General Conditions of Sale
Unless otherwise expressly provided for, the sales of the Products by AD Klíma Hungária Ltd. are governed by the following General Conditions of Sale which supersede any conflicting provision printed on the forms utilised by the parties.
If not otherwise stated, whenever used herein the word „day” means a calendar day.
The Equipment covered by these General Conditions are those listed in AD Klíma Hungária Ltd. catalogues prevailing at the time the order is placed as well as the Systems from time to time agreed with the Customer. The term System means two or more interconnected Equipment to be installed as a whole.
Catalogues shall not constitute an offer and may be modified by AD Klíma Hungária Ltd. at any time without notice. The information and the technical characteristics of the Equipment contained in the catalogues are indicative and do not bind AD Klíma Hungária Ltd.
2. ORDERS AND ORDER CONFIRMATIONS
2.1.Orders shall be firm until receipt of AD Klíma Hungária Ltd. order confirmation by the Customer but in no event for more than 10 (ten) working days from their transmission. Orders and order confirmations can be transmitted also by means of telecommunication or via internet.
2.2. Orders shall be deemed accepted and binding upon AD Klíma Hungária Ltd. only after receipt by the Customer of the duty signed order confirmation from AD Klíma Hungária Ltd. Should the order not be filled in on AD Klíma Hungária Ltd. then prevailing forms or any such form be incomplete in any part, the relevant order confirmation transmitted by AD Klíma Hungária Ltd. may be made contingent upon written acceptance of these General Conditions by the Customer within the subsequent 10 (ten) days.
2.3. Should the order confirmation contain modifications in respect of the order, such modification shall be deemed accepted by the Customer after 5 (five) days of receipt thereof unless notice of disagreement is given within the above period.
2.4. AD Klíma Hungária Ltd. shall have the right, even after confirmation of the order, to introduce any modification to the Products that it may deem necessary or appropriate, without the Customer being entitled to raise any complaint. However, should any such modification cause substantial variations in the technical characteristics or performances of the Products, the Customer will be entitled to withdraw from the contract by giving written notice thereof within 10 (ten) days from receipt of AD Klíma Hungária Ltd. written communication.
In no event shall AD Klíma Hungária Ltd. be bound to offer the modified or improved Products to the Customer after the order is placed.
3.1. Unless otherwise indicated in the order confirmation, prices of the Equipment are those indicated in AD Klíma Hungária Ltd. prevailing price list as of the date of receipt of the order. The price of the Systems will be agreed by AD Klíma Hungária Ltd. and the Customer from time to time.
3.2. Prices may be varied by AD Klíma Hungária Ltd. even after confirmation of the order, should delivery take place beyond the agreed for any reason not ascribable to it.
3.3. Unless otherwise agreed upon, prices are for delivery EXW (Incoterms 2000) and do not include installation and start-up. Products are supplied with standard packaging, any special packaging to be quoted separately by AD Klíma Hungária Ltd.
4.1. Terms and methods of payment are those indicated in the order confirmation.
4.2. Irrespective of what set out in the confirmation regarding the transportation fees, payment shall be deemed effected at AD Klíma Hungária Ltd. facilities.
The delivery of Bills of Exchange or cheques by the Customer shall not be considered as payment nor determine the shifting of the place of performance or the novation of the original obligations. All costs for issuance of the Bills of Exchange or cheques, including all relevant banking expenses are for the Customer’s account.
4.3. Whenever a down-payment is agreed, same shall be paid by the Customer at the time the order is signed. The down-payment shall not bear interest and will be prompty reimbursed to the Customer should the relevant order not be confirmed by AD Klíma Hungária Ltd. within the period specified in paragraph 2.1. hereof.
4.4. If payment is to be made by Letter of Credit (L/C), same shall be issued pursuant to the ICC Uniform Customs and Practice for Documentary Credits in force at the time of the order, be irrevocable and confirmed by a first class bank located in Hungary, and satisfactory to AD Klíma Hungária Ltd., transferable in whole or in part, payable on the due date set out in the order confirmation and negotiable against the documents mentioned therein. Should AD Klíma Hungária Ltd. not require confirmation of the L/C, payment and negotiation thereof shall in any event be affected at the counters of the advising bank.
The opening of the L/C shall be notified to AD Klíma Hungária Ltd. by the confirming or advising bank, as the case may be, within 20 (twenty) banking days from receipt of the order confirmation by the Customer. Failure to do so shall automatically cause the cancellation of the order unless AD Klíma Hungária Ltd. otherwise communicates.
4.5. In case of payment by instalments, the Customer shall deliver to AD Klíma Hungária Ltd. the required negotiable instruments, together with any security which may have been agreed. Should the Customer fail to honour even one instalment or diminish the security granted to AD Klíma Hungária Ltd., the latter shall have the right to claim for immediate payment of any outstanding amount.
4.6. In case of payment by direct remittance, it shall be made by means of telegraphic transfer or via SWIFT – value in favour of the beneficiary equal to the day which payment is due- to the bank indicated by AD Klíma Hungária Ltd. in the order confirmation.
4.7. In case of delayed payment, the Customer shall be charged with interest at the MNB prime rate as published on the day on which payment fell due. In such an event AD Klíma Hungária Ltd. shall be further entitled to suspend any delivery in progress and/or terminate the contract without any notice period being due.
4.8. The Customer shall not be entitled to suspend or delay any payment in case of complaints or delay in delivery by AD Klíma Hungária Ltd.
5.1. Regardless of what agreed upon with respect to transport costs, delivery and the relevant transfer of risks shall be deemed effected at AD Klíma Hungária Ltd.’ facilities with the loading of the Products on to the means of transport of the carrier entrusted therewith.
5.2. Time of delivery shall be calculated in working days, and shall not be of the essence. Delivery may be suspended by AD Klíma Hungária Ltd.:
- in case of failure by the Customer to effect the down payment provided for in paragraph 4.3;
- until all technical and administrative data and information required to properly fulfill the order are received and/or - until receipt by AD Klíma Hungária Ltd.- of the notice of confirmation or the advice of the opening of the L/C pursuant to paragraph 4.4 hereof.
5.3. Should AD Klíma Hungária Ltd. be prevented from meeting any delivery date due to lack or delayed deliveries of its supplyers, interruption or suspension of transport or energy, strikes or union agitations or by reason of any other event beyond its reasonable control, time of delivery shall cease to run from the day of communication of the impediment to the Customer. In case the impedient lasts for more than 3 (three) months each party shall be entitled to terminate the contract by giving written notice to the other, without any compensation or indemnity being due.
6.1. Unless otherwise provided for in the order confirmation, the sales covered by these General Conditions do not include installation and start-up of the Products.
6.2. Should AD Klíma Hungária Ltd. attend to the installation and start-up of the Products, it will be for the Customer to provide at its own cost all necessary workmanship, tools, and scaffoldings as well as energy and whatever else may be necessary for the correct performance of the installation and start-up operations. The Customer shall be further responsible for the custody and preservation of the Products and materials delivered by AD Klíma Hungária Ltd. for that specific purpose.
6.3. The installation and start-up operations shall be performed according to the instructions contained in the manual supplied by AD Klíma Hungária Ltd. together with the Products. After such operations have been completed and in any case not later than 10 (ten) days thereafter, a copy of the relevant certificate of completition duty signed by the Customer and the person/entity that attented to the same shall be transmitted to AD Klíma Hungária Ltd. In case of incorrect declarations regarding the start-up date or the person/entity attending thereto, the Customer will automatically forfeit its right to the warranty provided for under paragraph 8 hereof.
6.4. The Customer will be responsible for all damages to persons or property occurred during the installation and start-up operations not performed by AD Klíma Hungária Ltd.’s personnel or its duty appointed nominees. To this extent the Customer declares to have executed an appropriate insurance policy.
6.5. All rights relating to drawings, technical specifications and documentation supplied by AD Klíma Hungária Ltd. for the installation and start-up of the Products will remain the exclusive property of AD Klíma Hungária Ltd.
Except as otherwise communicated by AD Klíma Hungária Ltd., the Customer shall collect the Products on the day indicated in the order confirmation.
After 30 (thirty) days have elapsed without the Customer having collected the Products. AD Klíma Hungária Ltd. will, without prejudice to any other remedy available under applicable law, be entitled to definitely retain the down-payment and any instalments so far paid by the Customer and sell the Products to third parties by giving notice to the Customer of the Terms and Conditions of the Sale at least 15 (fifteen) days before. Any difference between the contractual price (increased by any custody and preservation costs) and the price actually recovered from the sale shall constitute a debt of the Customer and shall yield interest at the rate set forth in paragraph 4.7 above. AD Klíma Hungária Ltd. shall in any event be entitled to claim for compensation of any further damage it may have suffered as a consequence of non-collection of the Products by the Customer.
8.1. AD Klíma Hungária Ltd. warrants that the Products are free form defects in design, material and workmanship under normal use, provided they are used in strict compliance with the technical specifications and istructions supplied by AD Klíma Hungária Ltd. NO FURTHER EXPRESS OR IMPLIED WARRANTY, WHETHER BY OPERATION OF LAW OR CONVENTIONAL, IS GRANTED BY AD KLÍMA HUNGÁRIA LTD. TO THE CUSTOMER.
8.2. The warranty shall not apply in case of:
- Product damaged in transit,
- Improper care, insufficient or lack of maintenance,
- damages deriving from improper use or storage of the Products or due to incorrect installation by unauthorized parties,
- maintenance, repairs or interventions made by third parties who have been not authorized by AD Klíma Hungária Ltd.
- use of non – original spare-parts
- damages due to fire, accidents, unforeseeable events or any other event not ascribable to AD Klíma Hungária Ltd.
- normal wear and tear,
- failure to transmit the certificate of completion within the period specified in paragraph 6.3., and
- damages incurred during Customer’s default in payment.
8.3. The Customer shall, subpoena of forfeiture, examine the Products inmediately after arrival and notify AD Klíma Hungária Ltd. within the subsequent 10 (ten) working days of any incomplete or non- conforming consignments as well as of any patent defects.
Likewise, in case of hidden defects, the same shall be notified, subpoena of forfeiture within 10 (ten) working days from discovery.
To this extent, all notices shall be in writing and specify the Product code, the relevant consignment lot and delivery date, the date of the certificate of completition issued pursuant to paragraph 6.3.as well as contain a detailed description of the defects discovered.
In no events shall the agents, distributors or intermediaries of AD Klíma Hungária Ltd. be entitled and have the authority to represent and bind the latter towards the Customers or any third party. For the purposes hereof any notice of complaint for defects in the Products will, therefore, be of no event if made to AD Klíma Hungária Ltd. agents, distributors or intermediaries.
8.4. The Customer shall hold the defective Products at AD Klíma Hungária Ltd. disposal for a reasonable period of time to permit the inspection thereof, and no returns are allowed without the prior written authorization of the latter.
8.5.Should any defects be acknowledged by AD Klíma Hungária Ltd., it will repair or replace the defective parts free of charge EXW (Incoterms 2000). ANY OTHER INTERVENTION AND REMEDY AS WELL AS ANY RESPONSIBILITY FOR DIRECT, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES BEING. TO THE EXTENT PERMITTED BY LAW, EXPRESSLY EXCLUDED AND WAIVED BY THE CUSTOMER.
Upon AD Klíma Hungária Ltd.request, the Customer shall return DDP (Incoterms 2000) the replaced parts.
8.6. The warranty hereof shall be valid for a period of 14 (fourteen) or 12 (twelve) months respectively from the date of delivery or start-up of the Products, whichever comes first. In no events shall the validity period of the warranty be affected by the non-use of the Products by the Customer.
8.7. In case of warranty interventions, travel, and board and lodging costs for AD Klíma Hungária Ltd. personnel are for the Customer’s account. Should the intervention not take place under warranty, AD Klíma Hungária Ltd. shall further be entitled to a daily consideration for each technician sent to the Customer, to be calculated on the basis of the current accomodating costs.
8.8. AD Klíma Hungária Ltd. warrants, either directly or through third parties, the supply of spare parts of for a period of at least 5 (five) years from discontinuance of production or commercialisation of each Product model.
9. TERMINATION CLAUSE
Without prejudice to any express provision on termination contained in these General Conditions. AD Klíma Hungária Ltd. shall have the right to terminate at any time the sale contract in case of breach or failure by the Customer to perform or observe any material terms and conditions thereof, provided said breach or failure is not remedied within 15 (fifteen) days from receipt of the relevant notice of complaint. In such an event, the Customer shall pay AD klíma Hungária Ltd. a penalty equal to 20% (twenty percent) of the outstanding price without prejudice to the latter’s right to claim for compensation of any further damages suffered therefrom.
10. TAXES AND COSTS
Unless otherwise not agreed upon, taxes or charges connected with the sale of the Products are for the Customer’s account.
11. GOVERNING LAW
The sales ruled by these General conditions shall be governed by the laws of Hungary. The application of the April 11, 1980 Vienna Convention on the International Sale of Goods being expressly excluded.
12. COMPETENT JURISDICTION
Any dispute arising between the Parties with regard to sales ruled by these General Conditions shall be submitted to the juriscdiction of the Courts of Budapest II. and III. district. As a partial derogation to what set forth above, AD Klíma Hungária Ltd. will, however, be entitled, at its sole discretion , to apply to the Courts of domicile of the Customer.
13. FINAL PROVISIONS
13.1. The sale contract may not amended except in writing signed by each of the parties subsequent to the date of execution.
13.2. Failure by AD Klíma Hungária to enforce at any time any of the provisions of these General Conditions or of the Sale contract ruled by the same shall not be construed as a waiver of such provision or of the right of AD Klíma Hungária Ltd. to thereafter enforce each and every provision therein.
13.3. In the event that any of the provisions of these General Conditions or any of the clauses of the sale contract ruled by the same will be declared contrary to law, the remaining portions thereof shall continue in full force and effect and the offending portion shall be severed therefrom, unless such provision or clause constitutes an essential part of the contract, and has been an essential inducement for the parties to enter thereinto.
13.4. Except as otherwise provided for, all notices between the parties shall be made in writing by registered mail, return receipt requested, or by cable or facsimile.