Eko Star d.o.o. General Terms and Conditions of Sale and Delivery of Cogeneration Devices (CHP units)
I. General information
1) These General Terms of the company Eko Star d.o.o. (hereinafter also: Supplier) apply to all deliveries and services provided by the Supplier and any eventual separate agreements between the Supplier and a customer (hereinafter also: Client) pertaining to the delivery of cogeneration devices (CHP units). Sales terms of the Client do not become part of the contract with the acceptance of an order. In the absence of a special agreement the contract shall be deemed concluded with the written confirmation of the order by the Supplier.
2) The Supplier reserves all ownership rights and copyrights vested in any samples, pro-forma invoices, sketches and other tangible and intangible information, including information in electronic form. Any such information shall be protected from third party access. The Supplier undertakes to allow third party access to classified information and documents of the Client exclusively with due consent of the Client.
II. Price and payment
1) In the absence of a special agreement, prices shall be ex-works (Incoterms 2010) and shall include loading at the manufacturing plant, but shall exclude the costs of insurance, fees, packaging, transportation and unloading. Prices shall be increased by the applicable value added tax.
2) In the absence of a special agreement, payments shall be made in a single sum without any withholdings to the account of the Supplier as follows:
Terms of payment
30% within 8 days of the Supplier accepting the order
70% within 8 days before delivery, but no later than 30 days of receiving due notification of the goods being ready for dispatch pursuant to the priority principle.
3) The Client may withhold payment or set it off against counterclaims solely if such claims are found to be incontestable or subject to a final decision of a competent court.
III. Delivery period, delays in delivery
1) The delivery period shall commence with the date of order confirmation, but not before the Client delivers the necessary documents, authorisations or permits and executes payment of the agreed deposit.
2) The Supplier shall be deemed to have observed the delivery period if the subject of delivery leaves the factory or storage facility before expiry of the delivery period or the Client has been duly notified of the subject of delivery being ready for dispatch, unless otherwise agreed in writing.
3) The delivery period shall be appropriately extended in case of a labor strike or the occurrence of unforeseeable events outside the influence of the Supplier or in case of delays attributable to a subcontractor or subsupplier.
4) In case of a delay in dispatch due to circumstances on the side of the Client, the Client shall as of 14 days after receiving notification of the goods being ready for dispatch be charged with the costs of storage incurred by a third party and 1 % of the invoiced amount for each month of storage at the premises of the Supplier. After expiry of an additional period provided to the Client for collection, the Supplier shall have the right to dispose with the subject of delivery otherwise and deliver it to the Client in an appropriate time frame.
5) Observance of the delivery period is dependent upon the Client fulfilling its contractual obligations.
6) If the Client is in delay with the collection of the object of purchase contract for more than six weeks after receiving notification of the goods being ready for dispatch or collection, the Supplier may, after providing the Client with an additional period of 14 days, withdraw from the contract and/or demand liquidated damages in the amount of 15 % of the sales price due to default of the Client. If the Client is in default with the fulfilment of its payment obligations, the Supplier may require compensation from the Client for the associated damages (including, for example, costs of maintenance of the subject of contract, Supplier’s advances to the manufacturer, manufacturer’s claims against the Supplier due to default and/or delays in the collection of the subject of contract, claims of third parties against the Supplier in relation to the subject of contract, costs of spare parts and suchlike) in a lump sum of 15 % of the sales price. If default of the Client causes damage to the Supplier that exceeds the liquidated damages or lump sum compensation, the Supplier may file a claim against the Client in order to receive full compensation. If the Supplier does not claim liquidated damages it shall - without prejudice to its remaining rights - be entitled to freely dispose with the subject of contract and deliver to the Client goods of the same type in an appropriate time frame in accordance with the conditions of the contract.
7) If the Client fails to collect the goods, the Supplier shall be entitled to liquidated damages in the amount of 30 % of the sales price due to the Client’s default. If the Client fails to fulfil its payment obligations, the Supplier may require compensation from the Client for the associated damages (including but not limited to costs of maintenance of the subject of contract, Supplier’s advances to the manufacturer, manufacturer’s claims against the Supplier due to non payment and failure to collect the subject of contract, claims of third parties against the Supplier in relation to the subject of contract, costs of spare parts and suchlike) in a lump sum of 30 % of the sales price. If default of the Client causes damage to the Supplier that exceeds liquidated damages or lump sum compensation, the Supplier may file a claim against the Client in order to receive full compensation.
8) The Supplier grants the Client the right to cancel the contract at any time up to the date of notification of the goods being ready for dispatch, whereby the Client is obliged to pay cancellation costs set out below. Costs of cancellation are expressed in percentage shares of the sales price:
31 days from the conclusion of contract/order confirmation: 10 %
31–60 days from the conclusion of contract/order confirmation: 30 %
60–90 days from the conclusion of contract/order confirmation: 50 %
91 days from the conclusion of contract/order confirmation to date of notification of goods being ready for dispatch: 70 %
The Client may cancel the order upon payment of the above-stated amounts. If the Client cancels the contract in accordance with these provisions, the Supplier shall remain in possession of all rights on the subject of the contract and any services being rendered.
9) If the necessary replacement parts and components cannot be provided in due time (supply issues) even though they have been ordered at an appropriate time by the Supplier, the delivery period shall be extended appropriately. The Supplier shall immediately notify the Client of such an extension in writing. Fixed delivery periods only apply when agreed in writing or assured by the Supplier.
10) The Supplier reserves the right to alter the construction or shape, deviate from color hues and amend the scope of delivered goods, provided the object of purchase is not substantially altered by such changes and it can be reasonably expected for the changes to be acceptable to the Client.
IV. Transfer of liability, takeover
1) Dispatch of goods shall be executed for the account and at the responsibility of the Client, unless otherwise agreed. Risk of accidental damage or destruction of goods is transferred onto the Client upon handover unless otherwise agreed. Goods shall be deemed delivered to the Client also if they are delivered to the forwarder, carrier or another person charged with delivering the goods to the Client.
2) If the delivery or collection is postponed at the request of the Client or the goods are not collected due to circumstances beyond the control of the Supplier, liability shall be transferred onto the Client with the notification of the goods being ready for dispatch. Costs of storage in the minimum amount of 1 % of the value of goods shall be covered by the Client.
3) Unloading of the goods is the responsibility of the Client and is performed at the Client’s cost.
4) Partial deliveries are permissible if it can be reasonably expected for them to be acceptable to the Client.
5) The Client shall protect the delivered goods from theft, vandalism and damage due to external influences (e.g. weather) or insure it if it is not yet insured. Any eventual damage in such cases shall be borne exclusively by the Client.
6) In case of deliveries including assembly the risk shall be transferred onto the Client with the completion of the assembly. If the goods become damaged or destroyed due to force majeure, war, sabotage or other unavoidable circumstances beyond the control of the Supplier after dispatch from the manufacturing plant but before the risk of accidental destruction is transferred onto the Client, the Supplier shall also be entitled to the part of the compensation corresponding to the value of the destroyed or damaged part or service.
V. Retention of title
1) The object of purchase shall remain in the ownership of the Supplier as long as the Supplier has any unsettled claim against the Client on the basis of the contract. Retention of title shall remain in force for all claims the Supplier may subsequently enforce against the Client prior to the transfer of title onto the Client in relation with the object of purchase, e.g. due to repairs or delivery of spare parts and other services.
2) Any processing and modification of the object of purchase that is subject to retention of title, or merging with foreign objects by the Client or third parties shall be performed to the benefit of the Supplier. The Supplier shall obtain a co-ownership right on the newly created object that corresponds to the share of value of the object of purchase.
3) The Client has the right to modify and dispose with the object of purchase within the scope of its regular business activities; the Client shall assign all claims it receives in case of further sale to the Supplier. The Client is entitled to collect such claims or accept their repayment. The Supplier reserves the right to inform a Client’s buyer of the assignment of such claims and collect such claims for its own account. The Supplier undertakes to waive the insurance it is entitled to if the invoiced price for the goods subject to retention of title exceeds the claims insured by such retention of title by more than 20 %, if such claims are still outstanding.
4) The Supplier shall have the right to withdraw from the contract and request a return of the object of purchase if the Client continues to seriously breach the contract in spite of prior warning, particularly in case of default in payment. In such a case, the Supplier shall upon prior written notification to the Client have the right to within a reasonable time and in an appropriate manner sell the object of purchase and require the Client to compensate him for the difference between the purchase price set out by the contract and the purchase price achieved in the final sale.
5) The Client undertakes to maintain the object of purchase in proper condition throughout the duration of the retention of title and allow the Supplier or a service technician appointed by the Supplier to immediately perform all planned maintenance works and necessary repairs, irrespective of the urgency of the case.
6) If the law of a certain state does not allow for retention of title but does provide for comparable rights, the Supplier may exercise all such rights. The Client undertakes to implement all necessary measures to institute and maintain such rights at its own cost.
7) The Supplier shall have the right to withdraw from the contract if the Client becomes subject to a liquidation and/or insolvency proceedings and/or compulsory dissolution proceedings.
VI. Client’s services in case of assembly by the Supplier
1) The Client shall at its own cost and in due time ensure all appropriate and necessary conditions to allow the Supplier an uninterrupted and rapid assembly.
2) At the request of the Supplier this shall include the provision of experts and assistants, devices, energy, water, tools and equipment and the preparation of all ground, foundation and construction works and construction of necessary scaffolding. Access routes and the assembly site shall be at ground level and shall have appropriate carrying capacities for vehicles. Foundations shall be completely dry and compacted. At the request of the Supplier the Client shall also provide appropriate facilities for personnel and assembly devices.
3) If installation is being performed abroad, the Client shall at its own cost obtain all entry, working and other necessary permits.
1) The obligation of delivery shall be deemed fulfilled when the object of purchase is handed over to the Client or when the Client is duly notified of the goods being ready for dispatch. At that moment the Client also assumes the risk of accidental destruction or damage to the goods.
2) As of the moment of fulfilment, the Supplier shall be liable pursuant to Article VIII.
3) Without prejudice to the rights determined by Article VIII the Client is obliged to accept the delivered object of purchase even if the delivered subject has certain insubstantial defects.
VIII. Material defects
1) The Client shall immediately notify the Supplier of any material defect in writing. Any replaced parts shall become the property of the Supplier.
2) Any costs of repair of material defects or delivery of replacement parts shall be borne by the Supplier.
3) If the defect is not a material defect attributable Supplier but the consequence of improper handling or use of the subject of delivery by the Client, the costs of repair shall be borne by the Client.
4) To assist in the remedy of defects, the Client shall:
a) provide the Supplier with the appropriate time and allow for the remedying of the defect;
b) provide assistants, tools and equipment and perform auxiliary works at its own cost;
c) execute works outside the scope of the initial order at its own cost.
5) The obligation of remedying material defects does not pertain to normal wear and tear and parts which are prematurely worn due to their material composition or the manner of their use. The Supplier assumes no liability for damages that occur due to the Client’s inappropriate storage of the subject of the contract, its improper use or handling, any deficient installation performed by the Client or incorrect startup of the subject of contract, use of improper equipment or materials, overloading, etc. Furthermore the Supplier shall not be liable if a defect is a consequence of any other circumstances that occur at no fault of the Supplier (e.g. defective foundation, uneven terrain, chemical, electrochemical or electrical influences, etc.).
6) The obligation to remedy material defects does not apply if:
- the Client fails to immediately notify the Supplier of the defect in writing;
- the Client or a third party performs unauthorised repairs or changes without the consent of the Supplier; in such a case the Supplier assumes no liability for the consequences of such actions;
- parts are installed in the object of purchase without the prior written authorisation of the Supplier;
- the object of purchase is changed in a manner not authorised in advance by the Supplier;
- third party parts are installed in the object of purchase that interfere with its operation;
- the Client fails to observe directions for handling the object of purchase, its maintenance and care (e.g. directions for use).
IX. Infringement of intellectual property rights
If the use of the object of purchase results in infringement of industrial property rights or copyrights in Slovenia, the Supplier shall at its own cost assure the Client with the right to further use of the object of purchase or shall modify the object of purchase in a way that can reasonably be expected to be acceptable to the Client so that intellectual property rights are no longer infringed. .
If the above cannot be performed under acceptable economic conditions or within a reasonable timeframe, the Client shall have the right to withdraw from the contract, as shall the Supplier. The Supplier shall settle any uncontested or final claims the holder of such intellectual property rights has against the Client due to infringement which result from the use of the object of purchase and shall provide the Client and/or Supplier with an appropriate defense against potential third party claims.
X. Limitation period
The Supplier accepts no liability for any defect that arises after a period of six months of dispatch or collection of goods. If assembly is performed by the Supplier, the Supplier accepts no liability for any defect that arises after a period of two years from startup or collection of goods.
1) If the Supplier installs replacement parts as part of a warranty replacement, such parts shall be warranted for one year from the date of installation, whereby their warranty shall not expire before the expiry of the warranty period for the delivered unit.
2) For damage not incurred on the subject of delivery itself, the Supplier shall only be liable in case of:
- intentional acts;
- gross negligence of the shareholders, bodies or executives of the Supplier;
- intentional act against life, body or health.
In case of culpable infringements of material contractual obligations the Supplier shall be liable for any damage arising from gross negligence of non-management employees. In any case, liability of the Supplier is limited to the typical contractual damage that can be reasonably foreseen upon conclusion of the contract. Any further claims shall be excluded.
XII. Use of software
If the scope of delivery includes software, the Client shall be granted a non-exclusive right to use delivered software and its accompanying documentation. Software shall be used exclusively on the corresponding subject of delivery. Use of software on more than one system is prohibited.
The Client may copy, modify, translate or alter the software or change the object code into a source code only within the scope permitted by law. The Client undertakes not to remove any Supplier-related data - particularly copyright markings- or alter it without the prior express consent of the Supplier.
Any and all other rights to the software and documentation, including copies, are retained by Supplier or the software provider.
Sublicensing is not permitted.
XIII. Applicable law and jurisdiction
1) All legal relations between the Supplier and Client shall be exclusively governed by Slovenian law, with the exclusion of United Nations Convention on Contracts for the International Sale of Goods .
2) The courts of Slovenia shall have exclusive jurisdiction to settle any disputes arising out of or in connection with the contract. The Supplier shall nevertheless be entitled to file legal action with the competent court in the place of the Client’s headquarters.