General Business Conditions
General Business Conditions with customers of Kovinc d.o.o.
1 GENERAL CONDITIONS
1.1. These General Business Conditions manage contractual obligations between the company Kovinc d.o.o., Lahovče 87, 4207 Cerklje na Gorenskem, registration number 2044366000, ID number for VAT SI96114568 (hereinafter: Kovinc d.o.o., Lahovče), which in the transaction acts as a service provider (hereinafter: service provider), and between legal persons, individual entrepreneurs or natural persons who in the legal sense act as buyers (hereinafter: buyer) of goods and services from the service provider.
1.2 The General Business Conditions refer to all relationships between the manufacturer and the buyer (hereinafter together also: contracting parties), unless the service provider and the buyer agree differently for each individual case. When in doubt, the special agreement refers only to those agreements concluded in writing.
1.3 The condition for using these General Business Conditions is that in the sales contract, the tender or in other documents (hereinafter: legal transaction) which led to the conclusion of this transaction the service provider referred to them; with that the buyer was given the opportunity to take note of them, on the condition that they have also been published on the service provider’s website or have been handed over to the buyer at the conclusion of the legal transaction or prior to that.
1.4 In the individual legal transaction the service provider reserves the right to lay down specific conditions, which in the case of this legal transaction apply prior to the general business conditions. The stated shall also apply in a case of discrepancy between the provisions of the individual legal transaction and general business conditions.
1.5 The service provider does not recognise any conditions of the buyer which are in conflict with those General Business Conditions or derogate from them, unless they are laid down by these general conditions or if the service provider specifically confirmed them in writing.
2 OFFERS AND ORDERS
2.1 The period of the validity of the offer is limited to seven (7) days, unless otherwise stated in the offer.
2.2 The buyer’s order must be submitted in written form and sent to his e-mail address, to the address of the service provider by regular mail, telefax or according to the settled business practice. The order can also be given orally, but only if the buyer settles the purchase price in full. The order must include the number of the offer and the detailed description of the product from the offer. Furthermore, at least the following must be defined: the number of items, the desired delivery period, the place of delivery, the method and deadline for the payment and the obligatory information about the buyer.
2.3 The buyer’s order shall be kept at the address of the service provider in written and electronic form. On request the buyer has the possibility to access the original with the confirmatory stamp with the signature, or can acquire a copy, or a copy of the order is sent to the buyer by regular mail, electronic mail or telefax.
2.4 The technical documentation, sketches, designs, pictures and corresponding descriptions, which are delivered to the buyer in the offer phase or for the purposes of the order, represent the manufacturer’s property. These sorts of documentation are available to the buyer only for internal use according to the purpose for which it was acquired. The stated documentation remains the property of the service provider and the buyer must assure that the third parties do not get access to this documentation (not to the original, not to the copy or any other form of duplication). In the event of abuse the service provider reserves the right to compensation.
3 CONCLUSION OF CONTRACT
3.1 The service provider will deliver the products or provide the services in accordance with the legal transactions.
3.2 The legal transaction between the manufacturer and the buyer is considered concluded when the contracting parties agree on the essential business components or when the provider receives from the buyer a written statement that the offer has been accepted or that the buyer orders the products or the services according to the provider’s offer.
3.3 If the buyer orders products with special properties or special services (e. g. non-standard products or services), such order is received only after the service provider specifically confirms such special order in writing.
3.4 In the event of ordering those products or services for which changes of order are possible during the execution or the confirmation of the end product from the buyer is needed (e. g. the confirmation of the prepared patterns), the legal transaction is concluded only after the final confirmation of the changes of the order or patterns. If the preparation of the patterns of the products or the preliminary preparations for the execution of the services should demand higher expenses, the service provider reserves the right to change the expenses for the production of the patterns or for the preliminary preparations if the buyer terminates the order after the preparation of the patterns or the preliminary preparations have already been carried out.
3.5 In order to secure the payment from the legal transactions the service provider can demand additional insurance from the buyer with the appropriate financial instrument which was agreed between the contracting parties. In this case, the legal transaction between the service provider and the buyer is understood as concluded on the date when the buyer complies with the request for the insurance and hands the service provider the agreed security.
4 PRICE AND PAYMENT TERMS
4.1 If the legal transaction has been concluded with the acceptance of the individual service provider’s offer, the price defined in the offer is valid, unless at anytime during the procedure (from the offer to delivery) the order is changed by the buyer or is changed due to other circumstances of the order which influence the price of the product or procedure (including but not limited to: changes in the circumstances, changes in the buyer’s technical documentation, changes in the type of the material, additional demands regarding the quality, price increase of the cooperative services etc.).
4.2 The service provider is bound to notify the buyer about the price change in written form before the delivery of the product.
4.3 The service provider issues an invoice in respect of supplies of the products immediately after he issues the product and receives a written confirmation with a delivery note or at the latest within eight (8) days after the issue.
4.4 The buyer is obliged to pay the purchase price of the invoice/pro forma invoice in accordance with the agreed payment terms to the current account of the service provider, which is stated on the invoice/pro forma invoice. The payment deadline is considered to be an essential part of the legal transaction.
4.5 If the payment deadline is not agreed with the legal transaction, the payment deadline shall start to run from the date of the issue of the product for the product which is sold in purchasing power parities EXW, or with the date of the invoice issue. The date of the arrival of the payment on the service provider’s current account shall be considered as the payment deadline.
4.6 The contracting parties agree that the service provider has the right to immediately and unilaterally decline the selling of the product or the execution of the services and stop all the orders and deliveries, if the buyer owes him or has unsettled obligations to the service provider, regardless the amount. In that case the buyer is responsible for all the costs and consequences, including (but not limited to) the possible economic losses. The contracting parties furthermore agree that the service provider has the right to uniaterally decline the delivery of the product or the execution of the services that are the subject of the deferred payment, if circumstances arise which greatly undermine the service provider’s confidence in the buyer’s ability to pay (e. g. the obvious deterioration of the buyer’s financial situation, buyer’s illiquidity, the freezing of any bank account of the buyer, if the buyer is in an insolvency procedure), if by the service provider’s estimates the buyer's credit standing deteriorates or if at the request of the service provider the buyer does not submit adequate security.
4.7 In the event that any of the circumstances described in article 4.6 occur, the contracting parties can agree on continuous mutual cooperation by payment prior to the delivery (payment by pro forma invoice), and the service provider reserves the right to define the immediate due date of all the buyer’s outstanding commitments.
4.8 The contracting parties explicitly state and agree that the service provider can offset any obligations to the buyer with his debts to the buyer which arise from their mutual business operations. The service provider is bound to notify the buyer in writing about the offset, with the submission of the appropriate justification of the debt which ceased with the offset.
4.9 In the event of late payment the buyer is obliged to pay the statutory interest from the day of the commencement of delay to the executed payment, and all the expenses connected with the enforcement of the payment and dunning notices. For each dunning notice sent to the buyer due to late payment the service provider can demand compensation for the costs of the dunning notices in the amount of 50.00 EUR.
4.10 If the buyer has unsettled debts or is late with the payment, the service provider has the right to use the buyer’s means of payment for the repayment of the buyer’s old or unsettled debts, including the interest and possible costs of recovery of interest.
4.11 A buyer who comes from a EU Member State and demands exemption from VAT must submit all the necessary legal documentation which enables the service provider to meet all the legal and financial (tax) requirements regarding exemption from VAT. This refers in particular to evidence of delivery inside EU, ID for VAT or any other connected to the buyer's special exemption from VAT.
5 DELIVERY DEADLINE
5.1 The service provider will deliver the agreed amount and types of the products or will provide the service within the agreed deadline and in accordance with the agreed parity. The delivery deadline starts running from the conclusion of the legal transaction or from the date of the final change of the order in cases stated in article 4.3 and in general business conditions.
5.2 The service provider reserves the right to change the agreed delivery deadline if the buyer changes the order or if some unforeseen obstacles arise against the service provider’s will and if their nature significantly influences the fulfilment of the duties. The service provider is obliged to immediately notify the buyer on the start and cessation of such obstacles. Based on such obstacles, about which the buyer has been notified, the latter has no right to demand compensation for damages due to the delay in the deadline.
5.3 The service provider reserves the right to impose a suitable price increase, if the buyer demands a shorted deadline from the one offered in the offer.
5.4 The agreed deadline does not count as the essential element of the contract within the meaning of Article 104 of the Code of Obligations, unless the contracting parties had agreed on that with a special clause (e. g.: “not later than” etc.).
6 PLACE AND MODE OF DELIVERY
6.1 If not otherwise stated between the contracting parties, the service provider sells the products in purchasing power parities EXW in the service provider’s warehouse (Kovinc d. o. o., Lahovče).
6.2 If not otherwise stated in these General Business Conditions or with the agreement between the contracting parties and according to the agreed parity, the pre-defined commercial clauses Incoterms 2016 shall be used for the transfer of responsibilities for the product (the danger of accidental destruction or damaging of the products and the responsibilities for harm).
6.3 If the buyer does not collect the product within the delivery deadline, the service provider first reminds him in writing. If, in spite of the explicit written reminder, after five (5) days after the reminder the buyer does not collect the ordered products, the products shall be considered as collected and the service provider has a right to charge the buyer for the ordered products, at the same time he has a right to charge the buyer for the additional costs of storage, remaking or destruction of these products. In case of belated collection of the products, the risk of accidental damage or destruction of the products passes over to the buyer with the first day of the delay.
6.4 In case of parity, according to which the costs of transport are included in the price, the service provider is responsible for the loss of delivery only if the products which are the subject of complaint have already been rejected on the means of transport and if it has been documented that the complaint had been filed prior to the unloading. In the case of complaint due to damage during transportation, the transporter must sign the record or give his signature next to the note on the takeover documents at the time of the collection of the products; additionally he must acquire photographic evidence of the damage to the products while they are still on the means of transport. The buyer must notify the transporter and the service provider about the damage or loss of the forwarded products.
6.5 In case of parity, according to which the costs of transport or postage are included in the price, while the delivery was sent by the Slovenian Postal Services (Pošta Slovenije) or through some other package delivery company the buyer is obliged to file the complaint for the loss, damage or other defect regarding the delivery in accordance with The General Terms of Implementation of Universal Postal Services of the Slovenian Postal Service (Pošta Slovenije) or in accordance with the general terms of the other package delivery company, otherwise the complaint will not be considered.
6.6 In cases when the individual product requires additional installation (e. g. electrical installation at the buyer’s location, installation of lighting etc.) or assembly and the products are delivered without installation or assembly, the service provider is obliged to equip the products with the instructions for installation or assembly. The service provider is not responsible for damage or costs and is not obliged to accept complaints connected with incorrect installation or assembly of the products if the buyer does not follow the accompanying instructions.
7.1 The standard packaging for protection against damage during the transportation of the product is not included in the price. In case of claims regarding the packaging, the buyer bears all the costs.
7.2 Removal of the packaging after use (from the storage/building site/other) does not represent any costs for the service provider.
8 COMPLAINTS and RESPONSIBILITIES
8.1 The buyer is obliged to perform the quantitative and qualitative inspection of the products immediately after receipt of the products. The buyer is obliged to file a written complaint for any obvious errors using the complaint record immediately after the takeover, otherwise the products shall be considered as received and subsequent complaints concerning visible errors will no longer be possible. The record, used for the complaints concerning the product defects which occurred during transportation must be signed by the transporter, and all the damage must be documented with photographic evidence from which it is evident that the damage occurred during transportation.
8.2 For the products taken over at the service provider’s storage premises subsequent complaints are not possible.
8.3 The buyer must report hidden errors as soon as they are noticed. The service provider is not responsible for those errors which occur more than six (6) moths after the takeover of the products or services.
8.4 The service provider considers the buyer’s complaints only if they are submitted in written form, in a timely manner and if they are grounded in accordance with the provisions of the Code of Obligation. Complaints are always written, sent to the electronic address or by registered letter to the business address of the service provider, including the record of complaint, a copy of the invoice and a detailed description of the product’s damage or error. The buyer must also enable the service provider an inspection of the products under complaint within at least ten (10) days after receiving the complaint. The service provider is not obliged to consider unsuitable or incomplete documentation of the complaints.
8.5 The service provider is obliged to respond to the complaint and start the complaint-handling procedure as soon as possible or no longer than ten (10) working days after receiving notice of the complaint. The complaint must be handled within a reasonable time limit, this is the time limit which is objectively needed for performing the procedures necessary for the identification of the factual situation and to find a solution to the complaint.
8.6 The buyer cannot return the product which is subject to the complaint without the service provider’s prior written consent. The buyer is obliged to keep the products until the complaint is resolved and handle it carefully, otherwise the service provider has the right to reject the complaint.
8.7 The service provider reserves the right to reject the complaint in the following cases:
8.8 if he ascertains that the uselessness of or damage to the product arises from the incorrect or careless handling of the buyer, mechanical damage and defect in the case of ‘force majeure’;
8.9 if the product is not returned in the original packaging;
8.10 if the manufacturer warns the buyer about the possibility of inconsistency with the technical requirements prescribed by the buyer and the buyer has not taken the warning into account;
8.11 if the product has been wrongly chosen or used in combination with the products of other manufacturers;
8.12 if the products have been wrongly stored or installed.
8.13 In the event of a grounded complaint the service provider has the choice to correct the error or resolve the complaint with a substitution. The service provider determines if he will substitute the faulty product with a new one, or if he will correct the errors on the original product or will reduce the purchase price, on the basis of which the service provider issues the credit note.
8.14 The service provider is not responsible for any damage, either direct or indirect, which occurs as a consequence of the buyer’s lateness or errors when complying with the contractual obligations, especially regarding the wrong or inaccurate information, specifications, projects or any other information which the buyer ensured, unless the service provider acted intentionally or with obvious negligence.
8.15 The service provider is not responsible for damage which did not occur directly to the product, especially not for damage or costs for the loss of profit and/or other material and non-material damage to the buyer. The described limitation of liability does not apply if the damage has been caused intentionally or due to obvious negligence. The exemption from liability also applies for the co-workers, employees, representatives and assistants of the service provider.
8.16 The value of the buyer’s claim, regarding a complaint concerning the product and/or damage due to errors or/and delay in meeting contractual obligations, cannot be higher than the value of the delivered product.
9 RETENTION OF TITLE
9.1 The service provider retains title to the sold product even after it has been delivered to the buyer, namely until the buyer pays the whole purchase price and other obligations, regardless of their basis.
9.2 In the event of installation or assembly of the service provider’s products to other products, the service provider reserves the right to property even to part of these products or to the proportional share of the new product. This also applies in the event that the buyer refines the product, remakes it, installs it or changes its identity in some other way.
9.3 The buyer must properly store and adequately protect the product which is the subject to the service provider’s right to property against unfavourable climatic conditions, fire, theft etc.
9.4 If during this time the buyer resells the product or other goods to which the product had been installed within the meaning of article 9.2, to any other third person, he assigns to the service provider all the claims he acquires from the third persons on that sale. The buyer will immediately notify the service provider about such claims. The service provider can with the assigned claims the request for payment of the purchase price together with the interests and costs. The service provider is obliged to hand over the surplus of the debt he assigned to the buyer the next day. If the buyer pays for whole purchase price or if after complete payment from the part of the assigned debts the service provider is still left with some other assigned debts, the service provider must immediately assign them to the buyer as returned.
9.5 If the buyer is bankrupt or being wound up, subject to proceedings for a declaration of bankruptcy, the service provider retains title to products in the amount of all the unpaid claims of the service provider to the buyer stemming from the supply of products or services.
9.6 If the payment for the supplied products is insured with financial instruments, the service provider’s right to the property runs out only after the buyer’s payment or after a successful enforcement of the financial instrument.
9.7 If the buyer does not respect the mutual agreements, especially regarding payment delay, the service provider has the right to reclaim the products. That does not count as a withdrawal from the legal transactions, unless the service provider explicitly says so in writing at the time of takeover of the product.
9.8 The retention of title from article 9 is valid for all the products sold by the service provider regardless of whether the retention of title is written on the issued invoice for the supplied products.
10.1 If the service provider guarantees the effectiveness of the product with a warranty, the enforcement of the warranty is subject to the conditions stated in the warranty or on the invoice.
10.2 The warranty is not valid for products which have been damaged during transportation, due to unprofessional installation or use under conditions which are abnormal according to the information given in the buyers demand or order, and in the event of failure to comply with the service provider’s instructions for use and maintenance.
10.3 In the event of a delay in takeover due to the fault of the buyer, the warranty period starts to run on the first day of the delay.
11 FORCE MAJEURE
11.1 In the event of force majeure the service provider is not obliged to perform the services or supply the buyer with the quantities or with the types of products contracted for or comply with the deadline. The service provider is also exempted from liability for damage which occurred due to the force majeure. Force majeure are circumstances which occurred due to extraordinary, insurmountable and unforeseen circumstances that cannot be predicted, avoided or averted (unpredicted and uncontrollable external circumstances).
11.2 When unable to comply with the legal transaction due to force majeure, the service provider must notify the buyer in writing.
11.3 During the force majeure the contractual obligations of the contracting parties are suspended, except for the obligations for payments for products or services that have already been supplied.
11.4 If the force majeure lasts more than one (1) month, the parties agree on the further fate of the legal transactions. If the parties cannot find an agreement, they each have the right to unilaterally terminate the agreement with a written notification to the other party.
12.1 The service provider may terminate the agreement without prior notice in the following examples:
a) if the buyer does not fulfil all the obligations or violates them and does not fulfil or stop them even within the extended deadline and after the service provider’s prior reminder;
b) if the buyer does not make the payments in time and with the method defined in the contract even after the service provider’s reminder;
c) if on the service provider’s request the buyer does not provide suitable payment insurance or additional payment insurance or does not correct the method of payment;
d) if the buyer is bankrupt or being wound up, subject to proceedings for a declaration of bankruptcy or the buyer’s company is being wound up after a shortened procedure;
e) if the service provider estimates that the buyer has become insolvent although his insolvency has not been established by a court decision, or if the service provider reasonably concludes from other facts that the buyer will not be able to fulfil his obligations;
f) if the buyer has ceased to operate;
g) if a court order for debt has been issued to the supplier, for which reason his accounts have been blocked for more than seven (7) days;
h) if, according to the service provider’s estimation, negative developments occur in the economic, legal or staff position of the buyer, or any other circumstances arise which may put the service provider in an essentially less favourable situation, or which may severely undermine service provider’s trust in the buyer and/or his capacity to fulfil his obligations, or which may in any way compromise, impede or prevent the fulfilment of the buyer’s obligations;
i) if the circumstances of the business have changed to a degree where it is not possible to achieve the original purpose for which the financial transaction has been concluded;
j) in other cases defined in this general business conditions or in the mutual agreement, or in other cases stated in the buyer’s offer.
12.2 In the case of the service provider’s termination of the legal transaction the buyer is obliged to pay all the expired and outstanding commitments, all so far supplied products and services and in the case of paragraphs a), b), c), d), e), f), g) in h) and article 12.1 reimburse the service provider all the costs and damages resulting from the termination.
12.3 The buyer can terminate the legal transaction in the following cases:
a) if the service provider becomes incapable of fulfilling his obligations;
b) if the execution of the object of the legal transaction is delayed due to force majeure and the contracting parties cannot agree on the future fate of the legal transaction in accordance with article 11.4;
c) if the buyer intends to stop the sale of the service provider’s products which the service provider produces as non-standard especially for the buyer over a longer period of time, under the condition that he pays all his pending obligations and the obligations to the service provider which have not yet fallen due, and that he buys all the parts produced in accordance with all types of the buyer’s orders (including framework orders or announcements).
12.4 The notice of termination or withdrawal must be submitted by registered letter and becomes valid on the day it is served to the other contracting party; if service is not possible, it becomes valid with the first day of the failed attempt to serve the registered letter.
12.5 In the case of termination of an agreement for any reason whatsoever, any rights and obligations of the contracting parties acquired or assumed by them during the term of the agreement shall remain in force, unless stipulated otherwise in the legal agreement or in The General Business Conditions. The provision hereof does not affect any other rights the contracting parties may have in accordance with the applicable regulations.
13 PROTECTION OF PERSONAL SECRECY AND PERSONAL DATA
13.1 The contracting parties shall protect the professional secrets of the other contracting party with which they are acquainted in connection to fulfilling the duties which arise from the professional relationship in accordance with these General Business Conditions, and shall prevent third party access to such information.
13.2 Professional secrets include all the documents and data connected to the legal transaction, and all the business relationships which arise from it. Professional secrets also include, besides the information defined in the general acts of the contracting parties, all information which could obviously cause considerable damage if it was disclosed to unauthorised parties.
13.3 The contracting parties explicitly undertake to instruct all their employees who have access to the content of this relationship and are involved in its implementation according to their position on the confidentiality of all documents and data.
13.4 The buyer declares that his area of protecting personal data is consistent with the legislation in force. The service provider undertakes to protect all personal data which will be used exclusively for the purpose of selling the product (inspection of the order, supply of products and similar).
13.5 The duty of protecting professional secrets and personal data does not cease even after the termination of the contracting parties’ professional relationship.
13.6 In the event of a breach of duty regarding the protection of business secrets and personal data, the contracting party is liable for any damage caused to the other contracting party, and undertakes to reimburse the other contracting party for all damage caused.
14 VALIDITY OF THE GENERAL BUSINESS CONDITIONS
14.1 The Terms of Purchase shall be valid for an indefinite period of time, or until the enforcement of new or changed General Business Conditions.
14.2 The service provider reserves the right to amend the provisions of these General Business Conditions.
14.3 If any provision of the General Business Conditions should become or turns out to be completely or partially invalid or unenforceable, such invalidity shall not affect the validity or execution of other provisions of the General Business Conditions.
14.4 The service provider shall notify the buyer of any intended amendment of the General Business Conditions or introduction of a new version thereof by posting such notice on the company’s website http://www.kovinc.si/ at least fourteen (14) days prior to the expected effective date of the amended or new General Business Conditions.
14.5 Upon the announced or notified introduction of the amended or new General Business Conditions, the buyer may terminate the valid agreement by giving a written sixty (60)-day notice of termination prior to the expected effective date of the amended or new General Business Conditions.
15 FINAL PROVISIONS
15.1 The service provider and the buyer are only bound by those obligations which are stated in these General Business Conditions or are agreed in writing, and those provisions of the Code of Obligations, other laws and regulations which are of cogent nature.
15.2 Each contracting party is obliged to immediately notify the other contracting party in written form of any amendment of data regarding the company’s registered office or possible other information.
15.3 For the interpretation and assessment of all provisions of these General Business Conditions, and for the regulation of relationships with regard to all agreements, the law of the Republic of Slovenia shall apply. The use of provisions of the United Nations Convention on Contracts for the International Sale of Goods (CISG) is with these General Business Conditions explicitly excluded.
15.4 The parties undertake to settle amicably any disputes arising out of or in connection with their agreement. Should this prove impossible, the disputes shall be submitted for settlement to a court of competent jurisdiction in Ljubljana.
15.5 These General Business Conditions can be written in several languages. In the event of uncertainties or discrepancies the Slovenian language shall always prevail.
15.6 These General Business Conditions are published on the service provider’s website http://www.kovinc.si/ and are valid from 1. 10. 2016.
Cerklje na Gorenjskem, 30. 9. 2016