GENERAL TERMS AND CONTITIONS

of limited liability company named DrakaBag, s.r.o.
identification number: 278 05 808
based in tř. Osvobození 930/25, 742 35 Odry, The Czech Republic

1. General provisions

1. These general terms and conditions ( hereinafter „ GTC“) are written in accordance with the § 1751 et seq. Act. no. 89/2012 Coll., Civil Code. The purpose of these GTC is detailed regulation of obligations from agreements between the seller and the company DrakaBag, s.r.o, identification number 278 05 808, based in tř. Osvobození 930/25, 742 35 Odry, Česká republika, registered in the Bussiness Register at the Regional Court in Ostrava, Section C, File 30207, www.drakabag.eu, and buyers – corporations or persons on the sale of goods and provision of services related to the sale of goods.
2. These GTC, together with the specific terms of sale, which are included in the general agreement, sales contract, order confirmation, (hereinafter „the Agreement“), constitute the entire agreement between the parties on the terms of sale and replace all previous conditions proposed by the buyer and prior oral or written agreements. In the event, that the Agreement clauses are in conflict with the clauses in these GTC then the Agreement clauses are applied primarily.
3. These GTC are binding on the parties from the date of conclusion of the Agreement if the Agreement contains written link to these GTC.
4. Changes and amendments to these GTC, as well as any amendments and additions to the Agreement are acceptable only in writing after mutual agreement of both parties.
5. All information specified in the Agreement, as well as all information, documents and other evidence provided by the seller to the buyer in connection with the Agreement, which are not commercially available, are business secrets of the seller (the „Confidential Information“). The buyers agree that without the prior consent of the seller will not apply such confidential information for their own use contrary to the purpose of the Agreement and will not allow access to them by third parties.

1. Packaging

1. If there is no specific agreement about the packaging based on the buyer´s requirement, the seller will provide the goods by the packaging in accordance with the practice for the type of supplied goods, suitable for dispatch and transport of the supplied goods, otherwise the manner needed to preserve and protect the supplied goods (known as “Industrial packaging” according to the Act no. 477/2001 Coll., Packaging law, as amended).
2. If there is no other agreement between the seller and the buyer, packaging is considered to be non-returnable containers, which remain available to the buyer (buyer becomes the owner of the packaging upon receipt of supplied goods), excluding packaging in 2 which the parties agree on the terms of their return back to the seller. The seller remains the owner of the containers in case of an agreement on returnable packaging and the buyer bears the risk of damage of the packaging all the time the packaging is at the buyer disposal.
3. Packing materials, which became the property of the buyer can be commercially exploited for further trade only if the logos and personal data of DrakaBag, s.r.o. are removed. The trucks owned or provided by DrakaBag, s.r.o. must be unloaded immediately after their arrival and they must be allowed to depart as quickly as possible without unnecessary delays. If the delivery is carried out by the buyer, such trucks must arrive to DrakaBag, s.r.o. for loading empty and clean.
4. It is the responsibility of the buyer to ensure that the transport and packaging materials provided from his side meet legal requirements for safe and reliable transport. The seller has the right to refuse to load or pack the supplied goods to transport equipment and packaging materials provided by the buyer, if they do not meet the legislative criteria referred to in paragraphs 1 and 2 of this article. In this case DrakaBag, s.r.o. is not responsible for the consequences of delayed deliveries of the supplied goods.
5. The buyer is fully responsible for any damages caused by the means of transport and/or the packaging from the moment of dispatch until the return of the mean of transport and/or packaging. The buyer is also responsible for any damage caused by the transportation or packaging or otherwise using of these resources to the buyer or third party.

III. Price and payment terms

1. The agreement on the amount of the purchase price or a method of determining the purchase price, is an essential requirement of the Agreement.
2. The price agreed in the Agreement does not include VAT. The buyer is obligated to pay for the supplied goods the concluded price increased of prevailing rate of VAT except of reverse charge which means that the buyer has the obligation to declare the tax.
3. The Seller is entitled to increase the purchase price in the event that at any time during the period for which the price was agreed upon, including the period of time following the draft of Agreement of the seller until delivery of the supplied goods, if there is a substantial increase of some resolute manufacturing costs necessary to produce the goods, ie. in particular the change in the price of energy or fuels. The seller notify the buyer about the price increase in writing, showing the method of calculation of price changes.
4. The seller has the right to charge the purchase price of the supplied goods on the invoice issued by the date of the chargeable event, ie. by the date on which the obligation to deliver the goods is fullfilled.
5. The buyer is obligated to pay the purchase price to the bank account of the seller specified in the invoice in the term of maturity set by the Agreement. The buyer has theright to apply justified objections to the content of the invoice within 5 days of its receipt. If no objections are applied, it is considered that the buyer agrees with the issued invoice.
6. The day of payment is a day when the amount of money equal to the purchase price is credited to the bank account of the seller.
7. If the buyer is in delay with any monetary debt or its part, the seller is entitled to claim default interest at the agreed rate of 0.05% of the outstanding amount for each day of delay.
8. The Seller is entitled to request a payment in advance on the purchase price. The seller will issue an advance invoice, maturity set in according to the Agreement or within 10 days from the date of its issue, unless the parties have agreed on different maturity in the Agreement. The seller is also entitled to require security for costs (credit letter, bank guarantees, guarantees of other entity issuing promissory notes or blank bill, lien or other suitable collateral) at the conclusion of the Agreement. In the event that the buyer do not comply this requirement in agreed deadline, the seller is entitled to suspend production / shipment of goods, or has the right to rescind the Agreement.
9. In the event that the buyer receive any information or there occure any circumstances from which it can be concluded that the buyer is or may become unable to meet its debts to the buyer or any other information that may reduce the credibility of the buyer (the poor financial situation of liquidation, circumstances testifying of over-indebtedness, late payments, arrears more than 30 days, etc.), the seller is entitled to ask the buyer to pay all the monetary debts arising from previously issued invoices immediately, regardless of their maturity and/or require the buyer sufficient security of debts in the scope due to paragraph 9 of Art. III GTC. The buyer is obliged to fulfill seller´s requirement within 5 days of its receipt. The seller is also entitled to ask for payment in advance in all unfulfilled deliveries, regardless of already agreed terms of payment or withdraw from the Agreement.
10. The seller is not obligated to supply the goods, or has the right to stop production of already ordered goods, or is entitled to withdraw from the Agreement or to exercise other rights under these GTC, if the buyer fails to comply with the payment terms for the payment of any financial debts to the seller, hereafter if the buyer fails to provide the seller sufficient collateral debt or fails to meet other obligations under this clause. Such conduction of the seller is not considered as breaching the Agreement or as delay in delivering the goods of the seller.
11. The buyer is not allowed to assign any of its claims against the seller arising from the Agreement or in connection with it, on another subject. The buyer is also not allowed to establish a lien to secure its debts or the debts of third parties, without the prior written consent of the seller. The buyer is obliged to pay a penalty of 25% of the nominal value of illegally assigned or pledged receivables in case of breaching this obligation. The buyer is also not entitled to unilaterally set-off his debts to the seller.

IV.Terms of delivery

1. The seller fulfill the requirement to deliver the goods to the buyer (the obligation to deliver the goods) the time the supplied goods is delivered in accordance with the content of agreed delivery clauses INCOTERMS 2010 – EXW, if there is no other clause in the Agreement. The seller marks the goods clearly and sufficiently as a shipment to the buyer. The risk of damage to the goods (ie. The risk of loss and damage) passes to the buyer according to the content of the agreed delivery clauses INCOTERMS 2010. The buyer is obliged to cooperate with the seller in accordance with the agreed INCOTERMS 2010 specified in the Agreement.
2. The seller is entitled to extent reasonably the time of performance. It can be extended of the period of time which is necessary to remove/hinder barriers of the seller´s performance. The seller is obligated to inform the buyer about these facts immediately and make every effort to swiftly remove these obstacles. In the case that the manufacturer will end production of the goods until the agreed deadline of fulfillment, the seller is entitled to deliver the goods within 30 calendar days after the agreed time of fulfillment. This situation is not considered to be a delay of the seller in delivering the goods.
3. The seller is also entitled to extend the time of performance of a period of time for which the seller is in delay with any monetary debts to the seller, including any other agreement constituted between the seller and the buyer.
4. The seller is entitled to partial delivery of goods and the buyer is obliged to accept it.
5. The goods is dispatched by the seller under one necessary condition which is that the buyer has no monetary debts to the seller arising from all contractual relationships between the parties. In the event that the goods are ready for dispatching and the seller is not obliged to deliver the goods for reasons on the part of the buyer (see Art. III. GTC) or there are any other agreed or statutory reasons and these difficulties are not eliminated, even during shipping deadlines the seller is entitled to exercise the contractual penalty amounting to 0.05% of the purchase price.
6. The buyer is obliged to inform the seller immediately in writing of any changes to its tax identification (VAT number), if necessary. The buyer is also obliged to inform the seller about regime change in VAT registration (payer – the non-payer). If the buyer breaches this obligation the seller is entitled to demand compensation for any financial damage incurred as a result of the VAT payment or penalties paying or any other performance to the tax administrations.

V.Ownership of the goods and re-export ban

1. The owner of the supplied goods is the seller untill the full purchase price including VAT is payed (ie. Reservation of rights).
2. The buyer is entitled to sell or process the goods which are still owned by the seller (according to the Reservation of rights) only in the normal course of business, under normal business conditions, and if it is not in arrears, however, the buyer is obligated to inform its customer about the Reservation of right of the seller. The buyer is not entitled to any other disposition of such goods, especially to set up for this item lien or provide any other security interest in favor of a third party.
3. In case of the buyer´s delay with the payment of the purchasing price is the seller allowed in respect of the Reservation right to require the buyer for the immediate release of those goods and come to receive the goods at his store. The buyer is obligated to permit the seller to take the goods and to provide any necessary assistance. All costs associated with the application of the Reservation of rights are carried by the buyer.
4. The buyer is entitled to export goods outside the European Union countries only with the prior consent of the seller. The buyer is obliged to notify the seller in writing in advance (no later than at the conclusion of the Agreement) any other export of the goods within the territory of another EU state, as well as the re-importation into the Czech Republic. In case of violation of these obligations, the seller is entitled to require the buyer to pay a penalty in the amount corresponding to 20% of the purchase price (excluding VAT), which has been illegally exported outside the EU or in another EU country, or re-imported to the Czech Republic. The provision regarding the penalty does not affect the seller’s right to compensation caused property damage.

VI.Force majeure

1. In the event, that during the duration of the contractual relationship arises any circumstances independently of the will of either of contracting Party (extraordinary, unpredictable and insurmountable obstacle), which temporarily or permanently prevent any of the parties in fulfilling obligations under the Agreement, the parties inform without undue delay in writing of these obstacles, as well as the estimated time of their duration and discuss further measures. These „obstacles“ are understood as force majeure, which contain in particular, strike, war, natural disasters such as fire, flood, earthquake, lightning, arctic frosts preventing or restricting the transport of goods, etc.. As force majeure is also understood delays of delivery of the goods cause independently of the seller´s will, road closures or delays, theft of goods in transit, accident manufacturing facility or part thereof and similar force majeure events, including decision or direction of appropriate government authority that restricts or prevents the fulfillment of contractual obligations. The Contracting Party in which the events of force majeure appear is not responsible for failure to fulfill obligations under the Agreement or for any delay.
2. If the obstruction due to force majeure lasts for a period not exceeding 30 calendar days, the parties are obliged to fulfill their obligations under the Agreement, once the effects of the force majeure no longer exist, the delivery and all other terms are postponed for a period of force majeure. If the obstruction lasts force majeure for more than 30 calendar days, each of the parties the right to withdraw from the contract.

VII. Rights of defective performance

1. The seller is obliged to supply the the subject of the Agreement on the agreed amount, the quality and workmanship according to the technical specification set out in the Agreement, technical conditions or in another document approved by the parties. This is not a defective supply and the goods is deemed to be properly supplied, if the quantity or quality of the delivered goods correspond to the acceptable tolerance deviation resulting from the agreement, these GTC, technical conditions, applicable standards or other generally binding regulations. DrakaBag, s.r.o. is obliged to ensure (before the agreed delivery date) that the quantities of supplying goods correspond to the ordered quantity and the buyer’s payment obligations. There is a tolerance of + – 10% of the contracted quantity for all deliveries.
2. The buyer is obliged to immediately inspect the goods and make sure of its features and the amount after its delivery. Based on the agreed terms of INCOTERMS 2010, the buyer is always obliged to examine the goods and in case of a damaged package to check the goods under the cover. The buyer is obliged to write any identified damage immediately to the shipping or delivery note, otherwise the claim will be not recognized by the carrier or the seller. If the package shows signs of slight damage (dents, tears, etc.) and the driver refuses to wait for the check of the goods under the cover, the buyer is advised always to write into the shipping or delivery note – „the goods is taken with damaged package or driver refused to wait for the check of the goods“ (please write the appropriate option to CMR or delivery note). The seller is obliged to immediately contact DrakaBag, s.r.o.. The buyer is obliged to keep a copy of the shipping or delivery note.
3. The seller provides the buyer a warranty for the quality of the supplied goods for 24 months from the date of delivery of the goods, if the Agreement does not set any other warranty period.
4. The buyer is obliged to notify the seller about any obvious defects of the delivered goods that can be detected during the inspection upon delivery of the goods without undue delay after delivery. The buyer is obliged to notify any other defects of the delivered goods without undue delay after their detection, but no later than the end of the agreed warranty period.
5. All claims must be in writing and must contain the identification data of claimed supply (Agreement number or order confirmation, delivery date, the number of shipping or delivery note, batch number, invoice number, etc.), a description of the defect, accompanied with the evidence of defects. The buyer is obliged to permit the seller access to claimed goods in order to verify the eligibility of the claim.
6. The buyer is obliged to provide separate storage of the claimed goods, up to the date of the complaint settlement. Free disposal of those goods that makes the procedure of complaint settlement difficult or impossible is not acceptable without the prior consent of the seller. If the buyer breaches that duty, and also does not allow the seller to ascertain the existence of a defect, event. it prevents access to the goods, fails to provide the seller at his request samples of the claimed goods or does not deliver by the deadline set by the seller in its opinion on the complaint sufficient evidence to enable the seller to quantify reasonable discount on the purchase price, these facts give reasons for rejecting the claim and cause the loss of buyer’s rights to claim defects of the delivered goods.

1. The seller is obliged to open the procedure of the complaint settlement immediately after receiving the complaint. The seller is obliged to tell the buyer within 30 days of receiving the complaint its opinion on the complaint. The seller is obliged according to its own discretion to grant a discount on the price of the goods or supply new goods under the original terms or agreed on deadline to remove the defects in the case of a justified complaint of the goods. The seller is obliged to announce the choice of claim to the buyer in its opinion on the complaint.
2. The defective goods complaint shall not entitle the buyer to suspend (hold) any payment of the purchase price or refuse further deliveries of goods. The buyer’s claims for defective goods expire if the buyer fails to notify defects within the agreed deadlines and agreed manner.
3. The seller is not responsible for defects caused by wear and tear caused by normal use or the use of the goods, which is contrary to the purpose of the Agreement or documentation relating to the goods. Each package (box) contains an information leaflet of DrakaBag, s.r.o., in which the conditions for the handling of the goods, warehousing and dispatch number are listed. Any claims arising from the failure to comply with the conditions specified in the leaflet will not be recognized by the seller as justified.
4. In the event that the buyer incurs a loss as a result of breach of any of seller’s obligations under the Agreement (eg. also due to defective supplies) and without any circumstances of force majeure precluding liability of the seller, the seller is obliged to pay only for the actual, provable and incurred property damage quantified by the buyer up to a maximum amount corresponding to 100% (one hundred percent) of the purchase price, but is not obliged not to pay for loss of earnings. In case of breaching various seller´s obligations the total amount of aggregate liability of the seller for damages cannot exceed 100% (one hundred percent) of the total purchase price.

VIII. Final provisions

1. If any provision of the Agreement or these GTC should become invalid or unenforceable or some provisions are missing, either due to valid legal order, or due to the changes of legal order, the validity and enforceability of the remaining provisions of the Agreement or these GTC will stay unaffected. In such a case the invalid or unenforceable provision will be replaced by either the provision of the relevant legislation of general application that is its nature and purpose the closest to GTC intended purpose, or if no such legislative provision exists, the method of settlement which is common in business relations. Both parties agree to conclude on the amandement to the Agreement containing the new provisions, which will be its content and meaning of the earliest provision, which became invalid or ineffective.
2. The parties agree that any disputes that might arise from this Agreement and in connection therewith, will be solved by mutual agreement amicably. If the parties do not agree on any amicable settlement of dispute, all disputes arising from the contract, these GTC and in connection therewith will be finally decided by the Arbitration Court attached to the Economic Chamber of the Czech Republic and Agricultural Chamber of the Czech Republic and according to its order of one arbitrator appointed chairman of the Arbitration court. Award delivered to both parties is enforceable executory title.
3. Arrangements by the arbitration clause in accordance with point 2 of this clause is not applied if the buyer is an entity based in the Czech Republic. In this case, all arising disputes will be governed by courts factually relevant to discuss them according to law no. 99/1963 Coll., Civil Procedure Code, as amended, the local competence shall be determined by the registered office address of the seller.
4. The buyer takes over the risk of a change in circumstances after the conclusion of the Agreement and is therefore not entitled to the rights listed in § 1765 paragraph. 1 of Law no. 89/2012 Coll., Civil Code, as amended.
5. All legal relations arising from the Agreement or in connection therewith, as well as unresolved issues in the GTC will be governed by Czech substantive law, particularly the provisions of Law no. 89/2012 Coll., Civil Code, as amended.
6. These GTC completely replace GTC dated November 1, 2014 and become effective on August 1, 2016.