H-7634 Pécs, Bázis köz 1.

company registration number: – 02-09-070161

Tax number: 13528520-2-02

Email address: istvan.wilhelm@besel-schwaeller.hu

I. Subject and Scope of the GTC

These present General Terms and Conditions shall apply to the relationship between the Customer and the Contractor and shall govern the rights and obligations of the Contracting Parties.

These present general terms and conditions shall apply to any future ad hoc contract to be concluded between the Contracting Parties, even if not expressly provided for in such ad hoc contracts. If the Customer places an order in its purchase order with a content that is different from these General Terms and Conditions, then the provisions of these General Terms and Conditions shall apply. Terms and conditions that are different from these General Terms and Conditions shall only apply in the contractual relationship between the parties if this has been expressly acknowledged in writing in a confirmation e-mail sent by the Contractor.

II. Entering into contracts

Ad hoc contracts shall be concluded upon written confirmation by the Contractor.

II. 1. The order

The order shall include the following:

II. 1. 1. Identification and description of the product to be delivered, specifying the technical parameters, the drawings (e.g. wiring diagrams), technological specifications, instructions, the parameters to be met by the finished product, and the identification number,

II. 1. 2. The Customer shall inform the Contractor of the standards applicable to the product to be manufactured, including the standards applicable in the country of delivery, and provide the Contractor with the relevant documentation.

II. 1. 3. The Customer shall be entitled to stipulate that the Contractor shall only manufacture the Work using raw materials, auxiliary materials, supplies, tools, etc. provided by the Customer, or the Customer shall be entitled to stipulate from which manufacturer and how the Contractor can obtain them. The Contractor shall immediately notify the Customer if there is any obstacle to procurement which affects the timely performance of the Contract. In such a case, the Contracting Parties shall agree on an alternative source from which the Contractor can obtain the above.

The provisions of Points II.1. to II.1.3. shall be deemed to be instructions from the Customer.

II. 1. 4. The order and confirmation (together: contract) shall be effected by sending an email to the email addresses provided by the Contracting Parties.

II. 1. 5. The Contractor shall review the order and notify the Customer as soon as possible of its acceptance or of the need for further consultation for the conclusion of the contract. The Contractor shall inform the Customer in his confirmation of acceptance of the order and, after prior agreement between the Contracting Parties, of the time limit and the contractor’s fee, the place of performance ( by specifying international delivery terms) and the VAT rate applicable to the contractor’s fee. The confirmation shall state how the goods are to be packaged and at whose expense, and how the transport is to be carried out at whose expense. Furthermore, it shall also be specified whether partial deliveries are permissible.

II. 1. 6. The ad hoc contract shall be concluded between the Contracting Parties with the final content by means of an e-mail confirming the production parameters to the Contractor and the Customer.

III. Interpretation of the contract

In the event of a possible conflict between the contents of the general terms and conditions and the contents of the ad hoc contract, the contents of the ad hoc contract shall prevail with respect to the interpretation of the contract.

IV. Performance of the contract

IV. 1. Production

The Contractor shall start production after the conclusion of the contract. The product manufactured by the Contractor shall comply with the terms of the contract and the standards applicable to the product. The Contractor shall also inform the Customer if it gives inappropriate or unprofessional instructions. If the Contractor discovers that, in its opinion, the contract cannot be performed, it shall immediately inform the Customer by email (proposal for amendment of the contract). If the Customer raises no objection to this proposal for amendment of the contract by email within 5 working days, the Customer shall be deemed to have agreed to the amendment of the contract.

IV. 2. Quality control

The Customer shall be entitled to inspect the production at a previously agreed time without disturbing it in order to ensure quality/auditing.

IV. 3. Warehousing, insurance

The Contractor shall store and keep separate records of the Customer’s materials and accessories and finished products, store them properly and ensure that they are properly safeguarded, and take out property insurance for them. Materials and accessories not used in the performance of the contract shall be accounted for after the contract has been performed. The Contractor shall not use, alienate, encumber or give as security to any other person any goods which he has in his possession for the purpose of production under this present Contract for any purpose other than that of the Contract.

V. Prices and right to change the price

The prices are net prices determined at the Contractor’s premises (ab WERK, at work), subject to VAT in accordance with the applicable regulations and excluding packaging and transportation costs.

If the Contractor detects a material change in circumstances affecting the production costs, he shall initiate an amendment of the Contractor’s fee with the Customer. If the Customer does not approve the fee change within 20 working days, the Contractor shall be entitled to suspend his activities.

VI. Breach of contract

VI. 1. Exemption from breach of contract

Each Contracting Party shall be relieved of liability for breach of contract if they prove that the breach of contract was caused by circumstances beyond their control, unforeseeable at the time of the conclusion of the contract, which make it significantly more difficult or impossible for one of the Contracting Parties to perform (hereinafter referred to as force majeure). The Contracting Parties shall consider such events to include, in particular, state measures, war, insurrection, mobilisation, acts of terrorism, blockades, export and import bans, strikes, mass epidemics of employees, other breakdowns (including permanent breakdown of the IT system), natural disasters, disruption of transport or a reduction in the availability of essential raw materials, supplies, fuel and other materials, and similar events.

A force majeure event shall entitle the Contractor to extend the time for performance by a reasonable period after the force majeure event has ceased or to withdraw from the part of the contract not yet performed, in whole or in part. The Contractor shall forthwith notify the Customer after the force majeure has ended.

Either Contracting Party shall be entitled to invoke the foregoing if the other Contracting Party has been notified in writing of the fact and the expected duration of the force majeure. In the absence of any other written direction from the Customer, the Contractor shall continue to try to perform its obligations under the Contract and shall seek alternative means of performance which are not prevented by the above circumstances. The Contractor shall have the right to extend the period of performance by a reasonable time after the force majeure has ended or the right to withdraw in whole or in part from the part of the contract not yet performed. The occurrence of such events shall not affect the obligations to pay the price for the goods delivered prior to that date. The Customer shall also have the right to withdraw from the contract if the force majeure hindrance exceeds 30 days. In the event of withdrawal, the Customer shall reimburse the Contractor for the cost of the work carried out by the Contractor and the cost of the Contractor’s own materials installed.

VI. 2. Delay

VI. 2. 1. In the event of a delay attributable to the Contractor, the Contractor shall pay liquidated damages for each complete week of delay. The penalty shall be based on 0.25% of the value of the goods affected by the delay, up to a maximum of 2.5%. The Customer shall be entitled to contractual penalties only if he proves that he has suffered damage as a result of the delay. The price of the goods as the basis for compensation shall be exclusive of sales tax, freight and other costs. The Contractor shall be exempted from the consequences of delay if the Customer fails to supply or delays in supplying the prerequisites for production (hereinafter referred to as “prerequisites”), in particular documents, instructions, permits, consents, plans, raw materials, supplies, auxiliary materials, to the extent that the delay in supplying the same affects the Contractor’s performance.

VI.2.2. In the event of a delay of payment by the Customer, the Contractor shall be entitled to inform the Customer, on the basis of prior notification, that in the event of non-payment of his payment obligations under a previous contract, he will suspend the ongoing production until the payment is completed.

In the event of late payment of any obligation arising from this present contract:

A) in the case of sales within the EU, the Customer shall pay interest on late payment from the due date until the debt is paid, at the rate laid down in Directive 2011/7/EU on combating late payment in commercial transactions.

B) in the case of sales outside the EU, the Customer shall pay interest on late payment at the rate of 7% per annum from the due date until the debt is paid. If the rate of interest indicated in point A is increased, this rate shall also be applicable for the purposes of this present point.

In the event that the Customer is in default of payment to the Contractor, all outstanding claims shall become immediately due and payable without any further notice to the Contractor.

Customer’s delay in taking over

In the event that the delayed delivery is expressly requested by the Customer, or the goods are not received by the deadline, the Contractor shall be entitled to claim a compensation of 2.3 EUR per pallet per day for storage costs.

If the delay in payment or acceptance reaches 30 days, the Contractor shall be entitled to suspend the production in progress and shall inform the Customer thereof.

VI. 3. Defective performance

The Customer shall not refuse to accept the goods on the grounds of a minor defect.

In the event that the goods are defective at the time of acceptance or, if the risk of damage is transferred to the Customer earlier, at the time of transfer of risk, the Contractor shall have the option to repair or replace the goods or to remanufacture the goods, at his own expense.

If the Contractor fails to remedy the defect or fails to remedy it adequately, the Customer shall be entitled to withdraw from the contract or to reduce the purchase price. 

Claims relating to the remedying of defects, withdrawal on the grounds of defective performance and reduction in value shall be enforceable within 24 months of the date of taking delivery of the goods or of the passing of risk.

The Customer shall forthwith notify the Contractor of any claim for defective performance.

The Customer shall only be entitled to exercise his right of retention in the event of defective performance to an extent proportionate to the defective performance. The Customer shall not be entitled to exercise his right of retention in the event of limitation.

In the event that the withholding of the claim for defective performance was not justified, the Contractor shall be entitled to claim compensation for any damage suffered thereby as a result.

The Customer shall grant the Contractor a reasonable period of time to remedy the defect.

Defective performance shall not be deemed to have occurred if the product deviates only slightly from the characteristics laid down in the contract and has only a slight effect on the usability of the product, in the case of natural wear and tear and in the case of damage which, after the risk of damage has been transferred, is due to defective or negligent handling or excessive use of the product, caused by negligent or careless use, or by other external causes which the Contractor could not have foreseen in the knowledge of the terms of the contract, or due to a non-reproducible software defect, or due to unprofessional modifications, installation, disassembly or improper maintenance of the product, or if the product has been transported to a place other than the Customer’s place of business.

The Contractor shall not be liable for activities which he has specifically carried out in accordance with the Customer’s instructions. Furthermore, the Customer shall forfeit his warranty rights if he fails to provide the Contractor with all the prerequisites necessary for production and if the defect is attributable thereto.

The exclusion of liability set out in the preceding paragraph shall not apply in the event of fraudulent concealment of defects in the product by the Contractor, failure to comply with the warranty conditions relating to the characteristics, and in the event of injury to life, limb or health caused intentionally or as a result of gross negligence.

VI. 4. Inability to perform

If performance becomes impossible, the Customer shall be entitled to claim damages, unless the inability to perform is not due to the Contractor’s conduct. The compensation payable shall not, however, in such case exceed 10 % of the value of the part of the consignment for which it is established that it cannot be performed because of the inability to perform.

VI. 5. General rules on compensation

With regard to damages arising out of a contract concluded under these GTC and caused extra-contractually, unless otherwise provided for in these GTC, the Contractor shall be liable for damages caused extra-contractually by breach of contract or tort only and exclusively in the following cases:

– the Contractor has seriously and intentionally failed to comply with a fundamental obligation arising out of the contract

– The Contractor’s breach of the contract has caused damage to the life, limb or health of any person,

– The Contractor is under a duty to perform under product liability law,

– In the case of an express guarantee by the Contractor

– fraudulent conduct by the Contractor.

In the event of a breach of the essential terms of the contract, the obligation to pay damages shall apply only if the damage suffered was of a kind which is normal and foreseeable for the specific type of contract. The Contractor shall be liable for other damage to property and personal injury only if the occurrence of such damage could normally have been foreseen.

This shall apply to claims by the Client against the Contractor’s performance assistants and their performance assistants; the same shall apply to the Contractor’s legal representatives and their legal bodies.

VI. 6. Limitation of compensation

However, the Contractor’s liability in the cases under point VI.5. is limited to the amount specified below, namely for damage to property up to the amount of 600 000 EURO/event and 1 200 000 EURO/year within Europe. The Contractor shall inform the Customer, at the latter’s request, of the insurance conditions (including the method of making a claim) under which the insurer assumes liability for the Contractor’s damages and the Customer shall notify the claim in accordance with the insurance conditions. The Contracting Parties shall co-operate with each other in the settlement of the Customer’s claim.

VII. Intellectual property rights

VII. 1. Intellectual property rights of the Customer

The Customer hereby expressly declares that the performance of the order on the basis of the instructions of the Customer by the Contractor is entirely without prejudice to the intellectual property rights of any third party. In the event that such a circumstance is established at a later date, the Customer hereby undertakes to reimburse the Contractor for all costs and damages incurred in this connection and to forthwith reimburse all costs of any litigation in this connection as soon as they are incurred.

VII. 2. The Contractor’s intellectual property rights

All of the Contractor’s quotations, drawings and all documentation that has come to the knowledge of the Customer in connection with the performance of the Contract shall be the intellectual property of the Contractor and the Contractor shall have the exclusive right to use and sell the same. These documents shall not be made available to any third party without the prior written consent of the Contractor and, in the event that no order is placed by the Client, these documents shall be forthwith returned to the Contractor, without any copies being made thereof.

VII. 3. Industrial property rights and copyrights, legal liability

The Customer shall immediately notify the Contractor in writing of any claim asserted by any third party. The Customer shall not be entitled to make an admission of any infringement and shall not waive any available legal protection measures, including the settlement of disputes by agreement. If the Customer discontinues the use of the product in order to reduce his own damage or for other important reasons, he shall inform the third party asserting the claim that this is not a recognition of an infringement of industrial property rights/copyright.

The Customer’s right to assert a claim shall be excluded if the infringement is attributable to the Customer’s conduct, arises from the Customer’s special specifications, from the use of the product in a manner unknown to the Contractor or from the Customer’s alteration of the product.

VIII. Contact

Notifications between the Contracting Parties shall be made in writing, by personal delivery or by sending to the addressee by registered mail or express mail service (such as EMS, DHL, etc.) to the postal address specified in the contract or by sending to the e-mail address previously specified in the order and the confirmation thereof or, in the event of a change, to an address specified in writing by the respective Contracting Party by registered mail or express mail service with reference to this point of the contract. Failure by either Contracting Party to notify the other of a change of address shall be deemed to constitute acceptance of the notification sent to the former changed address, with all its legal consequences.

IX. Assignment

Unless otherwise agreed by the Contracting Parties in these GTC, no Contracting Party shall be entitled to assign this Agreement or any of its rights and obligations hereunder without the written consent of the other Contracting Party.

X. Offsetting

The Customer shall be entitled to enforce his claim against the Contractor by way of set-off only and exclusively if the Contractor fails to contest it or if a final court judgment obliges the Contractor to do so.

XI. Right of retention

Unless otherwise agreed between the Contracting Parties in these GTC, the right of retention on the part of the Customer can only be exercised if it arises between the contracting parties from the same contract and the Contractor does not contest the Customer’s claim or it has been determined by a final court decision.

On the part of the Contractor, also in the case of the provisions of the preceding paragraph, a claim shall be deemed not to be contested if it is expressly accepted in writing.

XII. Retention of ownership

The ownership of the goods delivered under the contract shall remain with the Contractor until the full purchase price of the goods has been paid to the Contractor, but the Customer shall be entitled to resell the goods ordered in the ordinary course of its business until the Customer is in delay of payment, but shall not be entitled to charge or assign as security any goods for which the Customer has not yet paid. In the event that the goods are resold without the Customer having acquired ownership thereof, taking into account the fact that the Customer has not paid the price by the due date, the Customer shall inform his buyer of this fact and assign his claim against the buyer to the Contractor as security for payment of the price. The Customer shall inform the Contractor accordingly. Likewise, the Customer shall inform his Buyer that if the goods or the incorporated goods are resold, the Customer’s Buyer shall assign his claim against the Contractor as security for the payment of the claim if the preceding condition is fulfilled.

The Customer shall be entitled to process the goods subject to retention of title by combining (verbinden), mixing (vermischen) and processing (verarbeiten) with other things, provided, however, that the Customer shall ensure that our ownership rights continue to extend to the new thing thus created, in such a way that the Contractor shall have partial ownership of the resulting product to the extent that the value of the goods to which the reservation of ownership applies is proportionate to the value of the combined, mixed or processed product at the time of combining, mixing or processing.

Where the goods are combined, mixed or processed with an object or objects not owned by the Contractor, the provisions on assignment shall also apply. The assignment shall be due to the Contractor in the event of combination, mixing or processing up to the (net) amount indicated in the invoice for the goods concerned.

XIII. Transfer of risk of damage

The risk of loss or damage shall be transferred from the Contractor to the Customer when the Contractor reports the Product to the Customer as completed and ready for dispatch or when the Product has been packed for dispatch or accepted. If expressly requested by the Customer, the Contractor shall arrange for delivery at the Customer’s expense, provided, however, that the Contractor shall insure the goods against the usual risks of transportation at the Customer’s expense and risk. If the Contracting Parties have expressly agreed otherwise in writing, they can also agree that the risk of loss or damage shall be transferred after a successful trial run.

If the dispatch of the goods, the acceptance of the goods, the trial run or the assembly or installation of the goods is delayed for reasons attributable to the Customer, the risk of loss or damage shall be transferred to the Customer as soon as such delay occurs.

XIV. Confidentiality

Neither Contracting Party shall disclose to third parties, either orally or in writing, any information relating to or coming to their knowledge or in connection with the Contracting Parties or the contract concluded under these GTC without the prior written consent of the other Contracting Party. However, this obligation shall not apply to information which is or becomes available on or after the date of this agreement (in a manner that does not constitute a breach of this agreement by a Contracting Party) or where disclosure is required by applicable law or is necessary to pursue a claim specified by a Contracting Party under this present Contract.

XV. Severability

In the event that one or more provisions of these GTC or of a contract concluded under these GTC were for any reason invalid, illegal or unenforceable, the invalidity, illegality or unenforceability of such a provision shall not affect the remaining provisions of the contract provided that the law governing the contract so permits and that, in such a case, the Contracting Parties shall endeavour to achieve the purpose of the provision by amending it mutually so that it ceases to be invalid, illegal or unenforceable.

XVI. Governing law, arbitration

In order to settle any dispute arising out of or in connection with these GTC or a contract concluded under these GTC, in particular in relation to its breach, termination, validity or interpretation, the Contracting Parties hereby exclude recourse to the state courts and submit themselves to the exclusive and final decision of the Permanent Arbitration Court operating under the Hungarian Chamber of Commerce and Industry, provided that the Arbitration Court shall act in accordance with its Rules of Procedure. The number of arbitrators shall be 3 and the language of the ad hoc contract, if it is Hungarian, English or German, shall be applied. The Contracting Parties hereby exclude the possibility of a review of the proceedings under Chapter IX of Act LX of 2017 on Arbitration. The substantive law applicable to the resolution of the dispute shall be that of Hungary, excluding its rules of private international law. The Contracting Parties hereby exclude the possibility of applying the provisions of the United Nations Convention on Contracts for the International Sale of Goods (Vienna Sales Convention).