General Business Terms and Conditions

of commercial company ATMOS Chrást, s.r.o.


I. Introductory Provisions, Contract, Order

These General Business Terms and Conditions of Delivery /hereinafter referred to as the „GBTaC“/ are Business Terms and Conditions issued within a meaning of prov. of section 1751 of act no. 89/2012 Coll., Civil Code, as amended /hereinafter referred to as the „Civil Code“/ and govern the legal relationship between commercial company Atmos Chrást s. r. o., having its registered office at Plzeňská 149, Chrást, 330 03, Company reg.-no. 497 12 381, entered in the Commercial Register at the Regional Court in Pilsen, section C, insert no. 5880, as a supplier of goods, works or services (hereinafter referred to as ATMOS) and the other party as an ordering party of goods, works or services (hereinafter referred to as the „customer), and regardless the type of the contract is concluded between them (purchase contract, contracts for work, etc.…), unless the contract states otherwise.
The specification of goods to be supplied, works to be done or services to be provided (hereinafter referred to as the „Subject-Matter of Delivery“) is defined by the contract, whether in a form of bilateral written arrangement between the parties which is explicitly identified as a contract, or in a form of a written order and a written confirmation thereof as identical declarations of will relating to the content of the contract.
All provisions of the written contract which differ from the Business Terms and Conditions shall take precedence over the individual provisions of these Business Terms and Conditions. Any alterations of the contract or the Business Terms and Conditions must be made in a written form.
Any technical data, data concerning dimensions, colour and weight shall be understood in tolerances corresponding to the business usages in the industry in question.
Order:
Unless agreed otherwise, the contract is concluded by a confirmation of a written order of the customer made in writing, by facsimile or e-mail.
The customer is obliged to determine the quantity and type, or, where appropriate, the serial code of the goods being ordered or the specification of works and services being ordered in the order. Furthermore, it is obliged to specify the place of supply, transport mode and deadline of the supply of the goods ordered. Unless the price is included in the order, it shall apply that the contracting parties have agreed on the price of the goods included in the current price list of ATMOS. Offers of ATMOS included in advertising materials, catalogues and on the Internet are non-binding and serve only to the general overview of the goods and services offered by ATMOS; ATMOS reserves the right to make an adjustment and a repair of typographical errors and mistakes.


II. Prices

Prices are stipulated through an agreement. In case of a purchase contract, the price is in parity Ex Works warehouse of ATMOS, Chrást at Pilsen. In case of supply of services (contract for work), the price is in parity FCO customer.
Prices are excluding the value added tax; in addition to these prices, as of the date of the taxable supply, the tax in question is settled at the rate according to the applicable legal regulations.
Prices shall not include packing charges, transport charges, costs for documentation except the certificate of conformity, or other necessary costs; these costs are invoiced by ATMOS separately. If ATMOS undertook to ensure the mounting or putting into operation, the customer is further obliged to cover all other costs which were purposely expended by ATMOS.
In case of supply of services, ATMOS reserves the right to charge extra costs for the work done under difficult conditions, for the work during the usual operation of the customer, for the work outside the usual working hours or extra costs for removal of obstacles of the customer which were not known or obvious at the time of the conclusion the contract or confirmation of the order.
If the subject-matter of the contract is not realized within 1 year from the conclusion thereof, for the reason on the part of the customer, and if, in the meantime, prices or rates of remuneration were changed, ATMOS is authorized to increase the price according to the price list of ATMOS applicable as of the actual realization of supply of the Subject-Matter of Delivery.


III. Payment Terms

Prices are due and payable in the amount and within the deadline specified in the invoice.
The price shall be considered paid at the moment of crediting the respective amount to be paid to the account of ATMOS or of payment thereof in cash at the cashier of ATMOS Chrást.
If advance payment or advance payments are agreed, ATMOS is not obliged to supply the Subject-Matter of Delivery before such payment or payments are made.
ATMOS is not obliged to accept payments in a form of bills of exchange or cheques. Should these be accepted, costs for discount or collection shall be fully borne by the customer in full.
For default with payment of the price for the Subject-Matter of Delivery, ATMOS and the customer agree on the default interest amounting to 0,1 % of the amount due, per every even initiated day of default. The agreed default interest shall not cover any damages incurred due to failure to fulfil the obligation to pay the price, as the applicability of section 1971 of the Civil Code is excluded.
The Customer which is in default with payment of the price for the Subject-Matter of Delivery is obliged to reimburse ATMOS for its costs associated with reminding the payment of the amount due and costs of the legal representation associated with reminding a/or enforcement of the payment of the amount due, even within extrajudicial negotiations; these costs shall be determined according to decree no. 177/1996 Coll., as amended, as of the date of the occurrence of such claim.
If, during the term of the contract, the credibility of the customer is decreased, in particular, if ascertained that the customer is in insolvency, suspended payments, etc. or the credibility of a third party that provided the security for obligations of the customer towards ATMOS (e.g. in a form of surety, bill of exchange, security of a receivable, bank guarantee, right of pledge and similar) is decreased or if the customer is in long-term default with obligations arising from this contract or from another contract concluded with ATMOS, ATMOS is authorized to require further security of the obligation or depositing of a surety or provision of a guarantee by a bank with its registered office in the Czech Republic. Up to the moment of the provision of the required security, ATMOS is authorized to interrupt the performance of the contract; the agreed deadline of the supply is automatically prolonged by this period.
If the customer provided a down payment upon the conclusion of the contract, prov. of section 1808 ss. 2 of the Civil Code shall not apply.
The customer is not authorized to assign any receivable towards ATMOS to a third party without prior written consent of ATMOS.
The customer is authorized to unilaterally set off receivables towards ATMOS which are due and payable, which are neither disputed between them nor statute-barred, only based on prior written consent of ATMOS to the realization of such set-off. ATMOS is authorized to set off towards the customer any receivables due and payable.


IV. Ownership Title

Ownership title to the Subject-Matter of Delivery shall pass to the customer only after the price for the Subject-Matter of Delivery is paid in full, risk of damage to the Subject-Matter of Delivery shall pass to the customer at the moment of hand-over of the items for transport to the first public carrier, or of hand-over thereof to the customer in the registered office of ATMOS (see Art. VI. of the Business Terms and Conditions).
In case of the customer´s default with payment of the price for a period longer than 30 days, the customer undertakes, if it disposes of the Subject-Matter of Delivery, to enable ATMOS to dispose of the Subject-Matter of Delivery, in particular, to enable to take it away.
The customer is not authorized to enable any third parties to use the Subject-Matter of Delivery, for which it has not paid the agreed price yet and, in particular, it is not authorized to enable any third parties to dispose of the Subject-Matter of Delivery as it would have ownership right to it (i.e. ban on further sale of the Subject-Matter of Delivery).
The customer agrees that, in case of default with fulfilment of its obligations arising from the contract, ATMOS exercises the right of retention to the Subject-Matter of Delivery, or, where appropriate, to material, technical documentation, etc., which were delivered by the customer.


V. Deadline for Supply

Deadlines of the supply of the Subject-Matter of Delivery are stipulated in the respective contract (or in the order and confirmation thereof), unless the contracting parties agree in writing otherwise.
The performance of ATMOS is dependent on the fulfilment of the duties of the customer, in particular, on the timely provision of the technical documentation or material, meeting the agreed payment conditions, submission of necessary permits and authorizations, provision of co-operation etc., and, at the same time, it is dependent on the fact that the customer is not, towards ATMOS, in default with payment of any monetary debt arising from another contractual relationship. For a period of such default of the customer, ATMOS is not in default and the deadline of the supply of the Subject-Matter of Delivery shall be automatically prolonged by the period for which the customer was in default.
The Subject-Matter of Delivery is supplied at the moment of hand-over thereof to the first public carrier for transport to the place of destination or of hand-over thereof to the customer in the registered office of ATMOS or at another place stipulated in the contract. A delivery note is worked out with regard to the hand-over of the Subject-Matter of Delivery. In case of the provision of services, mounting works or putting into operation, these are provided at the moment of hand-over thereof to the customer. A hand-over protocol shall be worked out with regard to hand-over of services.
The customer is obliged to take over the Subject-Matter of Delivery even if this shows minor or non-substantial defects which do not hinder the proper use. Furthermore, the customer is not to authorized to reject the take-over of the Subject-Matter of Delivery if, in the meantime, the construction or shape thereof have been changed which affect the method of the use of the Subject-Matter of Delivery or, which increase the value thereof.
ATMOS shall fulfil its duty to supply the Subject-Matter of Delivery even if the customer is not present at the moment of take-over of the Subject-Matter of Delivery, or it withholds the take-over unreasonably; in such cases ATMOS shall enter this fact in the record and the Subject-Matter of Delivery shall be considered handed over by the parties.
ATMOS is not in default with fulfilment according to the contract, if this default incurred due to causes which ATMOS could not anticipate, hinder them, if this default was caused due to vis majeure. For the purposes of the contract, vis majeure shall be considered any facts which are independent and may not be influenced by the contracting parties, e.g. war, mobilization, riot, strike, civil disturbances, floods, fires, natural disasters.
The customer agrees that ATMOS supplies the Subject-Matter of Delivery even before the agreed deadline; at the same time, it also agrees to the provision of the partial performance of the contract.
In case of operational breakdowns which are unforeseeable and not caused by ATMOS, in case of default of subcontractors of ATMOS with supply of components duly, in time and in the required quality, the deadline of delivery stipulated by the contract shall be prolonged by the period in question, unless the contracting parties agree in writing otherwise.


VI. Risk of Damage to the Subject-Matter of Delivery

Risk of damage to the Subject-Matter of Delivery shall pass to the buyer at the moment of supply pursuant to Art. IV of these GBTaC.
ATMOS is not obliged to insure the Subject-Matter of Delivery against damages which may incur during transport of the Subject-Matter of Delivery to the customer. Only in the case of an explicit arrangement between the contracting parties, ATMOS undertakes to insure the Subject-Matter of Delivery at the costs of the customer, in particular, against theft, damages to the Subject-Matter of Delivery during transport, etc.; insurance premium shall be paid by the customer before commencing the transport.
If damage incurs to the Subject-Matter of Delivery due to defective material provided by the buyer, ATMOS may claim for compensation for damage incurred and costs associated therewith.
Damage to the Subject-Matter of Delivery which incurred after the transfer of the risk to the customer shall not affect the customer´s duty to pay the agreed price and the customer is obliged to take over the Subject-Matter of Delivery.


VII. Compensation for Damage

The total extent of the duty of ATMOS to compensate the customer for damage to assets (loss), which incur in connection with the performance of the contract or due to the breach of the legal regulation, is limited to the amount of 10 % of the total contract price for the Subject-Matter of Delivery according to the contract, i.e. for all events as a whole. Actual damage is compensated only, lost profit and other types of damages shall not be compensated. Damage shall be compensated preferentially in monies. The agreed limitation of compensation for damage shall not apply to compensation for damage caused wilfully or from gross negligence, as well as to compensation for damage caused to human rights. Possible contractual penalties or other sanctions paid by ATMOS to the customer shall be set off against the compensation for damage in full. The period of limitation for making a claim for compensation for damage shall last one year. This shall also apply to the right to compensation for damage caused due to a defect of the product.


VIII. Rights of Third Parties

If ATMOS, during the performance of the subject-matter of the contract, uses the technical documentation submitted by the customer (technical drawings, designs, samples) or parts supplied by the customer, the customer shall guarantee that no intervention in the rights of third parties or no breach of the trade secret occurs, and it is obliged to pay to ATMOS all costs and loss to assets (damage) which incur by it in connection therewith.
ATMOS is authorized, if it learns about the exercise of rights of third parties, to interrupt the performance of the contract until the moment of the resolution of the matter, whereby the deadline of supply of the goods shall be prolonged by the period of interruption of the performance, or to unilaterally withdraw from the contract in writing for this reason.


IX. Complaint Procedure for Defects

Notification of defects and exercise of rights from defective performance.
The customer is obliged to carry out an input inspection of the Subject-Matter of Delivery taken over. If, during the inspection, the customer discovers defects of the Subject-Matter of Delivery supplied (i.e. apparent defects), it is obliged to notify these defects within 5 days from the date of take-over at the latest. After expiry of this period, the customer´s entitlement to claim defects detectable upon take-over of the goods shall cease to exist. The customer is obliged to notify other defects in writing without undue delay after discovery thereof.
ATMOS shall be only liable for defects of the Subject-Matter of Delivery which the Subject-Matter of Delivery had at the moment of supply thereof to the customer and which are discovered and notified by the customer within the warranty period. The buyer is obliged to notify such defects of the Subject-Matter of Delivery in writing within the warranty period, however, i.e. ten (10) calendar days from the moment when it discovered these defects or when it should notify them by exercising due commercial care, however, before the end of the warranty period at the latest.
The notification of the defect shall be made in writing through the service centre, in a form of the prescribed complaint procedure of ATMOS. This notification must include, in particular:
(a) the data necessary for the identification of the Subject-Matter of Delivery (serial number of the machine)
(b) the detailed description of the defect with stating the reason and evidence of the unilateral liability of ATMOS for the defect, the time of the first occurrence of the defect.
If the customer discovers a defect of the Subject-Matter of Delivery, it is obliged to act in such a manner to prevent the occurrence of damages which might be caused due to the Subject-Matter of Delivery being subject to the complaint.
To avoid any doubt, the contracting parties explicitly exclude the applicability of the prov. of section 2102 of the Civil Code and agree that ATMOS shall not be liable for defects incurred by using the material or performance provided by the customer or by using the material which was used based on the requirement and specification submitted by the customer. The customer is obliged to compensate ATMOS for damage which incurred by it in connection therewith.
ATMOS undertakes, within 10 business days from delivery of the respective complaint, to work out and send to the customer the information relating to the causes which result in the occurrence of the defect, and, at the same time, it determines the method of rectification of the defect being subject to a complaint and corrective measures leading to the rectification of the occurrence of the defect, or, where appropriate, it shall notify the customer that it is not liable for the defect, with stating the reasons for which it rejects the liability.
ATMOS undertakes to rectify, at its costs, the defect being rightfully subject to a complaint as soon as possible with regard to the availability of the necessary material and spare parts. The period for the rectification of the defect shall be prolonged by a period for which the customer failed to provide co-operation for the rectification of the defect.
To avoid any doubt, the contracting parties agree that ATMOS is authorized to elect the method of the rectification of the defects being rightfully subject to a complaint, i.e. duly notified and recognized defects of the Subject-Matter of Delivery shall be rectified by a repair or supply of a substitute Subject-Matter of Delivery.
The customer is obliged, for the purpose of the rectification of defects being rightfully subject to a complaint, to enable the representative of the authorized service centre of ATMOS to carry out the inspection. The list of authorized service centres of the company is published at the web site www.atmos-chrast.cz
If the Subject-Matter of Delivery is the provision of services, ATMOS is obliged to rectify defects being subject to a complaint at the place of supply of the Subject-Matter of Delivery.
The contracting parties hereby exclude the applicability of the prov. of section 2108 of the Civil Code and the customer is obliged, in case of the complaint of the Subject-Matter of Delivery, to pay its full price charged by ATMOS in accordance with the contract.
Warranty period
ATMOS shall provide a contractual warranty for the quality of the Subject-Matter of Delivery.
The warranty period is specified in the warranty certificate (declaration of warranty) or in the contract. If the warranty certificate and the contract determine various warranty periods, the longest period shall apply. If the warranty period is not stated in any written document or the contract confirmed by ATMOS, ATMOS determines a warranty of 6 months for goods, material and services supplied.
The warranty period shall start to run from the date of supply of the Subject-Matter of Delivery or from the date of putting the Subject-Matter of Delivery into operation, if the supply according to the contract includes putting the Subject-Matter of Delivery into operation.
The requirement for the provision of the contractual warranty shall be payment of all payable debts and obligations of the customer from the contract. In case of default of customer towards ATMOS with payment of any of payable obligations arising from the contract, ATMOS is authorized to interrupt, for the period of default of the customer, the settlement of the claim due to a complaint, whereby this shall not result in the interruption or prolongation of the warranty period.
The right from warranty shall not pertain to the buyer, if a defect was caused due to an external event after the transfer of the risk of damage to the thing to the customer.
The above-mentioned provisions of this Article of the Business Terms and Conditions shall apply to the notification of the defect to which the warranty relates and to the exercise of the right from the defective performance. The warranty for the quality shall not relate to the consumables (filter and separation liners, wedge-shaped chains, light bulbs of the fuse etc.)
Rights from warranty for the quality shall not pertain to the customer in these cases:
  • improper operation and maintenance of the Subject-Matter of Delivery carried out contrary to the instructions for operation and maintenance,
  • improper transport, handling and storing of the Subject-Matter of Delivery,
  • operation of the Subject-Matter of Delivery in an extremely aggressive environment,
  • damage of the screw unit due to the corrosion or degradation of oil due to inappropriate use of the machine or due to negligence of obligatory inspections,
  • if filter, separation liners and other material were not replaced in intervals prescribed in the instructions for operation,
  • if the Subject-Matter of Delivery was used for the purposes other than for which it was designed and which are defined in the instructions for operation and maintenance of the Subject-Matter of Delivery
  • if any malfunction was caused due to inappropriate placement of the Subject-Matter of Delivery with respect to the supply and removal of the cooling air,
  • if lubricants other than prescribed were used,
  • if spare parts other than original ones were used,
  • if seals were broken,
  • if the service book of the Subject-Matter of Delivery is not presented to service technicians during the warranty inspection, or if taking of actions prescribed by the manufacturer in the instructions for operation is not recorded in the service book,
  • due to the accident of the Subject-Matter of Delivery, if not caused due to a defect manufacture,
  • if any intervention in the construction of the Subject-Matter of Delivery occurred,
  • if the machine was repaired in the warranty period by any entity other than ATMOS or the authorized service centre,
  • if the Subject-Matter of Delivery was handed over to a third party without carrying out a technical inspection by the manufacturer or the authorized service centre
  • if prescribed warranty inspections were not carried out in time and entered in the service book,
  • if any complaint was not made in writing within 10 days from the date of the occurrence of a defect at the latest (see the provisions relating to claiming defects)
  • if any malfunction was caused by a third party due to insufficient safety measures,
  • if the Subject-Matter of Delivery was not put into operation or the operation of the operator was not trained by the authorized service centre and this was not entered in the service book
Furthermore, the warranty shall not relate to any defects or discrepancies caused during mounting of the Subject-Matter of Delivery by a third party. ATMOS shall not further be liable for any defects, mistakes, deficiencies, inaccuracies or discrepancies caused due to incorrect, inaccurate or incomplete information, supporting documents, including technical documentation and specifications, handed over by the customer.


X. Withdrawal from the Contract

The contracting parties may withdraw from the contract only in cases of the substantial breach of the contract or in cases explicitly stipulated in the contract or in these Business Terms and Conditions or in cases explicitly stipulated in the legal regulations, if it is not possible to deviate from them. Withdrawal shall take effects on the date of delivery thereof to the other contracting party.
A substantial breach of the contract shall be understood:
  • customer´s default with payment of the payable monetary debt arising from this contract for a period of at least 30 days
  • customer´s default with the provision of advance payment, if agreed, for a period longer than 10 days
  • if material or technical documentation submitted by the customer has defects for which the contract may not be fulfilled, or there is an intervention in rights of third parties pursuant to Art. VIII of the general conditions
  • failure to provide co-operation by the customer and, thus, the subsequent impossibility to provide fulfilment by ATMOS for a period longer than 30 days
  • default of ATMOS with the Subject-Matter of Delivery after the confirmed deadline of performance and then also after expiry of an appropriate period of at least 30 days provided by the customer for the additional performance of the contract. This provision shall not apply, if default incurred due to any circumstances on the part of the customer or due to vis majeure event.
The contracting party is authorized to withdraw from the contract with effects as of the date of delivery of the written notice of withdrawal to the other contracting party, if:
  • the competent insolvency court issued a resolution on the insolvency of the other contracting party
  • the competent insolvency court refused an insolvency petition for the lack of property of the other contracting party
  • the other contracting party has filed an insolvency petition against itself to the competent insolvency court
  • the other contracting party has suspended its payments.
ATMOS is authorized to withdraw from the contract if the customer is in default with fulfilment of its payable monetary debts towards ATMOS for a period longer than 30 days, regardless the fact whether this is a case of obligations from the contract from which it is withdrawn or from another contract. If ATMOS does not withdraw, it is not in default with fulfilment of the duty arising from such contract for a period until the respective monetary obligation is fulfilled.
Costs incurred in connection with withdrawal from the contract and possible return of the Subject-Matter of Delivery shall be borne by the customer.


XI. Ban on Assignment

The Customer is not authorized, without prior written consent of ATMOS, to leave, transfer or assign any duty or right arising from the respective order or contract to any third party.
ATMOS is authorized to assign the contract to another person.


XII. Confidentiality of Information, Duty of Confidentiality

The parties are obliged to maintain the confidentiality or to bind other invited participants to fulfil the duty of confidentiality of all facts which are not usually available in commercial relations and which are available to them during the performance of the contract. The contracting parties agree that this information shall be subject to trade secret.
The customer undertakes not to provide any third parties with any information obtained from ATMOS (including technical supporting documents relating to products, figures thereof, technical drawings and specifications, technologies, samples). This information and know- how may be used with consent of ATMOS only for the purposes explicitly stipulated in the contract, not for own production or for manufacturers in competition.
Any provided information and supporting documents shall remain to be exclusive ownership of ATMOS and may not be further reproduced by the customer.


XIII. Governing Law and Dispute Resolution

Legal relations of the contracting parties shall be governed by the law of the Czech Republic. If there is no regulation in the contract or in the Business Terms and Conditions, rights and duties shall be governed by act no. 89/2012 Coll., Civil Code, as amended.
Disputes and controversies incurred within the period of the performance of the contract for any reasons shall be resolved by ATMOS and the customer especially in an amicable way, as fast as possible. If no agreement is reached, the contracting parties agree that the Czech court according to the registered office of ATMOS shall be competent with regard to the matter of fact.
If the contract or the Business Terms and Conditions include any reference to INCOTERMS 2010, this shall be understood a reference to International rules for the interpretation of delivery clauses INCOTERMS 2010.


XIV. Other Provisions

If any provision of these Business Terms and Conditions is or become invalid or ineffective, this shall not affect the validity or effectiveness of other provisions.
To avoid any doubt, the applicability of section 1726, 1729, section 1740 ss. 3, 1757 ss.2 and ss. 3, section 1965, section 2104, section 2105, section 2106, section 2107, section 2108 of the Civil Code is explicitly excluded. Neither of the contracting parties has the position of a weaker party.
The customer explicitly declares that neither of the provisions of these Business Terms and Conditions is any surprising arrangement within a meaning of section 1753 of the Civil Code to it and that it became familiar with the content of the Business Terms and Conditions.


XV. Final Provisions

These Business Terms and Conditions of ATMOS are publicised by placing them at the web site at the web address: http://atmos-chrast.cz/vop_en.php
ATMOS reserves the right to make any alteration of or amendment to the content of these Business Terms and Conditions whereby these alterations may concern the specification of any rights and duties arising from the contract or associated therewith. ATMOS Chrást is obliged to notify the customer of the alteration of the Business Terms and Conditions in writing at least 30 days before this alteration takes effects. If the customer does not agree to the alteration proposed and, unless an agreement is reached, the customer is authorized to terminate the contract through a notice of termination within a notice period of 1 month, if applicable, with respect to the nature of the respective contract. If the contract is not terminated through a notice of termination by the customer for the reason of alterations of the Business Terms and Conditions within a period of 14 days from the notification of these alterations, it shall be deemed that the customer agrees to the alteration.
The contracting parties exclude that, above the scope of explicit provisions of these Business Terms and Conditions, any rights and duties are concluding from the existing or future practice between them or usages maintained in general or in the industry concerning the Subject-Matter of Delivery of the Contract concluded, unless the Contract explicitly states otherwise. In addition to foregoing, the contracting parties confirm that they are not aware of any existing business usages or practice between them.
These Business Terms and Conditions shall come into force and become effective on the date of placing them at the web site http://www.atmos-chrast.cz/vop_en.php, starting from 9 June 2014. All and any contractual relations between the contracting parties incurred from 9 June 2014 shall be governed by these Business Terms and Conditions.

Atmos Chrást s.r.o.