General Terms and Condition of Trade of Nesto KG Ltd., Nesto Ltd. and Komiz-V.T. Ltd., Veliko Tarnovo, Bulgaria
In the following, Nesto KG Ltd., Nesto Ltd. and Komiz-V.T. Ltd. are referred to as “KG” and the contracting party as “CP”
(1) The following terms and conditions of trade shall form the exclusive basis for all deliveries and services.
(2) Any divergent conditions of the CP, which are not expressly accepted by KG, are not binding, even when KG does not expressly object to them.
(3) The inclusion and interpretation of these terms and conditions of trade as well as the formation and interpretation of legal transactions with the CP shall be governed exclusively by the laws of the Republic of Bulgaria. The application of the Uniform Law on the Formation of Contracts for the International Sale of Goods and the Uniform Law on the International Sale of Goods of the UN Sales Convention shall be excluded.
(4) The inoperativeness of single provisions of this contract or its components shall not affect the validity of the remaining provisions. Within reasonable limits and in accordance with the requirements of good faith, the parties to the contract are bound to replace an invalid provision be a valid provision equivalent in its economic success unless this clauses a substantial alteration of the contents of the contract; the same applies to cases requiring regulation which are not expressly regulated.
II. Place of fulfillment
For all obligations arising directly or indirectly from this contract, including the obligations to pay, Place of fulfillment is the seat of KG, Veliko Tarnovo, Bulgaria.
III. Quotations, scope of delivery and conclusion of contract
(1) Offers of contract made by KG are not legally binding
(2) The purchase order / the order is binding for the CP. The CP`s purchase order / order may be accepted by KG within 4 weeks. The acknowledgement of order by KG is solely authoritative for the scope of obligation according to the contract.
(3) Even after the dispatch of the acknowledgement of order, KG reserves the right to make alterations in construction, models, choice of materials, specification and design as far as such alterations disagree with neither the acknowledgement of order or the CP`s specification. In addition, the CP shall agree to KG`s suggestions for changes as far as they are reasonable.
(4) Partial deliveries are permitted.
(5) Documents, such as images, drawings, specifications of dimension and weight and other technical data which are the basis of the quotation or the acknowledgement of order are, as a rule, to be interpreted as approximate values and are not binding for KG.
(6) If parts and machines are to comply with foreign technical standards and/or legal provisions, the CP must give notice thereof prior to the conclusion of a contract and must provide all necessary tests, inspection and modifications at his own expense.
IV. Prices and terms of payment
(1) Payments shall be made without any deduction and free of charges and expenses for KG. The CP bears all charges of discount, currency exchanges, collection and financing.
(2) KG`s representatives are not entitled to undertake collection without special authorization.
(3) Prices are valid ex works (EXW), packaging and other dispatch and transport costs excluded, plus the respectively valid value added tax. Packaging is charged at cost and can be returned only to KG, if KG is obliged to do so according to imperative provision of the law.
(4) If more than 4 months shall elapse between the conclusion of the contract and the delivery where KG is not responsible for the delivery delay, KG is entitled to appropriately increase the price in the consideration of the increase in the incurred material, labor and other ancillary costs to be borne by KG. If the purchase price is increased by more than 10%, the CP is entitled to withdraw from the contract.
(5) If KG implements modifications specified by the CP, the additional costs thereby incurred shall be charged to the CP.
(6) In the event of negligent delay in payment interest amounting to 8% in excess of the respective base lending rate of the Bulgarian National Bank shall be charged subject to enforcement of further claims. However, the CP shall be permitted to prove that KG has incurred no damages at all or that damages of KG are considerably less.
(7) The received in KG`s down payments are reservation for the goods for CP. The down payments are non-refundable.
(8) Unless otherwise stipulated, the total value of the goods must be received in KG`s bank account before shipment.
V. Set-off and restraint
Shall be excluded unless the set-off claim has not been contested or has become res judicata.
VI. Time of delivery
(1) The indication of a delivery date is not binding. It shall be made in good faith and is adequately extended if the CP delays or fails to take necessary or agreed measures of cooperation on his part. The same shall apply to measures concerning industrial dusputes, strike and lock-out in particular, and the occurrence of unforeseeable obstacles beyond the intention of KG, i.e. delay in delivery by a supplier, interruption of transport and operations, material and energy shortages etc. Alterations of the goods to be supplied required by the CP also result in an adequate extension of the delivery term.
(2) In the event of the wrongful delay caused by KG, damages caused by this delay and proven by the CP, shall be limited, after the expiration of an appropriate extension, to 0.5% of the net price of the delayed parts per month, however not exceeding 5% of this net price, except in the case of withdrawal from the contract. Further claims from the CP shall be excluded unless KG has acted intentionally or with gross negligence.
VII. Transfer of risk
Transfer of risk, arrangement of transport and insurance costs for any particular sale are agreed and noted in the invoice terms and condition of delivery according to International Commercial Terms (INCOTERMS 2010).
VIII. Revocation of contract / compensation / default of acceptance
(1) If the CP withdraws from the contract without any fault on KG`s part, the CP must pay to KG flat-rate damages amounting to 30% of the purchase price unless the CP gives evidence that no or only minor damage has been caused to KG. KG reserves the right to enforce a higher damage or the performance of the contract.
(2) The same applies in case of CP not fulfilling obligations regarding down-payment or any other agreed arrangement for payment or if down-payment is delayed. In such cases KG is entitled to withdraw from the contract and claim compensation from CP as described in item VIII (1), without detriment to further claims.
(3) In the event of default of acceptance by the CP, 0.5% of the invoice amount per month will be due for payment subject to further claims by KG and regardless of the CP`s obligation to accept delivery.
IX. Reservation of title.
(1) KG shall retain title to the goods supplied until payment is full. The reservation of title shall be valid until all claims, included future and qualified ones, incurred from the business connection between CP and KG have been settled.
(2) The CP is not entitled to pledge or transfer the goods by securing, he is, however, permitted to resell the reserved goods in the ordinary course of business. The CP hereby assigns to KG the claims arising against his business partners as a result; KG accepts the assignment.
(3) KG is entitled to enforce reservation of the title without withdrawing from the contract. Should the CP violate the contract, in particular in the case of delayed payment, then KG is entiled to repossess the goods supplied following a reminder, and the CP is obliged to surrender the goods. Neither assertion of reservation of title not seizure of the goods supplied by KG shall be deemed as withdrawal from the contract.
(4) Goods to be supplied by the CP in return pass into the ownership of KG by delivery and must be stored free of charge until the day of delivery.
(5) Application for the opening of insolvency proceeding by the CP shall entitle KG to withdraw from the contract and to demand immediate surrender of the goods supplied.
X. Warranty / liability for defects
(1) Warranty service will be provided only for brand new equipment and it`s valid for 12 months. The warranty is valid no more than 12 months after delivery of the equipment, no matter of when the equipment is put into operation.
(2) Is the purchase a business transaction for both partners, the CP must check the goods immediately after receipt, as far as this is advisable in the ordinary course of business, and, if a defect is discovered, must give notice to KG without delay. If the CP fails to give notice of a defect, the goods shall be considered accepted unless the defect could not be discovered during the check.
(3) At KG`s option warranty claims within the statutory period of warranty shall initially cover subsequent performance consisting of either rectification of defects or subsequent delivery. Should subsequent be unsuccessful, and only after unsuccessful subsequent performance, the CP shall be justified in taking the option of either demanding a reduction in price or revocation of the contract. All other warranty rights are excluded.
(4) The components which, within the warranty period, has become unusable as a result of circumstances for which KG is responsible must be sent to KG at the CP`s expense. The replacement will be delivered by KG in accordance with the same delivery terms as of the original delivery.
(5) Further claims of the CP, particularly regarding consequential damage caused by defects, are excluded, unless they result from the lack of warranted characteristics. This does neither apply to damage to life, limb or health nor to intent, gross carelessness or breach of a duty by KG, the very fulfillment of which makes it possible to carry out the contract properly in the first place and upon compliance with which the CP may normally rely (Important contractual duties). Production liability claims on KG shall remain unaffected by this condition.
(6) No guarantee shall be assumed in particular in the case of unsuitable or improper usage, in particular in the case of failure to observe the machine documentation, defective assembly or commissioning by the CP or third parties; electrical parts and equipments, natural wear and tear (e.g. spare parts for cutting, like knives, hole plates, cutting blades, etc. and seals), defective or careless handling, maintenance not in accordance with rules, unsuitable equipment, defective preliminary work (e.g. construction) by the CP or third parties, chemical, electrochemical or electrical influences, insofar as not within the sphere of responsibility of KG
(7) Warranty abroad is subject to the decision of KG, unless installation and commissioning of the goods is made by KG or in case this conflicts with imperative provisions of the law.
Liablity by KG shall be excluded in cases of only careless breach of obligation by KG, its legal representative or by KG`s vicarious agents. This shall not apply to damage to life, limb or health or to intent, gross carelessness, breach of a duty, the very fulfillment of which makes it possible to carry out the contract properly in the first place and upon compliance with which the CP may normally rely (cardinal contractual obligations) or in the absence of qualities warranted in writing.
XII. General Data Protection Regulation
(1) In the context of the work or in the context of complying with statutory obligations, the other party may process personal data about the other party and/or persons affiliated with and/or working for the other party by KG.
KG shall hereby ensure (or have ensured) an appropriate security level in view of the risks involved in the processing and the nature of the personal data to be protected. This, however, only if and insofar as these are located in the (computer) systems or infrastructure of KG.
Processing of personal data takes place in accordance with the General Data Protection Regulation (GDPR).
(2) KG shall handle the personal data provided by the other party with due care. Personal data shall only be accessible to KG and shall not be provided to third parties, except in the context of the work and/or the cases in which KG is obliged to do so by virtue of the laws and regulations applicable at that time and/or a court decision.
(3) In the event of a data breach, the other party shall, if necessary and reasonably possible, cooperate with KG so that it can fulfil its obligation in a timely fashion to report in accordance with the provisions of the GDPR.
(4) The other party is responsible for complying with the applicable laws and regulations in the field of the protection of personal data and indemnifies KG against costs and damage as a result of claims by third parties in connection with the other party’s non-compliance with the GDPR.
XIII. Court of jurisdiction
The place of jurisdiction for all disputes arising from the contractual relationship is Veliko Tarnovo, Bulgaria. KG is also entitled to take legal action before a court having jurisdiction for the principal place of business or a branch office of CP.
|„Nesto KG” Ltd||„Nesto ” Ltd||Komiz-V.T. Ltd|
5000 Veliko Tarnovo
VAT. No BG201808727
5000 Veliko Tarnovo
VAT. No BG104507799
5000 Veliko Tarnovo
VAT. No BG104672797