General Terms and Conditions of ATMOS Chrást s.r.o.

I. Introductory provisions, contract, order

These General Terms and Conditions of Sale and Delivery / hereinafter referred to as "GTC" / are the terms and conditions of business issued in accordance with Section 1751 of Act 89/2012 Coll., Civil Code, as amended / hereinafter referred to as "Civil Code" / and govern the legal relationship between the company ATMOS Chrást s.r.o. with its registered office at Plzeňská 149, Chrást, 330 03, ID No. 497 12 381, registered in the Commercial Register at the Regional Court in Pilsen, in Sec. C, insert 5880 as the supplier of goods, works or services ("ATMOS" or "ATMOS") and the other person as the customer of the goods, works or services ("the customer"), regardless of the type of contract concluded between them ( purchase contract, contract for work, etc...), unless otherwise provided for in the contract.

These GTC clearly exclude the application of any terms and conditions used by the Customer in the context of its business relations, unless otherwise agreed.

The specification of the goods to be supplied, the work to be performed or the services to be provided (hereinafter referred to as the "subject matter of performance") is defined by contract, whether in the form of a bilateral written agreement between the parties expressly designated as a contract or in the form of a written order and its written confirmation as identical expressions of intent as to the content of the contract.

 

Any provisions of the written contract which are in derogation from the terms and conditions shall prevail over the individual provisions of these terms and conditions. Any amendments to the contract or the terms and conditions must be made in writing.

 

All technical, dimensional, colour and weight data shall be understood within the tolerances corresponding to commercial practices in the industry.

Order:

Unless otherwise agreed, the contract shall be concluded by confirmation of the customer's written order made in writing, by fax or by e-mail.

 

In the order, the customer is obliged to specify the quantity and type, or production designation, of the goods ordered or the specification of the work or services ordered. He shall also specify the place of delivery, the method of transport and the date of delivery of the goods ordered. If no price is specified in the order, the parties agree on the price of the goods as stated in the current ATMOS price list.

The offers of ATMOS contained in advertising materials, catalogues and on the Internet are non-binding and serve only for general information about the goods and services offered by ATMOS, which reserves the right to change and correct printing errors and defects.

II. Prices

Prices are negotiated by agreement. In the case of a purchase contract, the price is the price in parity Ex Works warehouse of ATMOS, Chrást u Plzně. In the case of a service delivery (works contract), the price is in parity with FCO, the customer.

 

The prices are exclusive of value-added tax; the tax in question is charged to these prices on the date of the taxable performance in the amount of the applicable legislation.

 

The prices do not include packing, transport, documentation costs outside the declaration of conformity or other necessary costs; these costs are invoiced separately by ATMOS. If ATMOS has undertaken the installation or commissioning, the customer shall also be liable for any additional costs reasonably incurred by ATMOS in connection therewith.

For the delivery of services, ATMOS reserves the right to charge extra costs for work in difficult conditions, for work during the Customer's normal operating hours, for work outside normal working hours or for extra costs for the removal of obstacles of the Customer that were not known or obvious at the time of conclusion of the contract or confirmation of the order.

 

If the subject matter of the contract is not completed within 1 year from the conclusion of the contract, for reasons on the part of the Customer, and if prices or rates of remuneration have changed in the meantime, ATMOS shall be entitled to increase the price in accordance with the ATMOS price list valid on the date of actual delivery of the subject matter of performance.

 

III. Payment terms

Prices are payable in the amount and on the date stated on the invoice.

 

The price shall be deemed to have been paid when the payment is credited to ATMOS' account or paid in cash at ATMOS' cash desk.

 

If the provision of advance payment(s) is agreed, ATMOS shall not be obliged to deliver the subject matter of the performance prior to the provision of such payment(s).

 

ATMOS shall not be obliged to accept payment in the form of bills of exchange or cheques. In the event that these are accepted, the cost of discount or collection shall be borne in full by the Customer.

 

For late payment of the price of the Subject of Performance, ATMOS and the Customer agree on contractual interest on late payment at the rate of 0.1% of the amount due for each day of delay, even if only for the first day. The agreed default interest does not cover any damages resulting from the failure to fulfil the obligation to pay the price, since the application of Section 1971 of the Civil Code is excluded.

 

The Customer who is in default in the payment of the price of the object of performance shall be obliged to reimburse ATMOS for its costs associated with the reminder of the payment due and the costs of legal representation associated with the reminder and/or recovery of the payment due, including in out-of-court negotiations; these costs shall be determined in accordance with Decree No. 177/1996 Coll., as in force on the date of such claim.

 

If during the term of the contract the Customer's credibility is reduced, in particular if it is established that the Customer is bankrupt, has stopped payments, etc., or if the credibility of the third party who provided security for the Customer's obligations to ATMOS is reduced ( e.g. or if the Customer is in long-term default of its obligations under this Agreement or any other agreement concluded with ATMOS, ATMOS shall be entitled to require further security for the obligation or the provision of a security or guarantee by a bank with its registered office in the Czech Republic. Pending the provision of the required security, ATMOS shall be entitled to suspend performance of the contract, provided that the agreed delivery date shall be automatically extended by this period.

If the customer has provided a guarantee at the conclusion of the contract, the provisions of Section 1808(2) of the Civil Code shall not apply.

 

The customer is not entitled to assign any claim against ATMOS to a third party without the prior written consent of ATMOS.

 

The Customer shall be entitled to unilaterally set off claims against ATMOS that are due, not in dispute between them and not time-barred, only with the prior written consent of ATMOS to such set-off. ATMOS shall be entitled to set off any claims due against the Customer.

IV. Right of ownership

The ownership right to the object of performance passes to the customer only upon full payment of the price of the object of performance, the risk of damage to the object of performance passes to the customer upon handing over the object of performance for transport to the first public carrier or upon its handing over to the customer at the headquarters of ATMOS (see Article VI of the Terms and Conditions).

In the event of a delay by the Customer in payment of the price for a period exceeding 30 days, the Customer undertakes, if the object of performance is in its possession, to allow ATMOS to dispose of the object of performance, in particular to allow its removal.

 

 

 

The Customer agrees that in the event of default in the fulfilment of its obligations under the contract, ATMOS shall exercise a right of retention on the subject of performance, or on the materials, technical documentation, etc., which have been delivered by the Customer.

 

V. Delivery period

The terms of delivery of the object of performance are set out in the relevant contract (or in the order and its confirmation), unless otherwise agreed in writing by the parties.

ATMOS' performance is subject to the fulfilment of the customer's obligations, in particular the timely provision of technical documentation or materials, compliance with the agreed payment terms, submission of the necessary permits and approvals, provision of assistance, etc. ) and is also conditional on the Client not being in default towards ATMOS in the payment of any monetary debt arising from another contractual relationship, ATMOS shall not be in default during the period of such default by the Client and the delivery date of the subject of performance shall be automatically extended by the period of default by the Client.

The object of performance shall be delivered at the moment of its handing over to the first public carrier for transport to the destination or at its handing over to the customer at ATMOS' registered office or at another place specified in the contract. A delivery note shall be drawn up for the handover of the object of performance. In the case of delivery of services, installation work or commissioning, these shall be delivered by handing them over to the customer. A handover report shall be drawn up.

 

The customer is obliged to accept the object of performance even if it has minor or insignificant defects that do not prevent proper use. Furthermore, the customer is not entitled to refuse to accept the object of performance if in the meantime there have been changes in its construction or shape which do not affect the way in which the object of performance is used or which increase its value.

 

ATMOS shall fulfill its obligation to deliver the Subject of Performance even if the Customer fails to appear to take over the Subject of Performance or refuses to take over the Subject of Performance unjustifiably; in such cases ATMOS shall state this fact in the protocol and the Subject of Performance shall be deemed to have been handed over by the parties.

ATMOS shall not be in default of performance under the Contract if such default was caused by causes which ATMOS could not have foreseen or prevented, or if such default was caused by force majeure. For the purposes of the contract, force majeure shall be deemed to be events that are not dependent on and cannot be influenced by the contracting parties, e.g. war, mobilisation, uprising, strike, civil unrest, floods, fires, natural disasters, pandemics.

The Customer agrees that ATMOS may deliver the subject of performance before the agreed date, and also agrees to provide partial performance of the contract.

In the event of unforeseen operational failures not caused by ATMOS, in the event of delays by ATMOS subcontractors in delivering the components properly, on time and in the required quality, the delivery time specified in the contract shall be extended by the time specified in the contract, unless the parties agree otherwise in writing.

VI. Risk of damage to the object of performance

The risk of damage to the object of performance passes to the Buyer at the time of delivery in accordance with Article IV of these GTC.

ATMOS is not obliged to insure the object of performance against damage that may occur during the transport of the object of performance to the customer. Only in the case of an express agreement between the contracting parties, ATMOS undertakes to insure the object of performance at the expense of the Customer, in particular against theft, damage to the object of performance during transport, etc., with the insurance premium being paid by the Customer before the commencement of transport.

In the event of damage to the object of performance due to defective material provided by the purchaser, ATMOS shall be entitled to compensation for the damage incurred and related costs.

Damage to the object of performance that occurs after the risk has passed to the customer shall not affect the customer's obligation to pay the agreed price and the customer shall be obliged to accept the object of performance.

 

VII. Compensation for damages

The total scope of ATMOS's obligation to compensate the customer for damage to property (damage) arising in connection with the performance of the contract or a breach of law is limited to 10 % of the total contract price for the object of performance for all damage events in their totality. Only actual damages shall be compensated; lost profits and other types of damages shall not be compensated. Damages shall be compensated preferably in money. The agreed limitation of compensation shall not apply to compensation for damage caused intentionally or through gross negligence, nor to compensation for damage caused to a person's natural rights. Any contractual fines or other penalties paid by ATMOS to the customer shall be set off against the compensation in full. The statute of limitations for claims for damages shall be one year. This also applies to the right to compensation for damage caused by a product defect.

VIII. Rights of third parties

In the event that ATMOS uses technical documentation submitted by the customer (technical drawings, models, patterns) or components supplied by the customer in the performance of the subject matter of the contract, the customer is responsible for ensuring that the rights of third parties or trade secrets are not infringed and is obliged to reimburse ATMOS for all costs and damages incurred in connection therewith.

ATMOS is entitled to suspend performance of the contract until the matter is resolved if it becomes aware of the assertion of third-party rights, whereby the delivery date is extended by the period of suspension, or to unilaterally withdraw from the contract in writing for this reason.

 

IX. Claims for defects

Notification of defects and exercise of rights arising from defective performance

 

The customer is obliged to carry out an initial inspection of the accepted object of performance. In the event that the Customer discovers defects in the delivered object of performance during the inspection, the Customer shall be obliged to claim such defects in writing within 5 days of the date of acceptance at the latest. After the expiration of this period, the customer shall lose the right to claim defects detectable upon acceptance of the goods.

 

ATMOS shall only be liable for defects in the object of performance which the object of performance had at the time of its delivery to the customer and for defects which are detected and claimed by the customer within the warranty period.

The Purchaser shall be obliged to claim defects under the quality guarantee in writing within the guarantee period, not later than ten (10) calendar days from the time when it discovered such defects or should have discovered them with the exercise of professional care, but not later than the end of the guarantee period.

Notification of the defect shall be made in writing through the service centre, in the form prescribed by the ATMOS complaints procedure. This notification must include in particular:

(a) the data necessary to identify the object of performance, (serial number of the machine)

(b) a detailed description of the defect, indicating the reason and proof of ATMOS' unilateral liability for the defect, the time of the first occurrence of the defect

 

In the event that the customer discovers a defect in the object of performance, he is obliged to act in such a way as to prevent the occurrence of damage that could be caused by the claimed defect in the object of performance.

 

For the avoidance of doubt, the parties expressly exclude the application of Section 2102 of the Civil Code and agree that ATMOS shall not be liable for defects arising from the use of material or performance provided by the customer or from the use of material that was used on the basis of a request and specification submitted by the customer. The Customer shall be obliged to reimburse ATMOS for damages incurred in this connection.

ATMOS shall assess the claimed defects and inform the customer of the manner in which the claim will be settled.

ATMOS undertakes to remedy the defect that has been legitimately claimed at its own expense as soon as possible, taking into account the availability of the necessary materials and spare parts. The time limit for rectification of the defect shall be extended by the period during which the customer has not provided the necessary cooperation for rectification of the defect.

For the avoidance of doubt, it is agreed by the contracting parties that ATMOS is entitled to choose the method of removal of legitimately claimed defects, i.e. whether duly claimed and acknowledged defects of the object of performance shall be removed by repair or delivery of a replacement object of performance.

The claimed object of performance must be delivered to the ATMOS service centre in suitable packaging and in principle complete, i.e. with all components. Delivery of an incomplete item may be grounds for rejection of the claim. The customer is obliged to deliver the claimed item covered by the warranty to ATMOS at his own expense. In the case of a stationary object of performance, the customer is obliged to allow a representative of an authorised ATMOS service centre to inspect it at the place of installation within the agreed time. The exact conditions of the way of applying the warranty are specified in the warranty card for the specific object of performance (goods).The list of authorized service centers of the company is published on the website www.atmos-chrast.cz.

 

In the case of the subject of performance consisting in the supply of services, ATMOS is obliged to remove the claimed defects at the place of delivery of the subject of performance.

The Parties hereby exclude the application of Section 2108 of the Civil Code and the complaint of the subject of performance shall not affect the Customer's obligation to pay the full price of the subject of performance within its due date.

 

 

 

Quality guarantee

 

ATMOS provides a guarantee for the quality of the object of performance.

 

The warranty period and the specific conditions of the guarantee provided for the object of performance are specified in the warranty certificate (declaration of warranty) or in the contract. In the event that the warranty certificate and the contract specify different warranty periods, the longer of the two applies. If no warranty period is specified in any written document or contract endorsed by ATMOS, ATMOS shall provide a warranty of 6 months for the goods, materials and services so supplied.

 

The warranty period shall commence from the date of delivery of the subject matter or from the date of commissioning of the subject matter if the delivery under the contract includes commissioning of the subject matter.

 

The provision of the quality guarantee shall be conditional upon payment of all outstanding debts and obligations of the customer under the contract. In the event that the Customer defaults on the payment of any of its contractual obligations to ATMOS, ATMOS shall be entitled to suspend the settlement of the claim for the duration of the Customer's default, which shall not result in the interruption or extension of the warranty period.

The purchaser shall not be entitled to the warranty if the defect is caused by an external event after the risk of damage to the item has passed to the purchaser.

 

The provisions of the terms and conditions shall apply to the notification of a defect covered by the guarantee and to the exercise of the right to claim for defective performance, unless otherwise stated in the guarantee document (declaration of guarantee) or the contract.

 

The quality guarantee does not apply to consumables ( filter and separation inserts, wedge chains, bulb fuses, etc.).

 

The customer has no rights under the quality guarantee in the cases specified in the guarantee certificate and in the following cases:

- unprofessional operation and maintenance of the object of performance carried out in contravention of the instructions given in the operating and maintenance manual,

- unprofessional handling and storage of the object of performance,

- operation of the object of performance in an extremely aggressive environment (e.g. excessive temperature, dustiness, humidity, chemical or mechanical influences),

- damage to the bolt block due to corrosion or oil degradation as a result of improper use of the machine or neglect of mandatory inspections,

- failure to replace filter, separation liners and other materials at the intervals prescribed in the operating instructions,

- if the object of performance has been used for purposes other than those for which it was designed and which are defined in the operating and maintenance instructions for the object of performance

- if the defect was caused by improper positioning of the article of fulfilment with regard to the supply and exhaust of cooling air,

- if lubricants other than those prescribed have been used,

- if non-original spare parts have been used,

- if the seals have been broken,

- if the service book for the item in question has not been presented to the service technicians at the time of the warranty inspection, or if the service book does not record the performance of the operations prescribed by the manufacturer in the manufacturer's operating instructions,

- breakdowns of the object of performance unless caused by a manufacturing defect,

- if the design of the object of performance has been tampered with,

- if the object of performance has been repaired during the warranty period by someone other than ATMOS or an authorised service centre,

- if the object of performance has been handed over to a third party without a technical inspection by the manufacturer or an authorised service centre

- if the prescribed warranty inspections have not been carried out in time and recorded in the service booklet,

- if the complaint is not submitted in writing within 10 days of the date of the defect (see provisions on the application of defects)

- if the defect was caused by a third party due to inadequate safety precautions,

- if the object of performance has not been put into operation or the operator's staff has not been trained by an authorised service centre and this has been entered in the service book

 

The warranty also does not cover any defects or non-conformities caused by a third party during the installation of the object of performance. Furthermore, ATMOS shall not be liable for any defects, errors, deficiencies, inaccuracies or discrepancies caused by erroneous, inaccurate or incomplete information, documentation, including technical documentation and specifications, provided by the customer.

X. Withdrawal from the contract

The parties may only withdraw from the contract in cases of material breach of contract or in cases expressly provided for in the contract or in these terms and conditions or in cases expressly provided for in legal regulations, if these cannot be derogated from. Withdrawal shall be effective on the date of delivery to the other party.

 

A material breach of contract means:

- Default by the Customer in the payment of a monetary debt due under this contract for a period of at least 30 days

- delay by the Customer in making advance payment, if agreed, for more than 10 days

- if the material or technical documentation submitted by the customer has defects for which the contract cannot be performed or if the rights of third parties have been infringed pursuant to Article VIII of the General Terms and Conditions

- failure of the customer to provide cooperation and consequent impossibility of performance by ATMOS for more than 30 days

- ATMOS's delay in the subject of performance after the confirmed performance date and then after the expiry of a reasonable period of at least 30 days granted by the Customer for additional performance of the contract. This provision shall not apply if the delay was caused by circumstances on the part of the Customer or force majeure.

The contracting party shall be entitled to withdraw from the contract with effect from the date of delivery of the written withdrawal to the other contracting party if:

- a decision on the insolvency of the other party has been issued by the competent insolvency court

- the petition for a bankruptcy order has been rejected by the competent insolvency court for lack of assets of the other Party

- the other Party has filed a bankruptcy petition against itself with the competent insolvency court

- the other Party has stopped its payments.

ATMOS shall be entitled to withdraw from the contract if the Customer is in default in the fulfilment of its outstanding monetary debts to ATMOS for a period exceeding 30 days, irrespective of whether these are obligations under the contract being withdrawn from or under another contract. In the event that ATMOS does not withdraw, ATMOS shall not be in default under any such contract until the relevant monetary obligation has been paid.

 

Costs incurred in connection with the withdrawal from the contract and any return of the object of performance shall be borne by the customer.

 

 

XI. Prohibition of assignment

The Customer is not entitled to assign, transfer or transfer to any third party any obligation or right arising from the respective order or contract without the prior written consent of ATMOS.

ATMOS is entitled to assign the contract to another person.

 

XII. Consumer Rights

The provisions of this article of the GTC shall only apply to contracts in which the consumer or another person who is not acting as a business person when concluding the contract and the purchase of goods does not relate to his business activity acts as the customer. The identity and contact details of ATMOS are given in the heading of the GTC. The subject of performance, price and delivery date, payment terms, method of delivery, as well as the cost of delivery of the subject of performance shall be specified in the order confirmed by ATMOS or in the contract.

The consumer is entitled to exercise the right to claim for defects that occur in the object of performance, which is in the nature of consumer goods within 24 months of receipt.

If the contract has been concluded outside the usual business premises of ATMOS, the consumer is entitled to withdraw from the contract within 14 days of receipt of the goods. If the consumer exercises this right, he/she is obliged to return to ATMOS within 14 days at the latest the goods he/she has received under the purchase contract.

 

In the event that a consumer dispute arises between the consumer and ATMOS arising out of the contract, which cannot be resolved by agreement, the consumer may submit a proposal for out-of-court resolution of such dispute to the designated entity for out-of-court resolution of consumer disputes, which is the Czech Trade Inspection Authority with its registered office at Štěpánská 567/15, 120 00 Prague 2, ID No.: 000 20 869, Internet address: https://adr.coi.cz/cs. The consumer may also use the online dispute resolution platform located at http://ec.europa.eu/consumers/odr.

The European Consumer Centre Czech Republic, located at Štěpánská 567/15, 120 00 Prague 2, internet address: http://www.evropskyspotrebitel.cz is the contact point under Regulation (EU) No 524/2013 of the European Parliament and of the Council of 21 May 2013 on online dispute resolution for consumer disputes and amending Regulation (EC) No 2006/2004 and Directive 2009/22/EC (Regulation on online dispute resolution for consumer disputes).

The Seller is not bound by any codes of conduct in relation to the Buyer within the meaning of Section 1826(1)(e) of the Civil Code.

 

 

XIII. Confidentiality of information, duty of confidentiality

The parties are obliged to maintain confidentiality or to oblige other persons involved to maintain confidentiality of all facts which are not normally available in commercial circles and with which they come into contact in the performance of the contract. The Parties agree that such information shall be covered by the obligation of commercial confidentiality.

The Customer undertakes not to disclose to third parties any information obtained from ATMOS (including technical data on the products, their illustrations, technical drawings and specifications, technology, samples). The Customer may use this information and know-how with the consent of ATMOS only for the purposes expressly set out in the contract, not for its own production or for competing manufacturers.

All information and documentation provided shall remain the exclusive property of ATMOS and may not be reproduced by the customer.

 

XIII. Contract law and dispute resolution

The legal relations of the parties shall be governed by the law of the Czech Republic. If the contract or the terms and conditions do not contain their own regulations, the rights and obligations shall be governed by Act No. 89/2012 Coll., the Civil Code, as amended.

 

Disputes and disputes arising during the performance of the contract for whatever reasons shall be resolved by ATMOS and the Customer primarily amicably and as quickly as possible. In the event that no agreement is reached, the parties agree on the subject matter jurisdiction of the Czech court at the place of ATMOS' registered office.

If the contract or the terms and conditions contain a reference to INCOTERMS 2010, this shall be understood as a reference to the International Rules for the Interpretation of Delivery Clauses INCOTERMS 2010.

 

XIV. Other provisions

If any provision of these General Terms and Conditions is or becomes invalid or ineffective, the validity or effectiveness of the remaining provisions shall not be affected.

For the avoidance of doubt, the application of Sections 1726, 1729, 1740(3), 1757(2) and (3), 1965, 2104, 2105, 2106, 2107, 2108 of the Civil Code is expressly excluded. Neither party to the contract has the status of a weaker party.

 

The Customer expressly declares that none of the provisions of these Terms and Conditions is a surprise arrangement for him within the meaning of Section 1753 of the Civil Code and that he is aware of the contents of the Terms and Conditions.

XV.

Protection of personal data

ATMOS processes personal data exclusively on the basis of legal regulations, in particular Act No. 110/2019 Coll., on the processing of personal data, as amended, and Regulation (EU) 2016/679 of the European Parliament and of the Council on the protection of natural persons with regard to the processing of personal data and on the free movement of such data and repealing Directive 95/46/EC (General Data Protection Regulation).

Further information on the handling and processing of personal data is available at: atmos-chrast.cz/informace/gdpr

XVI.

Final provisions

These Terms and Conditions of ATMOS are published on the website at the following address:  www.atmos-chrast.cz/informace/vseobecne-obchodni-podminky

ATMOS reserves the right to make any changes or additions to the content of these terms and conditions, which may relate to the modification of any rights and obligations arising from or in connection with contracts. ATMOS shall notify the Customer in writing at least 30 days prior to the effective date of any change to the Terms and Conditions. In the event that the Customer does not agree with the proposed change and no agreement is reached, the Customer shall be entitled to terminate the contract by giving 1 month's notice if this is appropriate due to the nature of the relevant contract. If the contract is not terminated by the client due to changes in the terms and conditions within 14 days of notification of such changes, the client shall be deemed to have agreed to the change.

 

The Parties exclude that, beyond the express provisions of these Terms and Conditions, any rights and obligations may be inferred from past or future practice established between them or customary practice in general or in the industry relating to the subject matter of the Contract, unless otherwise expressly agreed in the Contract. In addition to the foregoing, the Parties acknowledge that they are not aware of any custom or practice heretofore established between them.

 

These Terms and Conditions shall come into force and effect on 1 January 2023. All contractual relations between the Parties arising from the Effective Date shall be governed by these Terms and Conditions.

 

These T&Cs are drawn up in Czech, English, French, German, Spanish and Polish, and in the event of a conflict between these language versions, the Czech version shall prevail and prevail.

Atmos Chrást s.r.o.