General Terms and Conditions of Business, Delivery and Payment (hereinafter referred to as “GTC”) of KOKINETICS s.r.o.
1 Scope of use, offer and conclusion of contract
1.1 These GTC apply exclusively to all deliveries and services provided by KOKINETICS as a supplier to the Customer, with the exception of consumers. They also apply to all future orders. Conflicting or deviating terms and conditions shall not apply; we already reject them. It also does not apply to future orders, even if KOKINETICS should reject them again in each individual case. Deviations from these GTC only apply if KOKINETICS has expressly agreed to them in writing.
1.2 The offers of KOKINETICS are subject to change. An order signed by the customer constitutes a binding offer. KOKINETICS is entitled to accept this offer within two (2) weeks by sending a confirmation of the order or the ordered goods (in particular the “object of purchase”).
1.3 The GTC can be changed unilaterally by KOKINETICS at any time. These changes will be communicated to the customer.
2 Scope of the obligation to perform
2.1 The written order confirmation by KOKINETICS is decisive for the scope of performance.
2.2 In the interest of technical progress, KOKINETICS reserves the right to make design and form changes until delivery, which, however, must not unreasonably affect the interests of the customer.
2.3 The drawings, illustrations and similar documents contained in the offer are only approximate and non-binding, unless they are marked as binding. Customary deviations, in particular with regard to dimensions, structure, color and weight, are reserved.
3. transfer of risk
Delivery shall be EXW in accordance with ICC Incoterms ® 2010.
4 Delivery time, delay
4.1 The start of the delivery period stated by KOKINETICS presupposes the clarification of all technical questions and is always non-binding.
4.2 A delivery time is met by KOKINETICS if a shipping request is made within the delivery time or the customer has been informed that the goods are ready for shipment.
4.3 In the case of a call-off, KOKINETICS is entitled to ship and invoice the prepared goods within six (6) months at the latest, even if the call-off has not yet been made by the customer.
4.4 KOKINETICS is entitled to make partial deliveries, which are always payable separately within the periods specified in section 5.3. If the payment for the partial delivery is delayed, KOKINETICS may postpone the further execution of the order.
4.5 Unless otherwise agreed, KOKINETICS decides on the means of transport and the transport route, without being responsible for the choice of the fastest or cheapest option.
5 Prices, terms of payment and right of termination
5.1 The prices apply to EXW shipments according to ICC Incoterms ® 2010 and include the applicable statutory VAT. The prices do not include the costs for packaging(s), shipping, customs, border clearance and insurance.
5.2 KOKINETICS reserves the right to increase the price for contracts with an agreed delivery time of more than four (4) months due to higher costs, which mainly consist of collective agreements or material price increases. In addition, KOKINETICS reserves the right to make changes to individual cost components within the total price.
5.3 Invoices are payable within two (2) weeks from the date of issue, without entitlement to a discount.
5.4 Payments are considered timely for KOKINETICS if the requested amount is credited to our bank accounts on the due date.
5.5 If the customer is in default of payment, KOKINETICS is entitled to charge default interest of 5.0% for each day of default on the unpaid amount. The assertion of a higher compensation for default remains unaffected.
5.6 In case of repeated delays in payment, KOKINETICS reserves the right to change the payment method to prepayment.
5.7 We only accept checks and bills of exchange on account of payment and bills of exchange only on the basis of a special agreement. Deductions and bank charges shall be borne by the issuer. Payments are only deemed to have been made when they have been credited in full to our accounts.
5.8 The right of the customer to offset only exists if his counterclaims are legally established, undisputed or recognized by KOKINETICS. In addition, the customer is only authorized to exercise a right of retention insofar as his counterclaim is based on the same contractual relationship.
5.9 KOKINETICS reserves the right to terminate the contract for the following reasons, among others:
1. an insolvency petition is filed against the Client
2. written proof of the Customer’s lack of creditworthiness
3. the customer ceases or threatens to cease its business activities
4. the customer has caused a considerable delay in the delivery date
6. tools
6.1 The tools used for the execution of the order, for which we are entitled to charge part of the tool costs, remain the unrestricted and freely available property of KOKINETICS in all respects, even in the event of invoicing and payment of part of the tool costs. In case of invoicing and payment of a part of the tool costs, we will either not use the tools at all or only with the consent of the Customer for deliveries to third parties. After two (2) years from the last delivery to the Customer, any obligation to retain the KOKINETICS tools expires.
6.2 KOKINETICS undertakes to undertake the replacement of tools (wear parts) on behalf of the customer free of charge up to the agreed maximum production quantity. As soon as this production quantity is reached, we will inform the customer about the necessary replacement measures that will be required due to normal wear and tear. Any costs shall be borne by the customer.
6.3 For the parts or tools provided, whose designer or manufacturer is the supplier, or for the parts or tools that the customer submits to us for use, the customer assumes all liability towards third parties in the event of infringement of property rights and indemnifies KOKINETICS in this respect from liability for claims of third parties, including the costs of any legal dispute.
7 Liability and warranty
7.1 The liability of the customer presupposes that the customer has properly fulfilled his obligation to inspect and has properly exercised his right arising from defective performance.
7.2 Warranty claims shall become time-barred within two (2) years after successful delivery of the goods. The above provisions shall not apply if the law prescribes longer mandatory periods. Our consent must be obtained prior to any return of the goods.
7.3 If, despite all due care, the delivered goods exhibit defects which will be present at the time of the transfer of liability for damage to the goods, we shall, at our discretion, either repair the goods or deliver replacement goods (collectively referred to as “subsequent performance”) after timely notification of defects. We can always provide additional services within a reasonable period of time. Claims for damages remain unaffected by the above provisions. The customer agrees with KOKINETICS that the warranty period mentioned in clause 7.2 is interrupted during the supplementary performance and continues to run after the end of the supplementary performance and does not start from the beginning.
7.4 The liability of KOKINETICS does not arise in the event of insignificant deviation from the agreed quality, in the event of only insignificant impairment of usability, in the event of normal wear and tear and in the event of damage that has occurred after the transfer of risk, as a result of incorrect or negligent handling, excessive use, use of unsuitable equipment or as a result of special external influences that are not provided for in the contract. If the customer carries out improper repairs or modifications, there is no entitlement to a claim for these and as a result of these.
7.5 Claims by the client for expenses incurred for the purpose of subsequent performance, in particular transport, travel, labor and material costs, are excluded insofar as the expenses increase due to the fact that the goods delivered by us have subsequently been moved to a location other than the client’s branch office, unless the transfer corresponds to the original intended use.
7.6 The client has not made any arrangements that go beyond the scope of statutory liability for defects. Insofar as the customer asserts a claim for damages against KOKINETICS, clause 7.5 shall apply in addition.
7.7 Any claims for damages by the customer are limited to 10 percent of the outstanding individual delivery.
7.8 KOKINETICS rejects any claims for damages if the exclusion requirements in the area of liability are met.
8 Intellectual property rights
8.1 We shall be liable for claims arising from the infringement of intellectual property rights or the infringement of a procedure for the registration of intellectual property rights (hereinafter referred to as “intellectual property rights”) if at least one patent belonging to the patent family has been published by the European Patent Office or in the Czech Republic, if: that the delivery item has been used as intended.
8.2 We shall indemnify the customer and its customers against all claims arising from the use of this copyright. This does not apply if we manufacture the delivery item according to drawings, models or equivalent descriptions or orders of the customer and we do not know or do not have to know that property rights are infringed in connection with the results produced by the customer.
8.3 If we do not react in accordance with clause 8.2 sentence 2, the customer shall indemnify us against all third-party claims.
8.4 The client and we mutually undertake to inform each other of the known risks of infringement and suspected cases of infringement and to enable us to take joint action against the respective claims in order to find an amicable solution.
8.6 At the request of the client, we shall inform the client about the use of published and unpublished property rights or property rights granted under license and the application procedures for these rights for the delivery item.
8.7 We are and shall remain the owner of the inventions created by us before the start of the development plan, of the property rights registered or acquired in respect thereof as well as of existing copyrights, utility model rights and know-how (“old property rights”).
8.8 Prior to use, we shall inform the client of the existence of prior property rights and disclose these prior property rights immediately if use is to be expected as a result of the development.
8.9 If prior property rights are required for the creation of the development plan, the client and its customers shall receive a right of use that is unlimited in terms of location and time, free of charge, non-exclusive, irrevocable and non-transferable.
9. reservation of self-supply, force majeure and various restrictions
9.1 If we do not receive deliveries from our sub-suppliers, or do not receive them correctly or on time, or if force majeure occurs, despite proper delivery for reasons for which we are not responsible, we shall inform the supplier in writing in good time. In such a case, we shall be entitled to postpone the delivery of the contractual products for the duration of the hindrance or to cancel the order in whole or in part due to parts not yet delivered, provided that we comply with the obligation to inform us. Force majeure includes strikes, lockouts, official interventions, failures in the supply of energy and raw materials, transport delays through no fault of our own, traffic obstructions due to e.g. fire, water and machine damage as well as all other obstacles for which we are not responsible according to objective assessment.
9.2 If a binding delivery date or a binding delivery period has been agreed and the agreed date or the agreed period is exceeded due to the events referred to in Section 9.1, the Client shall be entitled to withdraw from the order after the expiry of a reasonable period due to the parts of this part of the order that have not yet been fulfilled if the Client cannot objectively be expected to continue with this part of the order. In this case, the client’s other claims, in particular for damages, shall remain unaffected.
10 Limitation of liability
10.1 KOKINETICS is only liable for or in connection with orders of the customer for intent and gross negligence as well as for intent and gross negligence of our legal representatives and vicarious agents. Our liability as well as that of our legal representatives and vicarious agents is excluded for slight negligence, unless it concerns a material breach of essential contractual obligations, personal injury, bodily injury or claims under the Product Liability Act or other mandatory statutory guarantees. Material contractual obligations” are understood to be those which, from a contractual point of view, protect the essential contractual structure of the client, which the contract directly imposes on the client according to its content and purpose. In addition, essential contractual obligations are those whose fulfillment is essential for the proper execution of the contract and on whose compliance the client regularly relies and may rely.
Unless we can be accused of intent, or in the event of personal injury or other cases of statutory liability, we shall only be liable for typical and foreseeable damage.
Liability other than compensation for damages in accordance with clause 10.1 is excluded, regardless of the legal nature of the claim asserted. This applies in particular to claims for damages due to culpa in contrahendo, due to other breaches of duty or for tortious claims for compensation for material damage.
10.2 In the event of our liability under clause 10.1, the maximum amount of our liability for damage to property, indirect damage and other property is limited to one (1) million EUR.
The above maximum liability clause shall not apply if the damage is covered by our liability insurance and the damage is also covered by the insurance, or in the event of a breach of material contractual obligations, personal injury or damage to health or claims under the Product Liability Act or any other statutory liability that cannot be excluded.
11 Retention of title, assignment of claims
11.1 KOKINETICS retains ownership of the delivery items until all payments from the delivery contract have been received. In case of breach of contract by the customer, in particular in case of default of payment, KOKINETICS is entitled to take back the delivery item. Our withdrawal from the purchase item does not mean a withdrawal from the contract, unless we have expressly declared this in writing beforehand. The seizure of the delivery item always means withdrawal from the contract. After taking back the object of purchase, we are entitled to sell it. The proceeds from the sale shall be used to cover the customer’s liabilities – less reasonable costs of the sale.
11.2 The customer is obliged to treat the objects of the delivery with care; in particular, he is obliged to insure these objects at his own expense and up to the value of the new object against fire, water and theft damage. If maintenance or inspections are necessary, the customer is obliged to carry these out in good time at his own expense.
11.3 In the event of seizure or other interventions by third parties, the customer must notify KOKINETICS immediately in writing so that we can take the appropriate action. If the third party is not in a position to bear the judicial and extrajudicial costs, the customer is liable for the damage incurred by us.
11.4 The customer is entitled to resell the object of purchase in the ordinary course of business; however, the customer hereby assigns to KOKINETICS all claims in the amount of the final invoice amount (including statutory VAT) that accrue to him from the sale of the object of purchase, regardless of whether the object of purchase has been sold without or after processing. The assignment of claims to KOKINETICS is hereby accepted by KOKINETICS. The customer is entitled to collect this claim even after the assignment. The right to self-collection of claims remains unaffected. However, KOKINETICS undertakes to begin collecting the claim only if the customer duly fulfills his payment obligations from the collected proceeds, is not in default of payment and, in particular, no application for the opening of insolvency proceedings has been filed or payments have been suspended. However, if this is the case, we can demand that the customer informs us of the assigned claims, provides all information necessary for the collection of the claim, hands over the relevant documents to KOKINETICS and informs the debtor (third party) of the assignment.
11.5 The processing, modification or transformation of the object of purchase by the customer is always carried out in the name and on behalf of KOKINETICS. If the purchased item is processed with other items not belonging to us, we shall acquire co-ownership of the new item in the ratio of the value of the purchased item to the other processed items at the time of processing. The same shall apply in the event of mixing. If the mixing is carried out in such a way that the client’s property is to be regarded as the main item, it is agreed that the client transfers co-ownership to us and that we retain exclusive or proportionate ownership free of charge. In principle, the same shall apply to the items resulting from processing or mixing as to the objects of purchase delivered subject to reservation of delivery.
11.6 The customer shall also assign to us the claims to secure our claims against him which accrue to him against a third party from the combination of the object of purchase with the property. We hereby accept this assignment.
11.7 KOKINETICS undertakes to release the securities to which we are entitled at the request of the Customer insofar as the value of the securities for the secured claim exceeds more than 20% (20/100); KOKINETICS is responsible for selecting the securities to be released.
11.8 Retention of title and other property rights attributable to KOKINETICS until the complete release of any liabilities that we have entered into in the interest of the customer.
12 Place of fulfillment, place of jurisdiction, applicable law, miscellaneous
12.1 KOKINETICS is entitled to assign claims arising from our business relationship.
12.2 Place of performance for payments and place of jurisdiction for both parties as well as for all present and future claims arising from or in connection with this business relationship is exclusively Kamenice nad Lipou. However, KOKINETICS is entitled to sue the customer at his registered office at the locally and factually competent court.
12.3 All legal relations between KOKINETICS and the Customer shall be governed exclusively by the laws of the Czech Republic, excluding the conflict of law rules and the United Nations Convention on Contracts for the International Sale of Goods.
12.4 The invalidity of any provision of these GTC shall not affect the validity of the remaining provisions. In place of an invalid provision, a valid provision that comes as close as possible in economic terms to the provision actually agreed shall apply as agreed. This also applies to blanks.
Status: August 2019