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Contents

General terms

General Terms and Conditions of Sale and Delivery

1. Scope and terminology

1.1. These General Terms and Conditions of Sale and Delivery (hereinafter: General Terms) shall govern all contractual relationships (deliveries and services) of the company Horex trade d.o.o. with service or delivery recipients. By accepting a purchase order acknowledgement or delivery, buyers shall also accept the validity of these General Terms, or the terms shall be deemed accepted if buyers fail to respond within 8 days of their receipt. If the supplier and a buyer have a permanent business relationship, or if the buyer is placing additional purchase orders, the General Terms shall apply even if there is no reference to them in the order acknowledgements, responses to enquiries, or deliveries. The General Terms and Conditions of Business (hereinafter also: General Terms) shall apply to any legal or natural person who has had any business contact with the company Horex trade d.o.o. with the aim of procuring goods, as provided for in Article 295 of the Obligations Act.

1.2. Any provisions of the Supplier order acknowledgement that deviate from or complement these General Terms shall take precedence over the General Terms. The General Terms and Conditions of Business or buyer forms shall under no circumstances constitute an integral part of the contract, irrespectively of whether or not the Supplier was aware of them or whether or not the supplier has expressly objected to their validity.

1.3. A delivery shall be understood to mean a Contract for Delivery of Goods, as well as a Contract for (Ancillary) Services, including consultancy.

For the purpose of these Terms, "Supplier" means the company Horex trade d.o.o., regardless of whether its activity comprises responding to enquiries, preparing quotations or being the seller and/or the supplier of a service.

For the purpose of these Terms, "Buyer" means a person making an enquiry, an offeror, a recipient or a buyer of the goods and/or services of the Supplier.

2. Contracting

2.1. Any notices sent by the Supplier to a Buyer in response to an enquiry shall not be binding even if they include explicit reference to prices, delivery terms, and other technical specifications; any Supplier technical information or proposed solutions, such as descriptions, counterparts or samples exhibited at Supplier fairs, shall also not be binding. The same principle applies if the Supplier, based on a Buyer purchase order, issues only an interim purchase order acknowledgement. The contract shall not be deemed to exist until the Supplier issues a written purchase order acknowledgement or until delivery is made if there is no such written purchase order acknowledgement. Buyer purchase orders, order acknowledgements, delivery acknowledgements, and the like, shall have no effect after the date of such acknowledgement, even if the Supplier does not object to them.

2.2.    If a delivery acknowledgement, in accordance with the agreement, refers to a specific manufacturer who delivers the goods, then the contract shall include a resolutive condition that the actual delivery be made in accordance with the terms and conditions of the manufacturer.

2.3.   If the Supplier purchase order acknowledgement differs from the Buyer purchase order, the difference shall be deemed accepted unless the Buyer objects to it within 3 days of the date of receipt, or at the latest at the time of delivery. If the contract is then inferred by virtue of delivery, the Supplier shall be required to satisfy only those conditions that are stated in the notice (interim purchase order acknowledgement) in accordance with Section 2.1.

2.4.    If no reference is made thereto in the Supplier written purchase order acknowledgement or notice in accordance with Section 2.1.1 of the General Terms, the following shall apply:

- Terms of delivery: DAP (in accordance with INCOTERMS 2010);

- Quality: average quality, which nevertheless conforms to the standards, taking into account the practices applicable in the place of manufacture of the goods.

3. Quotations and payment terms

3.1. All prices quoted shall be as at the date of issue of the Supplier written purchase order acknowledgement or, if there is no written purchase order acknowledgement, as at the time of notification in accordance with Section 2.1; the prices quoted without any explicit reference to currency shall be denominated in HRK. Unless stated otherwise in the Supplier written purchase order acknowledgement, all prices shall be interpreted as calculated under DAP terms. Therefore, they shall be exclusive of value added tax and customs charges, or import or export duties.

3.2.   If a quotation, under the agreed delivery terms, includes shipping fees, taxes, customs duties and charges, and any of these constitutive elements change prior to delivery, then the quotation shall change accordingly. The constitutive elements shall be deemed to have changed if, during the period from the written order acknowledgement and the notice pursuant to Article 2.1 of the General Terms until delivery, the costs upon which these constitutive elements are based change by more than 10% or if the market price of goods that are to be delivered (for instance, based on the relevant wholesale price index in the registered seat of the Supplier) changes by more than 10%.

Likewise, the price quoted shall also change in the event of any change in the exchange rate if the prices agreed are in EUR, a hindrance or obstruction of loading or shipping conditions, or erroneous shipments, and in the event of any change in delivery routes due to circumstances beyond the control of the Supplier.

3.3. The purchase price shall become payable in full in accordance with the Contract, purchase order acknowledgement or in any other way agreed upon by the parties. The payments shall become due irrespectively of whether the Buyer has had an opportunity to inspect the delivery or if the Buyer exercises its rights on the grounds of defects and damage to the goods delivered.

If delivering in instalments, the Supplier shall have the right to invoice partial payments.

The Supplier shall have the right to request advance payment or payment security if the Supplier has any doubt as to the willingness to pay or solvency of the Buyer.

3.4. In the event of late payment, default interest shall accrue in accordance with the law. Any rebates arising from partial invoices already paid shall cease to be valid in the event of the late payment of subsequent partial invoices or of the total invoice.

In addition to interest, the Supplier may request compensation for other losses and costs incurred due to late payment, in particular the costs of appropriate extrajudicial and judicial actions taken with the aim of collecting the claims and execution.

Additionally, in the event of late payment, apart from default interest, the Supplier shall have the right to seek a full or partial termination of the contract.

3.5. Without the express written consent of the Supplier, the Buyer shall not have the right to discharge its payment obligations by offsetting them against other claims or to withhold any payments for whatever reason, especially not when relying on a claim of defects and damage.

4. Delivery

4.1. Delivery dates referred to by the Supplier shall not be binding, unless expressly stipulated otherwise in the written purchase order acknowledgement. Delivery periods shall likewise be stated only in indicative terms. 

4.2. A delivery period shall not start to run before the date of issue of the written purchase order acknowledgement. Delivery periods shall be extended by as much time as necessary to clarify circumstances or obtain official authorisations that have to be obtained or renewed by the Buyer.

Under no circumstances shall delivery periods start to run before confirmation is sent by the factory where the goods for delivery are being manufactured or before payment by the Buyer is secured (in particular by documentary letters of credit/bank guarantees). Delivery dates shall likewise be postponed in these circumstances.

4.3. Delivery periods that started to run in accordance with Section 4.1 shall be interrupted in the following circumstances and shall continue to run only after the reason for the interruption has ceased to exist: breach of obligation by the Buyer to participate or other breach by the Buyer of this or any other contract; postponement; interruption or delay by the factory manufacturing the goods to be delivered  as part of the Supplier's supplies; technical malfunctions of the means of manufacturing and shipping; and all cases of force majeure. In addition to the interruption of the delivery period, an appropriate run-in period for the start or continuation of delivery shall also be taken into account. Delivery dates shall be likewise changed to take account of the period of interruption and continuation of delivery.

4.4. If any of the reasons for interruption as described in Section 4.2 continue to exist for more than three months, the Supplier and the Buyer may terminate the contract unilaterally by giving notice in writing. However, the Buyer shall forfeit this right if the Supplier has already started the delivery or if the Supplier can no longer terminate its contract with the factory manufacturing the goods to be delivered.

4.5. The Supplier shall have the right to deliver in instalments, unless expressly agreed otherwise. Additionally, the Supplier shall be able to deliver the goods ahead of the agreed time.

Avoidance or termination of a contract by whatever means and for whatever reason shall not annul the contract covering the partial deliveries already made, unless the reason for the avoidance or termination also applies to the partial deliveries that have already been made.

4.6. For the purpose of delivery, permitted access for heavy goods vehicles shall be provided. The costs and risk of unloading shall be borne by the Buyer, and unloading shall be carried out by the Buyer itself or by a third party commissioned by the Buyer.

4.7. The discrepancy of delivered goods by measure, weight or quality shall be permissible within the standard as stipulated in the contract. If the standard is not stipulated, then the standards and practices applicable in the country of the manufacturer of the delivered goods shall apply. This provision shall likewise apply to the usual tolerance in determining the quantity in accordance with accounting principles.

The Supplier shall retain the right to a quantity variance of +/- 10%.

When determining the weight, the total weight of delivery shall apply. The stated number of pieces or bundles shall not be binding; different individual weights shall be levelled-off within the total weight.

4.8. The risk of accidental destruction or damage shall pass to the Buyer in accordance with the applicable Incoterms 2010 rule. If there are grounds for termination under Section 4.2, and if the Buyer has already received notification of readiness for dispatch and the Buyer does not allow delivery, then the risk shall pass to the Buyer upon the notification of readiness to dispatch.

The Buyer shall accept the delivery in accordance with the agreed Incoterms 2020 rule. The exercise of rights on the basis of non-conforming delivery or inability to inspect the delivery shall not entitle the Buyer to refuse or postpone its acceptance.

The Buyer shall inspect the delivery once it is received at the destination in accordance with the ISO 9001/9002 rules. The Buyer shall forfeit the right to assert a lack of conformity of the delivery if it fails to perform the above inspection immediately or if, within a period of 8 days from the moment where it was not possible to observe a lack of conformity by proper inspection, it fails to lodge a written complaint asserting that the delivery does not conform to the contract and specifying the exact nature of the non-conformity.

4.9. If the delivery dates or periods are expressly fixed and the Supplier fails to make the delivery on the agreed date or within the agreed period, the Supplier shall be deemed late. If only an indicative date or an indicative period has been fixed, or if such indicative dates and periods are deemed to have been fixed, the Supplier shall be late only if it fails to make the delivery within additional six weeks after the designated indicative date or the designated indicative period.

In the event of a late delivery by the Supplier, the Buyer shall have the right to terminate the contract after setting an adequate additional period of delivery of at least 14 days. This period shall start running only after the Supplier receives written notice from the Buyer that the contract shall be avoided in the event that no delivery is made before the expiry of the additional delivery period fixed by the Buyer in its notice. If the late delivery is the fault of the Supplier, the Buyer shall have the right to claim compensation pursuant to Section 6. The right of the Buyer to seek termination on the grounds of late delivery by the Supplier does not apply to the partial deliveries already made.

5.  Force majeure and other forms of hindrance to delivery

Force majeure events shall give the Supplier the right to postpone delivery for the duration of the hindrance and to an adequate run-in period or to avoid the contract fully or partially due to the part of the contract that has yet to be performed. Strikes, lockouts or other circumstances significantly hindering or preventing the Supplier from making delivery shall be equated to force majeure, regardless of whether they occur on the side of the Supplier or a sub-supplier. The Buyer may require the Supplier to declare whether it wishes to avoid the contract or perform the delivery within a suitable period. If the Supplier fails to make an adequate declaration, the Buyer may avoid the contract.

6. Non-conforming goods

6.1. The Supplier shall warrant that the delivery conforms to the quality as stipulated in the written purchase order acknowledgement or, if there is no written purchase order acknowledgement, in the notice pursuant to Section 2.1.1. If the delivery meets these requirements, it shall be deemed conforming; otherwise it shall be deemed non-conforming. In the case of variance within the meaning of Section 4.5, the delivery shall be deemed conforming.

6.2. In order to determine if a delivery is conforming or not, the time of hand-over to the first carrier or notification of readiness to dispatch shall be decisive. If the Buyer asserts non-conformity with the contract, the Buyer must prove that the goods did not conform to the contract at the time. This is notwithstanding the agreed Incoterms 2010 rule as to who shall bear the risk.

6.3. If the goods are determined to be non-conforming with the contract, the Supplier shall have the right to remedy the non-conformity within an appropriate period with a substitute delivery (replacement) or by the removal of the defects. If removal of the defects or replacement are not possible or if they are disproportionately expensive for the Supplier, then the Buyer may only require termination of the contract. The right to a price reduction shall be excluded.

6.4. If the non-conformity of goods is the fault of the Supplier, the Buyer may claim compensation only in the form of removal of the defects or replacement. If removal of the defects or replacement are not possible, or if they are disproportionately expensive for the Supplier, the Buyer may claim monetary compensation only if the Supplier acted deliberately or was grossly negligent. Compensation for any damage caused by a defect shall likewise be permissible only with this limitation. Under no circumstances shall compensation for any damage exceed the value of the rejected delivery.

The right to have non-conformity remedied and to compensation shall be extinguished:

a) In the case of an improper or late complaint asserting the existence of a defect (Section 4.6.); or

b) Once the delivery is treated or processed without giving the Supplier an opportunity to verify the defect; or

c) Upon the expiration of 6 months from the date of transfer of risk, provided no legal action was brought until then to require that the non-conformity of the contract be remedied.

6.5. The fact that parts of a delivery are non-conforming shall not give the Buyer the right to reject those parts of the delivery to which such determination does not apply or any future parts of the delivery or deliveries from other sources.

7. Liability and damages

7.1. The Supplier shall compensate the damage caused by breach of contractual or statutory obligation only if the Supplier acted deliberately or was grossly negligent. The burden of proof shall be on the Buyer.

The liability for defective products which is not dispositive under the law and which does not depend on the determination of fault if it causes personal injury, death or health risk, is an exception from the limitation under Article 6.1.1.

7.2. Any liability for pecuniary damage caused by defective products (in terms of a guarantee for defective products, which is not dispositive under the law and does not depend on the determination of guilt) shall be excluded for all companies involved in manufacture, import and distribution.

The Buyer shall pass the exclusion of liability to its buyers. Recourse claims within the meaning of the legal provisions under the paragraph above shall be excluded, unless the authorised party can prove that the defect was caused on the side of the Supplier and that it was caused by gross negligence.

7.3. All rights to compensation, including the rights arising from the damage caused by a defect, if permissible under the law, shall be limited to the damage foreseen or foreseeable by the Supplier as a possible consequence, but at the maximum to the one-off value of the delivery.

8. Retention of title

8.1. The Supplier shall keep title to all deliveries until they have been fully paid. Moreover, the Supplier shall retain title to all of its deliveries (even the specific deliveries that have been paid in full) until all claims arising from the business relationship have been satisfied.

If the receivables for deliveries are invoiced in certain accounting periods, the retention of title shall be used as security against the payment of the highest outstanding balance.

8.2. The retention of title by the Supplier shall extend also to newly created goods in the case of treatment or processing; in such a case, the treatment or processing shall be done only for the Supplier.

If retention of title ceases to be valid regardless of the circumstances, then the Supplier and the Buyer agree that the title to deliveries with processing or mixing shall pass to the Supplier, and that the Supplier shall accept the transfer. In such a case, the Buyer shall be a gratuitous depositary.

In the event of the processing of items still owned by others, the Supplier shall acquire co-ownership in the new product. The scope of co-ownership shall depend on the ratio of the accounting value of goods delivered by the Supplier to that of the remaining goods.

8.3. If the Buyer delivers the goods that are subject to retention of title (including after their treatment, processing or mixing) to a third party, the Buyer's receivable for the purchase price shall take the place of the retained title. At the time of its accrual, this receivable shall be assigned to the Supplier on the grounds that the goods were sold to a third party. The Supplier shall acquire ownership of the moneys received through the Buyer by virtue of constructive delivery. The Buyer shall disclose the fact of the assignment in its books and notify the recipient of the goods.

8.4. In the event of the late payment by the Buyer of the price secured by retention of title or balance, at any given time the Supplier may take possession of the retained goods, even if the contract has not yet been terminated.

8.5.  If the retained title or assignment of future claims arising from the re-sale does not produce legal effect under the substantive law of the place where the goods are located, but the law in question allows for similar forms of security, then the parties shall be deemed to have stipulated such similar form of security. If the Buyer has to take certain actions or give certain warranties in order for the security to become valid, the Buyer shall take such actions even without the request of the Supplier to do so.

9. Jurisdiction and applicable law

9.1. Any dispute or disagreement arising from the contract based on the General Terms or in connection therewith, including any dispute as to its existence or validity, shall be brought before the Commercial Court in Zagreb having subject-matter jurisdiction. Regardless of this fact, the Supplier shall be entitled to bring action against the Buyer before a court having subject-matter jurisdiction in the place of its registered seat or establishment.

9.2. A contract concluded based on these General Terms shall be governed by the substantive law of the Republic of Croatia, with the exception of the United Nations Convention on Contracts for the International Sale of Goods (1980 edition).

10. Confidentiality of data

10.1. The parties shall treat as a business secret all trade and technical details that are not public and of which they gained knowledge through their business relationship.

10.2. With regard to the conclusion of the contract, the Buyer shall act confidentially and shall refrain from referring to the business relations with the Supplier in its promotion materials until the Buyer receives written consent of the Supplier.

11. Other

11.1. If any of the provisions of these General Terms are null and void in law or contrary to the law, the other provisions shall remain in full force and effect.

11.2. In order for the assignment of the right of the Buyer to be valid, express and written consent by the Supplier shall be required. The Supplier, however, shall have the right to assign its claims arising from deliveries and services to third parties for the purposes of financing.

11.3. If the contract concluded on the basis of these General Terms or if these terms provide for written notifications to the counterparty, they shall be deemed delivered if they are sent to the last designated address.

11.4. Any acts or omissions by the factory manufacturing the goods to be delivered or by the carrier shall not be attributed to the Supplier in terms of its contractual performance.

11.5. The Supplier shall have the right to suspend the performance of its own obligations at any time if it becomes known after the conclusion of the contract that the Buyer will not perform an essential part of its obligation:

a) Due to a serious lack of capacity to perform the contract or due to a serious lack of  creditworthiness; or

b) Due to its behaviour during the preparation for contract performance or during contract performance or previous contracts.

11.6. The Buyer shall consent to automatic storage and processing of its data by the Supplier in the performance of the contract.

12. Entry into force

12.1. These General Terms shall come into effect as of the date of their adoption, and they shall apply from 1 July 2015.

Horex trade d.o.o.