GENERAL TERMS & CONDITIONS  of the company  FOSALI a. s.

with registered office: Sládkovičova 37/A, 974 05 Banská Bystrica

ID No.: 48 272 817, Tax ID No.: 2120014711

VAT ID No.: SK2120014711, Registration:
Commercial Register of the District Court in Banská Bystrica, Section: Sro, File No. 1106/S.

ARTICLE I

INTRODUCTORY PROVISIONS

(1)  These are the general terms and conditions (hereinafter referred to as the " GTCs "), which apply to all contractual relationships resulting from contracts entered into between FOSALI a. s., having its registered office at:  Sládkovičova 37/A, 974 05 Banská Bystrica, ID No.: 48272817, Tax ID No.: 2120014711, VAT ID No.: SK2120014711, registered in the Commercial Register of District Court in Banská Bystrica, Section: Sro, File No.: 1106/S, as the Supplier, and the Client as the other party in the contractual relationship under which the Supplier delivers to the Client certain goods or carries out certain Works or other work (hereinafter referred to as the "Contract") that are annexed to the Contract as its integral part.

(2) Where the Supplier and the Client enter into the Contract in which they agree to terms and conditions differently from these GTCs, the provisions of the Contract shall prevail over the GTCs.

(3) Definitions. 

For the purposes of these GTCs, the following definitions apply:

Supplier:  FOSALI a. s., having its registered office at:  Sládkovičova 37/A, 974 05 Banská Bystrica, ID No.: 48 272 817, Tax ID No.:  2120014711, VAT ID No.:SK2120014711, registered in the Commercial Register of District Court in Banská Bystrica, Section: Sro, File No. 1106/S (hereinafter also referred to depending on the meaning as the " Seller" )

Client:  A natural or legal person who, in concluding of and performing under the Contract, acts within the scope of its business, has agreed to take over the Performance of the Supplier and to pay the agreed price for the Performance. Those provisions of the GTCs where the "Supplier" is indicated shall apply to both domestic and foreign suppliers.

Order:  A unilateral legal act made by the Client towards the Supplier aimed to order Performance from the Supplier.  

Contract:  An Order or a Works Contract entered into by the Supplier and the Client, resulting in the Supplier's obligation and/or to deliver Performance to the Client and the Client's obligation to pay the Supplier the agreed price and take over the Performance. Each confirmed Order for the purposes of these GTCs shall be deemed the Contract (hereinafter also referred to depending on the meaning as " confirmed Order and/or Contract ")

Entering into the Contract:  A confirmation of Client's Order by the Supplier and/or the Client's acceptance of the Supplier's counterproposal.

(Contracting) Party;  the Supplier or the Client, the  "(Contracting) Parties" shall means the Supplier and the Client together.

General Contract:  a Contract between the Supplier and the Client in the case of long-term cooperation with a purpose of further identification of the contractual relationship.

Performance:  the Goods or Works as well as other works, services and procedures performed in connection with completing the Works that are carried out by the Supplier under the terms and conditions under the Contract.

The Complaints Procedure: a set of rules issued by the Supplier, under which the Client can exercise its right to make a complaint about defects in the Performance, which informs the Client of the conditions and the method of complaints, how to make complaints, the liability for defects, the warranty period, the method of exercising and settlement of the complaint, the time limits for the complaint and the procedure for rejecting the complaint.

Place of Performance:  the operation establishment of the Supplier, unless otherwise agreed by the Parties.


(4)  The Client is obliged to become familiar with the GTCs of the Supplier before entering into the Contract.  These GTCs shall apply to all contractual relations between the Supplier and the Client starting from the moment of entering into the Contract by and between the Supplier and the Client. Starting from the moment of entering into the Contract, the Client shall be bound by these GTCs and expresses its consent hereto.

(5)  By concluding the Contract, the Parties accept that their mutual business obligation relationship is governed by the provisions of the Contract and these GTCs. Any relations between the parties not regulated by the Contract or these GTCs shall be governed by the relevant provisions of the generally binding legal regulations of the Slovak Republic (especially the Act No. 513/1991 Coll., the Commercial Code, as amended (hereinafter referred to as the “Commercial Code”).

(6) Any variations from the GTCs must be agreed between the Parties in writing in the Contract, otherwise they shall be null and void.

(7)  The Supplier is entitled to update or change the GTCs on an ongoing basis. The Supplier shall each time release all and any changes, amendments, or the full version of the updated GTCs in writing , and shall made them publicly available on its web site www.FOSALI.com..

In the event that any provision of the GTCs or the Contract or any parts thereof are invalid, the remaining provisions shall not be affected by such invalidity. The Parties shall replace the invalid provision of the GTCs or the Contract with a new provision that is as close as possible to the intentions of the Parties agreed at the conclusion of the Contract.

(9)  Terms and conditions of the Client shall apply only if the Supplier has expressly accepted in writing in the Contract  that the terms and conditions of the Supplier shall take precedence over the wording of the GTCs of the Supplier. Otherwise, these Supplier's GTCs shall always take precedence over the wording of any Client's terms and conditions.

(10)  For the avoidance of doubt, these GTCs do not apply to any contracts in which the company FOSALI, a. s.   acts in the legal status of the Client.


ARTICLE III

TIME LIMITS AND PLACE OF PERFORMANCE

(1) The time limits to deliver and/or carry out the Performance commence from the date of confirmation of the Order by the Supplier and/or the date of acceptance of the Supplier's counterproposal by the Client if the request contains all the necessary information as defined in Article II, paragraphs 2 and 3 of these GTCs, unless otherwise agreed for a particular case.

(2)  If the Contract and/or the Order assumes an additional specification, without which it is impossible to properly deliver the Performance, then the time limit of the completion will commence on the day of submitting the specification to the Supplier.

(3)  Where an advance payment has been agreed upon between the Supplier and the Client, the time limit for completion shall commence from the date of crediting the advance payment on the account of the Supplier.

(4)  Before the conclusion of the Order, the Supplier must inform the Client about the availability of the Performance as well as the time limit, within which the Performance will be delivered to the Client.  The Supplier is entitled to deliver Performance at any time within that period. Where the Client increases the quantity ordered in a Performance, the Supplier is entitled to reasonably extend the time limit to deliver the Performance and shall be obliged to inform the Client thereof in writing. Where the Supplier fails to deliver the Performance within an extended time limit, the Client shall be entitled to cancel the Contract.

(5)  The Client undertakes to provide the Supplier with the necessary assistance and cooperation during the completion of the Performance so that the Supplier delivers the Performance within the agreed time limit.

(6)  The compliance with the time limits for delivery or completion of the Performance is dependent on proper and timely assistance and cooperation of the Client as agreed in the Order and/or the Contract. The Supplier is not in delay with the fulfilment of an obligation during a time of the Client's provable delay with the provision of assistance and cooperation, and the time limit for the completion and delivery shall be appropriately postponed by the time of the Client's delay.

(7)  The time limit for completion and delivery of the Performance shall be extended by a period during which works are suspended if there is a circumstance excluding liability under paragraph 10 of this Article of the GTCs or for causes attributable to the Client. The Supplier shall inform the Client in writing of any suspension in the completion and delivery of the Performance.

(8)  If the subject of the Order or the Contract is a delivery of the Performance that is delivered to the Supplier by its subcontractor, who is late with the delivery of the Performance to the Supplier, then the Supplier shall be entitled to extend the time limit of the delivery of the Performance to the Client by the time of delivery of the Performance by the subcontractor. The Supplier shall inform the Client in writing of the extension of the time limit for delivery. If the Performance is not delivered to the Client even in the extended time limit, then the Client shall be entitled to cancel the Contract.  

(10)  For the purposes of this GTCs, the circumstances excluding liability are subject to the legislation under the provision of Section 374 of the Commercial Code. The circumstances excluding liability for the Supplier's breach or failure to fulfil obligations arising from the confirmed Order and/or the Contract where the Supplier directly or indirectly delays the fulfilment of the obligations, are considered to be the following situations: work stoppage ordered by a responsible representative of the Client, with no Supplier's responsibility involved, force majeure – natural disasters, fires, floods, explosions, riots, war, government intervention, intervention by military authorities, acts of terrorism, acts or omissions of the authorities or third parties not caused by the Supplier or by the Client. In the case of force majeure, the time limits under the Order and/or the Contract shall be postponed by the time of the duration of the situation caused by force majeure. In the event that a force majeure event lasts longer than six calendar months, either Party is entitled to cancel the Contract.

(11)  Where the Supplier fails to meet the time limit for delivery or the delivery date with no circumstances excluding liability of the supplier being present in accordance with point 6 and point 10 of this Article, the Client shall specify in writing to the Supplier a reasonable time limit for the delivery of the Performance.  Where the Supplier fails to deliver the Performance within that time limit, the Client shall be entitled to cancel the Contract.

ARTICLE IV

THE PRICE AND PAYMENT CONDITIONS

(1)  The price is determined by the current price list of FOSALI a.s., which the Supplier sends to the Client by electronic means of communication or makes known to the Client in appropriate manner, unless the Parties have agreed a different method of pricing.  Unless the Parties agree otherwise, the price shall be indicated exclusive of VAT, which VAT shall be charged in the amount and method in accordance with the generally applicable legislation.

(2)  The price does not include any carriage costs of shipping the Performance to a destination designated as the place of performance, any insurance costs of the subject of performance for such a carriage, and any special handling or specific charges, unless the Parties agree otherwise.  

(3)  The Client shall be liable toward the Supplier for any and all increases in the cost of carriage and insurance if the Client requires delivery of the Performance in another mode than specified by the Supplier. At the same time, the Client shall be responsible and obliged to pay the Supplier any damages incurred by the Client due to a change in the mode of carriage.  

(4)  The price may be increased reasonably by the Supplier if the subject of the Performance by the Supplier involves completion or execution of the Performance under the specific requirements of the Client, and if there is a need, having emerged in the course of the execution or completion of the Performance, of any extra costs or any extra works not included in the initial scope of the Performance stated in the confirmed Order and/or the Contract.  Supplier will notify the Client of the need for any increased costs and extra works without delay immediately after becoming aware thereof, and Client shall be obliged to pay these costs against the invoice issued. If the price of the Performance increases by more than 20 % according to this paragraph, then the Supplier shall notify the Client of a new price and the reason for its increase.

(5)  The Supplier may change the price unilaterally except as provided in paragraph 2 of this Article of the GTCs, at a change of the VAT range, in duties or by introduction of new fees related to the import or other activities required to complete Performance unless such an obligation was in force and effect at the time of confirming the Order and/or entering into the Contract, at any changes resulting from generally binding legal regulations, by increasing the scope of works required by the Client by a written amendment to the Contract, on the basis of changes in materials or components approved by the Client, as well as by subcontractor unilaterally increasing the price of components and materials that are necessary for completion of the Works.  The Supplier shall inform the Client of the amount and the justification of the price adjustment.

(6)   The Client shall pay the price as follows:  

a) by advance payment (deposit).

b) by final invoice.

(7)  The Client shall pay the Supplier a one-off deposit in the amount indicated in the confirmed Order and/or the Contract, or in the amount of 50 % of the Performance.  The maturity of the invoice for the advance payment is 14 days of the date of issue. The Supplier shall not be obliged to commence the execution of the Performance before the advance payment has been paid in full, and the Client shall not be late with the performance under this contract throughout the period of the delay in the payment of the advance payment. At the same time, the time limits for the Performance shall be extended by the period of the delay on the part of the Client under this paragraph. The Supplier shall be entitled to deduct from the advance payment any fees, penalties and other sanctions, which the Client is required to pay.

(8)  The final invoice is the price of the Performance delivered, including the advance payment. The final invoice will be delivered to the Client simultaneously with the delivery of the Performance at the latest. When using a carrier, the final invoice, the delivery note and the Performance shall be handed over to the carrier. The maturity period of the final invoice is 14 days from the date when the invoice is issued, unless otherwise agreed for a particular case. Unjustified non-acceptance of the Performance by the Client can never be a reason for not paying the price in a proper and timely manner.

(9)   In the case of a delay on the part of the Client with the payment of the invoice the Supplier is entitled to a contractual penalty of 0.05 % of the outstanding amount owed, per day of the delay up to 30 days, and of 0.5 % of the outstanding amount per day of the delay of more than 30 days .  A payment of the contractual penalty shall be without prejudice to any rights to claim interests on late transaction.

(10)   In case of delay on the part of the Client in payment of due invoice, respectively. advance payments more than 15 days overdue, the Supplier is entitled to suspend the implementation of fully honoured until the moment of its full payment, respectively, without further withdraw from the contract and demand the return of the delivered performance.

ARTICLE V

DELIVERY CONDITIONS

(1)  The Supplier shall fulfil its obligation to deliver the Performance by handing the Performance over to the Client.  

(2)  The Performance shall be handed over in the manner agreed beforehand between the Parties, either by the Client receiving the Performance in person at the Supplier's establishment at the address:  Sládkovičova 37/A, 974 05 Banská Bystrica, Slovak Republic14, or by when the Performance is handed over for shipment to a destination designated by the Client.

(3)  In the event that the Parties have agreed that the takeover of the Performance will be in person, the Client shall be obliged to take over the Performance delivered under the Order within 10 days of receipt of a written, email or fax notice from the Supplier inviting to take over the Performance.  Where the Supplier must deliver the Performance under the Contract or the Order at a destination designated by the Client, the Client shall be obliged to accept the goods on delivery. The Client is also obliged to acknowledge the receipt thereof by signing the delivery note or consignment note, thus it is considered that the Performance has been duly delivered in the scope as ordered and free from defects. If the Client does not take the Performance in person within a specified period or does not accept the Performance from the carrier for reasons that are not attributable to the Supplier, then the Client shall be have the right to ask the Supplier to provide a reasonable extension of the time limit to take over the Performance. Supplier shall ship a Performance that has not been taken over back to its operation establishment or store the Performance at the expense of the Client, and, at the same time, the Supplier shall also inform the Client of the new lime limit for receipt of the Performance as well as the place where the Client can take over the Performance. The cost of transportation to the storage facility shall be borne by the Client. If the Client does not take over the Performance within the extended time limit, then, by the expiry of that period, the Supplier shall be entitled to terminate the Contract and dispose of any goods not collected at the expense of the Client or sell the goods to a third party. The choice of law pursuant to the preceding sentence shall be the right of the Supplier. The Supplier is also entitled to a compensation of all and any expenses incurred for the purpose, as well as all and any damage which it has suffered resulting from the Client not receiving the Performance.

(4)  The Supplier shall not be late with the delivery of the Performance where the Client does not accept the goods within the agreed time limit, or otherwise does not allow the Supplier fulfil its obligation.

(5)  The Parties shall write up an Acceptance Report on handover and takeover of the Performance.  The Acceptance Report on handover and takeover of the Performance must include at least the name of the Performance, identification of the Order and/or the Contract, the date of taking over the Performance, the date of commencement and completion of the handover and takeover procedure, evaluation of the quality of the delivered Performance, inventory listing any defects and unfinished works identified, the deadline for removal of the defects and unfinished works, a declaration by the Parties that the Supplier hands over the Performance and that the Client takes over the Performance, signatures of the authorised representatives of the Parties, statement that the date of handover and takeover Performance is the starting date of the warranty period, and the duration of the warranty period.  

(6)  If the Client refuses to sign the Acceptance Report, then the Parties will write up a record stating their opinions and their justification.

(7)  If provided so by legislation or agreed in the confirmed Order and/or the Contract, then the Supplier shall hand over, along with the delivered Performance, the relevant technical documentation, and tests of materials used in the Performance, and any documents or certificates relating to the tests carried out, and other documents, as required by the generally binding legislation or technical regulations.

(8)   In the case the Supplier has undertaken to install the Performance and commission the Performance at a place designated by the Client, the Client shall be obliged, before signing the Acceptance Report in accordance with paragraph 5 of this Article of the GTCs, to ensure  presence of authorised persons to whom the Supplier will demonstrate the functionality of the Performance. The Supplier shall commission the Performance or, as applicable, demonstrate the functionality of the Performance to the authorised persons at the place of the performance. If the Client does not ensure the presence of any authorised persons and therefore it will not be possible to demonstrate the functionality of the Performance, then the Supplier shall ask the Client by a written notice to comply with this obligation within the time limit specified by the Supplier. If it will not be possible to demonstrate the functionality of Performance with the participation of the authorised persons following the notice, then the Performance will be deemed functional by the expiry of the period specified in the notice.

(9)  If required so in writing, the Acceptance Report shall also include  a written statement by the Client that the Performance is ready for placement into operation and that the Supplier has demonstrated its full functionality to the Client. This provision does not apply to cases where there has been a fiction of functionality of the Performance under paragraph 8 of this Article of the GTCs, or to cases where the Supplier is not responsible for the functionality of the Performance.


LIABILITY FOR DEFECTS AND WARRANTY PERIOD

(1)  The Supplier is liable for defects of the Performance, which the Performance has got at the time of its delivery to the Client.  In the event that the Client is late with receiving the Performance, the Supplier shall be liable for the defects that the Performance had at the time when the Client was required to receive the Performance.

(2)  When receiving the Performance the Client is obliged to inspect it thoroughly or have it inspected thoroughly, in particular to check the quality and quantity of the Performance.  An obvious defects of the Performance is a defect which has been found by the Client or which can be found by the Client by a professional examination when receiving the Performance. The Client must notify the Supplier/object immediately of any obvious defects of the Performance, no later than 2 days of the receipt of the Performance, otherwise the right of the Client shall expire to make any claims arising from these obvious defects.

(3)  The Client shall notify the Supplier immediately of any hidden or latent defects in the Performance that could not be detected during the inspection of the Performance under paragraph 2 of this Article and that occur during the warranty period not later than 2 days from the date the defects were detected or the date when these defects could be found by exercising all the professional care. However, Client shall be obliged to notify the Supplier / object to (claim) the defects no later than the duration of the warranty period, which is 12 months starting from the date of signing the Acceptance Report on handover and takeover of the Performance, otherwise, the right of the Client shall expire to make any claims (complaints) concerning these defects. The rights and obligations of the Parties with respect to claims shall be governed by the Complaints Procedure of the Supplier.

(4)  The Supplier is entitled to provide the Client with a guarantee for the Performance during an extended warranty period of up to 60 months, in every case on the basis of an individual written agreement between the Client and the Supplier only, which agreement shall constitute part of the Order or the Contract, unless the Parties agree otherwise.

(5)  The Supplier shall be liable only for those defects in the Works that have been caused by a breach of its obligations.  

The Supplier is not liable, in particular, for those defects in the Performance, which have been caused by normal wear and tear, by accidental decay or accidental deterioration, improper handling or through neglected care required, by excessive load on the Performance, by using the Performance in contradiction to the intended purpose, by mechanical damage caused by the Client or by a third party, by non-professional tampering with the Performance, or by interventions in the Performance by an unauthorised person, by non-professional or insufficient fitting, use of the Performance for other than designed purpose, by an intervention of external factors (water, fire, electricity, etc.), damage to the Performance by inevitable or unforeseeable events, and as a result of  force majeure . The guarantee of quality does not apply to consumable supplies. The guarantee of quality does is not valid if the Client is late with paying the price of the Performance, or a part thereof.

(7)  After becoming aware of any defects in the aforementioned Performance the Client is not entitled to continue to use the Performance or the defective part of the Performance.  A breach of this obligation excludes the Supplier's liability for any consequential defects caused by the use of defective Performance or a part thereof.

(8)  The Supplier shall not be liable for any defects of the Performance resulting from any specific requirements of the Client.

(9)  The guarantee for the Performance shall become void when the Client allows a person other than a person of the Supplier or its authorised representative in any way to carry out repair, modification, alteration or otherwise interfere with the Performance or if any other devices or controls are attached to it than those approved by the Supplier, or when the Client has not complied with its obligations relating to the use and handling of the Performance.  

(10)  The Client has no right to make any claims concerning any defects of the Performance, of which defects the Client was informed in writing or orally at the time of entering into the Contract or which the Client must have been aware of with regard to the circumstances in which the Contract was concluded.

(11)  Making any claims for defects of the Performance shall not establish a right of the Client to be late with a payment of the Performance's price.  If the Client is late with a payment of the price, then the Supplier shall not be obliged to remove defects in the goods until full payment within a specific time limit.

(12)  The Client must report any defects of the Performance in a written notice by registered mail sent to the address of the Supplier specified in the confirmed Order and/or in the Contract, by fax or by e-mail with a follow-up written acknowledgement by the Supplier, otherwise the notification is invalid.  Enclosed to such a notice must be at least a description of the defect, the place of its occurrence, the date when it was found, the way it is manifested and a copy of the delivery note or the invoice. The Client is also obliged to ship the Performance at its own expense to the Supplier, at the address of the Supplier:  Sládkovičova 37/A, 974 05 Banská Bystrica , unless otherwise agreed with the Client.  

(13)  The Supplier shall immediately deliver a confirmation to the Client that the complaint has been made, no later than the time of notifying of the assessment of the complaint's eligibility. The Supplier is required to assess the eligibility of the complaint within 30 working days after the claim was made and the receipt of the Performance for which the claim has been made, along with proof of purchase of the Performance. If the assessment of defects requires more than 30 days, then the Supplier shall notify the Client indicating the new extended time limit. The time limit for settlement of the complaint begins at the moment when the Supplier receives the Performance for which the claim has been made. If the claim is well founded, then the Supplier shall notify the Client of the time limit to remove the defect, which must be set reasonably as regards the nature and extent of the defect. In each case, the Supplier undertakes to remove a properly claimed defect in time. The Supplier always decides on the method of removing the defect. When a defect has been removed, all other claims of the Client arising in connection with the occurrence of the defect shall expire.

(14)  Having made a claim concerning defects of the Performance, the Client shall be obliged to provide the Supplier with the assistance and cooperation needed to properly investigate these defects, in particular, the Client is obliged to provide the Supplier with information about the origin of the defects, to give the required explanations, to submit the necessary documents, even beyond the scope of the information and documents in accordance with paragraph 12 of this Article of the GTCs.

(15)  If the complaint is considered by the Supplier's assessment as ineligible, then the Client shall compensate the Supplier for the costs related to the assessment no later than 14 days from the date of receipt of the invoice, in which will these costs will be charged.  

(16)  The Parties shall prepare a written report on the elimination of any defects and unfinished works.  This report shall contain at least a summary of defects with dates of their removal and signatures of authorised representatives of the Parties.

(17)  During the warranty period, the Supplier reserves the right to supply original spare and wear parts prescribed in the technical documentation of the manufacturer. Otherwise, the warranty period shall expire.

(18)  At the same time, the Supplier shall make the Client familiar with the Supplier's Complaint Rules, which is an integral part annexed to the confirmed Order and/or the Contract and which is binding for the Parties in matters concerning claims for defects of the Performance.  

ARTICLE VII

OWNERSHIP TITLE TO THE PERFORMANCE AND TRANSFER OF THE RISK OF DAMAGE TO THE PERFORMANCE

(1)  The Supplier shall grant the Client the possibility to acquire the ownership title to the Property.  The Client shall acquire the ownership title to the Performance by making full payment of the price and of the costs associated with the delivery of the Performance payable to the Supplier in accordance with these GTCs and the Contract. Before that moment, the Supplier it remains the sole owner of the Performance.

(2)  Until the time of the transfer of the ownership title from the Supplier to the Client holding is the subject of the Performance in its possession, the Client has got all and any of a depositary's obligations, and is obliged to keep the product safely at its own expense and label it in a manner that makes it at all times identifiable as the Performance of the Supplier.  

(3)  The Client is not allowed to assign, convey or otherwise transfer to a third party or otherwise encumber the Performance before the full payment of the Performance's price according to the confirmed Order and/or the Contract.

(4)  The risk of damage passes to the Client at the moment of delivering the Performance to the Client according to the confirmed Order and/or the Contract.  After delivery of the Performance, the Supplier shall not be liable for any damage done to the Performance by an activity of the Client or third parties.

ARTICLE VIII

LIABILITY FOR DAMAGES AND LIMITATION OF LIABILITY FOR DAMAGES

(1)  Each Party shall be liable for damage caused by a breach of its obligations under this Agreement and the obligations arising from the confirmed Order and/or the Contract, as well as obligations arising from applicable generally binding legal rules.

(2)  The obligation to pay a contractual penalty agreed shall be without prejudice to the obligation of the Client to pay damages in full or to a possible indemnification claim. The Parties agree that the Client shall be entitled only to compensation for an actual damage.

(3)  Where the Supplier breaches any of its obligations arising from the confirmed Order and/or the Contract, such a breach will not affect the rights and obligations of the Parties arising from other Orders made by the Client under these GTCs and other contractual relationships between the Client and the Supplier.

(4)  The Supplier shall not be liable for any indirect or consequential loss or damage, costs or expenses of any legislative origin, including but not limited to the examples listed: loss of income, loss of profits, loss of non-use, loss of production, loss of contracts, acquisition costs of capital, the cost of replacement equipment and services, the cost of replacement electrical or thermal energy, the cost of downtime, claims by a Clients' client for compensation of any sanctions against the Client, claims by a Clients' Client for such damages or claims for damages of a criminal nature howsoever arising from the Performance or related to the delivery of the Performance or its use by the Client or a third party.

(5)  If the Supplier provides the Client with advice or support relating to the products, systems or work not being directly the subject of the Order and/or the Contract, or are not in accordance with the Order and/or the Contract, such advice or support to the Client establishes no responsibility.

(6)  Without prejudice to the limitation of liability of the Supplier under paragraph 4 of this Article of the GTCs, the maximum liability of the Supplier towards the Client arising from the legislation or from the confirmed Order and/or the Contract or relating to the confirmed Order and/or the Contract is limited to 10 % of the price specified in the Order and/or the Contract.

(7)  The provisions of this Article shall prevail over any conflicting and pending provisions of the confirmed Order and/or the Contract and its annexes, except a situation where these provisions would further limit the Supplier's liability.

ARTICLE IX

PROTECTION OF INDUSTRIAL RIGHTS AND OTHER RIGHTS

(1)  If the execution of the Performance in accordance with designs, patterns and requirements ordered by the Client results in an infringement of industrial property rights of a third party, the Client shall solely bear all the consequences of such an infringement.

(2)  Any structural and print designs prepared by the Supplier are its intellectual property and only the Supplier has got the exclusive right to produce on the basis of these designs.  All intellectual property rights (in particular, copyright and industrial property rights) which the Supplier has or may have in relation to the subject of Performance or to the solutions contained in the subject of the Performance or that may arise in the future, pertain to the Supplier. This also applies to the rights of the Supplier which may arise in the course of fulfilling the obligations under the confirmed Order and/or the Contract. The Supplier reserves the right to charge all and any costs incurred in the development of designs. If necessary, the Supplier shall grant a licence for the above rights in accordance with the Slovak legislation.

(3)  At the same time, the Client acknowledges that the Performance also includes technical solutions developed by the Supplier for other contractual, therefore various elements of the Performance may occur alone or in conjunction with each other, in the products of third parties.

(4)  In the case of a violation of Article X of these GTCs the Supplier shall be entitled to require the Client to pay a contractual penalty in the amount of EUR 5,000.00 for each individual violation.  The Supplier's claim for damages in full in the event of any contractual penalty shall remain unaffected.

ARTICLE X

THE RIGHTS AND OBLIGATIONS OF THE PARTIES

(1)  The Client is obliged to comply with the financial obligations arising from the confirmed Order and/or the Contract in a proper and timely manner.

(2)  The Client undertakes to receive the Performance properly under the conditions specified in the confirmed Order and/or the Contract.

(3)  The Client is obliged to cooperate with the Supplier during assembly, installation and activation works.

(4)  The Client is obliged to allow the Supplier, its employees and third parties who carry out the Performance, to enter the place of performance.  

(5)  The Client is not entitled to unilaterally assign any claims or unilaterally set off any of its claims arising on the basis of or in connection with the Contract, to a third party without the prior written consent of the Supplier.

(6)  The Supplier shall carry out the Performance under the confirmed Order and/or the Contract in its own name and on its own responsibility.

(7)  The Supplier is entitled to charge a third party (a subcontractor) with carrying out the Performance without the need for a prior approval of the Client and without any restrictions.

(8)  The Supplier is entitled to assign any claims against the Client arising from the confirmed Order and/or the Contract to a third party. The Supplier is entitled to set off its claims, including non-repayable debts, against any amounts receivable from the Client arising from any legal title. The Supplier may set off any payment from the Client against any of its receivables. The right to set off unilaterally shall also apply to time-barred debts.

(9)  If the Supplier's obligation consists in completing a Performance and if there is an early termination of the Contract before the completion of the Performance for any reasons whatsoever, then the Client shall be obliged to pay the Supplier all and any costs associated with the completion of a part of the Performance which will have already been carried out or completed. If an early termination of the Contract has been caused by the Client, then the Supplier shall be entitled to demand a payment of a contractual penalty in the amount of the agreed price for the execution of the Performance. This is without prejudice to the Supplier's entitlement to receive payment of the costs under the first sentence of this paragraph of the GTCs.

(10)  The Client represents that the limitation period is extended for all Supplier's claims against the Client under the Contract to 10 years from the time when the limitation period has first commenced.

ARTICLE XI

CONTRACTUAL PENALTIES AND OTHER SANCTIONS FOR BREACH OF CONTRACT

(1)  The Parties have agreed that if the Client fails to prepare the place to carry out the Performance in a proper and timely manner in accordance with the confirmed Order and/or the Contract or if the Supplier fails to provide the necessary assistance and cooperation in carrying out the Performance, then the Supplier shall have a right to claim a contractual penalty of 0.05% of the Performance's price, for each day of the delay in meeting this obligation. 

(2)  In the case that the Client is late with receiving the Performance, the Supplier shall have the right to claim a contractual penalty of 0.05% of the Performance's price, for each day of the delay in meeting this obligation.

(3)  If the subject of the Performance of the Order and/or the Contract involves the Supplier's obligation to complete the Performance according to the requirements and instructions of the Client, then the Client shall duly take over the Performance within 10 days of delivery of the Supplier's notice. In the case of Failure to take over a properly completed Performance the Supplier shall have the right to claim a contractual penalty in the amount of 100 % of the Performance's price. If the Client cancels the Orders and/or the Contract after the supplier has commenced to carry out the Performance, then the Client shall pay the Supplier to compensate for any costs incurred in connection with the completion of the Performance, as also indemnify all and any damage or loss suffered by the Supplier as a result of the cancellation by the Client.

(4)  Where a contractual penalty is quantified and claimed from the Client this shall be without prejudice to the Supplier's right to claim any insurance indemnification.  Any claims made for any contractual penalty agreed in the Contract (and hence these GTCs) shall be without prejudice to the right of the Supplier to claim damages exceeding the amount of the charged contractual penalty. Also, the Parties agreed that the Supplier shall be entitled to claim at its discretion and decision a contractual penalty from Client under the Contract at a lower amount than under the Contract. Also, in the case of a breach of any of the obligations of the Client, which under the Treaty, and thus under these GTCs, is guaranteed by means of a contractual penalty, the Supplier has got the right to claim damages without claiming the contractual penalty. The choice whether the Supplier will either claim a contractual penalty to be paid by the Client in accordance with this paragraph or claim damages, is solely at the Supplier's discretion.

(5)  A contractual penalty or compensation is due for payment within 14 days following the time of making the claim from the other party.  A claim for contractual penalty or damages must be made in writing in a manner that makes it clear what the party is claiming. The written form shall be deemed to have been observed even if the act is done electronically. A contractual penalty or a compensation for damage is deemed to be  enforced on the day, on which the party against whom the enforcement is made has a possibility to become aware that contractual penalties or compensation for damages have been claimed.

(6)  If there is more than one stand-alone Contract entered into by and between the Client and the Supplier and if the Client is in late to comply with its obligations in only one of these Contracts (an impediment), then the Supplier shall be entitled to suspend performance of all or any of the other Contracts throughout the duration of the impediment on the part of the Client, during which suspension the Supplier is not late with complying with its obligations under such Contract(s) for the Client.

ARTICLE XII

COMMUNICATION

(1)  All notices and all communications between the Parties under the Contract shall be made in writing, by registered mail, express courier service or e-mail and shall be deemed duly served by the delivery to the Party concerned at the address which the Parties indicated in the introductory section of the Contract unless there are any other addresses for service stated further in the text of the Contract.

(2)  For communications taking place via means of electronic mail communications, an e-mail message is deemed delivered upon receiving an acknowledgement by the other Party of the message's receipt.  An automatic acknowledgement of delivery of an e-mail message shall not be deemed to be a receipt for the purposes of these GTCs. The acknowledgement is either a separate e-mail message confirming delivery or a confirmation of having read the message.

(3)  A document shall be deemed delivered in the cases where:

a) a Party refuses to accept the document – the document shall be deemed to be delivered on that date, or where

b) the document fails to be delivered because of e.g. failure to pick up a consignment within a time limit for picking up, or because the recipient was not reached, the addressee was unknown or for any other reason indicated by the post to the consignment; the document shall be deemed delivered on the date of placing the consignment at the post office.  

ARTICLE XIII

ENVIRONMENTAL PROTECTION

(1)  When fulfilling the duties arising from the confirmed Order and/or the Contract, the Supplier and the Client shall be obliged to comply with the provisions of generally binding legal regulations concerning environmental protection.  

(2)  If any wastes are generated at the point of performance when carrying out the Performance by the Supplier as the originator (waste from the installation, maintenance and service activities on the Performance, municipal waste, packaging, etc.), then the Client shall be obliged to remove that waste the at its own expense, unless the Parties agree otherwise for a particular case, at all times in accordance with the Act on Wastes and related legislation in the field of waste management, and to ensure disposal of the waste.  

ARTICLE XIV

LABOUR LAW AND OCCUPATIONAL HEALTH AND SAFETY

The provisions of this Article shall apply only if the Supplier enters the premises of the Client.

(1)  If employees of the Client and the Supplier and/or persons authorised by the Client and the Supplier carry out activities simultaneously at the place of the performance, the cooperation between these persons in the prevention, preparation and implementation of measures to ensure the occupational safety and health (hereinafter referred to as "OSH") as well as to ensure fire safety (hereinafter referred to as "FP"), the coordination of activities and keeping each other informed among them must be regulated on the basis of a written agreement concluded, which will determine which particular person shall be responsible for creating the OHS and FS conditions for these persons in the place of performance and to what extent. Unless the Supplier and the Client agree otherwise, the Client shall be responsibilities for creating the OSH and FS conditions within the meaning of this provision.

(2)  The costs incurred by the Supplier due to the Client's non-compliance with the OSH and FS requirements shall be borne by the Client.

(3)  For the implementation of assembly, repair, revision and expert works at the place of performance, the Client shall secure the equipment and facilities at the place of performance for the safe execution of the Performance.  The execution of the Performance can begin only when the place of performance has been secured and equipped properly.

(4)  The Client undertakes to pay the Supplier any costs in connection with any accidents at work of the Supplier's own employees, as well as of any other persons carrying out the Performance on behalf of the Supplier at the Client's place of performance, where the accident at work occurred due to breach of any obligations of the Client pursuant to paragraph (3) of this Article of the GTCs.

(5)  Before commencing to carry out the Performance, the Client is required ensure that the employees and/or subcontractors of the Supplier who will be involved in the completion of the Performance are made familiar with and trained in the applicable internal regulations of the Client governing OSH, FS and environmental protection, or any additional internal rules in force at the Client's, with which the Supplier and its employees or subcontractors must comply.  Otherwise, the Supplier is not responsible for any violations of such Client's rules/regulations.

(6)  The Supplier shall ensure that the machines, equipment, tools in its possession, which the Supplier is using to carry out the Performance at the Client's location, do not pose a risk for OSH.  For this purpose, the Supplier is obliged to perform the necessary maintenance and repairs.

ARTICLE XV

CONCLUDING PROVISIONS

(1)  All and any legal relationships in existence between the Supplier and the Client arising out of the confirmed Order and/or the Contract shall always be governed by the legislation of the Slovak Republic. The governing law shall always the Slovak law.

(2)  The Supplier and the Client agree that all and any disputes arising from the business engagements between them shall be settled primarily by out-of-court means, or they shall at least make efforts towards such a settlement.

(3)  The Parties agree and represent that all and any disputes arising from the legal relationships established by the confirmed Order and/or the Contract, including all and any secondary legal relationships, claims for releasing unjust enrichment, claims for compensation for damage, disputes relating to the validity, interpretation, termination of the Contract, shall be resolved solely before

a/ the arbitrator, JUDr. Milan Vojtek, with registered address at Jilemnického 30, 036 01 Martin, Slovak Republic, or before another arbitrator or arbitration tribunal in a Member State of the European Union as designated by JUDr. Milan Vojtek, with registered address at  Jilemnického 30, 036 01 Martin, using the procedure provided for in Section 8 (1) of the Arbitration Act (negotiated method of appointing arbitrator). The arbitration shall be held in writing under the the Slovak law, according to the Rules of Procedure of the Court of Arbitration ARBITRATION (for decision by arbitration court), or procedural rules (for decision by arbitrator) published on the website www.arbitraz.sk and in commercial legal disputes ex aequo et bono in accordance with the principles under Section 31 (4) of the Arbitration Act.

In the cases provided for under Section 22a of the LoAP, the motion shall not be served upon the other party. An award which is the result of an arbitration shall be final, binding and enforceable on the parties.

The written form of the arbitration agreement shall also be maintained if:

i)  the arbitration agreement is contained in an exchange of parties' written communication, or

b) it was concluded by electronic means that are capable of recording the substance of such legal act and the identity of the party making it;

b/ before a general court competent and relevant in terms of the subject-matter and the place in the jurisdiction of the Slovak Republic. In the event that, pursuant to the Act No. 97/1963 Coll on international private and procedural law, as amended by Council Regulation (EC) No. 44/2001 concerning the jurisdiction and the recognition and enforcement of judgements in civil and commercial matters, or other legal rule, law or an international treaty providing for the jurisdiction of the courts in disputes with a foreign element, the competent court is not a court of the Slovak Republic, the competent court shall be, as agreed between the Parties, the District Court in Banská Bystrica, Slovak Republic.

The Parties agree that if the claimant brings an action for resolution of a dispute arising from this Contract before a general court, this fact shall be regarded as a resolutive condition of the arbitration clause (point a/); the provision of this sentence shall not be applied if a request was submitted to arbitrator before bringing the action before the court in a case, on which jurisdiction is based by this arbitration clause in accordance with the internal regulations of the arbitrator / arbitration tribunal.

(4)  By entering into the Contract and/or by confirming the Order, which is binding on the Parties under Article II, par. IV of these GTCs, the Client confirms to have become familiar with these Supplier's GTCs and unreservedly accepts all the conditions set out herein.  The Client agrees that these GTCs become an integral part of the Contract and undertakes to comply herewith.

(5)  The person accepting these GTCs represents that she/he is duly authorised, charged and empowered by an authorised person to accept the GTCs and to conclude the Contract.  If the representation is false, then the person accepting the GTCs will be personally responsible for any possible damage or loss due to a void conclusion of the Contract or void agreed terms and conditions under this proposal.

(6)  If the Client is a natural person (an individual), he/she acknowledges that the Supplier shall process his/her personal data in connection with the concluded Contract, and also as part of the pre-contractual relationship.  The Supplier undertakes to process personal data in accordance with the Act. 18/2018 on Protection of Personal Data ( "the Act on Protection of Personal Data") and Regulation of the European Parliament and of the Council (EU) 2016/679 of 27/ 04/ 2016 on the protection of individuals with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46 / EC (the "Regulation GDPR"), which are effective from25/ 05/ 2018

(7)  These GTCs are made in the Slovak and English languages with both language versions being legally equivalent. In the case of any doubts or contradictory interpretation of the provisions of these GTCs in the Slovak and English languages, the business relationship between the Client and the Supplier shall be governed by the Slovak language version of the GTCs.

(8)  These GTCs are valid and effective from 01/01/2020.