and obligations under the Contract and the time for performance of such obligations, as well as the term of the Contract, shall be extended for the duration of such Force Majeure Event.
- In the event a Force Majeure Event continues for sixty (60) or more consecutive calendar days, either party shall be entitled to terminate the Contract effective upon receipt of such notice by the other party, without any right or obligation to recover damages, except for damages occurring prior to the commencement of such Force Majeure Event or damages unrelated to such Force Majeure Event.
- A party that fails to give notice to the other party as required by paragraph 9.2 shall be liable to compensate the other party for any damages caused by the breach of this obligation.
10. Confidentiality of information, promotion
- The Manufacturer shall treat any data referred to in the Contract and any information or documents provided to the Customer in connection with the Contract as confidential and the Customer agrees not to disclose or allow access to such data or documents in any form to any third party, except as required by law, court order (including arbitration), governmental authority or the Manufacturer’s insurance policy. Disclosure of the above information to tax, legal or other advisors, consultants, auditors or insurers of the Manufacturer who are bound by professional or contractual obligations of confidentiality shall not be deemed a breach of this provision.
- The Manufacturer shall not be responsible for compliance with the laws in force in the country of importation or transit of the Product, except where such compliance is expressly provided for in the Contract.
- The Customer is not entitled to mention the Manufacturer as its business partner or to use the Manufacturer’s trade name or logo in promoting itself or its business or in statements to the media, in any form, without the Manufacturer’s prior written consent.
- The Customer acknowledges that the Manufacturer, within the framework of the Customer Relationship Management (CRM) system, in order to continuously improve the quality of services provided to Customers and Customer satisfaction, records the entire sales process from the first contact with the Customer, in particular, through the automated archiving of all bilateral e-mail communication, in accordance with applicable law.
11. Economic sanctions
- The Customer represents and warrants that, with respect to its obligations under the Contract and any other agreement with the Manufacturer, it is currently in compliance and will continue to be in compliance with the laws, regulations and implementing orders issued and/or mandated by (i) the Slovak Republic or (ii) the EU and its authorities or (iii) the United Nations Security Council or (iv) the Office of Foreign Assets Control (“OFAC”) of the U.S. Department of the Treasury (see: www.treasury.gov/resource- centre/sanctions/Pages/default.aspx), which prohibit, among other things, entering into transactions with/and providing services to certain foreign countries, territories, entities and individuals. The Customer represents and warrants that neither the Customer nor any person who benefits from the Customer is (i) a person listed on the list of Specially Designated Nationals and Blocked Persons (“SDN List”) published by OFAC or any other similar list issued by any of the aforementioned regulatory authorities (“Listed Person”) or (ii) a department/office, agency or representative, or is not otherwise directly or indirectly controlled by or acting on behalf of any Listed Person or the government of a country subject to aggregate economic sanctions ordered by any of the foregoing regulatory authorities (each Listed Person and each other entity and country described in clause (ii) is referred to as a “Blocked Person”).
- Customer further represents and warrants that any Product or service it receives from Manufacturer does not involve, require the cooperation of, relate to, or involve, in whole or in part, any Blocked Person or its property or its Products.
- The Customer hereby acknowledges and agrees that the Customer’s breach of any term of this clause at any time during the term of the Contract shall be deemed to be a material breach of the Contract.
- Customer hereby agrees to indemnify, defend and hold harmless Manufacturer and its statutory agents, directors/officers and employees from and against any and all claims, demands, damages, expenses, fines and penalties arising in connection with any alleged breach of this representation and warranty by Customer or its agents. Manufacturer may refuse, suspend or cancel any transaction for a Blocked Person without penalty or payment for the refused, suspended or cancelled Product or service, and/or withdraw from or terminate the Contract or any other agreement with the Customer, in whole or in part, if (i) Customer or its agent has breached the foregoing representation and warranty, or (ii) Manufacturer believes in good faith that Customer or its agent intends to breach the foregoing representation and warranty, and Customer fails to provide reasonable and satisfactory assurance, without unreasonable delay, in response to Manufacturer’s demand, that it is acting in full compliance with this article. The Customer shall pay all penalties and damages incurred as a result of a breach of the terms and conditions set out in this clause.
12. Anti-corruption commitments
- Customer represents that neither it nor any of its owners, directors, employees, nor any other person acting on its behalf, in connection with the acts and transactions contemplated by the Contract or in connection with any other business transactions involving Manufacturer, has made and will make, has offered and will offer, or has promised and will not promise to make, any payment or other thing of value, directly or indirectly, to (i) any governmental official; (ii) any political party, political party official, or candidate for office; (iii) any third party with knowledge or suspicion that such payment or thing of value will be made, offered, or promised, in whole or in part, to any of the foregoing; or (iv) any person or entity if such payment or transfer would violate the law of the country in which it is made or the law of the Slovak Republic, the EU, or the U.S. It is the intention of the parties that no payment or transfer of money or anything of value shall be made with the intent or effect of public or commercial corruption, acceptance or acquiescence in extortion, bribery or other illegal or dishonest means of obtaining business. However, this article does not prohibit the giving of business gifts of trivial value or the giving of standard and customary business hospitality, provided that any such gift or hospitality is lawful in the state in which it is given, is offered for a legitimate business reason, is justified by the circumstances, and is not given for any dishonest or corrupt purpose. For the purposes of the Contract, the term “Government Official” shall mean any officer or employee of (i) any local, state, regional or national government/administration or any ministry/state or administrative body, agency or representative thereof, (ii) a corporation wholly or partly owned or controlled by a government or state or administrative body, or (iii) a public international organisation, or any other person acting officially for or on behalf of such government or ministry, state or administrative body, representative, corporation or public international organisation.
- The law implementing the Organisation for Economic Co-operation and Development Convention on Combating Bribery of Foreign Public Officials in International Business Transactions (the “OECD Convention”), including Slovak anti-corruption legislation and the US Foreign Corrupt Practices Act (together, the “relevant anti-corruption legislation”), prohibits direct and indirect bribery and attempted bribery of public officials. Both parties are aware of, understand and agree to comply with the relevant anti-corruption legislation and agree not to take any action that would constitute or cause a breach of the relevant anti-corruption legislation or a breach of law of any other country prohibiting the same type of conduct.
13. Withdrawal from the Contract
- Either party will be entitled to withdraw from the Contract by written notice if:
- the other party has repeatedly violated the Contract,
- or the other party has materially breached the Contract. A material breach of the Contract shall be understood, in particular, as a breach of the payment terms, delay by the Customer in payment of any claims of the Manufacturer (regardless of the legal title of their origin) against the Customer under any Contract, breach of the obligation to ensure payment of the purchase price of the Product or failure to take delivery of the specified quantities of the Product within the agreed time limits, as well as failure to provide cooperation in the delivery of the Product,
- or for the reasons set out in the Contract.
- Withdrawal from the Contract shall terminate the Contract at the moment when the expression of will of the entitled party is delivered to the other party. After this act, the effects of the withdrawal cannot be revoked or modified without the written consent of the other party.
- In the event of the Manufacturer’s withdrawal from the Contract, the Customer shall be obliged to deliver the Product to the Manufacturer at its own expense. In the event of failure of the Customer to comply with this obligation, the Manufacturer is entitled to arrange for the return of the Product at the Customer’s expense.
- The Customer is obliged to return the Product to the Manufacturer in its original condition, i.e., in the condition on the date of receipt of the Product, taking into account normal wear and tear. In the case of returning a Product with defects, damage or wear and tear precluding the resale of the Product, the Customer is obliged to pay the amount corresponding to the purchase price of the returned Product after returning the Product.
14. Final provisions
- Any prior agreements or representations of any nature made between the parties relating to this SDGTC are superseded by this SDGTC.
- Each party shall promptly notify the other party in writing of any changes to its trade licence or changes to its business register details which directly affect the terms and performance of the Contract, or any formal commencement of liquidation, insolvency or other similar proceedings.
- Amendments to the Contract shall be in writing, signed by duly authorised representatives of both parties.
- Legal relations arising out of the Contract, not governed by the Contract, as well as non-contractual claims arising in connection with the Contract shall be governed in their entirety by the law of the Slovak Republic without regard to other principles of its conflict of laws. The parties agree that the courts of the Slovak Republic shall have exclusive jurisdiction to resolve any dispute arising out of or in connection with the Contract, including, without limitation, disputes concerning the validity, interpretation and termination of the Contract, and any dispute not resolved by agreement between the parties shall be submitted for adjudication to:
- Bratislava III Municipal Court, as the local competent court of the Manufacturer in the Slovak Republic, if the Customer resides or has its registered office outside the Slovak Republic; or
- to the court of the Slovak Republic having jurisdiction in the matter and place of jurisdiction, if the Customer is domiciled or established in the Slovak Republic.
- In the event that any provision of these SDGTC becomes invalid, the other provisions shall remain unaffected.
- The project documentation, technical specifications as well as samples, catalogues and other Products of the Manufacturer remain the intellectual property of the Manufacturer.
- The Customer agrees not to export the Product supplied by the Manufacturer to places prohibited by EU export regulations.
- The rights and obligations of the parties arising from this contractual relationship shall be governed by the relevant provisions of the applicable Commercial Code and the applicable Civil Code.
- The Customer agrees that the Manufacturer may send to the Customer by mail, e-mail, telephone or other means advertising, promotional materials and other information presenting or relating to the Manufacturer, the Products and services provided by the Manufacturer. The Customer is entitled to notify the Manufacturer in writing of his disagreement with the sending of the above information, which the Manufacturer will respect.
These Sales and Delivery General Terms and Conditions of KOVACO, spol. s r. o. replace all previous SDGTC and enter into force as of 1 April 2023.
Bratislava, on: 1 April 2023
managing director of KOVACO, spol. s r. o.