Contract
2024/125
VZ-16-2024
Níže uvedeného dne, měsíce a roku smluvní strany:
Ústav fyzikální chemie J. Heyrovského AV ČR, v. v. i. zaps. v rejstříku veřejných výzkumných institucí vedeným MŠMT sp. zn. 17113/2006-34/ÚFCH JH se sídlem: Xxxxxxxxxx 0000/0, 000 00 Xxxxx 0 - Xxxxx IČO: 613 88 955 DIČ: CZ61388955 Bankovní spojení: XXXXXXXXXXX Číslo účtu: XXXXXXXXXXX Zastoupená: xxxx. Xxxxxx Xxx, Dr. rer. nat. DSc., ředitel
(dále jen „kupující“)
a
PicoQuant GmbH Se sídlem: Xxxxxxx Xxxxxxxx 00, 00000 Xxxxxx Zapsaná v OR: Commercial Register, HRB 60901Berlin-Charlottenburg Zastoupen: Xx. Xxxxxxx Xxxxxx IČO: 37/098/45817 DIČ: DE 812140373 Bankovní spojení: XXXXXXXXXXX Číslo účtu: XXXXXXXXXXX Kontaktní osoba: XXXXXXXXXXX tel.: XXXXXXXXXXX e-mail: XXXXXXXXXXX
(dále jen „prodávající”)
uzavřely dle § 2079 a násl. zákona č. 89/2012 Sb., občanský zákoník, v platném znění (dále jen „OZ“) tuto
kupní smlouvu (dále jen „smlouva“)
PREAMBULE
I. Vymezení pojmů |
On the date specified below, the contractual parties:
X. Xxxxxxxxx Institute of Physical Chemistry of the Czech Academy of Sciences, v. v. i. Incorporated: the register of public research institutions led by the Ministry of Education, Youth and Sports, file number: 17113/2006-34/ÚFCH JH Registered office: Xxxxxxxxxx 0000/0, 000 00 Xxxxxx 0, Xxxxx Xxxxxxxx ID No.: 61388955 Tax ID No.: CZ61388955 Bankers: XXXXXXXXXXX Account no.: XXXXXXXXXXX Represented by: xxxx. Xxxxxx Xxx Dr. rer. nat. DSc., director
(hereinafter referred to as the “Purchaser”)
and
PicoQuant GmbH Registered office: Xxxxxxx Xxxxxxxx 00, 00000 Xxxxxx registered in the Commercial Register: HRB 60901 Berlin-Charlottenburg Represented by: Xx. Xxxxxxx Xxxxxx ID No.: 37/098/45817 VAT ID No.: DE 812140373 Bankers: XXXXXXXXXXX Account no.: XXXXXXXXXXX Contact person: XXXXXXXXXXX Telephone: XXXXXXXXXXX e-mail: XXXXXXXXXXX
(hereinafter referred to as the “Seller”)
Concluded, in accordance with Section 2079 and ff of Act No. 89/2012 Coll., Civil Code, as amended, (hereinafter referred to as the “CC”), this
(hereinafter referred to as the “Agreement”)
PREAMBLE
I. Definitions
For the purposes of this Agreement:
Delivery of the equipment shall mean transport to the place of performance, acceptance of the consignment from the transport company, checking the consignment and placing it in the place of performance. The equipment must be supplied complete. The Purchaser does not permit delivery in stages, as it does not have the space for safe storage of unpacked consignments until instalment of the equipment is commenced.
Installation of the equipment shall mean its unpacking and checking, installation in the place of performance, calibration, connection to utilities and in particular to the electricity supply, to low-voltage and optical distribution networks, and water, gas, technical gas, heat, cooling or air-conditioning networks (if the functioning of the equipment requires such connections) and installing all necessary media in the equipment.
Commissioning shall mean testing and verification of the proper functionality of the equipment, and, if needed, calibration, as well as the performance of other operations and activities necessary to enable the equipment to fulfil the agreed or customary purpose, as well as training of the Purchaser’s operators.
Training operators shall mean explaining the design and operation of the equipment, demonstrating the operation of the equipment, including all routine measurement and maintenance procedures to be followed by the operators, methodical guidance and supervising the multi-member group of operators as they practise operation and maintenance.
A communication delivered to an e-mail address specified in this Agreement, or used in accordance with this Agreement, shall also be regarded as a written form of communication, even if individual messages are not furnished with guaranteed electronic signatures. The receipt of an electronic confirmation from the counterparty that the message has been read shall be regarded as confirmation of delivery by such means. E-mail cannot, however, be used as a form of communication for: 1) concluding the Agreement; 2) concluding amendments to the Agreement; 3) withdrawing from the Agreement.
II. Subject matter of the Agreement
1. The Seller undertakes to deliver to the Purchaser, at the place of performance, at its own expense and risk and under the terms of this Agreement, an electronic for time-resolved photon counting (hereinafter referred to as the “Equipment”) and to transfer ownership of the Equipment to the Purchaser.
If a licence is necessary for the effective use of the Equipment, by this Agreement the Seller grants the Purchaser a licence free of charge for the use of the supplied software, and does so for the duration of the Purchaser’s ownership of the Equipment. The Equipment is specified in detail in the procurement documents relating to the public contract and the Equipment specification contained in Annex No. 1 to this Agreement – Technical Specification (Quotation of the Seller).
2. The Equipment must be new, unused, fully functional, unrenovated, complete, not borrowed, not under leasing, without any other legal defects, and not infringing the rights of third parties under patent or other forms of intellectual property in accordance with Annex 1 – Technical Specification, such that the Equipment can be fully utilized.
3. The Seller undertakes to provide on-site performance of the following services according to Article IV(1) of this Agreement:
3.1 to ensure that a representative of the Seller will be present in the place of performance will, in the Seller’s name and at the Seller’s expense, takes care of: *Notice: Not used
3.1.1. organising the unloading and taking delivery of the Equipment from the transport company; *Notice: Not used
3.1.2. moving the Equipment to the place of performance with the help of the Purchaser’s employees. For the avoidance of doubt the parties to the Agreement expressly declare that the Purchaser will not take delivery of any consignments from the transport company without the presence of the Seller’s responsible representative, unless the parties to the Agreement agree otherwise in writing; *Notice: Not used
3.2. unpacking the Equipment from its transport packaging and checking the Equipment; *Notice: Not used
3.3. installing the Equipment; *Notice: Not used
3.4. commissioning and calibrating the Equipment; *Notice: Not used
3.5. performing initial testing of the Equipment with the participation of the Purchaser and with a view to making sure that the installed Equipment functions properly (see Article II(4) of this Agreement); *Notice: Not used
3.6. performing any inspections prescribed by the manufacturer, the Equipment operating instructions or the statutory regulations; *Notice: Not used
3.7. training multi-member teams of the Seller’s employees in the operation of the Equipment in the premises of the place of performance; *Notice: Not used
3.8. performing, with the Purchaser’s participation, tests defined by the Purchaser and designed to verify the required technical parameters in the scope laid down by the Technical Specification – see Annex no. 1 to this Agreement; *Notice: Not used
3.9. ensuring, in its own name and at its own expense, the expert disposal of all packaging and materials used in the transport of the Equipment, doing so in a manner compliant with Act No. 185/2001 Sb., on waste and amending certain other acts, and the relevant decree of the municipality in which the packaging/materials will be disposed of; *Notice: Not used
3.10. participating in drawing up a record of acceptance when the Equipment is handed over pursuant to Article V of this Agreement and handing over the “Handover Documentation” pursuant to Article V(5) of this Agreement to the Purchaser. *Notice: Not used
4. Equipment testing: 4.1. As part of the testing the Seller shall verify all functions of the delivered Equipment in accordance with the requirements of Article II(3)(5) and shall perform tests requested by the Purchaser to demonstrate that the required technical parameters are attained in accordance with the requirements of Article II(3)(8) (hereinafter referred to as “Testing”); *Notice: Not used
4.2 Any fault of the Equipment, ancillary devices or control system resulting in a failure to attain any of the parameters or properties of the Equipment required by the procurement documents shall result in a cessation of the Testing (pursuant to Article II(3)(5)) or trials (pursuant to Article II(3)(8). After the fault has been rectified, the Testing or trials shall be resumed from the beginning. *Notice: Not used
5. Environmental clause: When performing the subject matter of the Agreement the Seller shall comply with the applicable technical standards and environmental requirements and use environmentally friendly packaging. The Seller shall furthermore take back all packaging delivered with the goods and recycle or reuse such packaging in an appropriate manner.
6. Reserved change in the obligation with regard to the subject matter of performance: The Purchaser reserves the right to change the obligation so that if, during the term of the Agreement, the production of components for the subject matter of performance originally contracted for by this Agreement ceases or the production of the originally contracted-for subject matter of performance ceases in its entirety, the Seller is entitled, with the Purchaser’s prior consent (granted by e-mail), to supply equipment that is different but equal or better in terms quality and conforms to the minimum technical parameters required by the Purchaser and the technical parameters set out in Annex no. 1 of this Agreement, at the same (original) purchase price (hereinafter referred to as “Alternative Performance”). In such an event the Seller is obliged to inform the Purchaser of this fact without delay and to provide the Purchaser with the relevant documents (in particular a technical description of the Alternative Performance) proving that the requirements according to the previous sentence are met, and to do so by e-mail to the contact e-mail address: XXXXXXXXXXX. The Purchaser is obliged to assess within 10 working days whether the Alternative Performance conforms to the technical parameters and to grant the Seller consent to deliver the Alternative Performance or to give reasons why the proposed Alternative Performance does not satisfy the technical parameters and cannot be delivered, and to do so by e-mail sent to the Seller’s contact e-mail address.
III. Purchase price and payment conditions
1. The total purchase price of the Equipment is:
EUR 23 738,05 excluding VAT
2. The price without VAT given in Article III(1) of this Agreement is the maximum admissible and unalterable price. In case that the seller is a VAT payer in the Czech Republic VAT will be added to the offer price excluding VAT according to the applicable legal regulations. In case that the seller is not a VAT payer in the Czech Republic VAT will be paid by the buyer according to the requirements of the applicable tax regime.
The Seller is liable for ensuring that the agreed price includes all the Seller’s costs associated with fulfilling its obligations under this Agreement (and in particular costs associated with customs clearance for exporting the Equipment from the manufacturer’s or Seller’s country and importing the Equipment into the Czech Republic, with packing, warehousing, transport and handling costs until the consignment arrives in the place of performance, with insurance of the Equipment covering transport to the place of performance, with unloading in the place of performance, with handling machinery, with approval proceedings, with the performance of the prescribed Testing, with arranging a declaration of performance for the Equipment, with certification and attestation, with the transfer of rights, with the installation and commissioning of the Equipment, with training operators in the place of performance et al.)
3. The Seller is not entitled to charge any other costs related to the performance of this Agreement. The purchase price including VAT may be altered solely in connection with a change in statutory VAT.
4. The purchase price shall be paid as follows: The purchase price shall be paid by wire transfer on the basis of a tax document (hereinafter also referred to as the “Invoice”) made out by the Seller after proper performance of the obligations laid down in Article II(3). The Seller shall deliver the tax document to the Purchaser no later than 5 business days after the Equipment is handed over to the Purchaser. The Purchaser requests that the tax document be delivered by e-mail sent to the contact e-mail address: XXXXXXXXXXX.
5. The Invoice shall be payable 30 calendar days after it is delivered to the Purchaser. The Purchaser’s obligation to pay the agreed purchase price shall be fulfilled on the day on which the invoiced amount is debited from the Purchaser’s bank account.
6. The Invoice must be issued in EUR and at a value corresponding to the purchase price stated in Article III (1) of this Agreement.
7. The tax document (Invoice) must contain all the elements required by the relevant legal regulations, in particular: a) the purchase price of the Equipment without VAT; b) the VAT rate in accordance with the requirements of the currently applicable tax rules, and the purchase price of the Equipment including VAT; c) the Purchaser’s reference number for the Agreement 2024/125 (*to be confirmed by the Purchaser before signing the Agreement)
d) a description of the content of the tax document: “Electronics for time resolved photon counting for a confocal microscope” public contract VZ-16-2024 is funded by the European Union under Operational Programme Xxx Xxxx Xxxxxxxx, project name: Advanced Multiscale materials for key enabling technologies (AMULET), Project registration number: CZ.02.01.01/00/22_008/0004558; e) the record of acceptance documenting the handover of the Equipment, made out in accordance with Article V of this Agreement and confirmed by the Purchaser must be attached to the tax document as an integral part thereof.
8. Should the invoice contain any incorrect or incomplete data or lack the required appended documents, the Purchaser is entitled to return it to the Seller before its due date without risk of being in default. The Seller must correct the returned invoice or issue a new, faultless one. In such cases, the Purchaser receives a new payment period, in accordance with paragraph 5 of this Article, starting from the delivery date of the corrected or newly issued invoice.
9. The Purchaser shall not provide advance payments.
10. Retention money: 10.1 If the Equipment is handed over by the Seller and accepted by the Seller without defects and requiring no additional work, or possibly with minor defects that do not prevent the use of the Equipment, and is so handed over by the deadline set in Article IV(3) of this Agreement, the Purchaser shall pay the full purchase price without VAT by the payment deadline in accordance with Article III(5) of this Agreement.
10.2. If the Purchaser takes delivery of the Equipment by the deadline set in Article IV(3) of this Agreement but the Equipment displays faults or requires additional work and the Purchaser applies retainage, the Purchaser shall pay (by 30.11.2024 at the latest) only 85% of the purchase price by the due date of the Invoice. The Purchaser shall pay the retainage of 15% of the purchase price only after the final fault specified in the Record of Delivery is eliminated and all the additional work specified in the Record of Delivery is completed, and shall do so by within the payment time limit calculated from the day on which the final fault is eliminated and all the additional work is completed. If the Purchaser assesses the faults as minor faults not preventing the use of the Equipment, the Purchaser may pay the full purchase price by the due date of the Invoice even before the final faults are eliminated and the additional work is completed.
10.3. The due date for the retainage, if applicable to the Purchaser under the Agreement, shall be no more than 30 days from the date on which the final defect was eliminated or the final additional work was completed, as stated in the record of acceptance.
IV. Place and time of performance
1. The place of performance (handover of the Equipment) is: the building housing the purchaser’s registered office: Xxxxxxxxxx 0000/0, 000 00 Xxxxxx 0, (room no. 218).
2. The persons who have been authorized by the Purchaser to accept the Equipment are listed in Article XIII (9) of this Agreement, or another person supplementally authorized (in writing).
3. Time of performance 3.1. The Seller is obliged to deliver the Equipment to the Purchaser at the place of performance and perform the services in accordance with Article II (3) hereof, no later than November 30th, 2024.
3.2. The Seller is obliged to commence the performance pursuant to Article II(3) of this Agreement no later than 3 working days after the date on which the Equipment is delivered and to complete it --- business days after its commencement, but no later than 14 working days after its commencement. *Notice: Not used
4. The instrument must be delivered complete; delivery in stages is not allowed.
5. The Seller is obliged to deliver the Equipment and to perform the related services on a date agreed by both contractual parties in writing, at the place of performance, on business days between 08:00 am and 03:00 pm; delivery at a different time shall be possible only in exceptional cases and by prior written (by e-mail) agreement with the Purchaser.
6. The Seller is obliged to conclude a written agreement with the Purchaser about the deadlines for: 6.1. delivery of Equipment to the place of performance: at least 10 business days in advance
6.2. installation and commissioning of the Equipment and at the place of performance: at least 10 business days in advance *Notice: Not used
6.3. operator training: at least 2 business days in advance *Notice: Not used
6.4. handover of fully functional Equipment: at least 2 business days in advance *Notice: Not used
6.5. extension of the delivery deadline, and to do so at least 10 business days in advance.
V. Handover of the Equipment
1. The Seller’s obligation pursuant to Article II of this Agreement shall be deemed to have been fulfilled upon the signing of a record of acceptance by the Purchaser and Seller.
2. The record of acceptance drawn up by the Seller and the Purchaser shall indicate the dates of the acceptance, which are the date of delivery of the Equipment and the date of provision of the related services. Such dates shall be decisive for the fulfilment of the Seller’s obligation under Article IV(3) of this Contract. A binding specimen record of acceptance is attached to this Agreement as Annex No. 3. *Notice: record of acceptance will be provided by the Purchaser
3. The Purchaser shall commence the acceptance procedure immediately after the successful completion of Testing and shall duly continue with such procedure.
If the Purchaser discovers that the Equipment is defective, the Purchaser shall refuse to accept it, specifying the defects. The parties to the Agreement shall make a record of such refusal in the form of a numbered and dated addendum to the record of acceptance. This shall not affect the Seller’s obligation under Article IV(3) of this Contract.
The Purchaser is not be obliged to accept any equipment that is defective or requires any additional work or if the Purchaser’s contact persons were not notified in writing of the date of delivery of the Equipment in accordance with Article IV(6) of this Agreement.
4. In the record of acceptance the Seller shall state the information defined in the binding specimen record of acceptance as per Annex No. 3 to this Agreement.
5. By this Agreement the Seller undertakes to hand over to the Buyer, simultaneously with the Equipment, all the standard documentation relating to the delivered Equipment and specified as follows: 5.1. the warranty statement or warranty certificate for the Equipment; *Notice: Not used
5.2. technical or system documentation for the Equipment; *Notice: Not used
5.3. user manuals and conditions for the operation and maintenance of the Equipment in Czech or English (manuals);
5.4. records of successful Testing and trials of the Equipment carried out in accordance with Article II(3)(5) and (3)(8) and Article II(4) of this Agreement;*Notice: Not used
5.5. records of any inspections in accordance with Article II(3)(6) of this Agreement; *Notice: Not used
5.6. a record of the training of the Equipment operators in accordance with Article II(3)(7) of this Agreement, giving the surname and signature of all persons trained and, where appropriate, the scope of the operations for which each person has been trained; *Notice: Not used
5.7. a declaration of compliance confirming that all the Equipment and ancillary devices delivered comply with the approved standards; *Notice: Not used
5.8. documents confirming the removal and disposal of all packaging and other materials used in the delivery of the Equipment. If such documents cannot be provided, a sworn statement by the Seller on the manner of removal and disposal of packaging and materials, provided as a separate annex to the record of acceptance, shall be sufficient. *Notice: Not used
6. The Seller shall hand over all documentation to the Purchaser in Czech or English as follows: 6.1. 1 paper version handed over upon the handover of the Equipment; and at the same time also
6.2. 1 electronic copy of the paper version delivered to the Purchaser i. via xxx.xxxxxxxx.xx or by electronic mail (e-mail) - to the contact e-mail address: XXXXXXXXXXX
ii. or in person on a data medium within 3 working days of the handover of the Equipment. *Notice: Not used
7. An electronic copy of the paper version shall be made and delivered by the Seller in a manner whereby 7.1. the required attachments to the Handover Documentation are scanned into one complete file (.PDF format) and named e.g. “Handover Documentation”; *Notice: Not used, or
7.2. the annexes to the record of acceptance are scanned separately into multiple sub-files (.PDF format), where the file names correspond to the names of such annexes as set out in Annex No. 3 - Specimen Record of Acceptance, specifically in the table on the reverse side of the record. *Notice: Not used
8. If the Seller fails to provide the complete record of acceptance, the delivery of the Equipment shall not be deemed to be properly. *Notice: Not used
9. The date of taxable supply shall be the date on which the Equipment is handed over to the Purchaser. The ownership right to the Equipment shall pass from the Seller to the Purchaser upon the acceptance of the fully functional and defect-free Equipment pursuant to Article V of this Agreement. The risk of damage to the Equipment shall pass to the Purchaser at the same time as the acquisition of the ownership right.
VI. Rights and obligations of the parties
1. The Seller is obliged to deliver the Equipment to the place of performance in accordance with Article IV(1) of this Agreement, in the original packaging, and in the agreed quantity, quality, design and time.
2. The Purchaser undertakes to accept the Equipment and the handover documentation in a due and timely manner, and to pay the Seller the agreed purchase price pursuant to Article III (1) of this Agreement.
3. The Seller undertakes and is liable for ensuring that if any critical material that is known at the time of its use to be harmful or non-compliant with hygienic or environmental parameters has been used in the delivery of the Equipment, it shall be rendered safe. The Seller is furthermore liable for ensuring that such material will only be handled by trained personnel.
The Seller further undertakes not to use materials that do not have the required certification when carrying out the delivery of the Equipment, where certification of such materials is required by applicable regulations. If the Seller fails to comply with these obligations, he is obliged to promptly remedy the situation at the Purchaser’s written request, and to bear all costs thereby incurred.
At the invitation of the Purchaser, but at the latest by the delivery time of the Equipment in accordance with Article IV (3) of this Agreement, the Seller shall provide a set of certificates for critical materials and supplies.
4. In performing under this Agreement the Seller is obliged to proceed with professional care and comply with all applicable generally binding legal regulations, relevant technical standards, the terms of this Agreement and the Purchaser’s instructions.
5. Safety and health protection in the workplace 5.1. The Seller is obliged to ensure compliance with all safety, hygiene and environmental measures, as well as fire protection measures, in relation to the delivered Equipment and the facilities in which the delivery of the Equipment is performed, and to do so to the extent and in the manner prescribed by the relevant regulations. *Notice: Not used
5.2. The Seller is obliged to provide initial training on occupational safety and health and on fire protection to all its employees working on the installation and testing of the Equipment at the place of performance. The Seller is also required to continuously update and check his employees’ knowledge of health and safety in the workplace and fire protection. *Notice: Not used
5.3. The Seller is obliged to ensure the implementation of initial training on safety and health protection at work and on fire protection of his subcontractors as well. *Notice: Not used
5.4. The Seller is fully liable for the safety and health of all persons who, so far as it is aware, spend time at the place of performance, and is required to ensure that they are equipped with protective working aids. *Notice: Not used
5.5. The Seller is obliged to carry out supervision and continuous control of work safety and fire protection during the delivery of the Equipment. *Notice: Not used
5.6. In the event of any injury occurring during the delivery of the Equipment to the place of performance or during activities related to the delivery of the Equipment to the place of performance, the Seller is obliged to ensure that the injury is investigated and to draw up the relevant record. The Purchaser is obliged to provide the Seller with the necessary cooperation when asked to do so. *Notice: Not used
6. The Seller is obliged to keep all documents and written materials prepared for the performance of the Public Contract, and to do so for the period and in the manner stipulated by the applicable legal regulations (Act No. 563/1991 Sb., on accounting, as amended, and Act No. 499/2004 Sb., on archives and the filing service and amending certain acts, as amended).
7. The Seller is obliged to provide the Purchaser with all the documents related to the subject of performance under this Agreement, which documents may be requested by the inspection authorities, and to do so until December 31st, 2035.
8. In accordance with Section 2 (e) of Act No. 320/2001 Sb., on financial control and amending certain acts, the Seller will be a person obliged to cooperate in the performance of the financial control. At the same time, the Seller undertakes to archive all written documents relating to the fulfilment of the subject matter of the purchase under this Agreement. The Seller is further obliged to provide all required information, document his activity, provide all documentation related to the project, and allow authorized persons to enter his premises and land to verify the conditions of the performance of the subject matter of the purchase under this Agreement. The aforesaid cooperation must also be provided by the Seller in the case of a check by the provider of institutional support. The Seller further undertakes to comply with all the rules and conditions imposed on him by the subsidy provision rules.
9. Subcontractors: 9.1. Annex No. 2 to this Agreement (List of Subcontractors) specifies which parts of the subject matter of performance under this Agreement will be done by a subcontractor of the Seller. The Seller shall ensure that such parts of the subject matter of performance will be done by the subcontractors in question in accordance with all the terms of this Agreement and that the subcontractors will fulfil all the obligations set out in this Agreement with regard to the Seller. This shall not affect the Seller’s sole liability for the proper fulfilment of this Agreement or any part thereof. *Notice: Not used
9.2. The Seller is entitled to change a subcontractor solely with the Purchaser’s consent. The Purchaser may not, however, refuse such consent without good reason. The Seller is obliged to give the Purchaser prior written notification of any change of subcontractor. The new subcontractor replacing the subcontractor specified in the Seller’s tender must satisfy all the qualification requirements, and must do so to the extent required by the Purchaser in the procurement documents and to the extent to which they were satisfied by the subcontractor specified in the Seller’s tender. The Seller shall provide documents proving that the new subcontractor satisfies the relevant qualification requirements. *Notice: Not used
The Purchaser is obliged to state, within 7 business days from the date of delivery of the written notice, whether it authorizes a change of subcontractor. If the Seller submits to the Purchaser, as part of a subcontractor change, the documents required under this provision of the Agreement, and the Purchaser does not give an opinion on the subcontractor change within the stipulated deadline, the Purchaser shall be deemed to agree to the change of subcontractor. *Notice: Not used
9.3. The Seller is obliged to keep and continuously update a current list of all subcontractors involved in the execution of this Agreement. He is required to submit such list to the Purchaser without delay, but no later than 7 calendar days from the date of receipt of a request. *Notice: Not used
10. The Seller is obliged to ensure that the performance of this Agreement does not violate the legal regulations and decisions governing international sanctions by which the Czech Republic or the Purchaser is bound. The Seller is obliged to inform the Purchaser without delay of any facts relevant to the assessment of fulfilment of the obligations referred to in the first sentence of this paragraph of the Agreement. The Purchaser shall be entitled to withdraw from this Agreement if it becomes aware in the course of the performance thereof that the Seller or the Seller’s controlling persons are subject, directly or indirectly, to international sanctions under the relevant legal regulations and decisions by which the Czech Republic or the Purchaser is bound. If such sanctions apply to any person used by the Seller for the performance of the Agreement, including its subcontractors, the Seller must inform the Purchaser to that effect no later than on the following business day after it becomes aware of it and must, no later than fourteen days after being called on to do so by the Purchaser, remedy the situation and replace such person, failing which the Purchaser shall be entitled to withdraw from the Agreement.
VII. Cooperation between the parties
1. The parties shall make every effort to put in place the conditions necessary for the realization of the subject matter of this Agreement, in accordance with their rights and obligations under the Agreement. This shall also apply in cases where this requirement is not expressly laid down in the individual provisions of this Agreement.
2. If either of the parties is aware of circumstances preventing it from complying with its contractual obligations, it shall immediately inform the other party in writing to that effect. The parties undertake to eliminate, without delay and insofar as possible, the circumstances preventing them from fulfilling their contractual obligations. If the circumstance is not eliminated, the other party shall be entitled to request the fulfilment of the obligation by an alternative deadline, which shall be determined taking into account the nature of the matter.
VIII. Contractual warranty
1. The Seller is liable for defects in the Equipment at the time of delivery, defects found between the delivery of the Equipment to the Purchaser and the beginning of the warranty period, and defects found during the warranty period. The warranty period is suspended for as long as the Purchaser cannot use the equipment for defects for which the Seller is responsible. The Seller shall provide the Purchaser with a guarantee of the quality and parameters of the Equipment that corresponds to the subject matter and purpose of this Agreement for a period of 24 months.
2. The warranty period runs from the day of signing of the record of acceptance documenting the Purchaser’s acceptance of the fully functional and flawless Equipment. If the Equipment is accepted by the Purchaser with at least one defect or requiring at least one piece of additional work, the warranty period from the day on which the final defect is eliminated or the final additional work is completed.
3. The agreed warranty period shall not apply to Equipment with a longer manufacturer’s warranty period. In this case, the Seller undertakes to provide the Purchaser with such longer warranty period. For the delivery of Equipment that has its own warranty certificates, the warranty period is set at the length indicated therein, but at least at the length set out in paragraph 1 of this Article.
4. The Purchaser is obliged to lodge its claims concerning defects detected in the Equipment ("Claim" or "Notification of Claim") in writing (by e-mail) with the Seller, without undue delay after they are detected. The Purchaser shall describe the defects in the Claim and also state his requirements, including the time limit in which the Seller must eliminate the defects. Provided that the claim is well-founded, the following entitlements shall apply:
a) if the defects are minor (Section 2107 CC), the Purchaser is entitled to receive delivery of the missing parts of the Equipment, to have other defects in the Equipment eliminated, or to receive a discount from the purchase price;
b) if the defects are major (Section 2106 CC), the Purchaser is entitled to demand the elimination of the defects by means of the delivery of a new flawless item or delivery of the missing item, to demand that defects are eliminated by repair of the Equipment, where the defects can be repaired, to demand a reasonable discount from the purchase price, or to withdraw from the contract.
5. The Seller is obliged to send confirmation to the Purchaser of the receipt of the claim, and to do so in writing (by e-mail within 2 working days after receipt) and then to initiate "fault diagnosis" or work on "defect elimination" by means of a visit by its service technician visit to the place of performance within 2 business days from the confirmation of receipt of the claim, or within a time limit set by agreement between the parties.
5.1. The Seller is required to assign to the Purchaser a qualified service technician authorized to carry out repairs to the delivered Equipment. *Notice: Not used
5.2. If the service technician fails to eliminate the claimed defect during his visit, the Seller undertakes to check the claim, notify the Purchaser whether he acknowledges the claim, and agree on a deadline for remedying the defect; this must be done in writing and within 5 business days of receipt of the claim. *Notice: Not used
5.3. If, during such period, the Seller fails to deliver a written statement to the Purchaser about the claimed defect, the Seller shall be deemed to have acknowledged the claim in its entirety. Even claims submitted by the Purchaser on the last day of the warranty period shall be deemed to have been lodged in time.
6. The Seller is obliged to eliminate any claimed defects claimed which he has acknowledged or not responded to in accordance with paragraph 5.3. of this Article, and to do so at the place of performance, no later than 30 business days from the date of delivery of the Notice of Claim and free of charge. *Notice: Not used
7. The manner by which the claim is to be resolved shall be determined by the Purchaser. *Notice: Not used
8. The warranty period is automatically extended by the number of days elapsed from the report of the defect to the signature of the record of defect elimination.
9. The Seller undertakes to provide the Purchaser with direct telephone and e-mail access to the experienced and professionally qualified staff of the manufacturer throughout the warranty period, starting from the date of acceptance.
10. The Seller undertakes not to charge travel or other expenses associated with the claim during the warranty period (e.g. disassembly, packing and sending costs), even if the Equipment has to be transported or sent by the Seller to another country for repair. In addition, the Seller undertakes to provide basic diagnosis of faults by telephone or e-mail, and possibly verify solutions with the Purchaser by telephone or e-mail, and to do so free of charge. Technical support provided to the Purchaser by phone or e-mail will also be free of charge.
11. The Seller’s contact person for warranty service:
name XXXXXXXXXXX address Xxxxxxx Xxxxxxxx 00, 00000 Xxxxxx, Xxxxxxx, e-mail: XXXXXXXXXXX Phone + XXXXXXXXXXX
12. The warranty does not apply to defects where the Seller can prove that they were caused by the Purchaser (e.g. defects due to poor maintenance, improper or inappropriate handling, use contrary to training).
13. The warranty furthermore does not apply to defects resulting from natural disaster, violent damage, weather, or other external events that occurred after the transfer of liability for damage to the Equipment to the Purchaser, or for defects caused during operation under extremely unusual conditions.
14. If the Seller fails to remedy the claimed defects within the period referred to in paragraph 6 of this Article, or if, before the expiry of the period, he notifies the Purchaser that he will not eliminate the defects, the Purchaser shall be entitled to ask a third party to perform repairs. In such an event the Purchaser may claim from the Seller reimbursement of the amount the Purchaser pays to a third party for such procedure. This is without prejudice to the Purchaser's right to charge the Seller a contractual penalty in such an event.
15. The rights and obligations arising from the warranty and affecting the Equipment transferred shall not cease to exist if one of the parties withdraws from the Agreement. Claims for liability for defects are without prejudice to claims for damages or contractual penalties.
IX. Contractual fines and interest on default
1. If the Seller fails to deliver or commission the Equipment at the agreed time under Article IV (3) of this Agreement, the Purchaser is entitled to require the Seller to pay a contractual penalty of 0.05% of the total purchase price of the Equipment, without VAT, for each commenced day of default, until the obligation is discharged in full.
2. If the Seller is in default vacating the place of performance and eliminating defects of the Equipment specified in the record of acceptance in accordance with Article V, or in the warranty period in accordance with Article VIII(1) of this Agreement, the Purchaser shall be entitled to claim a contractual penalty from the Seller amounting to of 0.05% of the total purchase price without VAT, and to do so for each defect and additional work for which it is in default and for each commenced day of default, until record of defect elimination is signed.
3. If the Purchaser fails to comply with the due date of invoices issued by the Seller, the Seller is entitled to charge the Purchaser default interest amounting to 0.01% of the outstanding amount for each commenced day of default on the payment of the invoice.
4. The right to invoice and collect a contractual penalty and default interest arises for the Purchaser on the first day after the expiry of the period specified for performance, and for the Seller on the first day after the due date of the invoice.
5. Contractual penalties and default interest are payable no later than 14 calendar days from the date of delivery of the written notice claiming them.
6. The contractual parties have agreed that payment of a contractual penalty shall be without prejudice to the right to compensation for the full amount of financial or non-financial damage incurred, i.e. even an amount in excess of an invoiced or paid contractual penalty, and is also without prejudice to the proper performance of the obligations under this Agreement.
X. Special provisions
1. The Seller declares that the Equipment is not encumbered by third party rights.
2. The Seller undertakes to respect the confidentiality of all facts that become known to him in the performance of this Agreement. Such obligation is also binding on agents, employees or other assistants of the Seller who are involved in the performance of this Agreement.
3. The rights and obligations arising from this Agreement, or this Agreement as a whole, may not be transferred or assigned to any third party without the prior written consent of the other party to the Agreement.
4. Both contractual parties are obliged to notify the other, without undue delay and in writing, of any facts that concern changes to any of their basic identification data or contact details, including legal succession.
5. The contractual parties rule out the acceptance of this Agreement with any derogation, even a derogation that does not materially alter the original conditions. The same shall apply to the negotiation of any changes to this Agreement.
6. The provisions of this Agreement must be interpreted in accordance with the tender criteria of the Public Contract specified in the preamble of this Agreement.
7. The Purchaser undertakes to ensure the publication of the Agreement in the register of contracts in accordance with Act No. 340/2015 Coll., on special conditions for the effectiveness of certain contracts, the public disclosure of such contracts, and the Register of Contracts, as amended, and on the profile of the Contracting Entity according to the PPA.
8. If the Seller does not agree to the publication of certain selected agreements or parts of this Agreement in the Register of Contracts, or on the Contracting Authority’s profile, the Seller is obliged to submit a copy of the Agreement to e-mail XXXXXXXXXXX in electronic form (*PDF format) with visible indication (strikethrough) of those provisions in the Agreement or in annexes to be excluded from publication under the Act on the Register of Contracts, and to do so before the Agreement is signed. Every page of such counterpart of the Agreement and its annexes must be initialized by the Seller’s legal representative.
9. Non-disclosure of those parts of the Agreement that might come under protection as the Seller’s business secrets (e.g., purchase price or technical description of the Equipment) must be requested by the Seller in writing before the Agreement is signed. The Seller is liable for any damage that may be caused by the non-disclosure of information containing business secrets.
10. All submissions and other notifications delivered to the parties to the Agreement must be delivered in person, by registered letter with a delivery confirmation slip or by e-mail under the terms of Article I of this Agreement, depending on the nature of the submission or notification.
XI. Termination of obligations
The contractual obligations of the parties to the Agreement shall be terminated by:
1. Discharge
2. Written agreement between the parties in the form of an amendment
3. Withdrawal from the Agreement Either contractual party may withdraw from the Agreement if the other party commits a fundamental breach of its contractual obligations, in spite of having been notified of such breach in a demonstrable manner (by registered letter).
If the obligee sets an alternative (additional) period for the obligor to discharge its obligation, the right to withdraw from the Agreement shall arise only after the expiry of such period. This shall not apply if the obligor states within this period that it will not discharge its obligation. In such an event the obligee may withdraw from the Agreement even before the expiry of the additional period upon receipt of the obligor’s declaration.
The Purchaser is further entitled to withdraw from the Agreement without prior written notice: a) if the subsidy for acquisition of the subject matter of performance is not paid out to the Purchaser through the provider; and/or b) if the Seller is in default for delivery of the Equipment by more than 30 calendar days; and/or
c) if it is ascertained that the parameters of the Equipment do not correspond to the requirements of the Purchaser as specified in the procurement documents or in the Seller’s tenders (including such ascertainment during Testing or attestation tests); and/or
d) if it is ascertained that the Equipment that is the subject matter of performance is not new, is used, pledged, borrowed, under leasing or otherwise legally defective, or infringes the rights of third parties under patent or in other forms of intellectual property; and/or
e) where the Seller provided, in his tender submitted for the Public Contract specified in the Preamble of this Agreement, information or documents which do not correspond to the facts, and which had or could have had an effect on the outcome of the award procedure; and/or
f) if insolvency proceedings are commenced pursuant to Act No. 182/2006 Coll., on bankruptcy and methods of resolving bankruptcy, as amended, the subject of which proceedings are the Seller’s bankruptcy or impending bankruptcy; the Seller is obliged to inform the Purchaser of this fact without delay, but no later than 7 calendar days from the day of initiation of the proceedings; and/or
g) if the Seller does not eliminate defects within the warranty period; and/or
h) if the Seller does not submit the documents under Article VI(10)(2) of this Agreement.
The Seller shall be entitled to withdraw from the contract without prior notice to the Purchaser if the Purchaser fails to pay the purchase price or retainage by the due dates defined by this Agreement.
Withdrawal from this Agreement shall be done in writing and shall take effect on the date of delivery of such written notice to the other party.
In the event of withdrawal from of this Agreement, the contractual parties shall settle their mutual obligations and receivables specified in the law or in this Agreement within 30 calendar days of the legal effects of the withdrawal or within an agreed period.
Termination of this Agreement by withdrawal or in another manner shall be without prejudice to the right to contractual penalties and compensation for damages and other obligations, which by their nature continue after the termination of this Agreement.
4. Subsequent impossibility of performance If the discharge of a debt becomes impossible after the creation of the obligation, the obligation is extinguished due to impossibility to perform (Section 2006 and ff of CC).
5. Termination or cessation of the Agreement Upon the termination or cessation of the Agreement all obligations of the parties arising from the Agreement shall be extinguished. Termination or cessation of the Agreement shall not extinguish claims for compensation for damages, the payment of contractual penalties negotiated in the case of breach of contractual obligations, and those obligations of the parties which are to continue to apply by virtue of the Agreement, their nature or the law.
XII. Liability for damage
1. If one of the parties breaches its obligations under this Agreement, it shall compensate the other contractual party for any damage thereby incurred. This shall apply even if the damage is caused by employees of the party to the Agreement or subcontractors.
2. The obligor shall be released from its obligation to pay compensation for damage if it proves that its performance of its obligations under the Agreement was temporarily frustrated by an unforeseeable and insurmountable impediment arising independently of its will (e.g. force majeure, social events - war, revolution, other acts of third parties - general strike, default of the other party).
XIII. Concluding provisions
1. In matters not explicitly regulated by this Agreement, the rights and obligations of the contractual parties shall be governed by the relevant provisions of the generally binding legal regulations in force in the Czech Republic, in particular the Section 1765(2) of the CC and other legal provisions related to the subject matter of this Agreement.
2. Any disputes which the parties to the Agreement are not able to resolve through the amicable settlement shall be settled by the court having subject-matter and local jurisdiction in relation to the Purchaser.
3. This Agreement is made out in two counterparts. Each counterpart has the validity of an original. Each party to the Agreement shall obtain one counterpart.
4. This Agreement may be amended or added to only by written and mutually agreed amendments numbered in ascending order, which shall become an integral part of the Agreement. Annexes must also be concluded in accordance with the PPA. The exchange of e-mail or other electronic messages is not deemed to be an permissible written form for this purpose. Either party may raise an objection that an amendment is invalid on the grounds of failure to comply with the required form, even if performance has already been commenced.
The procedure set out above shall not be applied in the context of a reserved change in the obligation in case of a change in performance pursuant to Article II(6) of this Agreement. In such an event the parties to the Agreement have agreed that a written amendment to this Agreement will not be concluded and the reserved change will be implemented by means of the procedure laid down in Article II(6) of this Agreement.
A change to the identification or contact details and a change to statutory VAT shall not be regarded as a change to the Agreement.
5. If, for any reason, any provision of this Agreement is found to be invalid, that fact shall not invalidate the entire Agreement. In such an event, the parties are obliged to replace the invalid clause with a new valid one that will accord with the meaning and purpose of this Agreement.
6. This Agreement shall enter into force on the date of its signature by the last contractual party and shall be effective on the date of its publication in the Register of Contracts.
7. The contractual parties declare that they have read this Agreement, and that it has been negotiated after mutual deliberation, according to their free will, certainly, seriously and comprehensibly, in witness whereof the parties’ authorized representatives affix their handwritten signatures.
8. GDPR: By signing this agreement, the Seller, as a data subject, confirms that the Purchaser, as a data controller, has discharged its obligation to inform it, within the meaning of the provisions of Section 11 of Act No. 101/2000 Sb., on the protection of personal data, as amended, with particular regard to the scope and purpose of the data processing, the places of processing of the data subject’s data, and the possible uses thereof, as well as the identity of processor. By signing this agreement, the Seller agrees to the processing of personal data. Consent to the processing of personal data is voluntary and the Seller may at any time revoke it in whole or in part. In the event of withdrawal of consent by the Seller, the Purchaser shall no longer process the personal data, with the exception of those data for which the Seller does not require the Purchaser’s consent under the terms of the law.
9. The Purchaser has appointed the following representatives responsible for communicating with the Seller in connection with the subject of performance under this Agreement. 9.1. In the matter of sending notification to the Purchaser of the delivery date of the Equipment under Article IV (6) of this Agreement: XXXXXXXXXXX, e-mail: XXXXXXXXXXX
9.2. In technical matters and communication matters in connection with the performance of services under Article II (3) of this Agreement: XXXXXXXXXXX, e-mail: XXXXXXXXXXX
9.3. Purchaser's correspondence address for written particulars of this Agreement:
Mailing address: address listed in the header of this Agreement. e-mail: XXXXXXXXXXX; to the attention of the contact person: XXXXXXXXXXX.
10. The Seller has appointed the following representatives as being responsible for communication with the Purchaser in connection with the performance of this Agreement: XXXXXXXXXXX, e-mail: XXXXXXXXXXX
10.1. In the matter of sending notification to the Purchaser of the date of delivery of the Equipment to the place of performance: XXXXXXXXXXX, e-mail: XXXXXXXXXXX
10.2. In technical matters and for communication in connection with the performance of services pursuant to Article II(3) of this Agreement: XXXXXXXXXXX, e-mail: XXXXXXXXXXX
10.3. The Seller’s correspondence address for the written information relating to this Agreement: mailing address: address given in the preamble to this agreement.
e-mail: XXXXXXXXXXX, for the attention of the contact person – see above
11. The following form an integral part of this Agreement: Annex no. 1: Technical specification, version submitted in the tender in public procurement ref. no. VZMR-11-2024
Annex no. 2: List of Subcontractors *Notice: Not used
Annex no. 3: Record of Acceptance (to be attached to the Agreement as a separate document after the goods are handed over and the record of acceptance is signed)
In Berlin, on 28. 10. 2024
______________________ For the Seller Authorized representative
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Ver AK 19.4.2024