These Terms and Conditions enter into force on June 1st, 2020.
These Terms and Conditions are issued by: TEMPISH s.r.o., based in Olomouc, bratří Wolfů 16, 779 00, Czech Republic, Business ID No: 25827677, Tax ID No: CZ25827677, entered in the Commercial Register kept by the Regional Court in Ostrava in Section C, Insert 19767, represented by Tomáš Hromádka, Executive Director,
as the Seller (hereinafter referred to as the 'Seller') as the first party.
These Terms and Conditions govern: The business relationship between the Seller and business partners registered in the buyer's system with active access to the B2B platform,
as the Buyer (hereinafter referred to as the 'Buyer') as the other party.
Together, the Seller and the Buyer are hereinafter referred to as the 'Parties' and individually hereinafter referred to as the 'Party'.
1. SUBJECT MATTER OF THE AGREEMENT
1.1 The agreement's subject matter is to determine the conditions and rules under which the Seller shall supply movables - sporting goods and other products produced and/or supplied by the Seller (hereinafter referred to as the 'Goods'), and under which the Buyer purchases the Goods from the Seller.
2. GOODS ORDER
2.1 The Buyer orders the Goods through an order, which can be made in any of the following ways:
via the B2B platform within the Benefit plus 2000 system (via www. b2b.tempish.cz) - (hereinafter referred to as 'B2B'),
in person at the Seller's registered office with the Seller's authorised employee or in person with an authorized sales representative.
2.2 Upon receiving the order, the Seller shall send the Buyer an order confirmation (or order modification) via B2B or email (hereinafter referred to as the 'Order Confirmation').
2.3 The Seller is entitled to cancel the Buyer's order if the Buyer does not respond to the request for payment by payment before shipment or request for extension within 5 working days of sending the payment documents. All agreed benefits for that order are cancelled with the order cancellation.
2.4 The Seller is entitled and reserves the right to modify the Buyer's orders, especially according to the Seller's delivery options in terms of quantity and delivery date, and to further adjust the purchase price of Goods if it has not been correctly stated by the Buyer in the order in accordance with the Seller's valid pricelist and other agreements of the Parties. The Seller shall reserve the right to change the purchase price of the Goods in case of printing errors contained in the pricelist or in other documents of the Seller.
2.5 The Buyer's pre-order means the Buyer ordering Goods usually 4-6 (four to six) months in advance for the new season (hereinafter referred to as a 'Pre-order'). Pre-order requirements (deadline for sending a Pre-order, delivery conditions, payment terms) are listed in the Goods pricelist for the given collection.
2.6 Unless expressly stated or agreed otherwise, the order mode shall apply to Pre-orders.
2.7. For Pre-order, the Seller provides the Buyer with a discount on the Goods purchase price (hereinafter referred to as a 'Pre-order Discount') while meeting all the following conditions:
the Buyer collects all Goods ordered by Pre-order within the period specified in the Seller's pricelist or promotional materials; and
the Buyer pays the Goods price within the due date.
3. PURCHASE PRICE AND PAYMENT TERMS
3.1 The purchase price is, in accordance with Act No 526/1990 Coll., on prices, as amended, agreed by the Parties. Unless expressly agreed otherwise between the Parties, the Goods purchase price is determined according to the pricelist specified in the B2B application, which is valid on the day of the order.
3.2 Unless expressly stated otherwise in the Seller's pricelist, all prices or other payments are stated without the relevant value added tax.
3.3 The Buyer shall pay the Seller the purchase price based on an issued invoice (hereinafter referred to as the 'Invoice').
3.4 The Seller is entitled to issue invoices during or after the shipment of Goods, depending on the actual collection of Goods confirmed by the Seller. Invoices are primarily due before shipment, unless otherwise agreed. The maturity of invoice is calculated from the invoice issue date by the Seller. The Buyer undertakes and is obliged to pay the invoice to the Seller within the due date.
3.5 If the Buyer is in arrears with the Seller with regard to the payment of their financial obligations, the Seller is entitled to demand immediate settlement of all the Buyer's due outstanding payments.
3.6 If the Buyer is in arrears with the purchase price payment or any part thereof for more than 30 (thirty) days, it is considered that this condition, including partial terms and conditions, has been materially violated and the Seller is entitled to withdraw from these Terms and Conditions.
4. DEFAULT INTEREST
The Parties agree that if the Buyer is in arrears with the purchase price payment of Goods to the Seller or with the payment of any other financial obligation to the Seller, the Buyer is obliged to pay the Seller a default interest payment of 0.05% of the amount due for each commenced day of delay.
5. TRANSFER OF OWNERSHIP
5.1 Goods ownership passes to the Buyer after full payment of the purchase price.
5.2 Goods purchased through the e-shop https://store.tempish.com, B2B https://b2b.tempish.cz/ or the TEMPISH company shop based in Galerie Šantovka, Polská 1, 779 00 - Olomouc, CZE may not be resold outside the territory in which the Buyer's registered office is located without the written consent of TEMPISH s.r.o., with the exception of official distributors who have concluded a valid distribution agreement with the Seller and who receive written consent from the Seller as an amendment to the Terms and Conditions.
6. PLACE OF PERFORMANCE, TRANSFER OF RISK OF DAMAGE
6.1 The transfer of the risk of damage to the Goods is governed by the law contained in the INCOTERMS ®2010 delivery clauses, currently in force at the time of creating the order for Goods, and depends on the agreed delivery condition for each specific delivery of order, which the Parties agree in advance via B2B, email, or by paying an invoice that contains the delivery clause selected by the Seller (payment for Goods shall be considered as an approval of the selected delivery clause). Unless otherwise stated or agreed, the Seller shall deliver the Goods to the Buyer using DAP (Delivery at Place) according to INCOTERMS ®2010.
7. WARRANTY FOR QUALITY
7.1 The Seller shall provide the Buyer with a warranty for the quality of Goods for a period of 24 (twenty-four) months from the date of sale of Goods by the Buyer to the end customer.
7.2 In the event that the end customer exercises the rights related to Goods defects (hereinafter 'End Customer's Complaint') with the Buyer and the Buyer exercises a complaint against the Seller in accordance with these Terms and Conditions (hereinafter 'Buyer's Complaint') during the warranty period provided by the Seller to Buyer under these Terms and Conditions, the Seller shall provide the Buyer with cooperation in settling the End Customer's Complaint, in particular, the Seller shall allow free consultation with the Seller's complaint specialist.
7.3 The warranty does not apply to:
defects caused by using Goods in contravention of the manufacturer's recommendations given in the instructions for use, assembly instructions for Goods, warranty card, or any other document that the Seller delivers to the Buyer at the latest with Goods delivery;
defects caused by unprofessional or incorrect handling, assembly or incorrect use of the purchased Goods, and defects caused by the Buyer, end customer or third party;
defects listed in the specific warranty card of the specific Goods;
normal wear and tear.
7.4 The occurrence of the Seller's defects liability in the Goods during the warranty period is excluded if the Goods defects have been caused by force majeure or the Buyer's misconduct, end customer or third party.
7.5 In relation to the end customer who files a complaint with them during the warranty period, the Buyer undertakes to handle complaints in the shortest possible time, by law no later than 30 (thirty) days, starting from the first day of the Buyer registering the complaint with B2B.
8. COMPLAINTS DURING WARRANTY PERIOD
8.1 If a Goods defect occurs during the warranty period, the Buyer has the right to file a complaint against the Seller. Complaints can be made exclusively via B2B (https://b2b.tempish.cz/Reklamace/Nova). For more information, contact the sales department (email@example.com).
8.2 The Buyer shall demonstrably inform the Seller in regard to each case of the claimed Goods delivered by the Seller to the Buyer. If the Buyer fails to do so, the Buyer cannot assert any claims against the Seller due to the Seller's liability for Goods defects.
8.3 The Buyer shall keep proper records and documentation of each case of a complaint made by the end customer in relation to Goods.
8.4 The Buyer may resolve the complaint themselves in the relationship between the Buyer and the end customer without the Seller's cooperation and without making a complaint against the Seller, in which case the Buyer's rights and claims due to the Seller's liability for Goods defects are excluded. The Buyer shall inform the Seller even in this case.
8.5 The Seller shall handle the complaint without undue delay, no later than 5 (five) working days from complaint's registration date via B2B.
8.6 The Seller shall automatically inform the Buyer by email regarding the complaint settlement.
9. CLAIMS ARISING FROM DEFECTS IN GOODS
9.1 In agreement with the Buyer, the Seller shall be entitled to eliminate the defect (handle complaints) in any of the following ways:
deliver replacement Goods for defective Goods, deliver missing Goods, which shall be sent to the Buyer with the Buyer's next order;
repair Goods (if such Goods are repairable), where the Seller pays the cost of transporting the Goods to be repaired and sends the repaired Goods to the Buyer with the Buyer's next order; and/or
providing a reasonable discount on the Goods price (especially in cases where repair is not possible, and the nature of the defect does not prevent normal use); and/or
exchange for Goods with the same or similar performance, which shall be sent to the Buyer with the Buyer's next order; and/or
by returning the purchase price - issuing a credit note, whereby the total amount shall be deducted from the total amount invoiced to the Buyer in the future, or credited back to the Buyer's bank account (the Buyer shall undertake to provide the Seller with a valid bank account number used for the transfer; later request for transfer to another bank account shall not be taken into account, and the Buyer is responsible for the correctness of the said bank account).
9.2 In the case of providing a discount on the Goods price due to a Goods defect, it is not possible to later claim for a defect in the Goods for which a discount was provided.
9.3 In the case of returning a product to the Seller, the Buyer shall send the product in a condition corresponding to the nature of the complaint (not used in case of detecting a defect in delivery to the end customer, clean, securely packed).
9.4 In the case of the acknowledgment of a complaint for returned Goods, the Buyer shall be reimbursed for expenses associated with Goods return, and the Buyer shall provide the Seller with an official document proving the amount paid for transporting Goods to the Seller for complaint (e.g., invoice, receipt, etc.).
10. BUYER'S OBLIGATIONS
10.1 The Buyer shall take delivery of ordered Goods and to pay the purchase price to the Seller properly and in time.
10.2 The Buyer shall refrain from any action that damages or that, regarding the Seller's interests, the Buyer knows or must know could damage the Seller's good name or the good name of the Goods.
10.3 The Buyer shall inform their customers about the wording of these Terms and Conditions, which automatically pass to them with the purchase of Goods.
10.4 In the case of received consent for resale from the Seller, the Buyer shall abandon any conduct that could cause the above-mentioned entity in economic relations to conflict with the good morals of the competition and cause harm to other competitors or customers.
10.5 The Buyer shall not export and sell the purchased Goods in a country other than the country of the Buyer's registered office or residence and agree to provide the Seller, at the Seller's request, with the necessary evidence that the Goods have not been exported and sold in a country other than the country of the Buyer's registered office or residence.
10.6. The Buyers whose registered office is registered in EU countries and are assigned a VAT number are obliged to immediately inform the Seller if their VAT number is no longer valid or has been changed to another. The Buyers are obliged to hand over this fact to the seller on the day of the decision of the competent authorities and bodies to change the VAT number or on the day when the buyer becomes a non-payer of VAT. If the buyer does not notify the Seller about VAT number change or that the Buyer has become a non-payer of VAT a and invoices without VAT will be issued to him in good faith of the Seller that the Buyer is still a VAT payer, the Buyer is obliged to pay VAT for all invoices that were issued to him without VAT at a time when he was no longer a VAT payer or his VAT number was changed.
11. SELLER'S OBLIGATIONS
11.1. The Seller shall deliver the Goods to the Buyer, and handover documents relating to the Goods (invoice, delivery note, instructions for use/operation, warranty card, assembly instructions).
12.1 The Buyer shall maintain the confidentiality of the content of these Terms and Conditions (with the exception of the Buyer's business partners who buy and resell Goods produced by the Seller), pricelists, offers, marketing materials and any information that the Seller determines to be confidential. The duty of confidentiality under the previous sentence shall continue even after the end of the business cooperation.
13. CONTRACTUAL PENALTIES
13.1 In the event that the Buyer violates the obligation to take delivery of (collect) the ordered Goods, which is subject to compliance with partial Terms and Conditions, from the Seller, the Buyer shall pay the Seller a contractual penalty of 10% (ten percent) of the total purchase price of unclaimed (uncollected) Goods.
13.2 In the event that the Buyer violates the duty of confidentiality agreed in Article 12 of these Terms and Conditions, the Buyer shall pay the Seller a contractual penalty of €5,000 / $5,500 (in words: five thousand euros / five thousand five hundred dollars) for each individual breach.
13.3 Payment of the above contractual penalties is without prejudice to the right to compensation.
14. STATEMENTS AND WARRANTIES OF THE SELLER AND THE BUYER
The Seller and the Buyer state that
they are fully entitled to comply with these Terms and Conditions and to fulfill all obligations arising from these Terms and Conditions, without violating any law or agreement concluded with a third party;
they are not a party to any judicial, arbitration or administrative proceedings that could affect the performance of their obligations under these Terms and Conditions and are not aware of the threat of such proceedings;
they are not bankrupt, in imminent bankruptcy and not aware that a bankruptcy or insolvency petition has been filed against them as a debtor;
their statements and warranties are complete, true, accurate and not misleading.
In addition, the Buyer states that they have all official permits to do business in accordance with these Terms and Conditions.
15. CONSENT TO PERSONAL DATA PROCESSING
In accordance with Act No 110/2019 Coll., on personal data processing, as amended, the Buyer gives their consent to the Seller with regard to the Seller processing all provided personal data about the Buyer within these Terms and Conditions, namely their name, surname/company, place of business, residence/registered office, company ID/date of birth, tax ID, telephone number, fax, email address to the Seller's information system, who is the controller, and with their subsequent processing (or through the processor) for marketing use by the Seller, i.e., in particular for the purpose of offering goods, trade and services and sending information about marketing events, as well as sending commercial messages by electronic means pursuant to Act No 480/2004 Coll., on certain information society services, as amended, provided that additional data may be assigned to such data. In the event of the Buyer's doubts about the Seller's rights as a controller, the Buyer may contact the controller and ask for an explanation, and request that the controller or processor eliminates the situation. This Buyer grants consent for a period of ten years from granting consent. The Buyer may revoke their consent in writing at any time.
16. THE TERMS AND CONDITIONS DURATION AND APPLICATION
16.1 These Terms and Conditions are valid for an indefinite period from the date stated in the header.
16.2 The Buyer shall be released from these Terms and Conditions in the event of terminating their business cooperation, except for points 5.2 and 12, which continue even after the termination of business cooperation.
16.3 The Seller reserves the right to modify the wording of these Terms and Conditions with the obligation to notify the Buyers via B2B or newsletters.
16.4 The Seller reserves the right to contact the Buyer, their customers or any other seller who has acquired the Goods manufactured by Seller to order the termination of sales of Goods manufactured by Seller due to a breach of Terms and Conditions, insufficient information about products, origin of products, or seller to end customers, or general damage to the reputation and image of the Seller and the Goods.
17. DISPUTE SETTLEMENT
17.1 Both Parties shall use their best efforts to settle all disputes and claims amicably that arise out of or in connection with these Terms and Conditions.
17.2 All disputes arising out of or in connection with these Terms and Conditions shall be finally decided by an Arbitration Court attached to the Czech Republic Economic Chamber and the Czech Republic Agricultural Chamber by three arbitrators in accordance with the Rules of this Arbitration Court using the substantive rights of the Czech Republic. The seat of the arbitration proceedings is in Prague. Czech language shall be used in the arbitration proceedings.
17.3 In the event that a consumer dispute arises between the Buyer and the Seller from the purchase agreement or the agreement for the provision of services, whereby the parties cannot come to an agreement, the buyer-consumer may submit a proposal for out-of-court settlement of such a dispute to the designated out-of-court settlement body, that is:
Czech Trade Inspection Authority
Central Inspectorate - ADR Department
120 00 Prague 2
17.4 Online Dispute Resolution Platform under the auspices of the European Commission at http://ec.europa.eu/consumers/odr/.
18. FINAL PROVISIONS
18.1 These Terms and Conditions are governed by the law in force in the Czech Republic, which is the applicable law, in particular by the Civil Code. The Parties expressly declare that they exclude the application of all conflict-of-law rules of private and procedural international law, as a result of which a law other than Czech Republic law should be applied.
These Terms and Conditions are subject to the supervision of the HS Legal law firm, based in Bezručova 153/9, 301 00 Plzeň.