Terms and Conditions

General Ordering Conditions of THIERRA a.s.

1. Deliveries shall be made primarily in accordance with the specification set out in the order, and in other matters not covered by the order shall be governed by these General Ordering Conditions, which shall prevail over the Supplier's terms and conditions in cases where the Customer has been demonstrably acquainted with them. Other documents with a similar meaning shall not apply to this contractual relationship and their use is excluded, even if they are mentioned in the order confirmation and are not commented on. These General Ordering Conditions shall also apply to subsequent deliveries.

By accepting these General Ordering Conditions, the Supplier accepts and confirms that it has fully informed itself of all circumstances relating to its performance and that it has familiarised itself (in particular on the website www.thierra.com) with the Customer's business policy and that it will comply with these rules in the performance of its contractual obligations. The application of Sections 1799 and 1800 of the Civil Code is therefore excluded. The Supplier and the Customer assume the risk of change of circumstances pursuant to § 1765 of the Civil Code.

The subject matter of these General Ordering Conditions is the delivery of goods and services as well as the construction of an item (building or part thereof), or its maintenance, repair or modification; all also collectively referred to as the supplier's performance for the customer (or, depending on the context, for the buyer).

The Supplier's right to invoke to its advantage the records of data on legal transactions and other facts in the Client's electronic system pursuant to Section 562(2) of the Civil Code is excluded. Furthermore, the supplier's right to rely on the content and timing of documents relating to legal facts occurring in the normal operation of the customer's plant pursuant to Section 566(2) of the Civil Code is excluded.

2. The order confirmation, shipment notices, delivery notes, invoices and other documents must always include the order number of the customer (buyer). Together with the delivery, a delivery note must be delivered, on which, in addition to the name of the person taking delivery, the type and quantity of the goods delivered (or the packaging) and, where applicable, other documents relating to the supplier's performance, in particular manuals, assembly and operating instructions, manuals, wiring diagrams, data on durability, certificates and attestations, declarations of conformity and other documents proving the quality of the performance delivered by the supplier, in particular in accordance with Act No. 22/1997 Coll, on technical requirements for products and Regulation (EU) No 305/2011 of the European Parliament and of the Council of 9 March 2011 laying down harmonised conditions for the marketing of construction products. All these documents must be in Czech.

3. The Supplier is obliged to perform the performance free of defects and imperfections, including the delivery of documentation on the subject of performance, within the specified period, at the specified place of destination at its own expense, including the risk of damage, loss, destruction or damage. In the event of early performance and acceptance of performance, the Supplier shall bear all risks up to the original date of performance. The Customer shall not be obliged to accept the object of performance until the object of performance is free from defects and deficiencies; this shall also apply in the event of damaged packaging of the goods delivered.In the case of delivery of the goods, the customer is entitled to return the delivered goods before the due date. If the buyer has to determine the characteristics of the goods subsequently and fails to do so in time, the seller is not entitled to determine these characteristics; Section 2089 of the Civil Code shall not apply.

In the case of delivery of the goods, the supplier must send the goods properly packaged, preserved and labelled in accordance with international regulations and standards.

The supplier must comply with all regulations, in particular the provisions of the Dangerous Goods Transport Act, including the European Union Regulation on the International Carriage of Dangerous Goods by Road (ADR).

The supplier confirms that he is aware of the local facts at the destination, including arrival. The Supplier shall be liable for any damage and contamination of the goods caused by him and shall not blame the Customer.

4. Delays in the performance deadline (even partial) shall be considered a material breach of contract and the Client shall be entitled to claim a contractual penalty of 0.5% of the performance price including VAT for each calendar day of delay. The contractual penalty does not presuppose fault and is not subject to a court's right to mitigation, i.e. it shall be paid by the supplier in full. Damage (injury) in excess of the contractual penalty may be claimed in full.

5. The Supplier warrants that its performance is of the usual quality and meets all the characteristics promised in the Order and, where applicable, specified in these Conditions. The Supplier also warrants that the supplied performance complies with Czech and European standards and safety regulations and DIN or other technical standards, according to the latest state of the art (including technical standards that are not generally binding) and that it is approved or in accordance with the regulations of the relevant authorities. The customer is not obliged to inspect the goods after delivery, but only when they are incorporated into the work; otherwise within 7 days of delivery. Any defects in the supplier's performance may be complained about at any time during the warranty period. The Supplier's warranty period is (unless otherwise stated in the order) two years for movable goods and 60 months for non-movable goods. In any case, the Supplier shall provide a guarantee for the same duration as that for which the Customer guarantees its customer; this applies in particular if the Supplier delivers movable goods intended for further processing into immovable goods. The supplier shall be liable for any damages resulting from incorrect advice (damage caused by information or advice). The Supplier undertakes to commence the rectification of any defects found within the guarantee period within 3 days of the Customer's complaint and to rectify the defects as soon as possible. In the event of an accident, the Supplier undertakes to start remedying the defect within 24 hours of the complaint. The Supplier shall remedy accidents within 48 hours of notification of their occurrence, if this is generally technologically and logistically possible. In all other cases, the Supplier shall commence remedying the defects within three (3) working days of notification of the defect and shall remedy the defects as soon as practicable, but not later than twenty (20) calendar days. If the Supplier is in default in the removal of a defect claimed within the warranty period or a defect from the handover report, the Supplier shall be obliged to pay the Customer, at the Customer's request, a contractual penalty of CZK 2,000 for each day of delay in the removal of each such defect. If the Supplier fails to pay this contractual penalty, the Client shall be entitled to set off this contractual penalty against the warranty retention or to apply a bank guarantee for the warranty period to this extent.

The Supplier shall be responsible for the environmental friendliness of the performance delivered and for compliance with all environmental regulations during its performance.

The Supplier is obliged to comply with all legal standards in its activities, especially in relation to chemicals and other hazardous substances. Any disclaimer of warranty or liability shall be void. Material safety data sheets must be provided for dangerous goods and preparations on receipt of the goods. The Supplier further undertakes to take back and properly dispose of all packaging at his own expense.

6. Signing the delivery note (handover protocol) only confirms receipt, not the quantity and quality of the performance. If differences are found between the quantity on the delivery note and the quantity actually delivered, only the quantity actually delivered will be paid for. The supplier must issue a corrective tax document for the undelivered quantity, which may be offset against the original invoice. Sections 2098 and 2093 of the Civil Code shall not apply. Deliveries in excess of the ordered quantity shall be taken back by the supplier at his own expense. The costs and risks of storing the goods in the meantime shall be charged to the supplier. Packaging will not be reimbursed.

If the Supplier's performance does not correspond to the ordered quality or quantity, the Customer may refuse the performance or demand replacement, free of charge removal of deficiencies or demand a reasonable discount from the price of performance or completion of what is missing. The Supplier shall also be liable for the transport costs, the costs of any assembly and dismantling, the costs of remedying the damage caused, including all disadvantages and consequential damages (including the contractual penalty of the Customer from its customer) when delivering a defective performance.

7. The invoice is delivered in duplicate with the order number of the customer (buyer) to the address indicated by the customer, including confirmed delivery notes.

The due date is 60 days from the delivery of the faultless invoices to the customer (unless otherwise stated in the order) and may be adjusted in accordance with any price discount agreement (consignment). The right to deduct the discount for payment during the agreed discount period shall not be waived if other payments take place outside the discount period. If the invoice is due in December, it shall be postponed to 15 January of the following year. If an invoice falls due in June, it shall be postponed to 15 July of that year.

The invoice for works and supplies (work) validly issued by the Supplier shall be paid by the Client up to 90% of the invoiced amount excluding VAT. The remaining 10% of the invoiced amount excluding VAT shall constitute a deposit, which shall be released by the Client as follows:

a) part of the retainer in the amount of 5% of the invoiced price of the work excluding VAT will be released on demand within 30 days after handover and acceptance of the work or within 14 days after the removal of any defects listed in the record of handover and acceptance of the subject of the work, but not before the due date of the final invoice.
b) the remainder of the security deposit in the amount of 5% of the price of the work excluding VAT serves as security for the contractor's liability for any defects in the work during the warranty period and will be released on demand within 30 days after its due expiry.

The Supplier declares that the due date for payment of invoices is agreed by the parties taking into account the nature of the subject of performance and the Supplier, as a creditor within the meaning of Section 1963(2) of the Civil Code, expressly declares that it does not consider the agreed due date to be grossly unfair to itself and agrees to the payment of tax documents within the stated due date.

The Supplier declares that:

- the account number he has provided for the remittance of payments on the invoice corresponds to the account he has reported to the tax authorities,
- is not an unreliable payer according to Section 106a of Act No. 235/2004 Coll., on Value Added Tax, as amended (hereinafter referred to as the "VAT Act"); and
- fulfils all its obligations related to tax administration under the VAT Act, in case of payment of the price in several instalments.

If the Supplier is a VAT payer within the meaning of Act No. 235/2004 Coll. and the subject of its performance falls within the scope of construction works corresponding to the CZ-CPA 41 to 43 production classification code, the Supplier is obliged to indicate this code on the tax document and to issue the tax document in accordance with §92a and §92e of Act No. 235/2004 Coll. as amended, i.e. in the reverse charge regime. If the supplier fails to issue a tax document in accordance with the law, he shall not be entitled to payment of the amount claimed on the tax document, it shall be returned to him and the client shall not be in default of payment.

8. Any counterclaims (claims) against the Supplier shall be deducted in advance, irrespective of the time of notification, in the event of assignment, pledge (including judicial) of its claims. This also applies to claims of group companies and work companies (associations) in which the customer or his group company has a share; the supplier expressly agrees to this.

The Supplier may not assign, pledge or otherwise similarly dispose of its claims against the Customer without the prior written consent of the Customer; in the event of a breach of these obligations, the Supplier shall pay the Customer a contractual penalty in the amount of the claim so assigned, pledged or otherwise improperly used. In the event that the assignment or pledge of the receivable is authorised, 2 % of the invoice amount recognised, including VAT, shall be withheld or deducted from the costs.

The Supplier shall not be entitled to assign this contract, i.e. to transfer its rights and obligations under the contract or any part thereof to a third party as an assignee, without the prior written consent of the Customer.

9. The prices stated in the order are fixed. If the Supplier reduces prices across the board with respect to other customers by the agreed delivery date, this price reduction shall also apply to the Customer.

Samples and drawings submitted by the Customer for performance remain the property of the Customer and shall be returned no later than upon acceptance of performance. The Supplier may not use them for its own purposes or make them available to third parties.

The contractor may take photographs of the construction only with the written consent of the client; any publication is prohibited.

10. Legal action by the Supplier in breach of any provision of the Purchase Order or these Delivery Terms shall be deemed a material breach. The Customer shall be entitled to withdraw from individual or pending partial deliveries with immediate effect, without any obligation, if the Supplier breaches any provision of the Purchase Order or these Delivery Conditions, in particular in the event of quality differences, failure to deliver on time or delivery of defective goods. The Purchaser shall also be entitled to withdraw from this Contract if insolvency proceedings have been initiated in respect of the Supplier's assets in which bankruptcy has been declared (bankruptcy proceedings), if the insolvency petition has been dismissed for lack of assets of the debtor, or if the Supplier is in liquidation. Section 253 of Act No 182/2006 Coll. is not affected.

In the event of withdrawal, the Supplier shall be liable for all the resulting consequences, including consequential damages. In particular, the client shall be entitled to secure compensation for performance at the contractor's expense without requesting competitive tenders.

If the contractual relationship between the customer and the ordering party is terminated or if the ordered material is not needed for any reason, the ordering party is also entitled to withdraw from the delivery or partial deliveries that have not yet been made without obligation.

11. The place of performance is the relevant destination according to the order.

12. The seat of the court is in Brno. Czech law applies. In the text of these General Ordering Conditions, the phrase "Civil Code" means Act No. 89/2012 Coll., as amended. Private international law and UNCITRAL law will not be applied. The Parties agree that in the event of any disputes relating to the Order or these Conditions, they shall use their best endeavours to resolve such disputes by mutual agreement. If no agreement is reached within 30 days from the date of submission of the disputed matter to the statutory representatives of the Parties, such disputes shall be resolved in accordance with the provisions of Section 89a of Act No. 99/1963 Coll., Code of Civil Procedure, as amended, and Article 25 of Regulation (EU) No. 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (recast - Brussels I bis), in the court of the Czech Republic having local jurisdiction at the registered office of the Customer (Buyer).

In Brno, 1.8.2022