Terms and Conditions
1. General provisions
1.1 The present General Terms and Conditions (“GTC“) apply to all the services provided by Cobra Control Mérés-, Irányítás- és Számítástechnikai Korlátolt Felelősségű Társaság (registered office: 1106 Budapest, Fehér út 10., company registration number: 01-09-267791, tax number: 10884175-2-42, hereinafter referred to as the “Company“) issued by (the “Quotation“) and all orders accepted by it (the “Order“), as well as any customer or, in the case of a construction contract, any customer (hereinafter collectively referred to as: “Buyer“, the Company and the Buyer together: the “Parties“), unless the Parties expressly provide otherwise in an individual contract or unless the Parties expressly stipulate in writing the application of a Buyer’s General Terms and Conditions. These Terms and Conditions shall apply simultaneously to the deliveries and services provided by the Company in the course of its distribution activities and its manufacturing and servicing activities, as well as to the technical support services provided by the Company on a purely hourly basis.
1.2. By sending an Order to the Company and, if accepted, by entering into a contract with the Company or by accepting the Company’s Price Offer or by signing an individual Contract, the Customer expressly acknowledges and accepts the provisions of the Company’s GTC in force at the time and acknowledges that all provisions of the GTC have been individually negotiated by the Parties, has read them, expressly accepts them as binding upon him, declares that he has not been, or has been expressly informed by the Company of any terms and conditions other than those provided for by law or customary contractual practice and any terms and conditions previously applied between the Parties, which terms and conditions the Customer expressly accepts.
1.3 The present GTC shall form an integral part of the Contract between the Parties. Any general terms and conditions or any clauses of the Customer shall only form part of the Contract if expressly agreed in writing by the Parties. The legal declarations of the Parties shall be interpreted and applied in the light of these GTC. In the event of any discrepancy between the GTC and any term of the Contract, the latter shall become part of the Contract.
1.4 The Contract (including these GTC) contains in its entirety all contractual agreements between the Parties. Unless otherwise agreed in writing by the Parties, the Contract shall not include any customary practices widely known and regularly applied by the parties to similar contracts in the relevant business sector.
1.5 The current version of the GTC is available on the Company’s website. The Company reserves the right to unilaterally modify these GTC, and shall publish on the Company’s website any modifications to the GTC, indicating the parts that are subject to modification.
1.6 In matters not regulated in the GTC or the Contract, the applicable Hungarian legislation, in particular the provisions of Act V of 2013 on the Civil Code (“Civil Code“) on sales contracts shall prevail.
1.7 The fact that the Company does not exercise or enforce the rights to which it is entitled shall not be construed as a waiver of such rights.
1.8 If any term or provision of the Contract would be invalid or ineffective under applicable Hungarian law, or both, such term or provision shall be severed from the other terms of the Contract, which shall remain in full force and effect. The invalidity of a provision of the GTC or the Contract shall not render the GTC or the Contract invalid unless it is clear that, but for the invalid provision, the Parties would not have concluded the Contract.
1.9 No authority or power of attorney is granted to the Buyer under the Contract to represent the Company for any purpose. Under no circumstances shall the Buyer assume, create or incur any obligation or liability on behalf of the Company.
2. The Quotation, Bid Binding, Order Confirmation, Conclusion of Contract
2.1. Price quotation, Binding offer
The Company shall be bound by the Offer for the prices and deadlines set out in the Offer for the duration and under the conditions set out in the Offer. If the Company does not specify the duration of the binding offer in the Offer communicated to the Customer, the binding offer period for the Company shall be 30 days from the written communication of the Offer for design, installation and the Company’s own products, as well as for technical support services on a purely hourly basis. For products sold within the scope of the Company’s distribution activities, the Company shall not be bound by the quotation in the event of price changes by the Company’s suppliers.
2.2. The prices, terms and conditions (qualitative and quantitative) and deadlines set out in the Quotation apply only to the products and/or systems (hereinafter referred to as “Custom Developed Products“), which are individually developed and/or individually assembled and which are the subject of the Contract and which are sold by the Company to the Customer (hereinafter referred to as “Custom Developed Products“), and to the products and systems sold by the Company to the Customer in the context of the Company’s distribution activities (hereinafter referred to as “Custom Developed Products“): “Distributed Products“) and related services (hereinafter referred to as “Services“) (the Customized Products, the Distributed Products and the Services together referred to as “Product(s)“) or purely hourly billed technical support services (engineering or technical or other) provided by the Company (hereinafter referred to as “Hourly Technical Support Services“). In the case of an Hourly Technical Support Service, the Company shall provide technical support to the Customer under the Customer’s instruction, direction, supervision and professional responsibility on an hourly and delivery charge basis. The basic Hourly Rate for the Hourly Technical Support Service does not include the preparation of documentation for the work performed under the Hourly Technical Support Service, which documentation shall be prepared on a stand-alone hourly rate basis. The Company’s Quotation shall be valid only to the extent and subject to the technical content and conditions contained therein. The Company reserves the right to deviate its Quotation from the specifications provided by the Customer for technical and commercial reasons.
2.3 The Company reserves the right to make unilateral changes to the Products (price, quality, quantity, etc.) at any time.
2.4. Creation of the Contract
The contract between the Company and the Buyer (the “Contract“) shall come into force on the date (if any) on which a written condition (e.g. an advance payment) agreed by the Parties as a condition for the Contract to come into force is fulfilled and
- the Buyer places a duly signed written order with the Company accepting the Company’s Quotation in full and without modification by returning the Company’s Quotation to the Company within the period of the binding period specified in the Quotation (or, in the absence of such period, in the GTC) or beyond the period of the binding period if the Company’s previous Quotation is expressly reserved in writing at the time of placing the order; or
- (ii) In the absence of a Company Price Quote, the Company will issue an Order Confirmation accepting the Customer’s Order in full and duly signed by the Company, or
- (iv) the contract is duly signed by both contracting parties, or
2.5 If the Customer orders the Company’s services or Products by telephone, fax or e-mail, the Company may require the Customer to confirm the order in writing, duly signed, in order to conclude the Contract. If the Company requests written confirmation of an order placed verbally or by fax or e-mail, duly signed and in writing, the Contract shall be deemed to be formed upon the Company’s written confirmation of the order confirmed in writing.
2.6 If the conclusion of the Contract depends on the occurrence of several conditions, the Contract shall be concluded on the date of the later condition. Any amendment to a Contract concluded under the GTC shall be made only in writing and by mutual agreement of the Parties.
2.7 If the Customer has made changes to the order in relation to the Company’s quotation, the Customer’s changes shall only become part of the Contract if the Company expressly accepts them in writing by confirming the change, failing which no contract shall be concluded between the Parties.
3. Purchase price, payment terms
3.1 The purchase price – or, in the case of an Hourly Technical Support Service or other hourly service (e.g. the preparation of technical documentation charged by the hour), the hourly rate – and its currency shall be set out in the Contract. The purchase price – or, in the case of an Hourly Technical Support Service or other hourly service (e.g. the production of technical documentation charged on an hourly basis), the hourly rate – shall exclude VAT and all taxes and levies currently or in the future applicable to the Products. Unless otherwise agreed, the purchase price does not include: the construction of connection points, safety inspections, wear and spare parts, follow-up or supervision of production after take-over, repairs and other services beyond the warranty, repairs and services not covered by the warranty as per clause 7.10 of the GTC. The Company shall be entitled to charge VAT on the purchase price and the hourly rate in the amount applicable under the legislation in force at the time. If, after confirmation of the Customer’s Order for the Products, an unforeseen increase in the costs of the underlying technical, raw materials and auxiliary materials or in the costs of the components, accessories and parts of the Products ordered, in particular, but not limited to, significant inflation, supplier or manufacturer price increases, exchange rate changes, etc. – If the Buyer does not accept the Company’s revised quotation by confirming the Purchase Order no later than 8 days after the revised quotation is sent, either Party shall be entitled to withdraw from the Contract or, if performance has already commenced, to terminate the Contract.
3.2 The terms of payment are set out in the Contract. The payment term is the time from the date of performance as set out in the Contract as a payment term. Unless otherwise specified in the Contract, the payment deadline is 15 days from the date of issue of the invoice. The Company reserves the right to invoice by instalments corresponding to partial deliveries, unless the Contract expressly provides otherwise. All payments shall be made by the Customer by transfer to the bank account number indicated on the advance payment request/partial invoice/invoice with the payment deadline indicated thereon. Bank charges shall be paid by the party initiating the transfer. The advance payment shall be made after the Order has been placed, on the basis of an advance request. Following payment of the advance, the Company shall issue an advance invoice for the amount paid. If the Customer does not object to or dispute the performance within the time limit for taking delivery of the Product/Service set out in the Contract or in these GTC and does not provide proof of performance in accordance with the provisions of GTC 3.3. or fails to issue a certificate of performance within the time limit or fails to issue a certificate of performance within the time limit or fails to issue a certificate of performance or refuses to issue a certificate of performance without justification, the Parties shall be deemed to have accepted the Company’s performance and the Company shall be entitled to issue the corresponding invoice within 8 (eight) days of performance, unless otherwise agreed by the Parties in the Contract.
3.3. The date of performance on which the invoice is based:
– in the case of advance payment: the date of receipt of the advance payment, based on the advance payment request issued by the Company;
– in the case of a partial invoice or invoice: the date of the certificate of performance signed by the Buyer in a duly signed company document or by his authorised representative in a fully authenticated private document, which is also accepted in the form of an e-mail, or, in the absence of a certificate of performance, the date of actual performance in the case of an invoice issued in accordance with clause 3.2;
– in the case of delivery: the date of arrival at the delivery address, based on the delivery note issued by the Company and signed by the Buyer in his company name or by his authorised representative in a private document with full probative value;
– In the case of an Hourly Technical Support Service: the service is performed under the continuous professional supervision of the Customer, keeping a timesheet:
a) In the case of a flat-rate hourly rate payable on a monthly basis, if the accounting period does not exceed 12 months, the date of performance for the work falling within the accounting period of that month shall be the last day of that month. In this case, the Company shall be entitled to invoice you from the first day of the following month.
b) In other cases, unless otherwise agreed by the Parties in the Contract, the date of performance shall be the date of the confirmation of performance issued by the Customer on the basis of the Company’s timesheet or, if the Customer fails to issue the confirmation of performance on time or fails to issue it on time or fails to issue it correctly or refuses to issue it without justification or fails to issue it for any other reason and does not contest the performance, the Parties shall be deemed to have accepted the Company’s performance on the 3rd day following the date of the dispatch of the timesheet to the Customer. The Company shall be entitled to issue the corresponding invoice within 8 (eight) days of the date of the delivery of the Worker’s Statement.
3.4 The invoice is considered paid on the date on which it is credited to the Company’s bank account.
3.5 The Company retains title to the Products until full payment of the price of the Products. The Buyer shall keep separate records of the Products subject to retention of title and shall indicate that the Company has retained title to the Products and shall provide the Company with access to and, in the event of non-payment of the purchase price in breach of the Contract, the return of the Products to the Company’s possession at the Buyer’s own expense. The Products subject to retention of title shall be held, stored and safeguarded by the Buyer at its own expense and risk (or damage) but for the benefit of the Company and shall be covered by appropriate insurance. The Customer may not pledge, alienate, encumber, otherwise pledge as security or give third parties the use of the reserved Goods. The Buyer shall inform the Company immediately in writing if the reserved Goods are seized or if any third party interferes with them. In this case, the unpaid part of the purchase price shall become due immediately. If the Buyer fails to meet the payment obligation thus falling due, it shall immediately provide the Company with adequate security for the fulfilment of its payment obligation. The Buyer shall be liable to the Company for any damages resulting from any failure to meet the above obligations.
3.6 The Buyer undertakes to raise any objections to the content and form of the invoice issued (in particular, typing, miscalculation, inaccurate addressing, etc.The Buyer acknowledges that it considers the Invoice Deadline to be reasonable and sufficient for a thorough examination of the invoice and for the communication of the reason for any invoice dispute. The Buyer acknowledges that after the Invoice Deadline, it may not rely on any defects in the content or form of the invoice in any legal proceedings or in any winding-up proceedings. After the Invoice Acceptance Deadline has passed, the invoice shall be deemed to have been validly accepted. The Company shall examine the invoice without delay and, if justified, shall take immediate action to correct the invoice. Any objection to the invoice shall not affect the due date, provided that, if the invoice is justified, the Company shall send the correcting invoice to the Customer before the due date. If the corrective invoice is received by the Customer after the original due date, the new due date shall be the 8th day following receipt of the corrective invoice.
3.7 The Buyer shall not be entitled to set off the purchase price or any part thereof against any claim it may have against the Company arising from any other legal transaction. A financial set-off shall be possible only by prior written agreement of the Parties.
3.8 In the event of a dispute between the Parties, the Buyer may only withhold payment of a pro rata part of the (part of) the invoice containing the performance affected by the dispute. After the dispute has been settled, the pro rata part of the withheld payment shall become due immediately.
3.9 In the event of late payment, the Customer shall be liable to pay default interest at the rate specified in the Civil Code and the recovery costs pursuant to Article 3 (1) of Act IX of 2016 on Recovery Costs. If the delay in payment exceeds 15 days for reasons in the Customer’s interest, the Company shall send a payment notice to the Customer. If 8 days after the formal notice has been sent without result, the Company may withdraw from or terminate the Contract with immediate effect for any reason in the Customer’s interest and at the Customer’s expense and return the Product(s) subject to reservation of title and the Customer shall fully reimburse the Company for any additional costs incurred by the Company as a result of the delay or default. The Buyer expressly acknowledges that if the delay in payment as set out in this clause expires without result, it shall be deemed to be an acknowledgement of the debt by the Buyer, in respect of which acknowledgement the written demand for payment notified by the Company shall interrupt the limitation period.
3.10. In the event of the Customer’s default or breach of contract, the Company shall have the right not to confirm any further orders from the Customer and may suspend with immediate effect the design, manufacture, delivery, installation and commissioning of the Products under the Orders already accepted and confirmed and the provision of the Hourly Technical Support Services until payment in full of the overdue amount due, without liability.
3.11. If the Parties have agreed on payment by instalments and the Customer fails to pay any instalment within the time limit after the Company has made payment, the total amount still outstanding shall automatically become due in one instalment and the Company reserves the right to suspend the performance of its obligations until the full amount due has been paid to the Customer.
3.12. The Buyer agrees that his solvency is subject to continuous review by the Company. If the Company considers that the Customer’s financial situation may delay or jeopardise payment under the Contract, the Customer shall be obliged to provide credible evidence of its solvency or adequate security for performance. In the event of failure to do so, the Company shall be entitled, at its option, to withdraw from the Contract or to terminate it with immediate effect – not including the case under Section 11 (2) h) of the Bankruptcy Act – or to suspend, delay or refuse performance, in whole or in part, until the full purchase price has been paid.
3.13. The Company may, if necessary, prepare additional technological documentation, gripping and/or other auxiliary equipment for the manufacture of the Custom Developed Products, the ownership of which shall be retained by the Company and therefore shall not become the property of the Buyer. An exception to this shall be made if the transfer of ownership of the technological documentation, gripping and/or other auxiliary equipment is expressly stipulated in the Contract. This reservation of title shall also be valid and effective in the event that the Contract includes a one-off production start-up cost, the payment of which by the Customer shall constitute an obligation on the part of the Company to keep the technology documentation, gripping and/or other auxiliary equipment so paid for in a continuously maintained condition as long as the relevant Customized Product is continuously ordered. The Company reserves the right to discard the technology documentation, gripping and/or other auxiliary equipment after the expiry of the warranty period in the case of warranty, or after one year from the date of the last Order in other cases.
3.14. The provisions of Clauses 3.4 to 3.13 shall apply without prejudice to any compensation that the Company may claim.
3.15 If the term of the Contract exceeds 1 year, the Company shall be entitled to increase its prices to the Customer at the beginning of each calendar year during the term of the Contract by the rate of the inflation index of the Central Statistical Office of the Republic of Hungary for the previous calendar year, of which the Company shall notify the Customer in writing.
3.16 The Company shall endeavour to take the utmost care in preparing its Quotation for the works of manufacture, construction (installation), Hourly Technical Support Services. If, however, work becomes necessary without which the Product is not fit for its intended use (additional work), and if the Customer orders additional work after the commencement of the work (additional work), the amount of the contract purchase price or the hourly rate or the estimated number of hours required shall be adjusted accordingly.
4. Delivery deadline
4.1 The delivery date is indicative and may be subject to change due to the performance of the Company’s suppliers and subcontractors and other unforeseen circumstances, unless the Company expressly agrees to fixed delivery dates in writing. In the event that the Delivery Date is expressly set in the Contract in lead time (duration), the Company’s obligation for the Delivery/Delivery Date shall commence on the latest of the following dates:
(i) the Company accepts and confirms the Order without reservation;
(ii) the Company shall receive from the Buyer the information necessary for the performance of the Contract and to be provided by the Buyer (in particular, the necessary documentation, specifications, permits, approvals, product samples and materials, samples and equipment to be provided by the Buyer);
(iii) the advance payment made by the Buyer under the Contract is paid;
(iv) the Buyer has fulfilled its payment and other obligations under the Contract.
4.2 In the event of non-compliance with any of the conditions set out in Clause 4.1, the delivery time shall be automatically extended by the Buyer’s delay. The Company reserves the right to modify the Purchase Price and the Delivery Date, subject to any modifications made by the Customer in the course of design and manufacture, any information provided by the Customer, any unforeseen increase in the cost of the engineering, raw materials and consumables on which the Products are based after confirmation of the Order, any unforeseen increase in the cost of parts, accessories and components of the Products after confirmation of the Order, and any unforeseen increase in the cost of the Products at the time of confirmation of the Order, and the performance of the suppliers appointed by the Customer.
4.3 Unless otherwise provided in the Contract, in case of a fixed deadline, if the Company is not in default for 4 (four) weeks from the fixed deadline (grace period), the Company shall not be liable to pay any interest, penalty, damages or any other legal penalty for late payment or any other adverse legal consequence. If the Contract does not provide for a delivery period, the general delivery period shall be 20 weeks for Custom Developed Products and 12 weeks for Distributed Products, unless the Company notifies the Buyer in writing of a different delivery period within 3 days of the conclusion of the Contract.
4.4 The Company shall be automatically discharged from any obligation to meet delivery deadlines in the event of force majeure or events that disrupt the Company’s or its suppliers’ operations or business, such as. strike, war, embargo, fire, flood, mechanical accident, impediment or delay in the supply or procurement of defective parts in the production process, raw materials, energy or components (including impediment or delay caused by actions beyond the Company’s control related to the COVID-19 virus situation), or any other cause beyond the control of the Company or its suppliers. The Company shall have the right to suspend performance for the duration of the force majeure or other event specified in this clause by written notice to the Customer and shall have the right to rescind or terminate the Contract if the suspension exceeds 90 days.
4.5 The Company shall be entitled to make partial deliveries after prior notice, and the Buyer shall accept partial deliveries.
5. Completion, take-over
5.1 Unless otherwise provided in the Contract, the place of performance of the Products (hereinafter referred to as the “Place of Performance“) shall be the place of the Buyer’s registered office or place of business specified in the Order. Unless otherwise provided for in the Contract, the Company shall arrange for the delivery of the Products at the Buyer’s expense. Where the Company is obliged under the Contract to deliver the Products only, delivery of the Products shall be deemed to have taken place upon delivery to the Customer at the place of performance. Acceptance of delivery, and in particular the date thereof (Acceptance Date), shall be evidenced by the Customer or his designated representative signing the acceptance report or delivery note. In the case of an Hourly Technical Support Service, the Place of Performance shall be determined in accordance with the provisions of the VAT Act. Chapter II, Subchapter II, depending on whether the Customer using the Hourly Technical Support Service is a domestic or foreign legal entity and whether it is a taxable person within the meaning of the VAT Act.
5.2 The technical acceptance procedure of the Customized Products is carried out in several Product-specific stages (e.g. pre-acceptance at the manufacturing site, on-site revitalization, trial run, commissioning, production start-up), which are described in detail in the Contract. If the Contract does not contain a provision to this effect, the technical acceptance procedure for the Customized Products shall be carried out in accordance with the specifications issued by the Buyer (the issue date of which shall be no later than the date of the Contract). In the event of any discrepancy between the Contract and the specification issued by the Buyer, the contents of the Contract shall prevail.
5.3 The Buyer undertakes to provide at its own expense and in due time the product samples necessary for the adjustment, pre- and final acceptance of the Customized Products and to ensure their properties and tolerances according to the specification in the preliminary tender. After final acceptance, no further defects or deficiencies in the Customized Developed Product may be added. The Buyer undertakes to make available, at its own expense, the materials and equipment necessary for the commencement of the assembly or commissioning at the site of assembly or commissioning, and to make all necessary preparations to enable the assembly or commissioning to commence as agreed and to proceed without interruption.
5.4 If the installation of the ordered Products at the place of destination is the Company’s responsibility under the Contract, the Customer shall provide the necessary infrastructure and location. The Company shall not reimburse the costs incurred by the Customer during the acceptance of the delivery (in particular, but not limited to, the costs of the Product sample, the working time of the Customer’s personnel present at the final acceptance, and travel and accommodation costs). The Customer shall also provide:
– water and energy services at the point of use, including connections, heating and lighting,
– suitably sized dry and lockable rooms at the work site where the Company is to carry out the work (e.g. assembly, installation, etc.), suitable for storing the Product(s) parts, instruments, raw materials, tools, etc,
– workshops, rest rooms and wet rooms for assembly personnel, adapted to the specific conditions,
– providing health and safety information to assembly personnel,
– the necessary protective clothing and equipment to meet the specific requirements of the specific site.
Before the installation works are started, the Buyer shall voluntarily make available all information and data available on concealed electrical, gas and water pipes or other similar installations, where relevant for the work. The Buyer shall also ensure that the site of assembly or installation and the access roads to it are level and unobstructed. The Customer shall also take all measures to protect its own property, the property of the Company and the property of the assembly personnel.
If the Company has undertaken the assembly or installation against an individual invoice, the Buyer shall reimburse the Company in addition to the provisions of this clause:
– the rates of pay and allowances laid down in the Contract for working hours, overtime, night work, work on Sundays and public holidays, work in exceptional circumstances, and planning and supervision.
– travel expenses, the cost of transporting hand tools and other equipment, and mission expenses for work, working hours, rest and travel time and public holidays.
5.5 If the assembly or installation is delayed for reasons beyond the Company’s control, the Buyer shall bear all justified damages, costs and expenses incurred by the Company directly or indirectly as a result of the delay (including additional travel and accommodation expenses of the assembly personnel). If the Buyer breaches any of its obligations under these GTC or the Contract, the Company may enforce its proven damages and other rights arising from the breach.
5.6 The Customer shall not be entitled to refuse to accept the Product on the grounds of minor defects. A minor defect is a defect that does not affect the proper use of the Product to a material extent and does not affect its functionality, operation, maintenance or improvement. The Company shall be entitled to submit a final invoice in this case as well, provided that the defects recorded in the list of defects are remedied by the agreed deadline. The Company shall consider the person entrusted with the acceptance of the work carried out as the Customer’s representative appointed for this task, who, in addition to taking delivery of the work, shall also be entitled to make statements in connection with the acceptance of the handover. The Buyer may, after acceptance of the handover, raise a quality complaint only in respect of defects (latent defects) not detectable by visual inspection within the warranty or guarantee period applicable to the work and the materials used.
5.7 Until the final acceptance of the Product, the Company shall be entitled, without any liability on its part, to carry out work on the Product at any time, to suspend or interrupt the operation of the Product during the work, to modify the parameters of the Product as it sees fit, even if this prevents the Buyer from actually producing the Product.
If the final acceptance of the Product does not take place within 2 weeks after delivery or commissioning at the latest for reasons within the Customer’s interest, the Company shall be entitled to submit a final invoice.
5.8 Delivery of the Products shall be as specified in the Contract, failing which the Parties agree to delivery on DAP INCOTERMS 2020 parity. The risk of loss or damage shall pass to the Buyer when the Products have been delivered to the Buyer in accordance with the applicable INCOTERMS rules. The risk of damage shall also pass to the Customer if the delivery of the Product is delayed for reasons attributable to the Customer or if the Customer has refused to take delivery of the Product without stating a valid reason or a quality defect.
5.9 Unless otherwise agreed in writing by the Parties, the Buyer shall provide the means and personnel necessary for unloading and moving the Products at its own expense.
5.10. If the Buyer does not take possession of the Products on the delivery date specified in the Contract or as mutually agreed in writing by the Parties, the Company may automatically cancel the order without formal notice, without prejudice to any right to claim damages. If the Company does not exercise this right, the Buyer may be liable to pay the Company a storage fee of 0.5% per week of the gross contract price from the date of expiry of the delivery deadline until the date of receipt of the Products, unless otherwise agreed by the Company.
5.11. Any modification or cancellation (withdrawal) of a Customer’s order under the Contract shall be valid only in writing and only if expressly agreed in writing by the Company and the Customer, in which case the Company reserves the right to charge the Customer for any costs and damages incurred by the Company as a result of such modification or cancellation, including, without limitation, design, development, procurement, manufacturing and delivery costs. In the event of the Customer’s withdrawal from the Contract, the Customer shall pay to the Company, in addition to compensation for all damages incurred by the Company in preparing for the performance of the Contract in accordance with the Contract, a penalty for non-performance equal to 10% of the total value of the Contract (Order) affected by the withdrawal.
5.12. Unless otherwise provided in the Contract, the packaging of the Products shall be understood to be the usual, customary packaging used by the Company for the Products. At the Customer’s request, and subject to the payment by the Customer of the additional costs involved, the Company may undertake to provide packaging other than the usual packaging as agreed by the Parties in the Contract. The Company shall not take back or dispose of any packaging, the proper handling and disposal of which shall be the responsibility and expense of the Customer.
5.13. The Company shall retain title to the Products until full payment of the purchase price and its charges (e.g. VAT, possible packaging and delivery costs), with the proviso that the risk of damage shall pass to the Buyer upon delivery of the Products to the Buyer, who shall, upon receipt, inspect the Products quantitatively and as thoroughly as possible in terms of quality and quantity, in accordance with the individual or established acceptance practice. The Buyer shall bear the risks associated with the possession, custody and/or use of the Products from the date of acceptance and shall be liable for any damage caused by the Products from that date.
5.14. If the purchase price of the Products has not been paid in full by the due date, the Company may at any time demand the return of the Products delivered, whether they are in the possession of the Buyer or a third party. The costs of returning the Products pursuant to this clause shall be borne by the Buyer. In addition, any advance payment made by the Buyer to the Company shall remain with the Company as a default penalty.
5.15. If the Products have been modified or incorporated, the Company shall have a lien on the modified Products or the equipment in which they have been incorporated until the purchase price has been paid in full. The Buyer undertakes to inform any third party to whom the Products are sold, either on their own or as part of a system, of this reservation of rights.
6. Maintenance
6.1 Where expressly provided for in the Contract, the Company shall provide the Customer with maintenance instructions and maintenance training on one occasion upon delivery of the Products, on the basis of which the maintenance required for the operation of the delivered Product shall be carried out and documented in writing by the Customer as the operator of the Product. Maintenance shall mean the daily checks to be carried out on the basis of the maintenance manual/guide, preventive maintenance at the prescribed intervals and the replacement of parts based on diagnostics. The Purchaser as the operator shall ensure the procurement and storage of the materials used for maintenance.
6.2 In the event of malfunction, the Buyer shall comply with reasonable minimum troubleshooting requirements and notify the Company immediately of the malfunction. Failure to do so shall not be enforceable as part of a warranty or guarantee service and the Customer shall reimburse the Company separately for any service carried out by the Company.
7. Warranty, contractual guarantee
7.1 Unless otherwise agreed in writing by the Parties, the Company warrants the Custom Developed Products against failure in workmanship for a period of 12 months from the date of formal acceptance of the Custom Developed Products by the Customer or the Customer’s agent, subject to handling and maintenance in accordance with the maintenance instructions provided to the Customer. The Buyer shall without delay, and at the same time as giving written notice of the failure, provide the Company with detailed information about the circumstances of the failure and allow the Company to detect and remedy the failure. Under the contractual warranty, the Company shall remedy the defect discovered at its own expense, within the shortest period of time reasonably possible, depending on the nature of the defect, and by the means it deems necessary. In the event of a defect in the Customized Product, part or component under warranty, the Company may, at its sole discretion, repair the defect in the Customized Product, part or component or replace the defective item or re-perform the defective service. Replacement parts replaced by the Company and parts repaired by the Company shall be subject to the same warranty terms and conditions as the original Products, except that the repair, alteration or replacement of the Custom Improved Product or part thereof during the contractual warranty period shall not constitute an extension or restart of the contractual warranty period.
7.2 For Commercial Products incorporated in the Products or Distributed Products, the Company shall only provide the warranty provided by the distributor or manufacturer of the Product in question, which warranty shall commence on the date of purchase by the Company.
7.3 In the case of Custom Developed Products, repairs or replacements based on the contractual warranty shall be carried out by the Company at the place of performance, unless otherwise agreed in writing by the Parties, provided that such place is located within the territory of Hungary. In this case, the Company shall bear the costs of the labour charges related to the work, except for the costs resulting from the delayed provision of the Customized Improved Product. If repair work outside the scope of the warranty becomes necessary in connection with the performance of the contractual warranty obligation, the Company shall only be obliged to carry out such work if the Customer pays the Company the otherwise applicable contractor’s fee applied by the Company. Replaced parts shall be the property of the Company and shall be delivered to the Company at the place of performance or sent to the Company without delay if the Company so requests.
7.4 In the case of Distributed Products, the Buyer shall return the Distributed Product affected by the failure to the Company. Repairs or replacements based on the contractual warranty shall in this case be carried out by the original manufacturer of the Distributed Products, to whom the Company shall forward the defective Product. If, upon inspection of the Products, it is established that the cause of the defect is covered by the warranty, the costs of delivery shall be borne by the Company from the Customer. If the cause of the defect does not fall within the scope of the warranty, the costs of transport shall be borne by the Customer. If, in connection with the performance of the contractual warranty obligation, repair work outside the scope of the warranty becomes necessary, the Company shall only be obliged to carry out such work if the Customer pays the Company the hourly rate applicable to the Hourly Technical Support Service applied by the Company. In the latter case, the provision of the Hourly Technical Support Service shall in no case extend the warranty or guarantee period.
7.5 In the case of a foreign place of performance, the Customer shall pay the Company for travel and accommodation expenses incurred in connection with the on-site installation work covered by the contractual warranty.
7.6 Any interference, modification, repair, discovery, etc. with the Product during the warranty period without the Company’s prior written consent shall result in the immediate termination of the contractual warranty.
7.7 The “Design Warranty” shall be valid for a period of 12 months from the date of acceptance of the Customized Product by the Customer, and shall be enforceable by the Customer only if the failure is clearly or demonstrably attributable to a design defect (e.g. undersized tools, inappropriate choice of materials). Repairs or modifications under the Design Warranty shall be free of charge. The Company may, at its sole discretion, in the event of a defect in the Custom Design Warranty Product, part or component, repair or replace the defective part or component or re-perform the defective service.
7.8.Enforcement of a contractual warranty or design warranty claim: The Customer shall notify the Company of any warranty or guarantee claim immediately upon discovery of a defect in writing by e-mail to cobra@contracontrol.hu or via the written contact interface on the Company’s website or in writing by a signed letter sent to the Company’s registered office. The Buyer acknowledges that the Company is not obliged to verify the authority of the person submitting the defect report on behalf of the Buyer, and the Parties do not require legal representation for this purpose.
At the same time as the notification, the Customer shall inform the Company of the circumstances of the failure and, if available, shall provide the documents supporting the malfunction. The Buyer shall give the Company all assistance in detecting and correcting such defects and shall not, unless the Company has given its express written consent, carry out or have carried out repair work by a third party: repair work by a third party shall terminate the contractual warranty.
7.9 The Company will respond to e-mail or telephone notifications received between 07.30 and 16.00 on working days, confirmed in writing, no later than the next working day. The Company undertakes that, in the case of work in Hungary, within 2 working days of the date of the Customer’s notification of a fault, a Company employee will arrive on site at a time agreed with the Customer and start to rectify the fault, provided that the Customer provides the necessary time and facilities. The duration of the repair shall depend on the availability of the Products, the time of supply of commercial materials and the capacity of the manufacturer. The person reporting the defect must be present on the spot when the repair work is started and handed over, without his personal presence the Company cannot start the repair work, and the time of his absence shall not be considered as a delay on the part of the Company. The Buyer acknowledges that the Company does not have a 0-24 hour customer service and that the Company does not have a permanent stock of spare parts.
7.10. The Buyer expressly acknowledges that the Company shall not be liable for any warranty or contractual guarantee in the following cases:
7.10.1. in the case of consumable equipment, or if the need for replacement or repair has been caused by natural wear and tear of the Product, or by lack of supervision of the Product, improper use and/or non-compliance with the Company’s specifications, including but not limited to improper operation, negligent or incorrect handling, excessive use, operation in an unsuitable operating environment, etc;
7.10.2. in the event of maintenance not in accordance with the Company’s specifications or, in the absence thereof, with the general professional rules;
7.10.3. in case of improper storage of the Product;
7.10.4. failure to comply with the instructions for installation, assembly, commissioning, operation and/or connection;
7.10.5. if the Buyer has made any changes or additions to the Products without the express prior written consent of the Company;
7.10.6. the capacity of the Product to achieve any objectives that the Customer may set for itself, unless expressly agreed in advance in writing by the Company;
7.10.7. in case of maintenance not in accordance with the maintenance instructions;
7.10.8. in case of damage, accident, external impact;
7.10.9. chemical, electrochemical or electrical effects;
7.10.10. information technology (“IT“) failures, information security failures, Internet service failures, Internet connection failures, failures due to lack of maintenance of the IT system (including, but not limited to, lack of adequate virus protection and firewall protection, failure to run updates, failure to perform necessary backups, errors in settings, etc.), failures related to the capacity and performance of the IT system, failures due to incompatibility of IT systems, other IT failures not foreseen at the time of conclusion of the Contract and beyond the Company’s control, cyber attacks and consequential damages resulting from them;
7.10.11. parts, tools, materials, equipment provided by the Customer (or another supplier designated by the Customer), which are to be used as mandatory, are not covered by the warranty or guarantee obligation, and the Company shall not be liable for them;
7.10.12 The Company does not warrant, guarantee or assume any liability for its activities in the provision of the Hourly Technical Support Service or for the products resulting from the Hourly Technical Support Service, taking into account that it is acting under the instructions and direction of the Customer.
7.11. The Company shall be bound by its warranty and guarantee obligations under this Clause 7 only if the Customer has fully met its payment obligations when due.
8. Out-of-warranty/warranty or out-of-warranty/warranty ad hoc service
8.1 After the expiry of the contractual warranty or guarantee period under Clause 7 of these GTC and in cases not covered by the contractual warranty or guarantee, in particular but not limited to the cases provided for in Clause 7.The Company shall carry out the servicing, repair or replacement of a Product, a component or a part thereof manufactured by it against payment of a separate fee, in particular an hourly rate for engineering and labour, agreed in writing and in accordance with a separate agreement (hereinafter referred to as the “Service Service“).
8.2 If the Customer orders the Company’s Service, the Customer shall provide the Company with detailed information about the circumstances of the failure and allow the Company to locate and rectify the failure at the same time as placing the order. The Company’s employee shall start the troubleshooting at the latest within 2 working days from the order for the Service at a time agreed with the Customer in advance in case of work in Hungary. The person reporting the defect shall be present on site at the time of commencement and handover of the Service. If the Company undertakes to provide a Service in the framework of its support activities, the Company shall accept fault reports only from authorised persons between 07.30 and 16.00 on working days. The Company may, at its sole discretion, repair a defect in a Product, part or component or replace a defective item as part of the Service. The repair carried out by the Company will be the subject of a worksheet, which will be invoiced after written approval by the Customer (1 hour will be invoiced for each hour started). Given that the basis for invoicing is the signed worksheet, it is the Customer’s responsibility to check its contents in each case. Incorporated commercial materials provided by the Company will be shown as a separate item on the invoice. The Customer acknowledges that the Company does not maintain a stock of the necessary parts for the Product as part of the Service, and therefore the time for repair or replacement may vary depending on the availability of the necessary commercial materials.
8.3 The Company provides a contractual warranty of 6 months from the date of the repair on the new replacement parts replaced and the parts repaired by the Company under the Service Service. The contractual warranty does not cover the mandatory parts, tools, materials and equipment provided by the Customer. The Company shall provide only the warranties provided by the distributor or manufacturer for the commercial products incorporated in the Products, starting from the date of purchase by the Company. Clauses 7.2, 7.5 to 7.6 and 7.8 to 7.12 of these GTC shall also apply to the contractual warranty for the Service Service.
8.4 The Company, when providing the Hourly Technical Support Service, does not warrant or guarantee the service it provides and/or the Product resulting from or related to the Hourly Technical Support Service, taking into account that the Hourly Technical Support Service is provided under the direction, supervision, instruction and responsibility of the Customer.
If additional, follow-up or additional work is required in relation to the Hourly Technical Support Service, it will be provided by the Company under a separate Hourly Technical Support Service.
9.1 The Company’s liability for the Custom Developed Products, Distributed Products and Services sold by it under the Contract shall be subject to the applicable laws and regulations, subject to any deviations from the Contract (including these GTC). The Company excludes liability for any breach of contract, except in the case of wilful misconduct and except in the case of damage to human life, limb or health, and the Company shall not be liable in particular for any special, indirect or consequential damages, whether in contract, tort or otherwise, incidental or consequential damages, such as, but not limited to, loss of profits, loss of profits, loss of revenue, loss of business, injury to reputation, loss of use, loss of data or production, punitive damages, third party claims in connection with the Products or Services.
9.2 The Company excludes its liability for damages resulting from the technical solutions proposed by the Customer, the use of suppliers selected by the Customer, as well as for commercial products which the Company is obliged to use at the request of the Customer during the performance. Where the Company incorporates commercial products, tools and equipment provided by the Buyer (or another supplier appointed by the Buyer) into the Custom Developed Products, the Company shall have no warranty or guarantee obligation in respect of such tools and equipment and the Buyer shall be responsible for ensuring their proper functioning. The Company also expressly excludes its liability for Hourly Technical Support Services performed under the direction, supervision, instruction and responsibility of the Customer and for the results of Hourly Technical Support Services, the Hourly Rates being determined in light of this exclusion of liability.
9.3 The Company manufactures the Custom Developed Products to the best of its ability and, in the case of Distributed Products, selects its suppliers and subcontractors for distribution accordingly. The Company can only meet the specific Customer requirements if the Customer has provided the Company with all available technical information and material and product samples at the time of entering into the Contract. In the absence of technical information and/or original material samples or product samples, the Company shall not be liable for the quality and suitability of the Products. The Company shall be entitled to modify the terms of performance and/or the purchase price on the basis of technical information and/or material samples or product samples provided late or subsequently. The Company shall subject all its Custom Developed Products to careful inspection and testing in accordance with the specifications prior to delivery. The cost of any other test or examination ordered by the Buyer and not stipulated by the Company in the Contract, including trial runs, sample products, other than the technical handover protocol, shall be charged to the Buyer and all costs incurred in the course of any test, trial or examination ordered by the Buyer shall be borne by the Buyer. Life cycle tests are not part of the Contract. If the Buyer requires this for the manufactured components, the specific tests shall be set out in a separate contract and the costs shall be borne by the Buyer. The Company shall not be obliged to provide a lifetime guarantee for commercial elements even within the guarantee period. If the Buyer exceeds the number of operating cycles specified by the manufacturer, it shall replace the part as part of its maintenance and ensure its regular replacement. The Company shall not be liable for any defect or deficiency of the Product which has occurred because the Customer has not provided the Company with sufficient technical information and/or the original material sample or product sample was not appropriate. The Customer shall also be responsible for ensuring that the Product ordered by it is fit for its intended purpose and suitable for the purpose specified in the documentation provided by it.
9.4 The Company shall not be liable for any damage, loss or malfunction resulting from improper or incomplete maintenance. Nor shall the Company be liable in the cases listed in clause 7.10 of these GTC.
9.5 By accepting these GTC, the Customer acknowledges that the Company excludes its liability for defects in the Products and Systems resulting from the Customer’s failure to perform the necessary IT maintenance, failure to apply appropriate virus protection measures, failure to use an appropriate firewall. The Company is also not responsible for failure to run necessary backups, updates, nor for cyber-attacks. The Company shall not be liable for IT failures, information security failures, Internet service and Internet connection failures, inadequate IT settings, nor for failures related to IT system capacity or performance, nor for IT system compatibility, nor for other IT failures unforeseen at the time of the conclusion of the Contract and beyond the Company’s control. The Company also excludes liability for indirect or consequential damages, in particular but not limited to damages caused by defective products, recall, loss of profit, and for non-pecuniary damages.
9.6 The Company shall be entitled to use a subcontractor, and the Company shall be liable to the Buyer for the activities of the subcontractor used.
9.7 In the case of the provision of Hourly Technical Support Services, where a specialist engineer or technician with a particular skill set is required to perform the activity in question, the Company shall not be liable for the fact that if for any reason that person is no longer able to perform the activity in question for the Customer, it will be able to provide an engineer or technician with the same specialist skill set to replace him. In such a case, the Parties shall either agree to engage a new person with the same or similar qualifications and experience, for whom the Customer shall arrange training to acquire the appropriate specialist skills at its own risk, or, if the Company is unable to recommend such a person to the Customer, the Parties shall terminate the Contract and settle accounts with each other in respect of the hours already worked.
10. Vis maior
10.1 Even in the case of a fixed deadline, the legal consequences of delay shall not apply in the event of force majeure preventing performance of the Contract, during which the deadlines are suspended. Force majeure shall mean any unforeseeable circumstance or event beyond the reasonable control of the Parties which makes it temporarily or permanently impossible for a Contracting Party to perform the Contract, in particular, but not limited to, war, armed insurrection, terrorist act, strike, demonstration, blockade, boycott, natural event in the territory, or the occurrence of the same causes at the Company’s suppliers or delay of the Company’s suppliers towards the Company.
10.2 Force majeure shall also include a public health situation due to the worldwide outbreak of the coronavirus (COVID-19), which is already known as a fact at the time of the entry into force of these GTCs, and any other consequences thereof which may prevent, hinder or delay the performance of the Contract, including expressly those circumstances and consequences which could not have been foreseen at the time of the entry into force of these GTCs. This includes in particular, but is not limited to, disruption of the supply chain or plant operations due to official measures and/or restrictions, transport difficulties, obstacles to the supply of raw materials or energy, suspension or restriction of work by public authority or employer, lack of human resources, disruption of official measures, disruption in obtaining official authorisations, defective performance by the Company’s suppliers or subcontractors, etc. The provisions of this point shall also apply mutatis mutandis to a pandemic public health situation in the event of the cross-border spread of other diseases. A written statement by the Company or its suppliers (subcontractors) who are prevented from doing so shall be considered sufficient evidence to justify force majeure.
10.3 The Parties shall notify each other without delay of all events or facts, other than force majeure, which may jeopardise or make impossible the performance of the Contract and of which they become aware. The defaulting Party shall be liable for any delay or failure to give notice.
10.4 The burden of proving that notification has been given shall, in case of doubt, be on the party required to give notice.
10.5 The Company shall be entitled to suspend performance for the duration of force majeure or any other event specified in this clause by written notice to the Buyer and, in the event of a suspension exceeding 90 days, to withdraw from or terminate the Contract or any part thereof without liability. In the event of force majeure, in the event of suspension for more than 90 days, the Buyer shall also be entitled to withdraw from all or any part of the Contract by unilateral written notice, with the proviso that the Buyer shall pay a reasonable and proportionate part of the price of the confirmed Purchase Order based on the current design and manufacturing status.
11.1 The Company shall retain full copyright and all proprietary rights in the intellectual property created by it (or its employees or subcontractors) in the course of the performance of the Contract, including but not limited to all plans, drawings, models, documents, technical solutions, know-how, software, designs, developed tools, trademarks, etc. (“Intellectual Property“), unless otherwise agreed in writing by the Parties. The Intellectual Property associated with the Company’s Custom Developed Products, website, and catalogue is the exclusive property of the Company. By accepting these Terms and Conditions, the Customer expressly acknowledges that the entire content of the technical proposal sent by the Company to the Customer is the exclusive Intellectual Property of the Company and may not be disclosed or made available to or made known to any third party or otherwise used or exploited by the Customer without the prior written consent of the Company before, during and after the termination or expiry of the Contract. The Buyer further acknowledges that the Company Intellectual Property is the exclusive intellectual property and proprietary right of the Company and the Buyer expressly undertakes to comply with the rules relating to intellectual property.
11.2 The Buyer shall not be entitled to use the trademarks of the Company or any of the Company’s suppliers unless otherwise agreed in writing by the Parties.
11.3 Designs, drawings and documentation provided to the Buyer as a component of the Product or together with the Product as an accessory or in the course of the business relationship are the Intellectual Property of the Company, are trade secrets and shall be treated as confidential. The documentation provided shall be used by the Customer solely for the purpose of installation, operation and maintenance of the Customized Products covered by the Contract.
11.4 Unless otherwise agreed in writing by the Parties, the Company shall be the exclusive owner of all patented or unpatented technology or know-how and all industrial and intellectual property rights in the Product, whether patented or unpatented, embodied in the Custom Developed Products. The manufacture or production of replacement parts shall be permitted only with the prior written consent of the Company.
11.5 The Buyer agrees not to transfer or disclose the Company’s Intellectual Property to any third party and agrees to use it solely for the operation and maintenance of the Product.
11.6 Where the subject matter of the Contract is software or, in connection therewith, the Company is (also) obliged to provide software, the Company shall not be obliged to provide source code under any circumstances other than the (non-exclusive) right to use the software. Designs, documents and code, if any, transmitted to the Customer shall, unless otherwise agreed in writing in the Contract, remain the exclusive property of the Company and shall be considered strictly confidential information. The terms and conditions for the use of the software and databases are set out in the attached licences. If no licences are attached to the Product, the applicable copyright rules shall apply.
11.7 With respect to third party technology incorporated into the Product, such as software (the “Program“), the Buyer obtains a non-exclusive, non-transferable temporary license to use the Program solely for the purpose of using the Products for their intended purpose. The Buyer agrees to comply with the terms and conditions of the Agreement, in particular with respect to the instructions contained in the Program’s user manual or the Company’s technology contained in the documents provided. If no documents are provided for the Product, the applicable copyright rules shall apply. The Customer agrees not to copy, reproduce, reverse engineer or otherwise attempt to retrieve the source code of the Program or the Company’s technology. It is the responsibility of the Customer to make any necessary updates to the Program. If the Customer breaches the above provisions, it shall bear all consequences thereof, including any resulting liability for damages.
11.8 The sale of the Product to the Buyer and the transfer of designs, drawings, software and/or other related documentation and other intellectual property in connection therewith shall not constitute a transfer to the Buyer of any relevant copyright or industrial property rights of use, exploitation or exploitation.
11.9 The Buyer shall only be entitled to modify, transform, alter, create derivative works from or transfer to third parties, make available or make available to third parties, grant sub-licensing rights to third parties, or disclose to the public any intellectual property owned by the Company with the written consent of the Company. The only exception to this shall be where the contract specifically provides for the assignment of rights of use, exploitation, exploitation and copyright. The Buyer acknowledges that in the event of infringement of the Company’s Intellectual Property, the Parties agree to pay a penalty of EUR 50,000.00 as security for the enforcement of the Company’s further claims.
11.10. The Company reserves the right to display its name or logo on the Products it manufactures.
11.11. The Company shall in all cases only provide the CE marking / EC declaration for modifications made by the Company to the parts or Products manufactured by the Company. The Company’s CE responsibility does not extend to any other parts of the Product, other related equipment on the production line.
11.12 If the design or manufacture of a Product is based on documentation (drawings, plans, etc.), information or instructions provided by the Customer, the Customer shall ensure that the documentation, information or instructions provided by the Customer to the Company do not infringe the intellectual property rights of third parties. If any third party asserts a claim against the Company on the grounds of infringement of intellectual property rights on the basis of documentation, information or instructions provided by the Buyer to the Company, the Buyer shall be obliged to replace the Company and to provide all assistance to the Company in order to defend itself effectively against the claim. The Buyer agrees that in the event that a court of law, upon the application of a third party, finds by a final judgment that documentation or information or instructions provided by the Buyer to the Company are unlawful or infringe the intellectual property rights of a third party, the Buyer shall reimburse the Company for all costs and damages incurred by the Company in connection with the legal proceedings.
12.1 The Parties shall regard as confidential information any written documents, information, data or know-how relating to the Contract or otherwise arising between the Parties, provided by either Party to the other Party, which is classified as such by a Party or the nature of which otherwise results in its confidentiality and which is not known to third parties or the public. The Parties shall also regard as confidential information any pre-contractual discussions between the Parties and any documents made available to each other at such discussions. The Parties shall treat confidential information as business secrets during the establishment of the business relationship, during the term of the Contract and after its termination. The Buyer expressly acknowledges that the Company shall consider as confidential information in particular, but not exclusively, the Company’s technical offer, all information relating to the Company’s research, Products, software, suppliers, services, developments, creative projects, inventions, processes, designs, drawings, engineering solutions, know-how, as well as the Company’s marketing, economic or financial data.
The Buyer agrees that it will use the Company’s confidential information only to the extent necessary to fulfil its obligations to the Company and will not use the confidential information in any other way unless approved in writing in advance by the Company.
12.2 The Parties undertake to keep confidential, not to disclose or make available to the public or to third parties any confidential information, even in part, without the prior written consent of the other Party, and to take all reasonable steps to ensure that the contents thereof are not disclosed or made available to the public or to third parties. The Company and the Buyer shall treat the contents of the Contract and all information relating thereto as business secrets and shall use them only for the purpose of performing the Contract. The obligations undertaken in this clause shall remain in force for 5 years after termination of the Contract. The party responsible for the breach of confidentiality shall be liable for the breach of confidentiality.
12.3 The obligation set out in Clause 12.2 shall not apply if the disclosure of confidential information is based on a mandatory provision of law or a final decision of a court, arbitration tribunal or public authority. The Parties shall be entitled to use the content of the Contract or any other agreement between the Parties as evidence in court, arbitration or public authority proceedings if the subject matter of such proceedings is a matter relating to such agreements.
12.4 Notwithstanding the provisions of this clause 12, the Buyer consents to the Company naming the Buyer and the Product or service provided to the Buyer as a reference to its potential or existing customers (on its website, in its catalogue or in other communications). The right under this clause 12.4 shall cease upon the express written request or invitation of the Customer to do so.
12.5 In the case of Hourly Technical Support, the Customer undertakes not to employ as an employee or engage in any other legal relationship, directly or indirectly, any employee or subcontractor or other agent of the Company who has acted or participated in any way in the performance of any Hourly Technical Support Service in connection with the performance of the Contract, in particular not to employ as an employee or engage in any other legal relationship (e.g. (e.g. an agency relationship), directly or indirectly, to any person who has acted as an employee, subcontractor or agent of the Company during the term of the Contract and who has specific, unique know-how and expertise (Non-Competition Agreement).
13. Notifications
13.1 The language of notices and communication in relation to these GTC shall be Hungarian. In case of a Customer who does not speak Hungarian, the language of notifications and communication shall be English, unless otherwise agreed in writing by the Parties.
13.2 Notices, statements and other communications under these GTC shall be in writing. The Parties shall be deemed to have sent a written form to the other Party by means of a written acknowledgement of receipt in the case of personal delivery to the official contact details – the Parties’ registered office, the email address in the commercial register in force at the time of conclusion of the contract or the contact details provided at the time of conclusion of the contract, by registered letter with acknowledgement of receipt, by fax message with acknowledgement of receipt, or electronically from the e-mail address of the official contact, provided that the other contact’s e-mail address is acknowledged or replied to by e-mail or any of the above. The Parties shall inform each other immediately of any change in their contact details. Any liability arising from failure to inform or delay in doing so shall be borne by the defaulting Party.
13.3 Notices shall be deemed to have been served at the time of delivery in the case of personal delivery, at the time of receipt of the confirmation in the case of fax and email delivery, in the case of successful confirmation, in the case of registered post within 2 days of posting, in the case of delivery by registered post, and on the date indicated on the return receipt, unless otherwise proven. In the case of delivery abroad by airmail, the notice shall be deemed to have been served 10 working days after dispatch, unless there is proof to the contrary.
13.4 Registered post is only suitable for domestic notification. Proof of receipt is proof of legal delivery of the notice (proof of receipt of the notice is the acknowledgement of receipt in the case of personal delivery, whereas proof of receipt is the proper addressing and posting of the letter in the case of registered mail, and proof of receipt is the acknowledgement of receipt in the case of notices sent by fax and/or email).
13.5 The Parties do not recognise oral notifications as legally binding notifications. Silence on the part of the Company shall not constitute consent, assent or acceptance.
13.6 The Parties’ legal representatives and their contact persons confirmed in writing by the other Party shall be entitled to make declarations in connection with the Contract. All statements made by the contact persons shall be binding upon and shall be binding upon the Party appointing the contact person.
13.7 In the event of any change in the Buyer’s business details or in any significant factors affecting the Buyer’s business, the Buyer shall inform the Company in writing, and the Buyer shall be liable for any failure to provide such information or for any delay in providing such information.
14. Denunciation
14.1 The Buyer may assign its rights and transfer its obligations under this Agreement only with the prior written consent of the Company.
14.2 The Company shall be entitled to assign, transfer and recover from any third party any right or claim it may have under this Agreement. The Company shall be entitled to enter into a contract or make a declaration to that effect with any third party in order to assign any obligation it may have under this Agreement.
15. Duty to cooperate
The Parties are obliged to continuously and intensively cooperate and inform each other during the performance of the Contract.
16. Environmental rules
16.1 The party holding the waste shall be responsible for its removal and destruction or for its removal and destruction at its own risk.
16.2 The Buyer acknowledges that the organisational and financial responsibility for the collection and processing of WEEE lies with the Buyer.
17. REACH provisions applicable to chemicals
17.1 With regard to the substances included in the list of REACH Regulation 1907/2006 and its updates and in accordance with paragraph 1 of point 33 of the said Regulation, the Company shall inform the Buyer of the presence of substances in excess of a concentration of 0.1% by weight in the Products supplied, in accordance with Article 57 of REACH Regulation 1907/2006, in order to ensure that the Product is used as safely as possible.
17.2 The Company warrants that the materials, either on their own or used in the preparation, or the incorporated Products used in the manufacture, have been used in accordance with the relevant registration, certification and limitation provisions.
18. Export control
18.1 Buyer acknowledges that if Buyer transfers the Products to a third party, Buyer (including its officers, employees, agents and authorized representatives) is responsible for compliance with national and international export and re-export laws and regulations and Buyer shall obtain all necessary licenses and permits for the export, re-export or import of the Products.
18.2 If necessary, the Buyer shall provide the Company with all information relating to the end user of the Products supplied by the Company, their intended destination and the intended purpose of use.
19. Dissolution, termination
In addition to the grounds for termination (withdrawal or termination) set out in these GTC or in the Contract, the Company shall be entitled to terminate the Contract immediately in writing without liability if the Customer breaches any of its obligations under the Contract and fails to remedy the breach within a reasonable period, but not less than 8 days, as determined by the Company after receipt of written notice to do so. In such event, all payments due to the Buyer shall be deemed to have become immediately due and payable and the Buyer shall pay a reasonable and proportionate part of the purchase price not yet invoiced in accordance with the current state of completion.
Even in the event of termination or expiry of the Contract, the provisions and provisions of the Contract which, by virtue of their content, are independent of the expiry of the Contract and which constitute unilateral or bilateral obligations extending beyond the expiry/termination of the Contract in time/substance (in particular: invoicing, payment obligations, warranty, confidentiality of confidential information, intellectual property, liability/indemnity, etc.) shall remain in force.
20. Data protection
20.1.The Customer consents to the Company processing and processing personal data of the Customer’s employees, agents, subcontractors or representatives provided by the Customer to the Company in accordance with the applicable data protection legislation, in particular Act CXII of 2011 on the Right to Information Self-Determination and Freedom of Information and the provisions of the GDPR. The Company shall use and store personal data solely for the purposes of documenting its own invoicing, contracts and accounting, for the maintenance of contracts in force, for contact purposes, for the assessment and settlement of claims arising from defective performance, where applicable, or for the recovery of claims, and may share them with external consultants for these purposes.
20.2 The Customer declares that it has the consent of the data controller in accordance with the applicable data protection legislation in respect of the personal data provided to the Company.
20.3 The Buyer, its officers, employees, agents and representatives shall handle business information relating to the Company and all data of the Company’s employees and contributors in compliance with the applicable data protection rules.
21. Applicable law – Disputes
21.1 If the Parties are subject to the jurisdiction of the Hungarian state, by accepting these terms and conditions the Buyer accepts that the Székesfehérvár District Court or the Székesfehérvár Court of Justice, depending on the value of the dispute, shall have exclusive jurisdiction to settle any disputes between the Parties.
21.2 Where the Buyer and the Company are subject to the jurisdiction of different States, and unless otherwise agreed by the Parties, the Parties shall exclude recourse to state courts for the settlement of any dispute arising out of or in connection with the Contract or the GTC, in particular in relation to its breach, termination, validity or interpretation, and submit to the exclusive and final decision of the Permanent Arbitration Court attached to the Hungarian Chamber of Commerce and Industry (Commercial Arbitration Court Budapest), provided that the Arbitration Court shall act in accordance with its Rules of Procedure (supplemented by the provisions of the Sub-Rules on Expedited Procedure), with three judges and in English. The Parties exclude the possibility of a retrial under Chapter IX of Act LX of 2017 on Arbitration. The substantive law applicable to the resolution of the dispute shall be Hungarian law, excluding its rules of private international law.