General Delivery Terms and Conditions
SHS Transmissions s.r.o., Comp. Reg. No.: 09587420, with its registered office at Vídeňská 297/99, 63900 Brno, Czech Republic, registered in the register: Regional Court in Brno C 119722,
(hereinafter referred to as the “Supplier”)
I.
Application of the General Delivery Terms and Conditions
These General Delivery Terms and Conditions are an integral part of all contracts entered into between the Supplier and the Customer, the subject matter of which is the supply of goods by the Supplier to the Customer, whether on the basis of a purchase contract or a contract for work, or the subject matter of which is a contract for the performance of service work or the provision of other performance.
These General Delivery Terms and Conditions do not apply in the relationship between the Supplier and the Consumer.
The subject matter is the regulation of the basic conditions under which purchase contracts, contracts for work, contracts for the performance of service work or other contracts (hereinafter referred to as “Supply Contracts”) are entered into between the Supplier and the Customer (hereinafter referred to as “Contracting Parties”), as well as the content of these contracts.
Any agreements that amend or supplement these General Delivery Terms and Conditions shall become part of individual Supply Contracts only on the basis of a written agreement between the Supplier and the Customer.
The application of the United Nations Convention on Contracts for the International Sale of Goods (Vienna Convention) to the contractual relationship between the Supplier and the Customer is excluded.
II.
Entering into Individual Supply Contracts
1. Individual Supply Contracts are entered into exclusively on the basis of a written order by the Customer, which is a proposal to enter into a contract, and its written acceptance by the Supplier.
The Customer’s order and its acceptance in a form other than in writing are excluded.
2. The Customer is obliged to place orders only on the order form, which forms an annex to these General Delivery Terms and Conditions and which refers to these General Delivery Terms and Conditions, or on the Customer form approved in advance by the Supplier.
3. The Customer’s order is time-limited for seven days, and the Supplier must accept it within this period.
If the Supplier does not accept the order within the specified period, the contract has not been entered into.
The Supplier is not obliged to accept the order.
The Customer’s order must always be based on the Supplier’s price offer, which is limited for the period specified in it.
The Supplier’s price offer is not a proposal to enter into a contract.
4. The rights and obligations of the Contracting Parties under each Supply Contract entered into between the Parties are governed by these General Delivery Terms and Conditions, unless otherwise agreed in writing in a specific case.
According to Section 1751 par. 2 of Act No. 89/2012 Coll., the Civil Code (hereinafter referred to as the “Civil Code”), if the Parties in the offer and in the acceptance of the offer refer to business terms and conditions that contradict each other, the contract is still entered into with the content determined to the extent that the business terms and conditions do not conflict; this applies even if the business terms and conditions exclude it.
5. A change of an order by the Customer is binding on the Supplier only if the written request of the Customer for such a change has been accepted in writing by the Supplier.
III.
Definition of the Subject of Delivery
1. The Supplier is an entrepreneur engaged in the sale of new gearboxes, the refurbishment and supply of reconditioned gearboxes and the repair and servicing of gearboxes, as well as the provision of related services.
In a specific case, the subject of delivery is always defined by the contract entered into.
2. The Supplier’s obligation to hand over to the Customer the item that is the subject of the purchase and to enable the Customer to acquire the ownership right to it, and on the other hand, the Customer’s obligation to take over the item and pay the Supplier the purchase price, is governed by the provisions of the Civil Code on the purchase contract in matters not regulated by the contract and these General Delivery Terms and Conditions.
A purchase contract is entered into in the case of the delivery of complete new gearboxes.
3. The Supplier’s obligation to perform the work at its own expense and at the Customer’s risk and on the other hand the Customer’s obligation to take over the work and pay the price, is governed by the provisions of the Civil Code on the contract for work in matters not regulated by the contract and these General Delivery Terms and Conditions.
A work is understood to be the production of a certain thing, if it does not fall under a purchase contract, as well as the maintenance, repair or modification of a thing, or an activity with a different result.
A contract for work is entered into in the case of renovation of gearboxes or delivery of gearboxes assembled from already used gearboxes.
4. If the subject of the delivery is the performance of service work, it is a special contract for work, the subject of which is, on one hand, the Supplier’s obligation to repair or service the gearbox at its own expense and at the Customer’s risk, and on the other hand, the Customer’s obligation to pay the Supplier the price for the work performed.
5. If the subject of the delivery is the provision of another performance by the Supplier to the Customer (e.g. mediation or consultancy), it shall be assessed in matters not regulated by the contract and these General Delivery Terms and Conditions in accordance with the provisions of the Civil Code governing the contractual type in terms of content and purpose closest to the performance under consideration.
IV.
Place of Delivery
Unless otherwise agreed in a specific case or the nature of the performance implies otherwise, the place of delivery is the Supplier’s registered office/business premises at Vídeňská 297/99, CZ-63900 Brno, delivery condition EXW according to Incoterms 2020.
V.
Delivery Times, Customer’s Delays
1. The Supplier is obliged to perform within the time limit agreed in the contract.
2. Earlier performance than the deadline specified in the contract is permissible.
3. If the Supplier finds out that it is unable to meet the delivery time, it is obliged to notify the Customer without undue delay.
4. The delivery time is always extended by the time the Customer is in delay with:
- by handing over the necessary and/or requested documents,
- by payment of an advance, if agreed, or
- with the provision of any cooperation necessary for the proper performance of the contract requested by the Supplier from the Customer.
5. In the event of a Customer’s delay of more than 15 days, the Supplier may withdraw from the contract in whole or in part or terminate it in whole or in part with immediate effect; this right of the Supplier applies both to the contracts affected by the Customer’s delay and to any other contracts between the Customer and the Supplier.
VI.
Acceptance, Inspection of the Subject of Delivery
1. The Supplier is obliged to inform the Customer that the delivery is ready to be accepted or that it has been sent to the Customer.
The Customer is obliged to accept the subject of delivery within five working days from the date on which the Supplier invited him to take over the subject of delivery, or according to the carrier’s disposition.
The Supplier’s obligation to hand over the subject of delivery is fulfilled by the fact that the Supplier allows the Customer to dispose of the subject of delivery at the place of performance of the delivery.
If the contract stipulates the sending of the subject of delivery, the Supplier’s obligation to hand over the subject of delivery to the Customer is fulfilled by handing over to the first carrier or forwarder for transport to the Customer.
If the Supplier undertook to send the subject of delivery to the place specified by the Customer at the Customer’s request, the Customer bears the transport costs as well as any other costs associated with sending and delivering the shipment, unless otherwise agreed.
2. The Customer is obliged to confirm in writing the receipt of the subject of delivery by signing the handover record or delivery note.
The Supplier is not obliged to hand over the subject of delivery to the Customer before signing the handover record or delivery note.
3. The Customer is obliged to inspect the subject of delivery immediately after its receipt and to check the delivered quantity, the integrity of the packaging and the subject of the delivery as such.
VII.
Acquisition of Title, Transfer of Risk of Accidental Damage
1. Unless otherwise agreed in a specific case, the Customer acquires the ownership right to the subject of delivery only upon full payment of the purchase price and all costs associated with the delivery in the case of entry into a purchase contract, or the price for the work and all costs associated with the delivery in the case of contracts for work (retention of title).
2. Unless otherwise agreed between the Parties, the risk of accidental damage shall pass to the Customer in accordance with the EXW delivery condition according to Incoterms 2020.
Unless otherwise agreed and the Supplier undertook to send the subject of delivery to the place specified by the Customer, the risk of accidental damage passes to the Customer upon notification of readiness for acceptance, at the latest upon handover of the subject of delivery to the first carrier or forwarder for transport to the Customer.
VIII.
Pricing and Billing
1. The Customer is obliged to pay the price and any costs associated with transport on the basis of the Supplier’s invoice.
The billing currency is the currency specified in the received order, unless otherwise agreed.
2. The Supplier is obliged to send invoices to the Customer by post or in electronic form by e-mail without undue delay after they are issued.
3. The invoice is due 15 days from the date of its issue, unless otherwise agreed.
In the case of non-cash payments, the Customer’s obligation to pay a monetary amount is fulfilled at the moment the amount is credited to the Supplier's account.
IX.
Liability for Defects
1. In the event that a purchase contract has been entered into between the Supplier and the Customer, the Supplier is responsible for ensuring that the subject of delivery is in accordance with the purchase contract and that it has no factual or legal defects not foreseen by the purchase contract.
In the event of a defect that the Customer has duly and timely reported, the Supplier is obliged to rectify the defect, either by repairing the subject of delivery, by delivering a new item of delivery without defects or by providing a reasonable discount on the purchase price.
The Supplier is entitled to choose the method of rectifying the defect at its discretion.
2. In the event that a contract for work has been entered into between the Supplier and the Customer, the Supplier is responsible for ensuring that the work complies with the contract.
The provisions of the purchase contract apply similarly to the Customer’s rights arising from defective performance, and the Supplier is entitled to choose the method of removing the defect at its discretion.
If the subject of the work cannot be returned or handed over to the Supplier due to its nature, the performance of a substitute work is excluded.
3. In the event that a contract for the performance of service work has been entered into between the Supplier and the Customer, the Supplier is responsible for the proper and professional performance of the work itself, but is not responsible for the correct functioning of the thing that was the subject of the service work, unless the Supplier has expressly undertaken to do so.
In the event that the service work was not carried out in accordance with the contract and the Customer reprimands the Supplier for this defect properly and in time, the Customer has the right to have the service work properly performed again or to a reasonable discount at the Supplier’s discretion.
4. The Customer is obliged to complain to the Supplier in writing about obvious defects without undue delay, but no later than two working days after the receipt of the subject of delivery, in the case of hidden defects, the Customer is obliged to complain about them in writing without undue delay after their discovery, but no later than within six months from the acceptance of the subject of delivery.
The Customer is obliged to state in the written notification what the subject of delivery is, what it sees as a defect in the subject of the delivery, how this defect manifests itself, or attach photo documentation proving the existence of the defect.
The Supplier is obliged to confirm its delivery within ten working days from the date of receipt of the written complaint of defects and to inform the Customer how the complaint will be settled.
The deadline is extended if the Supplier requests additional information regarding the alleged defect so that it does not expire earlier than five working days from the date on which the Supplier receives complete information from the Customer.
The Customer is obliged to hand over the subject of delivery to the Supplier for repair or replacement no later than five working days from the date on which the Supplier’s notification of the method of handling the complaint is delivered to him.
The deadline for settling a complaint is 45 days and begins on the day when the Supplier is delivered a written complaint of defects, while it is extended by the time when the Customer is in delay with handing over the subject of delivery to the Supplier or with providing the necessary cooperation.
The Supplier is obliged to notify the Customer in writing of the settlement of the complaint within the specified period.
5. The Customer is obliged to provide the Supplier with all necessary cooperation necessary to verify the legitimacy of the complaint as well as to remove the defect by repair or delivery of a new item (e.g. ensuring access, making the installation site accessible, renting handling equipment, etc.).
6. A change in the subject of delivery that occurred as a result of wear and tear, improper use, insufficient or inappropriate maintenance, or as a result of any mechanical or other damage caused by external influences or interventions by the Customer or third parties cannot be considered a defect in the subject of delivery.
7. In the event of an unjustified complaint, the Supplier is entitled to claim compensation from the Customer for the costs associated with the complaint, especially the cost of travel, postage, time spent dealing with the unjustified complaint, the dispatch of fitters, etc.
The reimbursement of costs will be payable within 30 days from the date on which the Supplier notified the Customer of the settlement of the complaint and called on the Customer to reimburse the calculated costs associated with the complaint.
X.
Guarantees
1. The Supplier provides the following guarantees for the subject of delivery, unless otherwise agreed in a specific case:
- in the case of purchase contracts, a guarantee on the subject of delivery for a period of 12 months from the date of transfer of the risk of damage to the subject of delivery to the Customer;
- in the case of contracts for work, a guarantee on the subject of delivery for a period of 6 months from the date of transfer of the risk of damage to the subject of delivery to the Customer;
- for service work a guarantee for a period of 6 months from the performance of the work, while the guarantee applies only to the proper performance of the work, not to the correct functioning of the thing that was the subject of the service work.
2. The guarantee provided by the Supplier does not apply to the installed material in the case of contracts for work and service contracts.
3. The procedure for claiming the warranty by the Customer shall be governed by the provisions of these General Delivery Terms and Conditions on the application of liability for defects by analogy.
XI.
Keeping Secrets, Confidentiality
The Contracting Parties are obliged to treat as a trade secret all information that one Contracting Party discloses to the other, with the exception of information that was publicly available in accordance with legal regulations at the time of its disclosure by the other Contracting Party.
XII.
Limitation of the Supplier’s Obligation to Compensate for Damage
1. The Supplier’s obligation to pay damages for a breach of its obligations, including damage caused by a defect in the subject of delivery, is limited in each individual case by the price of the individual subject of delivery. In the case of contracts for long-term supplies, it is always limited by the price of a specific partial delivery or a specific service performance.
2. The Supplier is not obliged to compensate the Customer for lost profits, nor for any consequential or indirect damages, such as lost profits and other pecuniary damages; the Supplier’s obligation to compensate for damage is limited to damages incurred in direct causal connection.
XIII.
Prohibition of Set-off, Prohibition of Assignment of Receivables
1. The Customer is not entitled to set off any of its receivables against the Supplier against the Supplier’s receivable against the Customer without the Supplier’s prior written consent.
2. The Customer may not assign any receivable againts the Supplier without the Supplier’s prior written consent.
XIV.
International and National Sanctions
1. International and national sanctions shall mean, in particular, orders, prohibitions or restrictions established for the purpose of maintaining or restoring international peace and safety, combating terrorism, compliance with international law, protecting human rights and freedoms, and promoting democracy and the rule of law, adopted in particular (but not exclusively) by the Government of the Czech Republic, the United Nations, the European Union or the United States.
2. The Customer acknowledges that pursuant to Act No. 69/2006 Coll., on the Implementation of International Sanctions and Act No. 1/2023 Coll., on Restrictive Measures Against Certain Serious Conduct Applied in International Relations, the Supplier has the following obligations:
- if the Supplier learns in a credible manner that there is property in its possession that is subject to international or domestic sanctions, it is obliged to notify the Financial Analytical Office thereof without undue delay, and the Supplier may not dispose of such property in any other way than for the purpose of protecting it against loss, depreciation, destruction or other damage, and upon the request of the Financial Analytical Office, it is obliged to hand over such property to the Office or a person designated by it;
- If the Supplier learns that the Customer is subject to international or domestic sanctions, or that the subject of the contractual relationship is or is to be property subject to international or domestic sanctions, but this suspicion cannot be credibly verified before or when entering into the contract, the obligation to notify the Financial Analytical Office arises immediately after the entry into the contract.
3. The Customer is obliged to inform the Supplier that it is a person subject to international or national sanctions, or that it is in any way connected with such a person, or that the subject of delivery or any part thereof is or may be subject to international sanctions, always without undue delay after becoming aware of this fact.
4. The Customer is obliged to compensate the Supplier for all damage, including non-material damage, caused by a breach of the obligations laid down in this Article of the General Delivery Terms and Conditions.
5. In the event that the performance under an individual supply contract is subject to international or domestic sanctions, or if the Supplier is exposed to the risk of sanctions imposed by public authorities in connection with such a contract in connection with possible sanction restrictions related to the subject of delivery under such contract, the Supplier is entitled to suspend the delivery under the contract entered into, without being in default with the fulfilment of its obligations under the contract, or the Supplier may withdraw from the supply contract in whole or in part or terminate it in whole or in part with immediate effect
XV.
Contractual Penalties
1. The Supplier is entitled to require a contractual penalty from the Customer in the following cases:
- 0,05% of the outstanding amount per day for each day of delay in payment of the invoiced amount;
- €500 for each day of delay in taking over the subject of delivery;
- €15,000 for each individual case of breach of the obligation to secrecy or confidentiality;
- €15,000 for each individual case of breach of the obligations referred to in Art. XIV. of these General Delivery Terms and Conditions (information obligations in relation to international and national sanctions).
2. Contractual penalties may be cumulative.
3. The contractual penalty is payable within five days from the date of delivery of the Supplier’s written request for payment to the Customer.
4. The obligation to compensate for damage shall not be affected by the contractual penalty.
XVI.
Force Majeure
1. Force majeure means an extraordinary, unforeseeable and insurmountable obstacle arising independently of the will of the obliged party, which prevents it from fulfilling its obligation, if it cannot be reasonably expected that the obliged party would avert or overcome this obstacle or its consequences, and that it would have foreseen this obstacle at the time of entering into the contract.
Cases of force majeure include, but are not limited to: strikes, epidemics, pandemics, restrictions resulting from measures taken by public authorities to protect health, ordered quarantine of a Contracting Party and/or its employees, fire, natural disaster, flood, deluge, mobilisation, war, insurrection, confiscation of goods, embargo, blockade, ban on the export or import of goods, raw materials or services from/to a certain state, prohibition on the transfer of foreign currency, regulation of the consumption of electricity or other energy not caused by a Contracting Party, interruption of energy supplies not caused by a Contracting Party, as well as any other obstacle caused by acts or omissions of public authorities, terrorist attack and all similar cases with a comparable impact.
2. The Party in which force majeure circumstances have occurred is entitled to suspend the performance of its obligations under the contract for the duration of the contract, but is obliged to notify the other Party of this fact in writing without undue delay, including the expected duration of such circumstances, and to take all necessary measures to mitigate the consequences of the failure to perform the contractual obligation.
All periods and deadlines for the performance of obligations under the contract shall be extended by the duration of the force majeure circumstances, and the affected Party shall be obliged to inform the other Party in writing without undue delay of the cessation of the obstacles preventing the Contracting Party from performing.
In the event that it is not possible to continue the performance of the contract immediately as a result of force majeure, the periods and deadlines for the fulfilment of the obligations under the contract are extended by the period necessary to start continuing the performance of the contract.
3. Force majeure excludes the right to claim contractual penalties and/or damages against the Party affected by force majeure.
4. If the force majeure circumstances persist for longer than 3 months, both Contracting Parties are entitled to withdraw from the contract and/or terminate it with immediate effect, even partially.
XVII.
Governing Law, Venue
1. All contractual relationships between the Supplier and the Customer are governed by Czech law.
2. For legal disputes, the territorial jurisdiction of the court with subject-matter jurisdiction is agreed in Brno, Czech Republic.
If the Customer has its registered office in a state in which a decision issued by a Czech court cannot be recognised, the Supplier is entitled, but not obliged, to file a lawsuit with the competent court in the state of the Customer's registered office.
XVIII.
Common and Final Provisions
1. The requirement of a written form is met when sent by fax or e-mail.
2. Commercial customs shall not take precedence over provisions of the law which do not have coercive effects.
These General Terms and Conditions have been valid from 28.08.2021.