Terms and Conditions for Sale of Industrial Products of the Company Linde viličar d.o.o. (”Terms and Conditions”)
1. Basic provisions
1.1. These Terms and Conditions are integral part of every purchase contract being concluded between the company Linde viličar d.o.o., based in Bukovžlak 65C, 3000 Celje, VAT Id. Nr. 11164972, registered in the Commercial Register at the District Court in Celje, Company Nr. 5904480000, as the seller (hereinafter: the seller), and the buyer (hereinafter: the buyer) (both parties also referred to as: the parties).
1.2. Deviations from the Terms and Conditions are possible only in writing, as a rule by a written purchase contract between the parties.
2. Conclusion of purchase contract
2.1. The contract is concluded when the buyer accepts the offer of the seller or proposal to conclude a purchase contract (hereinafter: the offer) or when the seller accepts the buyers counter-offer or counter proposal (hereinafter: counter-offer), or when a written purchase contract is signed by the parties (hereinafter: purchase contract). Seller's offer is valid for a period of 30 days.
2.2. Promotional materials like folders, illustrations, descriptions, designs and price lists are no obligatory offer of the seller and serve to present the seller ́s goods only. Only a confirmed offer or a signed contract are binding for the parties.
2.3. Acceptance of the offer or draft purchase contract which would contain reservations, limitations or other changes to the offer, to draft purchase contract or to these Terms and Conditions means refusal of the offer and is considered as a counter-offer.
3. Price and payment
3.1. Price is agreed when an offer is accepted by the other party.
3.2. All prices are "ex works" at the seller's premises in Bukovžlak 65 c, Celje.
3.3. All prices are without value added tax (VAT). VAT at the statutory rate shall be added to the purchase price. Purchase price shall be paid in advance, unless otherwise agreed between the parties in writing.
3.4. The invoice is due in 15 days from the invoice date.
3.5. Installment Shipment. Where goods are delivered in shipments the buyer will separately pay for each shipment, if goods are agreed to be paid after delivery. When a part of a shipment fails to comply with the purchase contract, the buyer may only reject payment for the non- compliant portion of the shipment.
3.6. Disputed Invoice. If Buyer disputes all or any portion of an invoice, it must deliver written notice to the seller regarding the disputed amount and the basis for the dispute within eight (8) days of receiving the invoice. Failure of the buyer to timely notify the seller of any dispute constitutes a waiver of the buyer’s claim. If the buyer only disputes a portion of the invoice, the buyer must pay the undisputed portion of the invoice.
3.7. Suspension Right. The seller may suspend deliveries if any invoice is more than fifteen (15) days past due. The seller may also suspend deliveries if the buyer is insolvent or if an insolvency procedure has been initiated against the buyer.
3.8. Late Payments. Late payments shall bear interest at an annual percentage rate as prescribed by law in the Republic of Slovenia (statutory default interest rate).
4. Delivery, passing of risk, quantities, putting into operation
4.1. Delivery, Title, Risk of Loss: If no other place of delivery is agreed in the purchase contract, the seller fulfils his obligation to deliver the goods, if he enables the buyer to collect the goods in the warehouse of the seller ("ex works"). The risk of loss or damage are passing to the buyer when the goods are delivered to the buyer. If buyer is in default with delivery, risk of loss or damage passes to the buyer after expiry of delivery time. The title is passing to the buyer only after the purchase price and other financial obligations are settled by the buyer (retention of title).
4.2. In case ”delivery at place" (DAP ) is agreed, as soon as the goods have arrived at the buyer's adress and are ready for unloading.
4.3. In case shipment is made by mail, passing of risk occurs when submitting the package to the Post Office or parcel delivery service.
4.4. If the goods are delivered at the warehouse of the seller, the seller shall provide technical means to load the goods on the vehicle of the buyer. If the goods are delivered anywhere else, the buyer shall provide technical means to unload the goods.
4.5. The buyer is entitled to ask the seller for providing technical help of a service technician during the delivery of the goods from the forwarder (unloading of the cargo and storage). In these cases, the seller shall invoice the buyer the work of the service technician at the rate which is applied for operating maintenance, and furthermore the tariff for mileage as it is charged by the seller in cases of repairs of trucks (taking into account the type of the vehicle used - car, van, truck, ...).
4.6. Each forklift truck will be supplied with the following documents in Slovenian language:
- certificate of conformity
- operating manuals in Slovene language
- control book
- safety stickers in Slovene language
4.7. The seller may make partial shipments.
4.8. If a fixed delivery time (i.e. not expected delivery time) is agreed, delivery time starts to run the first day after the purchase contract was concluded. If the delivery period ends on a non- working day, the delivery date shall be the next working day.
4.9. The seller is entitled to deliver the goods and the buyer is obliged to take over the goods before the agreed delivery time.
4.10. Delivery of goods shall be recorded in delivery protocol. Minor defects, which do not obstruct ordinary usage, are no reason for non-taking over the goods. These defects need to be noted by the buyer into the take-over protocol and the seller shall take any necessary measures to their quick remedy.
4.11. In case that the buyer does not take over the goods or a part thereof for reasons on his side until the end of the delivery period, the buyer is in default. In case of delivery at the warehouse of the seller ("ex works"), or if the buyer is not ready to take-over of the good at the location of the buyer for more than 5 days after the goods are ready for delivery and the buyer is informed about that, the seller may charge reasonable warehousing fee in the amount of 0,5% of the goods per day. If the buyer does not collect the goods within agreed time period, the seller can withdraw from the contract after giving the buyer additional time to collect the goods. If it is clear from the circumstances that the buyer does not intend to collect the goods, the seller may withdraw from the contract without giving the buyer additional time to collect the goods.
4.12. The seller is not obliged to deliver the goods, until the buyer pays the advance payments for the agreed purchase price and until all due financial obligations of the buyer towards the seller are settled.
4.13. The buyer is entitled to ask the seller for training of operators and the maintenance staff. These services shall be arranged by the service centre of the seller against payment of a reasonable fee, which is charged for similar services. The seller shall issue a written confirmation of the training according to this paragraph to the buyer.
5. Force majeure, delays
The delivery time shall be extended appropriately in case of unforeseeable restraints (e.g. strikes, lockout, etc. - force majeure), which arose independently of the seller and affect delivery of the goods. This also applies if such circumstances arise on the part of the seller ́s sub-supplier. The seller shall inform the buyer about the beginning and the end of such impediments without unnecessary delay after getting information about their existence. The delivery time is extended by the period of duration of these obstacles. The seller undertakes at the same time to do his best to deliver the goods to the buyer in the shortest term possible.
6. Retention of title
6.1. The buyer acquires the title to the goods only by full payment of the purchase price including VAT, and in case of late payment, also by payment of default interests. Thus, the goods remain property of the seller till full payment of all financial obligations of the buyer in relation to the seller.
6.2. During duration of the retention of title, the seller is also entitled to control, how the goods are used and maintained. The buyer is obliged to enable the inspection of the seller.
6.3. During duration of the retention of title, the buyer is obliged:
- to keep the goods in proper condition and carry out necessary repairs and maintenance by an authorized service centre,
- not to pawn, alienate the goods, or not to enable its use by a third person without previous written consent of the seller,
- to inform the seller without delay on execution or other measures of a third party concerning the seller's property, including the exercise of a retention right by a third party in relation to the goods, and to remove such measures at his own expense.
6.4. In the event the buyer is in delay with payment during duration of the retention of title, and the seller requires that from the buyer:
- the buyer is not allowed to use the goods or a part thereof, and/or
- the buyer is obliged to hand over the goods or a part thereof to the seller for the purpose of securing the seller ́s claims.
6.5. If the buyer does not pay the purchase price even after the seller ́s written reminder, or does not settle any other financial obligations under the purchase contract, the seller is entitled to collect the goods and in order to do that seller is entitled to enter by his employees or authorized representatives with all necessary and appropriate transport means into the premises used by the buyer, or into other localities where the goods can be found, to which the retention of title applies, in order to collect the goods, and the buyer is obliged to provide the seller with all co- operation necessary for the collection of the goods by the seller. All expenses of such collection of the goods by the seller shall be borne by the buyer.
7. Product returns
Buyer has no right to return the goods. Return of goods may be agreed between the parties, but only if the goods are not used, not damaged and in original package, and all costs for handling, additional work and lost profit are paid. The amount of these costs is entirely at the discretion of the seller.
8. Rights from defective performance
8.1. The seller is responsible for defects, which the goods have at the time of attachment of risk of damage to the goods to the buyer. For the defects, which the goods have after attachment of risk of damage, the seller is responsible, if they are caused by breach of his obligations. The buyer is bound to check the delivered goods without delay.
8.2. Apparent defects, which can be detected during the takeover, shall be noted in the takeover protocol by the buyer. Later claims of apparent defects shall not be taken into consideration. This applies also for quantities of the goods delivered.
8.3. In the event of other defects, the buyer is entitled to exercise the rights from defective performance without any delay after their disclosure, namely by a written notice to the address of the of the seller, he has to describe the defects, support the claim with documents, and invite the seller to inspect the goods and repair the deficts in reasonable time period.
8.4. The claimed goods have to be stored separately till the settlement of the claim, and any disposal of these goods, which could complicate or make impossible verification of the claimed deficiencies, is impermissible without previous consent of the seller. The breach of this obligation results into extinction of rights from liability for defects or a guarantee.
8.5. The seller reserves the right to review the status of the claimed goods on the place where they are.
8.6. The seller is not responsible for the defects of the goods:
a) in case of changes or adjustments of the goods without previous consent of the seller, b) in case of usage, storage, transport or maintenance of the goods contrary to the instructions for use and the purchase contract, c) caused by usual wear and tear,
d) caused by faulty or excessive straining,
e) caused by the third parties.
8.7. If the claim is legitimate, the seller is bound to grant at his option an adequate discount from the purchase price to the buyer, or to rectify the defects through a repair of the goods, or deliver other goods without defect. The right of the buyer to withdraw from the purchase contract is excluded.
9. Warranty and warranty service
9.1.The seller takes over the liability for quality for the period of 12 months. The guarantee starts to lapse from the date of delivery of the goods to the buyer.
9.2. The guarantee does not cover obvious defects, consumable supplies (especially tires, drive and guide wheels, light bulbs and similar parts subject to wear and tear in normal operation etc.) and defects specified under the par. 8.6 of these Terms and Conditions.
9.3. The buyer is bound to exercise his rights under the warranty immediately (i.e. in 8 days at the latest) after the defects have been discovered by him, and till the end of the warranty period at the latest.
9.4. During duration of the warranty period, the buyer is obliged to carry out operating maintenance and technical inspections of the goods at his expense through an authorized service centre complying with the terms set by the maintenance instructions.
9.5. The buyer shall keep documentation about service inspections and warranty repairs carried out (e.g. copies of order forms or confirmations in the service booklet), which the buyer submits to the service technician of the authorized service centre at his request in the event he applies a service repair within the warranty period.
9.6. Only original consumable supplies (spare parts, etc.) may be used for the goods in the warranty period.
9.7. Failure to comply with the obligations set out in the clauses 9.3., 9.4, 9.5 and 9.6 shall void the warranty rights.
9.8. In case the buyer is in delay with payment of any financial obligations in relation to the seller, the authorized service centre may refuse carrying out further service missions or ask for an advance payment for carrying out its services.
10. Liability for damages and sanctions
The seller ́s liability for damages caused by a breach of obligations from the purchase contract is limited to the amount of the purchase price. The buyer ́s right to lost profit is excluded.
11. Assignment and setoff
11.1. The buyer shall not assign any rights or obligations under these Terms and Conditions or any purchase contract without the prior written consent of the seller.
11.2. The buyer shall not set off any of its obligations to seller with counterclaims it may have against seller.
12. Breach and termination
12.1. If the goods have not yet been delivered, the buyer is entitled to withdraw from the purchase contract within 30 days from its conclusion, and, if he pays a compensation amounting to 20% of the purchase price (+ VAT) to the seller. If the subject of the purchase contract is a forklift truck, that is produced according to the consumer options (CO), costs of those adaptations according to the CO will be added along with costs to remove CO from the truck.
12.2. If the buyer breaches this contract in a substantial way, the seller has the right to withdraw from the contract. As a substantial breach of the contract by the buyer is considered in particular
a) if the buyer is in delay with payment of any financial obligation for more than 15 days, or
b) if any motion to start an insolvency proceeding regarding the buyer has been filed, or
c) there is an indication which can be proven by evidence, that the buyer will not be able to fulfill its obligations.
12.3. In event of cancellation, termination or expiration of any purchase contract the Terms and Conditions regarding confidentiality shall survive such cancellation, termination or expiration.
13.1. Both during and after the term of the purchase contract the parties will treat as confidential all information, which are obtained from the disclosing party, and all information compiled or generated by the disclosing party under the purchase contract for the receiving party, including but not limited to business information, manufacturing information, technical data, drawings, etc., information about suppliers, buyers, terms of supply, and terms of sale, and other commercial terms, unless such information are publicly available.
13.2. Nothing in the purchase contract requires a party to treat as confidential any information which: (i) is or becomes generally known to the public, without the fault of the receiving party; (ii) is disclosed to the receiving party, without obligation of confidentiality, by a third party having the right to make such disclosure; (iii) was previously known to the receiving party, without obligation of confidentiality, which fact can be demonstrated by means of documents which are in the possession of the receiving party upon the date of this purchase contract; (iv) was independently developed by receiving party or its representatives, as evidenced by written records, without the use of discloser’s confidential information; or (v) is required to be disclosed by law, provided that the party required to disclose information by law will promptly advise the originating party of any requirement to make such disclosure to allow the originating party the opportunity to obtain a protective order and assist the originating party in so doing.
All notices and communications to be given under these Terms and Conditions shall be in writing and shall be deemed delivered three days after deposit in the mail by registered mail, addressed to the parties at their addresses set forth in the offer, confirmations or purchase contract, or sent by e-mail to the addresses which the parties had used during negotiations or during performance of the purchase contract.
In the event that any provision of the purchase contract or these Terms and Conditions shall be held invalid or unenforceable by a court or by any administrative authority, such provision shall not negate the validity or enforceability of any other provisions thereof. The parties shall replace such provision with another provision having the same or most similar economic effect. If the parties do not replace such provision, the purchase contract shall be construed in the way that would be as close to the original intent of the parties as possible.
16. Resolution of disputes
Both parties shall aspire to reach a friendly resolution of possible dispute, which could arise on the basis of the concluded purchase contract. If the parties don't succeed to resolve a dispute amicably, the Court in Celje shall adjudicate on the case.
17. Modifications and changes
17.1. Seller reserves the right to make any amendments or modifications to these Terms and Conditions at any time. Such amendments and modifications shall have effect (i) on all offers, confirmations and purchase contracts referring to such amended or modified Terms and Conditions as from the date of such offer, confirmation or purchase contract, and (ii) on any existing Purchase contract in thirty (30) days from notification of such amendments or modifications by Seller to Buyer, unless Buyer has notified Seller within such thirty (30) days period that it objects thereto.
17.2. A copy of the Terms and Conditions shall be attached to the purchase contract and signed by both parties. If the purchase contract is concluded by exchange of e-mails of the parties (offer, acceptance), sending of the Terms and Conditions by the seller to the buyer shall have the same effect as signing a hard copy of the Terms and Conditions by the parties.
The Terms and Conditions are adopted and posted on the website of the seller www.linde-vilicar.si/, on September 15 , 2020, and shall apply from September 15, 2020.