GENERAL TERMS AND CONDITIONS OF PURCHASE
OF GOODS AND SERVICES
GENERAL TERMS AND CONDITIONS OF PURCHASE OF
GOODS AND SERVICES
These General Terms and Conditions apply to any Contract/Order between the
Buyer and the Seller concerning supply of Goods and / or Services and they will
form its integral part thereof and will replace at the same time any prior oral
agreement between the Buyer and the Seller and any conflicting terms specified in
the Seller’s quotation, in the Order acceptance, in correspondence or otherwise or
based on business custom and practice or negotiations are of no force or effect.
Neither Buyer nor Seller is bound by any exception or cancellation going over
these Conditions unless these modifications are agreed by both parties in a
written agreement signed by their authorized representatives.
Contracts/Orders concluded between the Buyer and the Seller are binding also for
legal successors of both parties.
1
DEFINITIONS
The “Buyer” means Meopta – optika, s.r.o., company identification No.: 47677023,
with its registered business at Kabelíkova 1, Přerov, post code 750 02. The “Seller”
means a person or a company to which the Order is addressed. The “Goods”
means an article or material which is to be supplied to the Buyer by the Seller. The
“Services” means the Services to be provided by the Seller for the Buyer. The
“Specifications” means technical description (if any) of the Goods and / or
Services specified in the Order and / or in any related time schedules, drawings
and specifications and other documents connected with the Order. The “Order”
means the Buyer’s Order for supply of Goods and / or Services. The “Contract”
means an agreement between the Buyer and the Seller concerning supply of
Goods and / or Services.
2
ORDERS
2.1
The Buyer is not bound by the Order unless it is made on its official Order form,
contains a reference number and issued by an authorized person.
2.2
Confirmation by Seller is always required within 2 working days, not only in the
event the Seller wants to propose amended specifications, quantities, price or
dates of delivery contained in the Order. The Seller hereby confirms, by confirming
an Order that it has all the appropriate necessary drawings, documents and
Specifications necessary to complete the Order.
2.3
3
3.1
4
Before or after receipt of confirmation of the Order from the Seller the Buyer has
the right to amend quantity, quality or design of the Goods or character or
method of providing Services by written notification sent to the Seller. The price
and the dates of delivery shall be amended as reasonably appropriate taking into
consideration the increase or decrease of costs of the material and / or production
and other relevant factors. The Buyer must approve these Seller’s amendments,
which must be supported by appropriate documents and presented within 2
working days from the Buyer’s request for a change of the Order.
STAY OF THE ORDER
The Buyer may stay the Order of undelivered Goods or Services or portions
thereof at any time and without any cause upon a written notification sent to the
Seller. In case of this stay the Seller is obliged to stop all production of the stayed
Goods/Services immediately. The Buyer shall inform the Seller of possible
continuing the production.
PRICE
4.1
The Price specified in the Order of the Goods and / or Services is a fixed price and
is not subject to any changes unless they are approved in writing by Buyer ´s
authorized representative. If the Order does not contain a specified price the Price
is meant to be the Price specified in the Seller’s price list after deducting agreed
conditions / discount valid as on the day when the Order was received.
4.2
If the Seller offers or sells the Goods or provides the Services to any third party for
a price lower than the price offered to the Buyer or the price contractually agreed
with the Buyer, the Buyer has the right to buy such item or Services for this lower
price and it also has the right in credit in the amount of difference between the
contractual price and the lower price in relation to all the items purchased by the
Buyer as of the day when the lower price was first offered or as of the first
delivery for the lower prices whichever was earlier.
5
PAYMENT
5.1
If it is not specified differently in the Order the payment is made within 60 days, or
within 14 days with 2% Sconto, or within 7 days with 3% Sconto from delivery of
the Goods and receipt of the invoice in compliance with paragraph below
(Delivery and Packing) or after providing all the Services.
5.2
In case of Buyer’s default in settlement of invoices, see above, the Seller is entitled
to charge a delay interest determined in compliance with a Government Order No.
351/2013 Coll., for each day of the delay after 30 days of the due date.
5.3
Company Meopta – optika, s.r.o. requires from their business partners (VAT
payers) to state only that type of bank account which enables remote access
(according to Act No. 235/2004 Coll.). With effect from 1.1.2014 company Meopta
– optika, s.r.o. won´t pay its obligation:
- on any other bank accounts and
- to business partners who are declared by relevant tax administrator to be
unreliable payers.
6
INSPECTING AND TESTING THE GOODS
6.1
Before shipping the Seller shall inspect and test the Goods to confirm that they
met requirements of the Contract. Upon the Buyer’s request the Seller shall notify
the Buyer of the time and place of such inspection and testing reasonably in
advance and the Buyer and / or the customers, for whom the Goods are destined,
shall have the right to be present at the inspection and testing. Upon the Buyer´s
request the Seller shall provide the Buyer a copy of the Seller’s official report on
the results of the inspection and testing. The Seller shall enclose Certificate of
Conformance with every delivery.
6.2
The Buyer, its insurance company and the customers, for witch the Goods are
destined, have the right on reasonable notice, to inspect and test the Goods
during production, processing or storage at the premises of the Seller or Seller’s
subcontractor or supplier. If the Buyer exercises this right the Seller shall take all
steps necessary to facilitate such inspection and testing.
6.3
If, in consequence of the inspection or testing the Buyer, determines that the
Goods do not conform to the Order or that it is likely that they would not conform
to the Order after completing the production or processing, it shall notify the
Seller in writing and the Seller shall take necessary measures in order to ensure
compliance of the Goods with the Order.
6.4
In case of repeated delivery of Goods not complying with the Specifications or
Buyer’s quality requirements for the ordered Goods, the Buyer is entitled to carry
out inspection and testing of these supplied Goods at the Seller’s costs, which
shall be charged the Seller by return and which may be deducted from Seller’s
invoices.
Deliveries are controlled in accordance with ISO 2859-1. The following conditions
of qualitative acceptance are used:
AQL II; 2,5 for control of the first series delivery and deliveries after elimination or
after problems with the last delivery.
AQL I; 2,5 for qualified items and for suppliers of series deliveries.
If there are defects in more units in any shipment, then is settled by the above
mentioned conditions, Buyer may reject the entire shipment and Buyer has the
following option´s possibilities:
i.
Seller shall
(a) determine the root cause of such defect,
(b) take such steps as are necessary to cure such defect, and
(c) ship the corrected Goods within a time that is acceptable to Seller, or
ii. Seller may reject any future shipments of the units.
In the event of such failure then, at no cost to Seller, Supplier is obliged to:
i.
Extend the warranty period for all such units for no less than an additional
twelve (12) months from the date on which the warranty for the Items would
otherwise expire
ii. Compensate Seller for all expenses associated with correcting or exchanging
the Goods or obtaining substitute Goods
6.5
7
7.1
8
8.1
The Buyer may inspect the Seller’s records related to the provided Services or
spent costs or liability for the costs or expenses incurred in connection with
settlement of this Contract if the price is set on the basis of time and material.
APPROVAL OF THE FIRST DELIVERY (“THE FIRST ARTICLE
APPROVAL “)
The Buyer may require Seller to suspend delivery of subsequent Goods until the
first delivery of Goods has been is approved and confirmed in writing by the Buyer
(see in detail specified in Supplier Manual).
ACCEPTANCE AND REFUSAL
Buyer is obliged to inform whether or not the Goods correspond to the
Specifications and otherwise conform to the Order.
In case the Goods do not conform to the description, quality, amount,
Specification or other requirements of the Order, the Buyer is entitled, in addition
to its other rights resulting there from
a) to suspend the delivery until has decided whether to accept or reject the nonconforming Goods;
b) to return the Goods to the Seller and to require repair and/or replacement with
new items;
c) to accept these Goods subject to a proportionately reduced price ;
d) to repair or replace these Goods with new and to charge the Seller with the
resulting costs;
e) to require from the Seller refund of all the costs thus occurred to the Buyer;
f) in case it is an fault on the part of the Seller that cannot be corrected, the
Buyer is entitled to withdraw from the Contract /Order without prejudice to its
other rights and remedies arising from such non-conformance.
8.2
If the Seller does not replace the refused Goods within a period specified by the
Buyer, the Buyer, in addition to all other legal rights and remedies it may have, is
entitled to buy compensatory Goods from another source and the Seller shall pay
the Buyer all the sums which the Buyer paid the Seller in connection with the
particular Goods, together with related expenses which, in the aggregate exceed
the price of the Goods specified in the Order/ Contract,
8.3
In case the Buyer sends the faulty Goods back to the Seller, the Buyer is entitled to
charge the Seller with a lump sum contractual penalty in the amount of 5 % from
the price of the delivered faulty Goods/Service and all occurred costs which are
connected with the claim of faulty Goods.
9
9.1
DELIVERY TERM
A date or data specified for delivery of the Goods or providing the Services shall be
set forth in the Contract/Order. Unless specified otherwise, the delivery shall be
DAP Přerov according to Incoterms 2010. If the Seller does not supply the Goods
or does not provide the Services by the time required, then Buyer in addition to all
other rights set forth herein and under law, my:
9.1.1 Cancel a part of the Order which is not fulfilled at the end of the given time
period without any obligations towards the Seller in connection with this
Order or
9.1.2 Cancel the whole Order including a part of the Order which was already
completed and supplied to the Buyer in the specified time period if the
already supplied Goods or any part of the supplied Goods cannot be, in the
discretion of the Buyer, effectively and commercially used due to the fact
that the whole Order was not fulfilled.
In both the cases the Buyer is entitled to charge a contractual penalty in the
amount of 0.5 % of the price of the delivered Goods/Services for each commenced
day of the delay and, in addition, to receive compensation for all the costs,
damage, losses or expenses arisen to the Buyer as a result of this default.
9.2
In case the Buyer accepts a late delivery it does not abandon its future rights
related to subsequent late deliveries. The Seller is obliged to inform the Buyer
about possible late deliveries in writing without any delay. In case of late shipment
the Goods by the Seller, the Buyer is entitled to require that Seller use a method
of transportation specified by Buyer that will minimize the possible delay (e.g. air
transport, courier, etc.) at the Seller’s costs.
9.3
If the Buyer cancels the whole Order, Buyer shall return all the Goods or a part of
the Goods, which cannot be, in the discretion of Buyer, effectively and
commercially. Seller shall refund to Buyer all sums the Buyer paid for such
returned Goods.
10
DELIVERY AND PACKING
10.1
All the Goods must be accompanied by a delivery ticket with the Order number
and a numerical designation designated by Buyer; the invoice must be issued at
the time of the Shipment.
10.2
All the invoices must contain an Order number and a numerical designation
designated by Buyer and must be sent to the Buyer.
10.3
The Goods shall be properly packed and insured so that they reach the destination
in good condition.
10.4
The Seller shall replace or repair free of charge all the Goods damaged or lost
during the transport provided that the Buyer notifies the Seller in writing about
the damage or loss. Such repair or replacement shall be completed so that it does
not interfere with Buyers schedule.
10.5
No fees shall be charged for packing, boxes, cases or containers unless such fee is
specified in the Order.
11
ACQUISITION OF OWNERSHIP
11.1
The Buyer acquires ownership of the Goods at the time of delivery in compliance
with the Contract/Order without any affect to the right of refusal, which the Buyer
has on the basis of these conditions or for any other reasons.
12
BUYER’S OWNERSHIP OF DRAWINGS, TOOLS, PATTERNS
AND MATERIAL
12.1
All the drawings, plans, specifications, patterns, forms, tools, chucks, holders,
forms, raw material, parts and other material supplied by the Buyer or obtained
by the Seller at the Buyer’s costs (“Buyer Supplied Material”) remain in the
Buyer’s ownership.
12.2
The Seller shall maintain all Buyer Supplied Material good condition and insure it
against all the risks during the time when the Buyer Supplied Material is kept by
the Seller. After completing the Contract/Order; or upon Buyer’s other
instructions it shall return the Buyer Supplied Material to the Buyer in good
condition.
12.3
The Buyer reserves the right to charge the Seller all costs of repair or replacement
of the Buyer Supplied Material if it was, while in Seller’ possession, destroyed,
damaged, lost or designated as unsuitable for the purpose for which it was
previously made, and the Buyer reserves the right to deduct the particular amount
from the sum, which the Buyer is obliged to pay the Seller.
13
13.1
CONFIDENTIALITY
All information provided by Buyer to Seller, shall be considered “Confidential
Information” and Seller shall not:
13.1.1 Use such Confidential Information, nor let or deliberately allow the use of
such Confidential Information except the purpose for which it was
provided; and
13.1.2 It shall keep Confidential Information in strict confidence and will not place
this confidential information at nobody´s disposal except of its own
employees who directly participate in production of Goods or in providing
the Service. Confidential Information do not include
(i) information that Seller can, with documentary evidence, establish
that it had in its possession prior to delivery by Buyer,
(ii) Received from a third party without violation of an confidentiality
obligation or
(iii) Is in the public domain and is generally available to the public.
Above mentioned regulation applies also on all handover documents. Neither of
the parties shall not without written agreement handover these materials to third
parties, spread, copy, change or modify them.
13.2
The Seller shall return all the Confidential Information to Buyer immediately upon
Buyer’s request.
13.3
The Seller shall not publish or disclose to any party fact that the Seller is offering
to supply to Buyer, or is supplying to Buyer, Goods or Services without the Buyer’s
prior written consent.
14
WARRANTY
Quality guarantee
The Seller provides Goods´ warranty for a period of 24 months from
commissioning or 36 months from the delivery date (if it is not specified
otherwise), and that also for damages which were caused by defect on his
delivered parts and he guarantees that:
14.1
The Goods shall be of satisfactory quality conforming to
(i) the Contract/Order, including the Specifications and
(ii) the technical standards in the accepted within the industry in Buyer’s
country or in the country of further use of the Goods
14.2
If the purpose for which the Goods were required was explicitly communicated or
indicated to the Seller, the Goods must comply with this purpose.
14.3
If the Seller provides Services or carries out work in the Buyer’s premises the Seller
shall respect and spend every reasonable effort in order to ensure that its
employees, agents and subcontractors respect requirements and company
regulations (including safety regulations) and/or working directions set by the
Buyer.
Responsibility for defective performance
Seller guarantees that goods have agreed quality and appropriate properties
according to the Contract/Order, meets technical parameters defined in request /
drawing and technical documentation for the intended use when hand and take
over. Buyer is entitled to make a claim for damages existing when good is taken
over and that within 6 months after taking over the good.
15
LEGAL REGULATIONS CONCERNING THE ENVIRONMENT
AND SAFETY OF PRODUCT
15.1
Above all (but not limited to general impact of item 14 (Warranty) the Seller guarantees
that it shall observe all generally binding rules affecting the environment, safety of
products and employees and other EU directives now or hereafter effective in the Czech
Republic, including, without limitation.
15.2
Ensure that the Goods are designed and constructed to be safe when properly
used, and shall perform or arrange performance of all necessary tests, to ensure
that the Goods are designed and constructed in this way.
15.3
Take all necessary steps to ensure that the Buyer, its employees, agents and
customers, when using the article, have available all appropriate information
about the manner of use which the product is designated for, and on testing of
the article in question and on all conditions, which are necessary for safe use of
the article (see the definition above).
15.4
Directive No. 200/53/EC applies to all deliveries of the Goods. According to this
Directive, the use of lead, cadmium, chrome VI and quick silver is expressly
prohibited. Exceptions are described in this Directive. Any deviations resulting
from these exceptions shall be approved by the Buyer in writing.
The Seller shall fully compensate the Buyer in connection with all interventions,
costs, claims, requirements, processes and liabilities resulting from the fact that
the Seller failed to meet its liabilities resulting from the regulations related to the
environment and health and safety.
16
CERTIFICATE OF ORIGIN, IMPORT, EXPORT, CUSTOMS
CLEARANCE
16.1
For deliveries from EU countries, except for deliveries from the Czech Republic,
the Seller is obliged to show its VAT tax number and it must issue all required
documents and information (According to the EU-Directive No. 3351/83), which
shall enable the Buyer to properly clear the Goods and to evidence the Goods
origin.
17
LIABILITY FOR DAMAGE
17.1
The Seller is fully responsible for any damage caused to the Buyer, its employees,
agents and customers in connection with defective or improper materials or labor
used in the production of the Goods or rendering of the Services. This includes all
costs, damages, expenses, loss and liabilities death, disease, personal injury; or
loss or damage or destruction of assets.
17.2
In the event Buyer is obliged to compensate the Seller for damage related to any
of purchase orders/contracts in which Buyer may be in breach, the Contracting
Parties agree that the extent of compensation for damages as follows: the Buyer
shall pay the Seller for the damage in the documented amount, at the maximum
up to the amount of the related purchase order or the outstanding Buyer’s liability
to the Seller.
18
CANCELLATION DUE TO DEFAULT
Without prejudice to any other rights or means, which the Buyer is entitled to, the
Buyer may cancel any Purchase Order without any liability in a form of written
notice sent to the Seller in the following cases:
18.1
The Seller enters into an agreement with its creditors; or
18.2
In case of filing a petition for Seller’s bankruptcy or a petition for approval of
settlement at the Seller; or
18.3
The Seller enters wind-up process either under compulsion or voluntarily (for any
reason other than for the purpose of merger or redevelopment); or
18.4
An administrative proceedings has been carried on against the Seller; or
18.5
The Seller failed to remedy any default by it under any Contract/Order within 14
days after receiving a written notice from the Buyer, (or shorter period if set forth
herein).
19
INTELECTUAL PROPERTY
19.1
The Seller shall protect, indemnify and hold harmless the Buyer, its employees and
agents in connection with all interventions, costs, claims, requirements, processes
and liabilities arising from all actual or alleged infringements of patents,
copyrights, registered designs, trademarks and/or other rights or assets of another
person, entity or company. This shall not apply to materials delivered by the Buyer
to the Seller.
19.2
Provision of all information or material by Buyer does not constitute a grant of a
right or license to Seller to use such information except in connection with the
manufacture of a Good or provision of a Service to Buyer. All information or
material provided in such way to the Seller, stay in the Buyer’s ownership and
after the cooperation termination it shall be returned by the Seller to the Buyer.
19.3
The Seller is fully responsible for any breach of its contractual obligations resulting
from this Article. Within this meaning, the Seller is fully responsible also for its
employees. In case of breaching this obligation the Seller undertakes to
compensate all Buyer’s damages, which the Buyer may suffer in connection with
such Seller’s conduct.
20
SUB-DELIVERIES AND ASSIGNMENT
The Seller must not deliver or assign the Contract/Order or any part thereof to a
sub-contractor or to supplier without prior written consent of the Buyer. A similar
consent, if provided, shall not affect Seller’s obligations resulting from the
Contract.
21
FORCE MAJEURE
If delivery of Goods or provision of Services by the Seller or Buyer’s capability to
receive a delivery or to receive provided Services or to use the Goods is delayed,
disturbed or cancelled due to circumstances, which cannot be reasonably
controlled by the affected Party, including (but not limited to) cases of force
majeure, strike, or any form of government intervention, these deliveries or
Services can be suspended and, if they cannot be delivered or provided within
reasonable time after the original deadline, the Order may be cancelled, without
any of the parties being considered responsible for the cancellation, by a written
notice sent by one Party to the other Party affected by these circumstances. If
more than one delivery of Goods is to be delivered or the Services are to be
provided more than once, the non-cancelled parts shall be recovered as soon as
the circumstances causing the delay pass away, save to the extent that both the
Parties agree otherwise, while the period, during which the deliveries are to be
delivered or the Services are to be provided, shall not be extended by a time
period longer than the period, during which the force majeure in question was in
effect.
No waiver, if any of the parties fail to use or enforce its rights specified in the
Contract/Order, it shall not be considered a waiver of these rights so that the
Party in question can use or enforce its rights at any time later.
22
DELIVERY OF DOCUMENTS AND NOTICES
22.1
All documents and notice, which must be sent in writing according to these terms
and conditions, legislation or for the reason of legal assurance, shall be considered
properly delivered, if they are delivered in person or sent through licensed
entities, by fax or by e-mail, to the Contracting Party’s registered office address or
to its last known address.
23
SECTION HEADINGS
Section headings are for convenience and reference only and do not affect the
meaning of these terms and conditions.
24
GOVERNING LAW
Conclusion and implementation of the Contract/Purchase Order as well as the
interpretation of these General Terms and Conditions are subject to the legislation
of the Czech Republic, especially to the Civil Code (Act No. 89/2012 Coll., as
amended and according to § 1751). Also, the Contract/Purchase Order as well as
these General Terms and Conditions shall be construed according to the legislation
of the Czech Republic. The Czech version of these General Terms and Conditions is
the binding and prevailing version.
25
RESOLUTION OF DISPUTES
Should any dispute or conflict occur between the parties related to or as a result
of the Contract/Order and/or these Standard Terms and such a dispute has not
been amicably settled by the parties, the Buyer and the Seller agreed upon the
following dispute resolution process:
25.1
Negotiation: If the executives fail to resolve the dispute in the meeting, all
disputes relating to and arising from the concluded Contract/Purchase Order shall
be finally decided with the Arbitration Court attached to the Economic Chamber of
the Czech Republic and Agricultural Chamber of the Czech Republic in accordance
with the Rules of that Arbitration Court by one arbitrator appointed by the
President of the Arbitration Court with the place of hearing in Brno.
25.2
If any of the Contracting Parties fails to agree with issued by the arbitral tribunal
of the first stage, such Party may, within 15 days after receiving the arbitral award,
ask the arbitral award to be reviewed by a review arbitral tribunal.
25.3
Each of the Contracting Parties shall pay one half of the costs of the arbitration
procedure and review arbitration procedure (if required).
The present General Terms and Conditions shall enter into force and become
effective as since 2.1.2014.
In Přerov 2.1.2014
Ing. Vítězslav Moťka
CEO
Ing. Aleš Mandák
Supply Chain Director
Ing. Martin Zborek
Purchasing Manager