In consideration of the mutual promises set forth herein, Buyer agrees to purchase from Seller, and Seller agrees to sell and deliver to Buyer, the goods and/or services set forth on the Sales Order (or other such order form) to which these terms and conditions of purchase (the “Terms and Conditions”) are attached or incorporated by reference (the “Order”). As used herein, “Buyer” means the buyer listed on the Order, and “Seller” means Foxy Depot s.r.o., with its seat at Železničná 363, 905 01 Senica, Slovak Republic, identification No.: 54 664 128, registered in the Commercial Register of District Court Trnava, Section: Sro, Insert No.: 52240/T. Any deviations from the Terms and Conditions shall be valid only with prior written consent of the Seller.
1. CONTROLLING DOCUMENT. THE ORDER TO WHICH THESE TERMS ARE ATTACHED OR INCORPORATED BY REFERENCE CONSTITUTES A REJECTION OF ANY PRIOR OFFER MADE BY SELLER OR BUYER WITH RESPECT TO THE GOODS AND/OR SERVICES SPECIFIED ON THE ORDER AND IS CONSIDERED AS BINDING AGREEMENT SUBJECT OF WHICH IS OBLIGATION OF THE SELLER TO SELL SUCH GOODS AND/OR SERVICES ON THE TERMS SET FORTH HEREIN AND NO OTHERS. AND OBLIGATION OF THE BUYER TO PURCHASE SUCH GOODS AND/OR SERVICES AND PAY THE PURCHASE PRICE UNDER THE ORDER. Buyer’s acceptance of the Order shall be evidenced by its execution of the Order or payment of any fees due hereunder, whichever occurs sooner. Buyer’s acceptance shall be deemed limited to the terms and conditions of the Order. Except as specifically indicated on the face of the Order, the Terms and Conditions set forth herein constitute the entire binding agreement of the parties with respect to the subject matter hereof and cancel and supersede all prior communications, understandings, and agreements. The Order shall not be altered, amended, or modified by oral representation made before or after the execution of the Order. All amendments or changes of any kind must be in writing, executed by both parties. In case of discrepancies between the Order and the Terms and Conditions, the conditions of set forth in the Order shall prevail.
2. PAYMENT. Unless otherwise specified in the Order, the 50% of the total Order value of goods shall be invoiced as a deposit upon Buyer’s acceptance of the Order (the “Deposit”). The Deposit is due and payable to the Seller within three (3) days after Buyer’s acceptance of the total Order value. The 50% balance is due upon Seller confirmation of manufacturing completion. All prices are in Euros. Any services are invoiced following the performance thereof and due and payable upon receipt unless otherwise agreed in writing. All prices for goods and services are exclusive of, and Buyer is responsible for all sales, value added, use and like taxes and any applicable customs duties, import licenses, excise fees or tariffs. Buyer must provide Seller a valid certificate of tax exemption from the appropriate taxing authority if Buyer is exempt from paying any taxes, applicable customs duties, import licenses, excise fees or tariffs. Overdue payments shall be subject to interest at a rate of the lesser of the maximum allowed by law or 1 1/2% per month. The Buyer shall transfer any amount due to the Seller under the Order to the bank account specified by the Seller in related invoice within the due date stipulated therein. Unless otherwise agreed, prices for goods shall not include costs for transporting and VAT of goods to named destination.
3. PACKING AND SHIPMENT. Unless otherwise specified, Seller will package all goods in a manner which is (i) in accordance with good commercial practice, and (ii) reasonably adequate to ensure safe arrival of the goods at the named destination. Seller will mark all containers with necessary lifting, handling, and shipping information and with Order numbers, serial numbers, date of shipment, and the names of the consignee and consignor. An itemized packing list will accompany each shipment of goods.
4. INSTALLATION SERVICES AND SITE PREPARATION. Upon the parties’ mutual agreement and in consideration of Buyer’s payment to Seller of the applicable fees outlined in the associated Order, Seller may provide certain services related to the unloading, unpacking, assembly, and/or placement of the goods (the “Installation Services”) in a designated location at Buyer’s facility, the exact location to be agreed in writing prior to the Installation Services being performed (the “Site”). Buyer shall be responsible for ensuring that the Site is properly prepared for the Installation Services, including, but not limited to, ensuring the grounds of the Site are level, dry, and structurally sound and meets any other requirements provided by Seller in writing. In no event shall Seller be responsible for any preparation of the Site. Seller shall have no liability for improper preparation of the Site by Buyer or its subcontractors. If, in Seller’s sole discretion, the Site is not properly prepped upon arrival, Seller may reschedule the Installation Services and Buyer shall be responsible for all costs and fees associated with such rescheduling of the Installation Services. In no event will Seller be obligated to re- perform any of the Installation Services due to incorrect Site placement or improper Site preparation. Upon completion of the Installation Services, Buyer shall inspect the installed goods with a Seller representative to confirm the Installation Services are complete, at which time Buyer shall complete Seller’s then-current acceptance process. Upon completion of that process, the Installation Services are deemed accepted.
5. DELIVERY AND ACCEPTANCE. Quoted lead times and delivery dates are estimates only. Except as otherwise provided in the Order, all goods are EXW (Incoterms® 2020). Delivery conditions will be organized on request. Buyer shall immediately confirm delivery of goods to the named destination to the Seller. Buyer shall inspect no later than 24 hours following delivery of goods whether such goods conform to the amounts and specifications set forth in this Order. Where excess goods are delivered, Seller’s sole liability and Buyer’s exclusive remedy shall be to either accept and pay for the excess or to return the excess to Seller at Seller’s cost. Where goods delivered otherwise do not meet the specifications set forth in the Order, Buyer’s exclusive remedy will be for Seller, at Seller’s cost and election, to either correct or replace the non-conforming goods or issue a pro rata refund accounting for the defect. The risk of damage to goods shall pass to the buyer in accordance with the agreed delivery terms according to Incoterms® 2020.
6. PRODUCT WARRANTY. Subject to the limitations and terms set forth in this paragraph, Seller warrants for a period of one (1) year following delivery that all goods will (i) be new (except in the case of goods known to Buyer to be used or resold) and free from material defects in workmanship, material and manufacture, (ii) not be subject to a security interest, lien, encumbrance or other defect of title, and (iii) substantially comply with the requirements of the Order, including any drawings or specifications incorporated herein. Where goods delivered are in breach of the foregoing warranty and a warranty claim is received during the one (1)-year warranty period, Seller’s sole liability and Buyer’s exclusive remedy will be for Seller, at Seller’s cost and election, to either correct the non-conformity, replace the non-conforming goods with conforming goods, or issue a refund of the price paid in exchange for return of the goods by Buyer. The foregoing warranty does not apply to, and Buyer shall be solely responsible for, any non-conformance with the foregoing warranties caused in whole or in part by the neglect, abuse, improper assembling, handling or storage, unauthorized modifications, customizations and combinations, or other misuse of the goods by anyone other than Seller or Seller ́s affiliates, including any failure to assemble the goods in accordance with the written assembly instructions furnished with the goods. Additionally, the warranties in this paragraph shall be void, and Seller shall have no obligations under this paragraph, in the event Buyer (a) leaves unbuilt goods outside without proper covering to prevent exposure to the elements, or (b) leaves the unbuilt goods flat packed on a skid, in either case, for more than 120 days from the date of delivery. If the goods or parts of goods are repaired or replaced during the warranty period, the warranty period applicable to repaired or replaced goods or parts of goods shall be as long as remaining part of the initial warranty period. Except as expressly set forth in the Order, the foregoing is exclusive definition of warranty, and the Seller shall have no warranty obligations other than those expressly undertaken by Terms and Conditions.
7. CHANGES AND CANCELLATIONS. Buyer has the right to cancel the Order or request changes in quantities, specifications and/or schedules for any reason, subject to the terms of this Section. Any cancellation, change request or reschedule request must be in writing. Orders may be cancelled without penalty within three (3) days of Buyer’s acceptance of the Order, in which case Seller will refund Deposit paid thereunder by Buyer. Orders canceled more than three (3) days after Buyer’s acceptance of the Order but before substantial completion of manufacture of the goods are subject to a cancellation fee equal to 50% of the total Order value (offset by Deposit paid). Orders cancelled after substantial completion of manufacture of the goods are subject to a cancellation fee equal to 100% of the total Order value (offset by deposit paid and payment of remaining part of the Order value). Such fees are due and payable immediately upon cancellation. All other changes to the Order require mutual written agreement.
8. TITLE. Ownership title to all goods purchased by Buyer hereunder will pass to Buyer upon Seller’s receipt of full payment therefor. As between the parties, all rights, title and interests in and to all tools, processes, technologies, know-how, resources, designs and specifications (even if provided by Buyer) used in connection with the manufacture of goods hereunder will be and remain with Seller, even if such do not constitute protectable intellectual property (collectively, the “Seller IP”).
9. BUYER ARTWORK. Buyer may provide Seller with images, artwork, logos, designs, or other content Buyer wishes to have printed on the goods (“Artwork”). Buyer represents and warrants to Seller that Buyer owns, or has otherwise obtained, all necessary rights in and to the Artwork necessary: (a) to provide the Artwork to Seller, (b) to grant Seller the licenses under these Terms and Conditions of Sale and for Seller to exercise such rights granted by Buyer in these Terms and Conditions of Sale, (c) to have Seller manufacture the goods with the Artwork printed on them, and (d) for Seller to deliver the finished goods to Buyer. As between Buyer and Seller, Buyer owns and retains all rights in the Artwork provided to Seller hereunder. However, Buyer hereby grants to Seller a non-exclusive, non-transferable, perpetual, worldwide, paid up, royalty-free license to use, reproduce, publicly display, distribute, and prepare derivative works and modify the Artwork as is necessary to manufacture and deliver the goods.
10. LIMITATION OF LIABILITY. IN NO EVENT WILL SELLER BE LIABLE TO BUYER FOR (A) ANY LOST PROFITS, CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE OR SPECIAL DAMAGES OF ANY KIND, REGARDLESS OF FORM OF ACTION (INCLUDING WITHOUT LIMITATION TORT OR CONTRACT), EVEN IF BUYER HAS BEEN NOTIFIED OF THE POSSIBILITY OF SUCH DAMAGES; OR (B) TOTAL AGGREGATE LIABILITY IN EXCESS OF THE TOTAL AMOUNTS PAID FOR THE APPLICABLE GOODS GIVING RISE TO LIABILITY. BUYER ACKNOWLEDGES AND AGREES THAT THIS LIMITATION OF LIABILITY IS A FUNDAMENTAL BASIS OF THE BARGAIN BETWEEN THE PARTIES AND THAT IN THE ABSENCE OF THIS PROVISION, THE ECONOMIC TERMS OF THIS AGREEMENT WOULD BE SUBSTANTIALLY DIFFERENT.
11. INDEMNITY. Buyer shall indemnify, defend, and hold harmless Seller (including its employees, officers, agents, suppliers and contractors) from and against any and all claims and losses (including costs of legal representation and proceedings) arising out of or related to i) Seller’s use of the Artwork and ii) Buyer’s use of the goods and/or services following Seller’s delivery or completion thereof (as applicable).
12. NON-DISCLOSURE. Buyer will hold in strict confidence and not disclose to third parties (a) Seller’s pricing, (b) Seller’s suppliers, and (c) the Seller IP.
13. ASSIGNMENT. No right or obligation under the Order (other than the right to receive monies due) may be assigned or transferred by Buyer without the prior written consent of Seller, and any purported assignment or transfer without such consent will be null and void ab initio.
14. FORCE MAJEURE. The Seller is entitled to suspend performance of its obligations under the Order for the time of duration of the circumstances excluding the liability (the “Force Majeure”). The Force Majeure is deemed to be the obstacle which arose independently of the Seller’s will and that prevents the Seller from performing its obligation, provided that it cannot be reasonably expected that the Seller could avert or overcome such an obstacle or its consequences, and further that the occurrence of such an obstacle was unpredictable at the time of formation of the Order. Examples of the Force Majeure include especially strike, epidemic, fire, natural disaster, mobilization, war, insurrection, seizure of goods, embargo, ban on foreign exchange transfer, electric power taking regulation that is not culpable, terrorist attack etc.
15. INDEPENDENT CONTRACTOR. If services are ordered under the Order, Buyer and Seller agree that Seller is an independent contractor, and that no partnership or joint venture shall be deemed to exist between them. This Order does not constitute authority for Seller to act for Buyer as its agent or make commitments for Buyer.
16. SEVERABILITY; WAIVER; NOTICES. If any provision of this Order is held invalid or unenforceable to any extent or in any application, the remainder of the terms of this Order, or the application of such provision to different persons or circumstances or in different jurisdictions, shall not be affected thereby. No failure or delay of Buyer or Seller in exercising at any time any of its rights, powers or remedies under this Order, in exercising any election or option provided herein, or in requiring the performance by the other party of any of the provisions herein will in any way be construed to be a waiver of such provisions, and any waiver of any provision granted on one occasion shall not be deemed a waiver of such provision on other occasions. All notices relating to a party’s rights or obligations hereunder must be in writing (including email) and sent to the other party’s address set forth in the Order. or to such other address as a party may have notify in writing to the other party for such purpose. Notices will be deemed delivered (i) on the day of personal handover by recipient or rejection of handover by the recipient, (ii) on the day of delivery to mail or return to sender due to the impossibility of its delivery for any reason. . Notices sent. by email will be deemed delivered at the time of completion of transmission by the sender.
17. GOVERNING LAW/VENUE. All questions, controversies and disputes arising out of this Order will be governed by and construed in accordance with the laws of the Slovak Republic without reference to its conflicts of law rules. The U.N. Convention on the International Sale of Goods shall not apply. Buyer and Seller irrevocably consent to the exclusive jurisdiction of the Slovak courts, for the resolution of any such question, controversy, or dispute, irrespective of any forum non conveniens claim that may be made.