GTCs – General Terms and Conditions of ALBIXON a.s. Powder Coating Shop
(Contract for Work)
(Revised on 17 July 2019)
The General Terms and Conditions of ALBIXON a.s. powder coating shop (hereinafter the “GTCs”) apply to all relationships arising from contracts for work concluded by the ALBIXON a.s. company and form an integral part thereof. If an arrangement in any contract stipulates otherwise, it takes precedence over these terms and conditions.
I. Subject of Performance
1.1. The ALBIXON a.s. company, as the Contractor, undertakes to perform Work (hereinafter also the “Subject of Contract”) for the Client agreed in the Contract for Work (hereinafter also the “Contract” or the “Order”) and the Client undertakes to take over the Work and pay the price for the Work.
1.2. The Work means the surface finish of a certain object delivered by the Client or other Work specified in the Contract.
1.3. By signing this Contract, the Client confirms that it is entitled to conclude this Contract and that it has sufficient resources of its own to pay the price of the Work.
1.4. Unless the Contractor and the Client agree otherwise, the Contract is concluded upon the confirmation of the Client’s written Order by the Contractor, while the Order must include, in particular, its number, description and scope of the Work, agreed price excluding VAT, applicable VAT rate and period and place of performance.
II. Period and Place of Performance
2.1. The Contractor’s period of performance is specified in each Order confirmed by the Contractor (Contract). Any order may only be changed following a mutual and timely agreement of both Parties. The Client declares that it is aware of the manner in which the Work is performed, it is sufficiently technically equipped and qualified to assess the matter, and it has been duly acquainted with all technical procedures and Work results of the Contractor. The Client declares that it is aware of the responsibilities associated with the loading, transporting and unloading of the object. The Client is always responsible for the manner of transport, loading and unloading, even if the Contractor transports the object at the Client’s request. Unless agreed otherwise, the material used as the protective layer of the object (packaging) is provided by the Client at its own expense.
2.2. The Client is obligated to take over the object which is the Subject of Contract within the agreed period at the Contractor’s premises at Hořovice, Cintlovka 535, Beroun district, Monday till Friday, from 6:00 a.m. to 4:00 p.m., unless the Parties agree otherwise in writing. Along with the Subject of Contract, the Contractor will provide the Client with a delivery note for each Order or a summary delivery note with a numbered indication of multiple orders or similar identification. If the Work is to be taken over by a person other than the Client or its statutory body, such person must, upon the Contractor’s request, present the Contractor with a power of attorney drawn up in writing for this purpose, otherwise the Contractor has no obligation to hand over the subject of Work. The Client is obligated to entrust the takeover of the subject of Work to a person sufficiently qualified, fulfilling the conditions set forth in the third sentence of paragraph 2.1. of the GTCs, and able to assess the condition of the object and the Work performed.
2.3. The Contractor has fulfilled its obligation to perform the Work at the time it enables the Client to dispose of the object of duly provided Contractor’s performance at the Contractor’s premises and at the time when the Client is obligated to take over such object and informs the Client as such.
III. Price Terms
3.1. The price of the Work and the method of payment is determined by the Contract (confirmed Order). The price is determined according to the Contractor’s price list, and the amount is indicated in each Order. If the price is not stipulated in the Contract, the price determined according to the price list and the Contractor’s delivery terms valid as of the date of delivery of the Order to the Contractor applies. By sending the Order to the Contractor, the Client confirms that it has become acquainted with the valid Contractor’s price list.
3.2. If a legal regulation on charging of VAT (amount) other than the applicable one upon the date of conclusion of the Contract (Order confirmation) applies at the time of the taxable transaction, i.e. the date of handover of the Subject of Contract or payment of the price, the Contractor is obligated to adjust the agreed price in accordance with the new legal regulation. The Parties are obligated to accept such adjusted price and agree that the adjusted price affects all provisions of these GTCs and the Contract.
IV. Terms and Conditions of the Performance of Work
4.1. The Contractor is not obligated to perform the Work, hand over the object or provide the Client with any other performance if the Client is in default with any payment or delay with any other performance under any contract concluded with the Contractor. In such a case, the Contractor cannot be considered in delay with the performance of its obligations, and the period for performance of any Contractor’s obligation under any contract concluded with the Client is extended by the period of Client’s default or delay.
4.2. If the Client is in default with any payment or delay with the delivery of the object, the Contractor may extend the period for the performance of Work due to the delayed Order in the regular production schedule by the period of delay, and extend this period further by +20 days due to assembly. In such a case, the Contractor has, due to the loss of trust, the right to increase the originally agreed advance payments or require the payment of the entire Work prior to the commencement of the Work or its handover. Such increase or required payment of the price of Work is subject to all provisions and conditions of the originally agreed advance payment and price, and it applies to all provisions of the Contract.
V. Ownership Title and Risk of Damage
5.1. The Client has the ownership title to the object handed over to the Contractor, as long as it retains the ownership title to such object. If the subject of Work is a creation of an object, the ownership title to such object is transferred to the Client upon the settlement of all obligations with respect to the Contractor in full, in particular, full payment of the price agreed in the Contract (reservation of title).
5.2. The Client bears the risk of damage to the object handed over to the Contractor for the performance of Work as long as its ownership title to the object persists. The Client bears the risk of damage to the created object as of the takeover of the object, or if it is not accepted, as soon as the Contractor allows to dispose of it at the place of performance (para. 2.3. of the GTCs).
VI. Liability for Defects
6.1. The Work has a defect if it does not comply with the Contract. The Contractor is responsible to the Client that, at the time it is handed over to the Client, the Work has the agreed characteristics and the subject of Work is delivered in the agreed quantity, scale or weight and complies with the legal requirements. Minor deviations and insignificant defects are permissible and cannot be a reason for any later warranty claim unless agreed otherwise (e.g. slight difference in shade, annual rings in the case of wood imitation, etc.). If the Client fails to specify the surface finish, it expressly acknowledges that the Contractor will perform the surface finish in accordance with the GSB standard the Contractor is certified with. For the goods that require covers (e.g. screw threads), the Client must precisely specify such covers. For the welded parts, the Client must ensure the drilling of water drainage holes. If the object cannot be suspended, suspension holes must be drilled. In such a case, the Client acknowledges that the points of suspension bear the traces thereof.
6.2. The Client, or a person authorised by the Client, confirms the acceptance of goods by signing the handover protocol in which it must confirm whether it accepts the subject of Work with or without reservations. After accepting the Work, the Client is obligated, in its own interest, to inspect the subject of Work and notify the Contractor within 48 hours of any minor damage or incompleteness that does not qualify as evident, and may not have been evident upon handover. Unless the Client does so, its claims in respect of such damage or incompleteness are extinguished.
6.3. The Client is also entitled to claim defective performance due to a defect that does not manifest immediately but at a later time. The Client is entitled to claim defective performance in the case of a defect that manifests itself on the subject of Work within 24 months as of the handover of the goods. The Client is not entitled to claim defective performance if such defect or damage occurred due to:
- mechanical or chemical damage of the goods
- improper storage
- improper maintenance
- materials or lubricants used in the production of a product intended for surface treatment and the Client did not indicate such materials or lubricants to the Contractor in the Order.
- absorbed grease in the case of goods with closed cavities or overlapping surfaces (typically with spot-welded metal sheets)
- dross, corrosion or other impurities (silicone residues, emulsions or adhesive impurities, etc.) which prevent the correct application of the powder coating that were present on the subject of Work at the time of the delivery by the Client
- inadequately designed openings that cause bending of the subject of Work when suspended
- inappropriate or poor construction of the subject of Work
- the fact that the Contractor was unable to ascertain the unsuitability of the subject of Work for the Work ordered even after exercising due professional care, or unsuitability of which the Client was notified, but still insisted on the performance of Work, or in the case that the surface of the object already had some surface coating (in particular, plastic, anodised, chromium, paint, zinc or another coating, or if the component had been machined or formed)
- normal wear and tear or natural ageing of the material
- external events outside of the Contractor’s control
- use under inappropriate conditions
- Client’s actions
- or it is inherent to the nature of the goods
6.4. The Client and the Contractor understand that any warranty claims will be resolved primarily by the repair of the subject of Work. Unless the Parties agree otherwise, the prerequisite for a warranty claim regarding the defects of Work is the submission (delivery) of all the goods under complaint in their entirety to the Contractor at the Contractor’s premises for assessment. If the Parties so agree, it is possible to submit only the samples of the goods under complaint. If the Contractor cannot repair the subject of Work, the Client is entitled to a reasonable discount. The Client is only entitled to withdraw from the Contract in the case that the defect of the Work which is not excluded from the Contractor’s liability for defects as specified above prevents the proper use of the subject of Work and the withdrawal is not inadequate to the nature of the defect. Warranty claims are to be resolved without undue delay. The right to reimbursement of reasonably incurred warranty complaint costs is governed by the contractual arrangements.
6.5. If the Client is a consumer, the liability for defects is governed by Act No. 89/2012 Sb.
VII. Contractual Penalties and Compensation for Damage
7.1. If the Contractor is in delay with the performance of Work, the Client is entitled, on the basis of a tax document (invoice) issued for this purpose by the Client, to claim a contractual penalty in the amount of 0.3% of the price of Work for each day of delay. This does not apply if the Client is in delay with the fulfilment of its contractual obligations.
7.2. If the Client is in delay with the fulfilment of obligations specified in Article II. and IV. of the GTCs, it is obligated to pay a contractual penalty to the Contractor in the amount of CZK 100 for each day of delay, and the storage fee for the modified or completed object in the amount of CZK 100 for each commenced day of delay, even in the case that the Client did not cause the breach of obligations.
7.3. If the Client is in default with any payment required under the Contract, it will pay the Contractor a contractual penalty in the amount of 0.3% of the price of Work for each day of default.
7.4. The payment of such penalty is without prejudice to the right for compensation of damage, i.e. even lost profits, including the amount by which the compensation for damage exceeds the penalty.
7.5. If the Contractor authorises another (third) party to collect its receivables from the Client, the Client is obligated to pay, aside from the due amount and any contractual penalties, the costs of such collection by the third party incurred to the Contractor.
7.6. If the Client causes the Contract to be invalid, it is obligated to compensate the Contractor for any damages therefrom, including lost profits.
7.7. The amount of damages the Contractor is obligated to pay the Client for the breach of contractual obligations may not exceed 50% of the price of the Subject of Contract.
VIII. Withdrawal from the Contract
8.1. The Contractor is always entitled to withdraw from the Contract if the Client breaches any of the obligations under Article II. and IV. of the GTCs or is in default with any payment. Any breach of the obligation under the previous sentence is considered a material breach of the contractual obligations. The Contract expires upon the delivery of the withdrawal notice to the other Party, and it is not terminated ex tunc. Withdrawal from the Contract is without prejudice to the right to penalties or interest on late payment, in the case of maturity, the right to compensation for damages resulting from a breach of contractual obligations, or arrangements which, due to their nature, are binding to the Parties even after the withdrawal from the Contract, in particular, the provisions concerning the method for resolution of disputes.
8.2. If the Client breaches any other obligations than those specified under paragraph 8.1. of the GTCs, the Contractor is entitled to withdraw from the Contract if it has notified the Client of such breach in writing, provided a reasonable period for the fulfilment of the obligation, and the Client has not fulfilled such obligation even within this extended period.
IX. Common Provisions
9.1. The unenforceability, invalidity or ineffectiveness of any of the provision of these GTCs is without prejudice to the enforceability, validity or effectiveness of the remaining provisions. If any of the provisions of the GTCs is invalid for any reason, in particular, due to variance with the applicable legal regulations, such a provision of legal regulation will be used in its place that is closest to the contents of the invalid provision. At the request of either Party, the Parties agree to immediately replace the invalid provision with a new provision (arrangement) that stipulates the mutual rights and obligations of the Parties in a legally acceptable manner and reflects their original will with respect to the intentions of such invalid provision of the Contract.
9.2. Both Parties consider these GTCs to be binding even for the contracts (orders) concluded prior to the signature of the Contract of which these GTCs form an integral part, even if their final performance is expected in the future.
9.3. The Client is aware of the Contractor’s significant position on the market and undertakes to protect the Contractor’s reputation with respect to third parties while taking into account that, in the event the Client presents the Contractor negatively in the media, the Contractor is entitled to compensation for damages arising from such presentation.
X. Final Provisions
10.1. Natural persons acting on behalf of the Client hereby declare that they will satisfy any monetary receivables of the Contractor arising with respect to the Client hereunder. This guarantee applies to any liability, including the liability that will only arise in the future and which the Client as the debtor fails to settle.
10.2. If, following the fulfilment of the contractual obligations (partial orders), the Contractor supplies other things, e.g. additional accessories, services, work, repairs, etc., the provisions of these GTCs apply to these new rights and obligations of the Parties as well.
10.3. The Client expressly agrees with the processing of its personal data, the correctness of which it guarantees, including the birth certificate number listed in the contracts or other documents, by the Contractor in accordance with Act No. 101/2000 Sb., and with their use by the Contractor for the purposes of sending commercial communication and advertising offers via e-mail, internal record-keeping and statistics.
10.4. By concluding the Contract (placement of an Order) or signing these GTCs, the Client confirms that it considers these GTCs as binding and that it has, prior to the conclusion of this Contract, duly acquainted itself with these GTCs, the copy of which is signed by the Contractor, and which are also available at the Contractors place of business and published at www.praskovalakovna.cz.