TERMS AND CONDITIONS 2.0
for the Sale of Products by Emco spol. s r.o. (Export)
I. Application of Terms and Conditions
1. These Terms and Conditions are issued by Emco spol. s r.o., a company having its registered office at Türkova 2319/5b, 149 00 Praha 4, Czech Republic, ID No.: 41191129 (“Emco”), and apply to the sale of food products to Emco’s customers having their place of business outside the Czech Republic.
2. These Terms and Conditions apply to all purchase contracts concluded by Emco after 1 December 2022, the subject of which is the export sale of contract goods to customers. If there is any conflict between purchase contracts (including pro forma invoice) and these Terms and Conditions, the provisions of the purchase contracts shall always prevail.
3. No alternative terms and conditions issued by customers shall be binding on Emco even if Emco has not expressly objected to them.
II. Conclusion of Purchase Contract
1. Prior to entering into a purchase contract with Emco, the customer must give Emco written notice if the goods to be delivered are intended for abnormal use or whether they will be used under circumstances or for purposes that are not customary or that pose a specific risk to health, safety or the environment.
2. All product orders placed by the customer with Emco must be in writing. No order shall be effective until Emco gives a written order confirmation to the customer. Emco may send the customer a written order confirmation within 30 calendar days of receipt of the order. The customer shall be bound by the order until that period expires. The customer´s order shall be irrevocable.
3. A purchase contract is concluded by Emco giving a written order confirmation in the form of pro forma invoice. The purchase contract shall not take effect if the customer makes, within 2 calendar days of receipt of the order confirmation, a written objection that the order confirmation by Emco is in conflict with the submitted order and details the discrepancies.
4. If the customer requires any changes to be made in an existing purchase contract, such changes are valid only if they have been approved by Emco in writing.
5. A purchase contract may also be concluded by being drafted as a single document that must bear the date of execution and be signed by authorised representatives of both parties.
III. Emco’s Obligations
1. Emco shall be obliged to deliver the goods specified in the written order confirmation to the customer on the agreed date and in the agreed manner and to transfer title to the customer. Unless different method and place of delivery are agreed, FCA delivery term (Incoterms 2020) Esa Úžice, ProLogis Park Úžice, Úžice 274-275, 277 45, Czech Republic shall apply. Emco shall be under no obligation to arrange transport and insurance of goods. Emco shall be entitled to make partial deliveries of goods and invoice them separately.
2. Unless otherwise agreed (e.g. by using an INCOTERMS term), risk of damage to goods shall pass from Emco to the customer on handover to the first carrier. If the goods sustain any damage after such handover, this shall not affect customer’s obligation to pay the full purchase price of the goods unless the damage is caused directly by Emco’s breach of its obligation. In such a case, the customer is obliged to immediately notify Emco in writing as well as the carrier and insurance company, if applicable.
3. Emco undertakes that the goods delivered shall be made in accordance with applicable European standards, have standard quality and meet the tolerances regarding the type, quantity and quality of ingredients and packaging. Goods shall be packed in accordance with the generally accepted standards that apply to them. If the customer requires any non-standard packaging of goods, any such requirement must be expressly stated in the order.
4. The agreed delivery time is conditioned on the customer timely obtaining all documents, permits, licenses or any other consent that may be necessary, opening letters of credit and/or making any agreed payments to Emco, and properly and timely fulfilling any other obligations arising therefrom. The agreed delivery time begins on the date of Emco’s written order confirmation and is approximate and non-binding for Emco. Emco shall be entitled to deliver the goods beyond the agreed delivery date if it notifies the customer that it will miss the delivery deadline.
5. Emco shall be entitled to suspend the fulfilment of its obligations if there are reasonable concerns that the customer will fail, in whole or in part, to meet their obligations in accordance with the contract, in particular if the customer is not sufficiently fulfilling its financial obligations towards Emco or if the limit set by the credit insurance company is under threat of being exceeded or if the credit insurance company is no longer willing to insure the customer. Instead of suspending the fulfilment of its obligations, Emco shall, at its sole discretion, be entitled to request that any future deliveries, including those that have been confirmed, be paid for in advance or that a letter of credit confirmed by a major reputable commercial bank operating in the Czech market be opened or a bank guarantee be issued. Both letter of credit as well as bank guarantee must be approved by Emco prior to their issuance.
6. Emco’s liability for any failure, whether complete or partial, to fulfil the obligations under an existing purchase contract shall be excluded if the failure is due to force majeure, which means unforeseeable events (e.g. but not limited only to natural disasters, legislative changes, war conflicts, political events, accidents, terrorism, etc.) that are beyond Emco’s control and that may disrupt the fulfilment of the obligations according to the purchase contract. Emco shall be obliged to give the customer immediate written notice of the occurrence of any such obstacle to the fulfilment of the contractual obligations. If a force majeure event occurs, Emco shall be obliged to meet its obligations under the existing purchase contract as soon as the effects of the force majeure end, and the delivery and all other deadlines shall be extended by the duration of the effects of the force majeure. If a force majeure event extends over a period longer than 30 calendar days, Emco shall be entitled to call on the customer to discuss possible termination of existing but not yet fulfilled purchase contracts.
7. The ownership of the goods shall pass from Emco to the customer at the handover to the first carrier or to the customer directly, whichever is applicable.
8. If the customer fails to pick up the goods or arrange transport for the goods for more than 20 days since scheduled date, then on 21st day, the agreed delivery term shall change to EXW (INCOTERMS 2020) Esa Úžice, ProLogis Park Úžice, Úžice 274-275, 277 45, Czech Republic and Emco shall be entitled to issue an invoice for the goods. From the day of issuance of proper invoice, the goods are the property of the client in Emco´s warehouse and are considered fully delivered to the customer. The customer´s goods in Emco´s warehouse will be destroyed after 200 days of storage without any type of compensation to the customer. The customer hereby irrevocably agrees in advance that he cannot dispute the proper invoice issued in accordance with the above rules.
IV. Price and Payment Terms
1. The customer undertakes to pay Emco the agreed price for the goods in the currency specified in the written order confirmation; every payment shall be made by bank transfer to Emco’s bank account specified in the invoice. If no price for the goods has been agreed to, the price typically charged by Emco for the goods at the agreed moment of delivery shall be used. The date of payment is the date when the payment is credited to the Emco´s bank account indicated in the invoice.
2. The purchase price shall be paid by the date specified in the written order confirmation or otherwise on receipt of the invoice. The payment obligation shall be met without any additional preconditions and, in particular, does not depend on whether the customer has accepted the goods and/or documents and/or has had an opportunity to inspect the goods. If any insolvency proceedings are initiated against the customer, all of the sums owed by the customer to Emco that are not yet payable shall become due immediately; the same shall also apply if the customer fails, without giving a legitimate reason, to meet its obligations towards Emco or third parties or if the customer has provided false information regarding the customer’s creditworthiness or if the cover provided by the credit insurance company is reduced or rejected for reasons not attributable to Emco.
3. Emco shall, at its sole discretion, be entitled at any time to offset any mutual outstanding claims. The customer’s rights to offset any amount owed by Emco to the customer against any amount owed to Emco are excluded in their entirety. If the customer tries to offset any claim, Emco shall be entitled to contractual penalty in the amount of 20 % of the amount the customer tried to offset.
V. Delivery of Defective Goods
1. Goods delivered are not in accordance with the contract if the customer proves, with regard to the terms set out in Article III hereof, that at the time of delivery the goods differed significantly from the specifications contained in the written order confirmation or, if no such specifications have been agreed to, that the goods are not fit for the usual purpose in the place of delivery.
2. Unless expressly stated in Emco’s written order confirmation, Emco shall not be responsible for the goods delivered being fit for any purpose that is not usual in the place of delivery and for meeting the customer’s expectations as well as any legal requirements existing outside the EU. Nor shall Emco be liable for any non-compliance with the contract that occurs after the expiration date has expired.
3. The customer shall be obliged to inspect, on transfer of the risk of damage to the goods, each individual consignment for obvious defects, in particular for completeness and for the integrity of the packaging. In the event of any non-compliance with the contract, the customer shall immediately notify Emco in writing and provide sufficient evidence (including, but not limited to, photographs).
4. Each notification regarding hidden defects must be filed by the customer with Emco in writing without undue delay after detecting the defect but no later than on the expiration date of the goods. Every written notification must contain description and documentation, including photographs, concerning the alleged defect at the time of its detection, including a description of the effects of the defect and the remedy sought.
5. After notification of any (hidden) defects as described in Art. V.3 and V.4 above, the customer shall be obliged to store the goods properly and separately until the claim has been settled. Until a claim filed by the customer has been found legitimate by Emco, the claim does not entitle the customer to make any financial deductions or withhold payment of any purchase price. If the customer’s claim is found legitimate, the customer shall be, according to Emco´s choice, entitled to receive replacement goods or a discount on the price of the goods.
VI. Withdrawal from Contract
1. In addition to statutory reasons, Emco shall be entitled to withdraw from the contract, in whole or in part, if the customer objects to the application of these Terms and Conditions. Emco shall also be entitled to withdraw from the contract if any insolvency proceedings are initiated against the customer, if the customer fails, without giving a legitimate reason, to meet their fundamental obligations towards Emco or third parties, if the customer has provided false information regarding the customer’s creditworthiness or if the cover provided by the credit insurance company is reduced or rejected for reasons not attributable to Emco.
VII. Compensation for Damage
1. In connection with any defective performance based on a purchase contract concluded with the customer, Emco’s obligation to compensate the customer for damage shall be limited as follows:
a) The customer is, first and foremost, obliged to notify Emco in writing within three business days since discovery of defective performance.
b) Emco shall be liable to the customer only to the extent to which the customer can prove that Emco has intentionally or through gross negligence breached its contractual obligations towards the customer.
c) Within its liability for damage Emco shall, to the extent set out in point d) below, compensate the customer for damage if the customer proves to have suffered, in direct connection with Emco’s breach of contractual obligations, unavoidable damage which Emco could foresee, including the amount of such damage, at the time of concluding the contract. Notwithstanding the above, the customer must make every effort to limit the customer’s exposure to the damage as soon as the customer becomes aware of the breach of the contract.
d) Emco shall not be liable to the customer for lost profits or reputational damage. The amount of compensation for late delivery of goods shall be limited to 0.5% of the purchase price of the undelivered goods per complete week of delay up to a maximum of 5% of the price of the undelivered goods. The amount of compensation for delivering defective goods shall be limited to 150% of the purchase price of the defective goods.
e) In the event of breaching its contractual obligations, Emco shall be obliged to pay compensation for damage solely in accordance with these Terms and Conditions. Any concurrent claims are excluded. Also excluded is any recourse against Emco’s bodies and their members and against Emco’s employees or representatives in the fulfilment of their obligations in connection with Emco’s breach of contractual obligations.
2. Notwithstanding any subsequent claims by Emco, the customer shall be obliged to pay the following to Emco for the customer’s breach of contractual obligations:
a) If the customer is in default with any payment, the customer shall be obliged to pay Emco default interest at the statutory default interest rate applicable in the Czech Republic at the time of default and bear any costs of judicial or extrajudicial debt recovery.
b) If the customer is delayed for more than 20 days since scheduled pick up day or fails entirely to pick up the goods, Emco shall be entitled to request from the customer contractual penalty in the amount of 150 % of the price of goods which was picked up later or no at all.
1. If any provision of these Terms and Conditions is found to be wholly or partly invalid or unenforceable, this shall not cause the invalidity or unenforceability of the remaining provisions of these Terms and Conditions. The parties undertake to replace any such invalid or unenforceable provision with a valid or enforceable provision most closely corresponding to the contents of the invalid or unenforceable provision.
2. All written communications, declarations, notices, etc. between the parties shall be in English. Email communication of the parties meets the requirement for the written form.
3. The contractual relationship between the parties and these Terms and Conditions shall be governed by the law of the Czech Republic, in particular by Act 89/2012 Coll., Civil Code. Parties hereby exclude application of United Nations Convention on Contracts for the International Sales of Goods (CISG).
4. If any dispute arises between the parties regarding the delivery of goods and the application of these Terms and Conditions that the parties fail to resolve amicably within a reasonable period of time, each such dispute shall be finally resolved by the Czech courts. The competent court shall be determined according to the seat of Emco.
5. These Terms and Conditions are available as a document at www.emco.eu and shall always apply in the version published on Emco’s website on the day upon which the customer submitsits order.