Business Terms and Conditions of BORCAD cz s.r.o. for the purchase of goods and services
I. These business terms and conditions of BORCAD cz s.r.o., having its registered seat at Fryčovice, No. 673, postal code 739 45, ID No.: 25855042, registered in the Commercial Register maintained by the Regional Court in Ostrava, Section C, entry 22219 (hereinafter referred to as the ”Business Terms and Conditions” and “Borcad”) constitute an integral part of the agreement concluded on the basis of a purchase order between Borcad and a supplier of goods or services.
II. For the purposes of these Business Terms and Conditions, the term goods hereinafter include services, and the delivery of goods includes the provision of services.
I. The price of goods is agreed as exclusive of VAT
II. Unless the contracting parties agree otherwise, the price includes any and all costs and expenses required for the due, timely, complete, and quality performance of the subject of the agreement, including all related risks and influences, costs of packaging, identification of goods, declaration of conformity, insurance, guarantees, taxes, customs, fees, impact of inflation, and any other costs or expenses required for the execution of the supply of the goods.
III. Place and time of performance, transfer of the risk of damage
I. Unless the contracting parties agree otherwise, (i) the supplier shall deliver the goods by the deadline stated in the purchase order issued by Borcad and (ii) the delivery terms of DAP Fryčovice 673, 739 45, under INCOTERMS 2020 apply.
II. The supplier is obliged to confirm receipt of a purchase order by an e-mail sent to Borcad’s e-mail address within three (3) business days of the submission of the purchase order by Borcad; an agreement is concluded between the contracting parties as at the delivery of the purchase order confirmation by the supplier to Borcad. After expiration in vain of the period referred to in the previous sentence, the purchase order is considered to be accepted by the supplier in full and without reservations; an agreement is concluded between the contracting parties as at the expiration of the period specified in the previous sentence.
III. Borcad acquires the ownership of the goods upon the takeover of the goods
IV. The risk of damage to the goods shall pass to Borcad at the time of the takeover of the goods by Borcad
IV. Payment terms
I. Invoices are due within sixty (60) calendar days after delivery of a duly issued invoice by the supplier to Borcad. An invoice is considered to be duly issued if it contains all of the particulars prescribed by the law.
II. The supplier is entitled to issue an invoice no earlier than on the day when the goods are taken over by Borcad.
III. The supplier is entitled to assign, pledge, or set off its receivables against Borcad only based on Borcad’s prior written consent.
IV. The supplier is obliged to send invoices to the address specified in Article I above or in electronic form to the e-mail address firstname.lastname@example.org.
V. Delivery of goods and services, penalties for failure to perform
I. The goods have to be delivered and services have to be provided in line with the current state of the art and technology and in line with applicable technical standards and legal regulations in effect as at the date of delivery. For the goods for which a reference sample approval within the framework of FAI (PPAP, ISIR) is required, the supplier is obliged to deliver a reference sample to Borcad at its expense and shall do so repeatedly until the reference sample complies with the required and approved technical and qualitative parameters; the supplier’s subsequent performance shall be in line with the approved reference sample.
II. Where a product requirement is made more specific by the provision of drawings, product sheet, or commercial and technical specification, the supplier’s performance shall be in line with the documentation and specifications.
III. As at the time of the handover of goods or provision of services, the supplier will also deliver to Borcad any and all related documentation, including, e.g., a delivery note (stating the name of the goods, the quantity delivered, price per unit, purchase order number, and any restrictions pertaining to the goods being delivered), a safety data sheet, technical sheet, measurement and test protocols and certificates, etc
IV. The supplier is obliged to comply, at its own expense, with all of the obligations arising from Regulation of the European Parliament and of the Council (EC) No. 1907/2006 and shall require compliance therewith from all of its suppliers; and furthermore, it is obliged to provide to Borcad any reports concerning the chemical safety and assessment of substances and any other documents drawn up pursuant to the said regulation.
V. In the event of default with regard to the delivery of the goods, Borcad is entitled to demand of the supplier a contractual penalty of 0.05% of the price of the goods for each day of default.
VI. In the event of default with regard to the delivery of the goods, Borcad is entitled to withdraw from the concluded agreement. Withdrawal does not prejudice the right to the contractual penalty or the right to damages.
VII. The contractual penalty does not prejudice Borcad’s right to damages in full.
VI. Quality guarantee, defects of the goods
I. With respect to the goods, the supplier is responsible for using appropriate material that does not have an adverse environmental impact, for proper craftsmanship, and also for complying with technical, quality, and environmental requirements that are agreed contractually or that arise from legal regulations, technical standards, and other requirements applicable to the subject matter of the agreement
II. The guarantee for the quality of the goods delivered is twenty-four (24) months from the time of the takeover of the goods by Borcad.
III. The supplier is obliged to commence the remedy of a defect claimed by Borcad within two (2) business days of the delivery of the defect claim and to remedy the defect within ten (10) days of the delivery of the defect claim.
IV. Unless the contracting parties agree on a manner of the removal of a defect after a defect claim, Borcad is entitled to determine the method of defect remedy unilaterally
V. In the event of a defect and provided that an 8D report is issued by Borcad, the supplier is obliged to immediately adopt the measures stated in the 8D report to eliminate potential recurrence of the defect.
VI. Any and all costs related to the lodging of a defect claim, remedy of the defect, and resolution of the claim is to be paid by the supplier (including, for example, the costs of sorting, collection, and carriage of the goods).
VII. In the event of defects of the goods, Borcad is entitled to withhold payment for the goods delivered until the claimed defect is remedied.
VIII. Borcad is not obliged to inspect the goods upon their acceptance or inspect the packaging and quantity of the goods and the supplier is not entitled to claim late notice of defects of the goods by Borcad, including obvious defects.
IX. In the event of default with regard to the remedy of a defect when the defect is not remedied within an appropriate period of time set by Borcad, Borcad is entitled to (i) withdraw from the agreement; (ii) remedy the defect concerned directly at the expense of the supplier; and/or (iii) claim damages caused by or incurred due to the defect.
VII. Intellectual property rights, confidentiality
I. The supplier represents and warrants as at the time of the conclusion of the agreement with Borcad that it is entitled to exercise any and all intellectual property rights with respect to the goods that are required for the fulfilment of the purpose of the agreement and grants its consent to Borcad for the use of those rights in any manner possible. The supplier is obliged to provide to Borcad any know-how that has been developed in connection with the goods.
II. Borcad is entitled to provide the intellectual property rights granted to Borcad by the supplier to any and all persons who are linked to it through assets or persons.
III. The price for the intellectual property rights granted to Borcad is included in the purchase price of the goods.
IV. Any and all information provided to the supplier by Borcad in connection with the agreement is confidential and constitutes part of Borcad’s business secret unless stipulates otherwise. The supplier shall take any and all steps required to ensure that the information is not disclosed or misused.
VIII. Force majeure
I. A force majeure event means an event unforeseeable by the contracting parties that is beyond their control and cannot be averted by them, which has arisen independent of the will of the contracting parties and which affects the performance of the agreement in a way that gives rise to damage to one of the contracting parties or to an immediate risk thereof.
II. In the event of a force majeure event as defined above, the contracting party which has incurred damage or a damage to it is imminent is entitled to withdraw from the agreement.
IX. Governing law, local jurisdiction
I. The agreement shall be governed by the applicable provisions of Act No. 89/2012 Coll., the Civil Code, as amended (hereinafter referred to as the “Civil Code”), unless the application of its provisions is ruled out or unless this agreement or an individual purchase agreement contains diverging provisions.
II. The contracting parties rule out the application of Section 573, Section 1740(3), Section 1765(1), Section 1766, Section 1799, and Section 1800 of the Civil Code to relationships established by the agreement.
III. The contracting parties accept the risk of a change in circumstances as defined in Section 1765(2) of the Civil Code.
IV. When interpreting the provisions of the agreement, the contracting parties shall disregard any practice established between them, commercial usage, or negotiations preceding the conclusion of the agreement.
V. Any and all disputes arising from this agreement and in connection therewith shall be finally resolved by general courts and the contracting parties agree on the local jurisdiction of the general court of first instance based in Ostrava.
VI. By entering into the agreement with Borcad, the supplier confirms that it does not feel like or consider itself to be the weaker contracting party, that it had an opportunity to get to know the Business Terms and Conditions as well as the agreement, understands their contents, and intends to be bound by them.
X. Other provisions
I. Any diverging stipulations in the agreement have precedence over the text of the Business Terms and Conditions.
II. In the event of a discrepancy between the text of these Business Terms and Conditions and the business terms and conditions of the other contracting party, the provisions that are not conflicting apply unless Borcad rejects the other contractual party’s business terms and conditions outright.
III. Borcad is entitled to change the Business Terms and Conditions in a reasonable extent. Borcad will inform the supplier of a change in its Business Terms and Conditions by e-mail or registered letter and the supplier is entitled to reject the proposed change and, simultaneously, to terminate the agreement with a six-month (6) termination notice period unless the contracting parties agree otherwise. Should the supplier fail to reject the proposed changes in the Business Terms and Conditions and fail to terminate the agreement within one (1) month of the delivery of the notice of change in the Business Terms and Conditions, the supplier is deemed to have accepted the change in the Business Terms and Conditions.
IV. In case of any discrepancy between the Czech and English version of these Business Terms and Conditions the Czech version shall prevail.
In Fryčovice, on 1st November 2022
BORCAD cz s.r.o.
Tomáš Boruta, managing director
Terms and conditions are available for download here: Business Terms and Conditions BORCAD 2022