BARABÁS Mérnökiroda Kft.
GENERAL TERMS AND CONDITIONS
/VALID AS OF 8 APRIL 2019/
1. General provisions
The General Terms and Conditions of BARABÁS Mérnökiroda Kft. (hereinafter referred to as “Supplier”) apply to all contracts for deliveries and services belonging to its business activity, furthermore, are valid for all such future transactions without separate agreements. The General Terms and Conditions applied by the contracting partner of the Supplier (Customer, Client or Buyer, hereinafter referred to as “Customer”) do not become part of the contract concluded between the Supplier and the Customer unless explicitly approved by the Supplier.
Deviations from the present General Terms and Conditions are only valid if formalized in writing in a separate agreement with the Customer.
Upon acceptance of the present General Terms and Conditions, the contracting parties explicitly exclude the application of business practices differing from the present General Terms and Conditions, even if commonly created.
2. Offer documents
For diagrams, drawings, weight, and dimension data that are part of the Supplier's offers, customary deviations are permitted, unless they are legally mandatory. The Supplier reserves the right of ownership and copyright to offers, drawings and other documents; they may not be made accessible to third parties without the express consent of the Supplier. The Supplier is obliged to treat only those documents with confidentiality that are explicitly classified by the Customer as confidential. If any information is classified by the Customer as confidential, this information may be made accessible to third parties by the Supplier only with the Customer's consent - unless the Supplier has received the information lawfully and not from the Customer or the information has already become available to third parties.
3. Scope of delivery, acceptance
3.1. For the Supplier's obligations and the scope of delivery, the Supplier's written order confirmation is relevant.
3.2. All declarations, comments and other notifications related to the contract should be sent to the other party in written form.
As written form is considered:
- the hand delivery against receipt,
- the registered letter with acknowledgement of receipt,
- the e-mail with read receipt.
3.3. Separate agreements are only valid with the written confirmation of the Supplier.
Hydraulically operated machines and hydraulic supply units are shipped without being filled with oil, unless otherwise agreed.
3.4. If the acceptance is done by the Customer, it must be done in the official premises of the Supplier within 15 days upon reception of the Supplier’s message on the completion of the goods (factory acceptance). If the Customer does not comply with this deadline, the goods shall be deemed to have been accepted as the deadline was over. Because of insignificant defects or deficiencies, the Customer may not cancel the contract or refuse the acceptance. However, this does not affect the Customer's rights as per chapter 9.
4. Price, terms of payment, price modification
4.1 The prices are net, excluding taxes, discounts, contributions, duties, freight insurance, transfer, entry or other permits and packaging but containing the costs of loading in the factory.
4.2 The whole invoice amount has to be paid till the specified payment deadline without deduction of the bank charges and other discounts to the Supplier’s account. The payment obligations are considered to be met by the Customer upon crediting the given amount on the Supplier’s account.
4.3 Should the Customer be in default with any of its payment obligations towards the Supplier according to a contractual relationship falling under the present General Terms and Conditions, the Supplier shall be entitled to make, via written notification to the Customer, all payment obligations promptly due and payable and to claim prompt reimbursement thereof. Furthermore, the Supplier shall be entitled to require at its sole discretion as a precondition of its further services:
a) a lump sum down payment or
b) an unconditional bank guarantee payable on first demand as a security up to the amounts not payable yet.
4.4 If there is such an essential change in the solvency and financial situation of the Customer that would jeopardize the fulfilment of its obligations towards the Supplier, the Supplier is entitled to cancel any and all contracts falling under the present General Terms and Conditions with immediate effect or terminate them with notice. Such an essential change in the solvency occurs if the Customer is subject to a final decision on imposition of bankruptcy, winding up or enforcement proceedings or is in liquidation. If there is an essential change in the solvency of the Customer according to the provisions of this section, the Customer is obliged to notify the Supplier in writing immediately but not later than in 5 (five) working days from the occurrence of the circumstance.
4.5 The Customer is entitled to assert a claim for damages against the Supplier only upon a final and binding court decision.
4.6 In case the Customer is in default with the payment, the Customer is obliged to pay default interest to the Supplier according to the Civil Code. The Customer is obliged to compensate the Supplier for the damage caused by the delay and exceeding the default interest.
4.7 The Supplier reserves the right to change the prices and fees if the wages and material costs have increased to a significant extent (exceeding 3 %) during the period between the order placement and the contractual performance. The contractual prices and fees will automatically be modified upon a reasoned written notice in this regard sent by the Supplier to the Customer.
4.8 In addition to the prices and fees fixed in the individual contract, the Supplier may assert further claims (depending on the case as purchase price, contractor’s fee, additional performance, refund of costs etc.) against the Customer, especially if
a) the Supplier cannot meet its contractual obligations due to a reason arising in the Customer’s interest,
b) the nature or volume of the service to be provided under the contract has changed due to a reason arising in the Customer’s interest or
c) the material qualities or the form of the execution has changed because the documents provided by the Customer did not correspond to the real circumstances or were not complete.
4.9 The Supplier is entitled to invoice to the Customer a lump sum specified in the individual contractual agreement according to the following schedule:
a) 40 % upon approval of the plans
b) 40 % upon acceptance in the Supplier’s factory
c) 20 % upon handing over the goods to the Customer's freight forwarder or, if the parties have so agreed, upon handing over the goods by the Supplier's freight forwarder at the destination
4.10 The Supplier is entitled to invoice the Customer for the quantity of flat rate services (consulting, loading and unloading, etc.) related to the goods and products to be supplied by the Supplier that exceeds the quantity of services specified in the contract, furthermore, needs to be performed for reasons arising in the Customer's interest, on an hourly rate basis as indicated previously by the Supplier to the Customer.
5. Delivery date and delay
5.1 The agreed delivery times are only valid if - and the agreed lead times are only valid from the date when - all details of the contract have been in time clarified, furthermore the Customer has met all its obligations, e.g., has obtained the necessary official certificates, opened a letter of credit or made a down payment, in time.
5.2 If the performance (partial performance) is delayed due to unavoidable external reasons arising after the conclusion of the contract (force majeure, e.g., war, government intervention, internal disturbances, natural disaster or other circumstances beyond the Supplier's control, such as strikes, unavoidable operational disruptions etc.), the delivery period shall be extended by the duration of the impediment and by the time needed to resume the performance.
5.3 If the Supplier is unable to perform its obligations continuously or for an extended period of time due to an impediment as per clause 5.2 above or due to multiple impediments, either party shall be entitled to withdraw from the contract or cancel the services affected by the impediment with notice. According to this section, an impediment is considered long if it lasts more than 3 months or more than half of the performance period.
5.4 If the Supplier is in default with the delivery, the Customer is entitled to set a reasonable, additional period of at least 30 days in writing, after which the Customer is entitled to withdraw from the contract or, if the Supplier has already started to perform, to terminate the contract with notice.
5.5 If the Customer proves that the services already provided by the Supplier (partial performance) cannot be used for the Customer, the Customer is entitled, in case as per clause 5.4, to withdraw from the contract even if the performance has already started.
5.6 If in default with any of its contractual obligations, including the delay due to recklessness (dolus eventualis), the Supplier will be liable for intentional breach of contract, furthermore for breach of contract causing damage to human life, physical integrity, or health; all other liabilities are excluded.
6 Delivery, passing of risk
6.1 The risk is transferred to the Customer when the goods are handed over to the carrier, but no later than when they leave the manufacturer's location.
6.2 Unless otherwise agreed by the parties, the Customer is obliged to take delivery of the goods prepared for shipment and declared ready for delivery by the Supplier till the agreed delivery deadline at the latest, otherwise the goods shall be
- stored for 60 (sixty) days or
- delivered to the Customer’s headquarters or location specified in the order at the Customer’s expense and risk, at the Supplier's own discretion.
6.3 At the end of the storage period as per clause 6.2, the goods shall be deemed to have been delivered at the place of destination. After the storage period specified by the Customer as per clause 6.2, the Supplier is entitled to use or utilize the goods or products not taken by the Customer, to destroy or sell them and to settle accounts with the Customer.
6.4 The Supplier is entitled to make and invoice partial deliveries.
7 Reservation of proprietary rights
7.1 The Supplier reserves the proprietary rights to the subject matter of the delivery and of the performed services until the purchase price or contractor’s fee has been paid in full.
7.2 The Customer is entitled to assemble the Supplier's products with other products within the framework of normal commercial activity, even before the payment has been made in full. If the items or products assembled in this way can only be separated at the cost of disproportionate damage or disproportionate effort or not at all, joint ownership arises in relation to the value of the items at the time of their assembly, on which ownership the Customer creates a lien up to the value of the Supplier’s claim for the benefit of the Supplier.
7.3 The Customer is entitled to resell the product in the ordinary course of trade. At the request of the Supplier, the Customer undertakes to assign to the Supplier all receivables arising from the resale together with its collaterals, up to the unpaid value of the resold products. If the products owned in whole or in part by the Supplier are resold together with other goods, the Customer is obliged to assign to the Supplier the part of the purchase price claim corresponding to the price of the goods owned by the Supplier.
In the event of any breach of the contract by the Customer, the Customer will lose its right of resale in accordance with clause 7.3. This right shall terminate without explicit revocation in the event of late payment by the Customer. The Customer is obliged to immediately inform the Supplier in writing to whom the Customer has sold the product that is wholly or partly property of the Supplier and what claims the Customer is entitled to from the resale, furthermore the Customer is obliged to issue a certified document at its own cost on the transfer of the claims.
7.4 The Customer is obliged to immediately inform the Supplier on seizures of objects or claims that are wholly or partially property of the Supplier or on other events restricting the entitlement.
7.5 The Customer bears all costs that are necessary to terminate the availability of the reserved or encumbered assets for third parties and to reprocure the assets.
7.6 In the event of a breach of contract by the Customer, upon the written notice of the Supplier, the Customer is obliged to hand over to the Supplier the goods that are partly or wholly propriety of the Supplier. If the Supplier enforces this right, this means the intention of the Supplier to terminate the contract (by termination or withdrawal) only in case of the Supplier's explicit written legal declaration to this effect.
7.7 If the retention of title cannot be enforced in the territory (country) where the goods are located, the retention of title under the local law shall be deemed to be in accordance with the agreement. If the creation of these rights requires the participation of the Customer, the Customer must do everything possible to create and maintain these rights.
7.8 If, in the country where the contractual goods are located, a more comprehensive agreement on the retention of title (e.g., pre-assignment of claims arising from the resale of goods supplied by the Supplier) is permitted under the applicable law, the Customer is obliged, at the request of the Supplier, to make such an agreement.
8 Improper, defective, or incomplete performance
Objections are to be reported to the Supplier immediately, in the event of uncertain defects within 8 days, providing the necessary details (product type, identification number, description of the defect etc.).
9 Guarantee and warranty
9.1 The Supplier is obliged to eliminate all deficiencies or deviations due to design, material quality or processing defects. The feature of the service that the Customer knew or should have known at the time the contract was concluded is not regarded as a defect or deficiency.
9.2 The Supplier provides a 12 (twelve) month warranty for its products in case of 8 working hours per day. In the case of longer daily operating hours, the warranty period is shortened in proportion to this. Deviations from this must be recorded in writing.
9.3 In case of defects or deficiencies existing at the time of the performance, the Supplier shall, at its option, either repair the defect or provide a replacement under warranty for the Customer. The defective product must be handed over to the Supplier for repair or delivered to the place specified by the Supplier. The cheapest delivery and return delivery cost between the Supplier’s place of dispatch and the original place of destination shall be borne by the Supplier if the claim proves to be justified. In case of unjustified claim, the delivery costs will be borne by the Customer.
On-site troubleshooting is provided by the Supplier only under a separate agreement. The Supplier's retention of title to the replaced product remains in effect.
9.4 A warranty claim can be excluded if the product has changed due to the intervention of a third party or due to the installation of a foreign part, even if the defect is not originally related to the changes and if the standards on the delivery, packaging, installation, handling, application, maintenance or repair have not been complied with by an unauthorized third party, or if the Customer or a third party has made a fault during the assembly or commissioning or if the product has been overloaded.
9.5 The Customer is not entitled to any guarantee or warranty in case of damages due to natural wear and tear and improper handling. In particular, the Supplier is not liable for changes in the state or function of the products if these are caused by improper storage or by an unsuitable working medium or by climatic or other effects. The quality and purity of the working medium are specified in the catalogue sheets of hydraulic components. A deficiency resulting from design defect or improper material selection shall not be considered a defect or incompleteness of the Supplier's service provided the design or material quality was specified by the Customer. The Supplier's liability is excluded for the parts delivered by the Customer and for the resulting defects in the Supplier's services; the Customer is not entitled to assert claims against the Supplier in this regard.
9.6 The Customer is obliged to provide for the Supplier or the Supplier's subcontractor the necessary conditions for the execution of the work under the warranty.
The Customer is entitled to perform such work with the consent of the Supplier. In this case, the costs shall be borne by the Supplier to such an extent that they be in fair proportion to the value of the product, to the significance of the defect and/or to other methods to eliminate the warranty defect. Additional costs shall be borne by the Customer.
9.7 Guaranteed product features are only those that are specifically stated in the order confirmation or in the specifications. The warranty and guarantee for the features are valid up to the end of the warranty period as per clause 9.2. If the Customer, being aware of the breach of contract, accepts the performance, the Customer may subsequently make a claim arising from the breach of contract against the Supplier only if the Customer has reserved its own rights in this regard.
9.8 If the Supplier does not undertake to remedy or replace the defective performance or it cannot be carried out without prejudice to the legitimate interests of the Customer, the Customer may require a proportionate reduction of the consideration (purchase price, contractor fee).
9.9 If the Supplier's performance is unsuitable for the intended use due to a performance defect, the Customer is entitled to withdraw from the contract or, in the case of a divisible performance, to terminate the part affected by the defect with notice.
9.10 The Supplier is obliged to indemnify the Customer for the damage resulting from the defective performance unless the Supplier excuses the defective performance. The Customer may only claim compensation for damages caused by the defective performance to the subject matter of the service if there is no place for the repair or replacement, or if the Service Provider has not undertaken the repair or replacement or is unable to fulfil this obligation. This compensation claim to enforce warranty rights shall lapse within the period specified in these General Terms and Conditions.
9.11 In case of defective performance of any of its contractual obligations, including the defective performance due to recklessness (dolus eventualis), the Supplier will be liable for intentional breach of contract, furthermore for breach of contract causing damage to human life, physical integrity, or health; all other liabilities are excluded. This restriction does not apply to the lack of guaranteed product features.
9.12 In the event of repair or replacement, the warranty period will be extended by the time required to meet the claims arising from the defective performance and will not start again.
9.13 If the error report proves to be unjustified, the Supplier is entitled to invoice all costs incurred in this regard to the Customer.
9.14 Under warranty of title, except for claims arising from infringement of patent rights of a third party, the provisions of this chapter 9 shall apply mutatis mutandis.
10 Infringement of intellectual property rights
If the products are made on the basis of drawings, sketches or other instructions supplied by the Customer, the Customer is solely responsible to ensure that the copyright, patent, design patent or other intellectual property rights of third parties are not infringed. In the event of a breach of such intellectual property rights resulting from compliance with documents or instructions provided by the Customer, the Customer may not make any claim against the Supplier. If a third party wishes to assert any civil law claim against the Supplier for such patent infringement or the criminal liability of the Supplier or its representatives is involved, the Customer is obliged to exonerate the Supplier against such accusations and to discharge the Supplier from its liability to a third party enforcing the claim.
11 Liability, obligation to pay compensation
11.1 In the event of a breach of any of its contractual obligations not covered by the above provisions, including the breach due to recklessness (dolus eventualis), the Supplier will be liable for intentional breach of contract, furthermore for breach of contract causing damage to human life, physical integrity, or health; all other liabilities are excluded.
11.2 In the event of a breach of contract, the Supplier is obliged to indemnify the Customer for the damage to the goods or subject matter of the service supplied by the Supplier.
11.3 In the event of a breach of contract by the Supplier, the Customer shall only be entitled to enforce claims that are specified in these General Terms and Conditions against the Supplier, all other titles and forms of enforcing claim are excluded.
11.4 All claims for damages not explicitly mentioned, furthermore limitation or termination of the validity of the contract or cancelation of the contract by withdrawal or termination for a reason not regulated in these General Terms and Conditions are in particular excluded.
11.5 In no case shall the Customer be entitled to compensation for damages that have not occurred in connection with the subject matter of the Supplier's service, such as production loss, losses in connection with the usage, loss of orders, lost profit and other direct or indirect damages.
12 Other provisions
12.1 The place of performance of all deliveries and services arising from the business relationship of the parties is the Supplier's site (production site).
12.2 All disputes arising out of the contractual relationship shall be settled by the court of the Supplier's registered office or premises (branch office) performing the service affected by the dispute. In addition, the Supplier is entitled, at its own choice, to enforce a claim against the Customer in a court of its domicile or in another court which is competent under the Code of Civil Procedure. This jurisdiction also applies to disputes concerning the establishment and scope of the contractual relationship.
12.3 The Customer may transfer its claims arising from the business relationship only with the prior and written consent of the Supplier.
All legal relations between the Supplier and the Customer shall be governed solely by the legal order of Hungary, to the exclusion of the provisions of private international law provided they refer to the scope of another legal system.