GENERAL TERMS AND CONDITIONS
SALE AND PURCHASE OF GOODS
IVANKA Factory Zártkörűen Működő Részvénytársaság (Private Limited Company by Shares) (registered seat: 1165 Budapest, Újszász utca 47.C., company registration number: 01-10-047302 by the Court of Registry of the Metropolitan Regional Court of Budapest, Tax ID: 23796564-2-42 – hereinafter referred to as IVANKA), as seller determines its general contracting terms and conditions regarding the sale of goods (hereinafter referred to as GTC) for its customers as follows.
Provisions set forth in this GTC shall be applicable to all purchasers of Goods offered and sold by IVANKA, unless otherwise agreed by the parties in writing.
For the purpose of the provisions of this GTC, any natural or legal person, as well as organization without legal personality to which IVANKA sells the Goods, hereinafter referred to as Purchaser.
Process of ordering: Purchaser submits to IVANKA its request for Good. In response, IVANKA sends a preliminary price quote, to which Purchaser can make further remarks or submit additional needs. Once the specification fully meets the requirements of both parties, IVANKA sends the final price quote (hereinafter referred to as Price Quote) with a unique identification number (hereinafter referred to as Offer ID) and with the indication of electronic availability of the GTC. Purchaser accepts this Price Quote in the document called order (hereinafter referred to as Order). After this, IVANKA confirms the Order in writing (hereinafter referred to as: Confirmation).
- Subject of GTC
- Based on this GTC, IVANKA shall deliver to Purchaser the product (hereinafter Good or Goods) specified in the written Order fully accepting the Price Quote, in accordance with qualitative and quantitative parameters, as well as the deadlines determined in the Price Quote, whereas Purchaser is obliged to accept the Goods and pay the underlying fee. A mandatory content element of the Order is the Offer ID of the Price Quote, and its content may not differ from the content of the Price Quote.
- The activity described in Section I.1. of this GTC refers to the production and delivery of the Goods with the characteristics, price and quantity detailed in the Price Quote.
- A contract is executed between the parties, and so the Order can be delivered only if Purchaser was granted the opportunity preliminary to become familiar with the content of this GTC, after which it explicitly accepted the provisions of the GTC by signing the Order. To this end, IVANKA makes the text of the GTC available on the link included in the Price Quote, where the GTC can be opened by clicking on the link.
- A contract between the parties shall mean: together this GTC familiar to and accepted by Purchaser, and the Order identical to the Price Quote. It is valid, only if the Conformation has been sent to Purchaser.
- In case of conflict between the provisions of the Order and of the GTC, provisions of the Order shall prevail.
- Furthermore, IVANKA declares that pursuant to Article (2), Section 6:78 of Act V. of 2013 on Hungarian Civil Code (hereinafter referred to as Civil Code), the GTC does not include provisions that are significantly different from the legal provisions or the ordinary contractual practices, or that are different from the terms set forth in previous contracts of the parties.
- Submission, Acceptance and Validity of Orders
- Purchaser may request from IVANKA a price quote for the Goods. Based on the request for price quote, IVANKA provides Purchaser with a written Price Quote. The Price Quote may refer to documents containing the specification of the Goods; in this case, these documents form part of the Price Quote, and thus of the contract. The Price Quote may contain items including but not limited to the following:
- Names and specification of the Goods, including the description and specification of services may be provided by IVANKA;
- purchase price of the Goods and fees charged by IVANKA;
- term of the offer validity, or
- other relevant conditions specified by IVANKA (e.g. delivery or partial delivery schedule, delivery deadlines, payment schedule).
- Purchaser is entitled to accept the Price Quote provided by a written Order with authorized signature (natural person’s own signature) by the expiry of the term of the offer validity specified by IVANKA in the Price Quote. In case Purchaser submits the Order to IVANKA after the expiry of term of the offer validity, IVANKA shall be released from the offer validity, and the contract is not concluded between the parties, except, if IVANKA informs Purchaser immediately in the Confirmation that it accepts the Order despite the delay.
- IVANKA’s term of the offer validity is included in the given Price Quote. In case the Price Quote does not indicate the term of the offer validity, then it shall be considered that the term of the offer validity is thirty (30) calendar days calculated from the receipt of the Price Quote. The offer validity leads to the conclusion of the contract only if the Confirmation has been sent to Purchaser.
- A contract is concluded between Purchaser and IVANKA only in case – even when other conditions are met Purchaser submits its Order to IVANKA prior to the expiry of the offer validity as set out above, or if IVANKA receives the Order after the expiry of the validity offer, however it declares in the Confirmation that the Order has been accepted. The contract shall be concluded, if Purchaser orders the Goods from IVANKA, in line with the content of the Price Quote, by signing and sending the Order, also meaning the acceptance of the GTC, to IVANKA, who following its receipt sends the Confirmation. An additional condition for the entering into force of contract, unless the parties agree otherwise, is that at least 50% of the purchase price is transferred to IVANKA by the deadline indicated in the proforma invoice sent by IVANKA to Purchaser.
- Purchaser shall specifically notify IVANKA in case, Purchaser submits the Order with content different from the Price Quote. In this case, no contract is concluded between the parties, but such notification is considered to be a new request for order, based on which IVANKA shall prepare a new Price Quote, and send it to Purchaser. Following the receipt of the new Price Quote, Purchaser is entitled to order the Goods pursuant to the provisions set forth in Sections II.2.-II.4. of the GTC as set out above.
- Handing over a sample to Purchaser for analysis by the Purchaser shall not result in so-called purchase by sample. The sale, the use different to its intended use or the installation of such samples shall be prohibited.
- IVANKA does not guarantee that the Goods conform with the sample handed over for analysis.
- IVANKA does not undertake to keep its products in stock, in this respect - along with other conditions - shall only deliver orders, the purchase price of which reaches at least the net amount of EUR 5000.
- Content of GCT
- IVANKA shall deliver the Goods specified in the Order to Purchaser at the premises of IVANKA, in accordance with the conditions set forth in this GTC.
- IVANKA shall deliver the Goods subject of the Order and this GTC in accordance with the Order, the performance certificate, the provisions of the applicable legal provisions and this GTC, in first-class quality.
- IVANKA shall deliver the Goods in the quantity and quality specified in the Order, and Purchaser shall accept the Goods in person or via representative, by signing the document containing the list of Goods (packaging list, delivery note, bill of freight, etc.). This is considered as quantitative acceptance. The place of quality inspection is the location specified in the Order. Purchaser shall begin the quality inspection immediately - depending on the delivery - but not later than within 8 calendar days from the date of receiving the Goods at its premises, and to carry out the inspection continuously during the time necessary, and complete it within an additional 8 calendar days. Purchaser shall notify IVANKA in writing on the commencement of the quality In case the inspection takes place at the premises of IVANKA, it can also be performed in the presence of both Purchaser and IVANKA. Purchaser shall immediately report any quality defect detected to IVANKA, and to specify its warranty claim. In case Purchaser fails to immediately report any visible defect to IVANKA during the quality inspection performed at the premises of IVANKA, warranty rights related to that defect shall be forfeited. In case Purchaser fails to report in writing to IVANKA any visible defect detected during the quality inspection performed at the premises of Purchaser within 20 days calculated from the delivery of the Goods to its premises, the warranty rights related to that defect shall be forfeited.
- IVANKA shall make a statement within 8 calendar days, based on the notes contained in the document related to the inspection, on whether or not acknowledging potential defects, as well as the method and exact deadline of their elimination.
- Unless otherwise agreed by the parties, Purchaser shall accept and transport the Goods within 1 week from its notification of completion by IVANKA, at a time determined by IVANKA taking into consideration of Purchaser’s requirements. Purchaser shall ensure the presence of its representative authorized in writing for the acceptance, at the time determined in advance for the delivery of the Goods. In case Purchaser failed to transport the Goods by the mutually agreed time, IVANKA becomes entitled to send the Goods at the expense and risk of Purchaser, or to store and warehouse them at the expense and risk of Purchaser.
- Depending on the nature of the Goods, IVANKA hands over the following documents to Purchaser at delivery: Declaration of Performance, Transport Order, Storage and Handling Instructions, Maintenance Guide, Application Technique Guide.
- Retention of Title
- IVANKA represents and warrants that it holds the ownership of the Goods, and transfers the ownership to Purchaser without limitation.
- However, IVANKA will retain the ownership title of the Goods (hereinafter referred to as: Goods with Retention of Title) until all of its needs and claims related to the underling Order and this GTC have been fulfilled. Such claims may include but not limited to claims for the payment of the purchase price (or a part thereof), default interest, penalty or compensation for damages.
- During the term of retention of title Purchaser shall refrain from handing over the Goods with Retention of Title to any third party under any title, to provide those as security or otherwise encumber them or install them.
- Purchaser shall immediately notify IVANKA, if Goods with Retention of Title are forfeited, seized or any similar action is taken by any third party.
IVANKA becomes entitled to withdraw from the contract or terminate it with immediate effect, and return the Goods with Retention of Title, if Purchaser breached the obligations described above with respect to the Goods with Retention of Title, failed to fulfill its payment obligation in time or breached any of its contractual obligation, provided that Purchaser failed to remedy the breach within a reasonable time determined by IVANKA. Upon request, Purchaser shall return the Goods with Retention of Title to IVANKA. IVANKA’s right to return the Goods with Retention of Title and/or to exercise its retention of title, may derive from its right to ownership title, it does not necessarily mean that IVANKA withdraws from the underlying contract or terminates it with immediate effect, unless IVANKA explicitly declares that in writing.
- Provisions of the Order shall be applicable to the deadlines - or of the Price Quote with regard to the same content therewith. The condition of observing the deadline by IVANKA is that Purchaser provides IVANKA with all documents and all approvals may be necessary for the delivery, and performs all payment and other obligations in accordance with the contract. IVANKA shall not be bound by the deadlines, i these conditions are not met in time..
- Purchaser will have any right related to any delay imputable to IVANKA, only if IVANKA, following its failure to meet the delivery deadline mutually agreed by the parties, failed to rectify its delay within the cure period undertaken by IVANKA.
- The delivery deadline - also taking into consideration to above condition – shall only be binding upon IVANKA in case s the purchase price is received within the specified payment deadline.
- The delivery deadline, i.e. the contract, is considered to be fulfilled, when IVANKA handed over the Goods to Purchaser. The delivery deadline shall also be considered as met, if in case the notification of completion of the Goods has been sent within the deadline but Purchaser has been in default by the acceptance, and also in case Purchaser refused to accept the Goods without a good reason, or without identifying the quality defect.
- Should the parties were unable to meet the deadlines specified in the Order for reasons of force majeure (i.e. occurring for unavoidable reasons that are beyond the control of the parties), the deadlines shall be extended with the time necessary to eliminate the consequences caused by the force majeure event.
- In case the delay is caused by reasons attributable to the Purchaser, and as a result, the Goods are delivered more than one week after sending notification on their completion, IVANKA becomes entitled to charge Purchaser with warehousing fee for each day commenced, that fee is equal of 1% of the gross purchase price of the Goods. IVANKA may also claim the refund of other justified warehousing costs exceeding the above fee.
- The risk shall be passed to Purchaser at the time of the delivery.
- IVANKA is entitled to early delivery.
- Defective Performance, Warranty
IVANKA is liable for the quality defects of the Goods (hereinafter: Defect) according to the following:
- At its own choice, IVANKA shall repair for free or replace defective Goods , or perform the defective delivery again, provided that the Defect already existed at the time of passing of the risk.
- Repair or replacement claims, as well as other claims for liabilities for defects specified in the Civil Code can be enforced within one year as of the delivery by IVANKA. This rule shall not be applied, if any legal provision stipulates longer mandatory suitability period for any of the Goods. The deadline for the enforcement of claims does not include that part of the repair time, during which Purchaser is not able to use the Good as it is intended. Liability for defects enforcement deadline shall be recommenced for the part of the Goods affected by replacement or repair. This rule shall be applied in case a new Defect arises as a consequence of the repair.
- As part of enforcing warranty rights, any repair by Purchaser or by a third person appointed by Purchaser is possible only if all the following conditions are met:
- IVANKA provides its written consent,
- the repair is carried out in accordance with the guidelines provided by IVANKA, strictly following the provisions of the repair guide determined by IVANKA in a documented and verifiable manner and using the materials and tools determined by IVANKA.
- Purchaser shall immediately report the Defect to IVANKA in writing.
- IVANKA shall repair or replace the defective Goods within a reasonable time.
- Purchaser may not lay a claim with reference to the Defect
- in case of insignificant deviation from the agreed quality;
- for quality deterioration due to normal wear and tear;
- in case of improper use;
- in case of damage originating from deliberate or negligent inappropriate treatment, overload or use of inappropriate tools following the passing of the risk;
- with regard to inappropriate modifications or repairs performed by Purchaser or third parties and the consequences thereof. Such modifications or repairs include but are not limited to: incorrect modification of the surface using sealants, grout or intervention using other materials.
- IVANKA shall be liable to Purchaser for damages caused by IVANKA by late or defective delivery. Liability of IVANKA related to potential contract breach shall in all cases be excluded for indirect damages, loss of profits, consequential damages, including transportation or freight costs, administrative costs, production downtime, data loss, profit loss, any third-party claim against Purchaser. IVANKA’s liability for all damages related to the individual Orders is limited to the amount of the purchase price under the Order affected by the damage. Limitation of liability shall not be applicable to damages caused maliciously, nor for damages harming human life, physical safety or health.
- Purchaser acknowledges and accepts that the following characteristics are considered as usual product features and do not qualify as defects:
With respect to the nature of concrete as a material, natural color tone deviations, shapes, shadows, flows, surface grains, color tonality, surface hairline cracks and surface texture are features of the material originating from its characteristics, and so they shall not be regarded as defects.
Phenomena, such as inhomogeneity of color or surface are typical for the IVANKA panels, originate from the naturalness of the material, and so they cannot be regarded as defects of the Goods.
Natural color differences of raw materials and excipients, such as cement, sand, pigments may influence the color shades within the same panel, between two panels or between panels manufactured at different times, and so they shall not be regarded as defects of the Goods.
Surface appearance detailed in the product documentation applies to the visible surface of the elements.
Small-sized IVANKA sample pieces do not always reflect all the characteristics detailed above, which determine the individual character of the full-sized panels. Small-sized sample pieces in themselves are not suitable for the representation of characteristics appearing in high and big quantity and surface (scale).
Minor air bubbles, inclusions, scalloping, surface hairline cracks or certain amount of surface salt efflorescence - following the appropriate guides -shall not be regarded as defects. Hairline cracks may be appearing on the surface do not affect technical characteristics of the material, neither the durability or strength, functionality nor integrity of the material.
Hairline cracks appearing on concrete products may also originate from internal tension differences within the material, often resulting from incorrect processing. IVANKA does not guarantee that no hairline cracks will appear on the panels. Hairline cracks appearing on the panels after delivery therefore may not constitute grounds for warranty claims.
- IVANKA does not assume warranty for the delivery of product features not indicated in the Order, on the product data sheet/other specification/product document, or for suitability for use under any special circumstances.
- Purchaser shall make sure that the Goods are suitable for all purposes Purchaser intends to use them.
- IVANKA’s warranty obligations are toward Purchaser; Purchaser shall not be entitled to assign or transfer these rights to third parties.
- Warranty obligations of IVANKA shall be binding upon IVANKA, if Purchaser complied with the provisions set forth in the Transportation Guide, Storage and Handling Guide, Maintenance Guide, as well as the Application Technique Guide.
- Purchaser shall inspect thoroughly the Goods for all features concerning the warranty obligation by the time determined in the GTC, but before its installation, incorporation and/or allocation to location of use (hereinafter jointly referred to as: installation), and shall notify IVANKA about all defects in writing. Failure to do so result in forfeiture of warranty rights.
- Commencement of installation shall mean that quality inspection has been completed, the Goods are acknowledged being in compliance with adequate quality and at the same time Purchaser’s warranty rights are terminated.
- IVANKA shall not assume warranty obligations for the improper installation of the Goods.
- Communications related to this GTC are valid in writing. Warranty claims shall be submitted with the following content:
- name, address, telephone number of Purchaser, installation address;
- specification of the Goods, date and location of receipt thereof, copy of the invoices; and
- specification of the defect (photos are necessary).
- In order to relay on warranty service, please contact IVANKA at firstname.lastname@example.org
- Purchaser is subject to full confidentiality regarding the works of IVANKA falling under copyright, which also include price quotes, designs and other documents (hereinafter referred to as: Documents) prepared and made available to Purchaser by IVANKA. Purchaser may disclose these documents to third parties only upon IVANKA’s preliminary approval. Upon IVANKA’s request, Purchaser shall return the Documents provided by IVANKA or destroy them in a verifiable and documented manner, should Purchaser not accept the price quote of IVANKA with regard to a given Order. The above provisions shall be applicable respectively for Purchaser’s Documents. These Purchaser’s Documents may be disclosed to third parties involved in the performance of IVANKA.
- The parties shall keep rice Quotes, Orders, the existence, content of this GTC, as well as the business secrets disclosed during the fulfillment of the contract as confidential information, will not make such information accessible or disclose to third parties.
- Without prejudice to the above, business secrets shall include all facts, information, other data and any compilation thereof related to business activities that are not publicly available or are difficult to access by persons involved in the concerned business activity the acquisition, utilization, disclosure or publication of which would violate or jeopardize legitimate financial, business or market interests of the legitimate owner.
- Technical, business or organizational knowledge, experience or the compilation thereof recorded in a manner suitable for identification, representing property value (for the purpose of this GTC: protected knowledge) shall be protected the same way as business secrets, if those are obtained, utilized, disclosed to other parties or published in a way that violates the principle of good faith or fairness.
- The purchase price includes net price of the Goods to be delivered, full cost of packaging, potentially other items defined in the Price Quote, as well as the value-added tax determined by the applicable law.
- Purchaser shall fulfill payment obligations in the currency and payment method specified by IVANKA, without deducting any banking costs or set-off any claims, while bearing all related banking costs. In case related to the Order Purchaser has not paid the full purchase price, then the deadline for the payment of the unpaid purchase price, unless the parties agreed otherwise, shall be the delivery deadline of the Goods, in other words Purchaser shall pay the entire purchase price by the specified delivery deadline. No costs or claims can be set-off against the purchase price.
- Parties agree that the performance date of Purchaser’s payment obligation shall be the day when the payment is credited to the bank account of IVANKA.
- In case of late payment, IVANKA shall be entitled to charge default interest pursuant to Section 6:155 of the Civil Code.
- Parties agree that each Order accepted by the parties shall be considered as a separate contract concluded between the parties, pursuant to Section I.4. of this GTC. These contracts are concluded for a definite period of time, and expire after all contractual obligations are fully met.
- Contract shall not be terminated by ordinary termination.
- Any of the parties is entitled to withdraw from the contract, if its interest in the performance of the contract ceased as a result of the other party’s breach, or, if the pre-contractual status cannot be restored, then the non-breaching party is entitled to terminate the contract. Parties shall act pursuant to the provisions of the Civil Code applicable to withdrawal, especially Sections 6:140, 6:154 and 6:213.
- Should the performance of the contract become impossible, parties shall act pursuant to Sections 6:179 - 6:182 of the Civil Code.
- Parties are entitled to terminate the contract in writing, based on their mutual agreement.
- Contract may only be amended in writing, based on parties’ mutual agreement.
- By signing the Order, Purchaser also represent that he/she is entitled to sign the contract and to represent Purchaser free of any limitation.
- By signing the Order, Purchaser represents that IVANKA may store and process for the purpose of the contract the data - including personal data - handed over to IVANKA in connection with the legal transaction between the parties.
- In case partial or complete invalidity of one or several provisions of this GTCor the Order, legal consequences of invalidity specified by the Civil Code shall be applied to these provisions of the GTC or the Order. In case of partial invalidity of the GTC or the Order, the entire GTC or the Order will become invalid, if it can be assumed that the parties would not have concluded it without the invalid part.
- Parties shall accept as written statement communications sent via electronic correspondence, and also, if a document containing such statement is forwarded to the other party as attachment to an electronic mail.
- Parties shall cooperate during the term of their legal relationship, and to peacefully settle legal disputes arising between them in connection with this GTC or the individual Orders. If these consultations do not reach a satisfactory solution, the parties submit their case to the exclusive competence and jurisdiction of the Hungarian courts as determined in the prevailing Hungarian civil procedural rules (Act III of 1952 at the time of issuing this GTC).
- With regard to the issues not regulated in this GTC, provisions of the prevailing Hungarian law, especially those of the Civil Code (Act V of 2013) shall be applied. Rules of the CISG treaty on the international sales and purchase contracts of goods accepted in 1980 in Vienna shall not be applied.
- If this GTC is accepted in a multi-lingual version, and in case of any discrepancy between the different versions, the Hungarian version shall prevail.