Article I.
Introductory Provisions
1.1 These General Business Terms and Conditions (hereinafter referred to as the "GBTC") modify the relationship between the company HOLLEN CZ s.r.o., registered office: Jiráskova 528/51, 293 01 Mladá Boleslav, Company ID No.: 289 78 013, listed in the Commercial Register at the Prague Municipal Court, Section C, File 157357 (hereinafter referred to as the “Service Provider") and the party which Tasks its services defined in Art. 3 of these GBTC (hereinafter referred to as the "Client") if the Service Provider and the Client have not entered into a specific contract for the provision of services in which these GBTC do not apply.
Article II.
Definition of terms
1.2 Service Provider – the legal entity which provides services in accordance with these GBTC. (i.e. HOLLEN CZ s.r.o.).
1.3 Client – a legal entity which Tasks services from the Service Provider in accordance with these GBTC.
1.4 Final Customer – a legal entity for whom components regarding the provision of services in accordance with these GBTC are intended.
1.5 Component – a part, goods, a semi-finished product, material or any other combination of these, which relate to services provided in accordance with these GBTC.
1.6 Order – a document with which the Client makes a specific Task, and which is drawn up, delivered and signed pursuant to Article IV of these GBTC. Upon acceptance of a Order by the Service Provider established pursuant to Art. IV of these GBTC, the Service Provider and Client shall enter into a contractual relationship.
1.7 Task – a service or collection of services pursuant to these GBTC which relates to components and is provided on the basis of a specific Order.
1.8 Quality Department Operative – a responsible person of the Client designated for the appropriate Task in a Order; on the basis of a decision of the Client this person may also be a person of the Final Customer, however under these GBTC the Client is bound by this person's actions.
1.9 Service Provider’s Staff – employees or other co-workers of a person of the Service Provider or its subcontractors, who ensure the provision of services to the Client pursuant to these GBTC on behalf of the Service Provider. These include in particular operators, technicians and coordinators
1.9.1 Technician – a responsible person of the Service Provider designated for a corresponding Task specified in a Order.
1.10 Work Procedure – a key written operating document containing a detailed description of individual steps implemented on components which make up the subject matter of a Task.
1.11 Worksheet – a document confirming the type and scope of provided services, which is a supporting document for invoicing.
1.12 8D – a common and standardly used method in the automotive industry for quality enhancement in production and for resolving various problems, including claims.
Article III.
Services
1.13 Services provided in accordance with these GBTC include in particular:
a) services in the area of product quality assurance and/or processes which mainly include the inspection of components connected with sorting activities and potential correction work and supplementary modifications,
b) any other services related to the quality assurance of components including production support, workshop work, logistics and assistance services.
(hereinafter referred to as "Services")
1.14 Specific types and scopes of provided services are specified in a contract/Order.
Article IV.
Tasking Services
1.15 Services pursuant to these GBTC are provided on the basis of an individual contract or a special Order confirmed by both parties where, in the case of a Order, a contractual relationship between the Service Provider and the Client shall be entered into once a Order from the Client, drawn up pursuant to these GBTC, is accepted. These GBTC are also part of a contractual relationship which arises based on the preceding clause.
1.16 A Order must be made out in writing either in printed form (paper or fax) or in electronic form and must be delivered:
a) electronically (particularly by e-mail with a scan of the paper Task form in an attachment or an electronic file bearing an electronic signature),
b) by fax or in person
1.16.2 A Order must contain:
a) the designation of the component or components which are to be the subject matter of the provided services in the Task,
b) specification and a description of the Tasked services including measurable units relevant to the Task (e.g. quantity, time) if it is possible within the Task,
c) the place of performance of the Task (point 6.1 of these GBTC),
d) the date of commencing implementation of the Task,
e) a specific technician for the given Task,
f) remuneration for the Tasked services,
g) the name, surname and position of the person signing the Task form on behalf of the Client,
h) a declaration of the parties stating that these GBTC are a part of the contractual relationship which has been entered into based on an accepted Order.
1.16.3 A Order must also contain:
a) the anticipated date of completion of the provided services,
b) the name of a specified person who is authorised to sign a Worksheet on the part of the Client,
c) a specified Quality Department Operative ,
d) a specified responsible employee of the Client's financial department in matters of invoicing (an appropriate person to ensure payment of an invoice),
e) requirements for the ensuring of supplies by the Service Provider (point 5.7 of these GBTC),
f) requirements for the form and frequency of provided sub-reports (point 9.4 of these GBTC),
g) a work procedure (point 5.1 of these GBTC),
h) a specification of special types of expenses which the Client shall pay to the Service Provider (point 11.4 of these GBTC),
i) a Order number,
j) a request for the sending of a paper invoice (point 12.3.2 of these GBTC),
k) a person to whom an electronic invoice is to be delivered (point 12.3.1 of these GBTC),
l) any other potential requirements, conditions and agreements.
1.16.4 Multiple Quality Department Operative s may be specified in a Order (or an attachment). Their mutual assignment of individual competences resulting from these GBTC (e.g. the right to sign a work procedure and its annexes, the right to act as part of the claims process, etc.) may also be specified.
1.17 Order forms created by the Service Provider are given priority use for Tasks. The Service Provider shall pre-complete a Order form based on information and documents received from the Client, which it shall subsequently send to the Client. After filling in the remaining information, the Client then will send the signed binding Order to the Service Provider. In Task to enter into a contractual relationship, the Service Provider must subsequently accept the form with the signature of an authorised person of the Service Provider (point 10.1 of these GBTC). An accepted Order (like a contract) becomes binding for both parties the moment an accepted (i.e. signed by both parties) Order is duly delivered to the Client by the Service Provider pursuant to point 4.6 of these GBTC.
1.18 At its own discretion the Service Provider may also accept a Order drawn up in a different manner than that stipulated in point 4.3 of these GBTC (in particular a Order drawn up using the Client's own Task form) on the assumption that such a Order contains at least the mandatory requirements pursuant to point 4.2.1 of these GBTC.
1.18.1 If a Order pursuant to point 4.4 of these GBTC lacks only the declaration pursuant to point 4.2.1 h) of these GBTC, the Service Provider shall be entitled to accept the Order, whereby a contractual relationship established pursuant to point 4.4 of these GBTC shall enter into force and effect the moment an additional declaration is made pursuant to point 4.2.1 h) of these GBTC expressed in writing (point 4.2 of these GBTC similarly applies). Such a declaration must be made between the parties prior to commencement of the implementation of the Task, or otherwise no contract shall be entered into.
1.19 A Order from the Client shall be considered duly delivered once delivered to the Service Provider:
a) by letter into the hands of an authorised person of the Service Provider (point 10.1 of these GBTC) or
b) by fax sent to the number specified in the Order form sent by the Service Provider to the Client pursuant to the second clause of point 4.3 of these GBTC or
c) by e-mail sent to the address of the technician specified in the Order form sent by the Service Provider to the Client pursuant to the second clause of point 4.3 of these GBTC or by e-mail sent to the same address of the Service Provider, from which the Order form pursuant to point 4.3 of these GBTC was sent,
d) in the case of a Order drawn up pursuant to point 4.4 of these GBTC, by fax or by e-mail sent to the address of an authorised person of the Service Provider pursuant to point 10.1 of these GBTC.
1.20 An accepted Order shall be considered duly delivered once delivered:
a) by letter into the hands of an authorised person of the Client or
b) by fax sent to the number specified in the Order signed by the Client or
c) by e-mail sent to the address of the person of the Client who signed the Order, specified in the Order,
d) in the case of a Order pursuant to point 4.4 of these GBTC, by fax or by e-mail sent to the number/e-mail address from which the Client sent such a Order.
1.21 The Service Provider shall not be obliged to accept a binding Order from the Client if the Client fails to deliver it within a period of 48 hours after it is delivered by the Service Provider, whereby the binding Task form shall lose its validity.
1.22 If, after entering into a contract pursuant to the provisions of this Article, the Client draws up a further Order for the identical service, such a Order shall be considered only legally non-binding, drawn up exclusively for the Client's internal requirements (e.g. SAP ERP), even if the Service Provider confirms such a Order, i.e. such a later Order neither alters nor replaces the original contractual relationship and shall be considered exclusively an internal document of the Client. This shall not apply in the case that the original Order is explicitly altered or cancelled, where such a cancellation or alteration must be clearly and indisputably stated in the later Order with a reference to the original provisions which are being cancelled/altered, or as the case may be, the entire original Order identified by a specific date (and thus general provisions on the fact that the new Order replaces all previous agreements or similar provisions alone are insufficient).
1.23 If, in the following articles a Order is referred to, it is meant in the sense of an accepted Order pursuant to this Article, by which a contractual relationship between the Service Provider and the Client is established.
Article V.
Performance of a Task
1.24 A detailed description of the means of implementing each Task must be specified in a work procedure, processed and signed by a technician and a Quality Department Operative , if a work procedure is not already an Annex to the Order.
1.25 On the basis of the work procedure a responsible employee shall coordinate the implementation of the Task.
1.26 Potential changes to the work procedure must be made in the form of a written amendment signed by a technician and Quality Department Operative . The amendment must give a description of the change and the precise time the change was accepted or from when it shall take effect.
1.27 For the purpose of due implementation of the Task, the Service Provider undertakes to provide a sufficient number of its employees (with the required abilities, knowledge, productivity and skills for the given Task) to implement the Task.
1.28 A technician of the Service Provider shall be the responsible person in matters concerning the Task, who in particular:
a) shall coordinate and administrate the work of the Service Provider's other employees participating in the implementation of the Task,
b) in accordance with these GBTC, shall participate in processing the work procedure and sign it (including amendments) on behalf of the Service Provider, unless these GBTC state otherwise,
c) shall process Worksheets and sub-reports,
d) shall perform activities within the scope of quality assurance of the provided services and claims process pursuant to Article XIII of these GBTC,
e) is the contact person for the Service Provider for the receipt of any proposals, comments or requests regarding a Task and must be immediately informed of any organisational changes regarding the implementation of a Task or obstacles preventing its due and timely implementation,
f) shall contact a Quality Department Operative whenever necessary, in particular, however, when necessary cooperation is required.
1.29 If the Client and Service Provider do not agree otherwise, the Service Provider shall provide basic supplies and equipment, tools and working materials (e.g. markers, stickers, identification labels, pens, paper, forms, tape and other consumable materials) for implementing a Task, as well as resources for ensuring occupational health and safety within the regular scope and requirements (hereinafter jointly referred to as "basic work aids")
1.30 The Service Provider and Client may agree that the Service Provider shall also provide further work supplies or tools for its employees, such as work benches, lighting, binding tools, etc. (hereinafter referred to as "additional supplies"). In the opposite case, they shall be provided by the Client. A corresponding agreement with a precise definition of additional supplies which are to be provided must be specified in the Order.
Article VI.
Place of Provision of Services
1.31 Services pursuant to these GBTC shall be provided in particular on the premises of the Client, the Final Customer or the Service Provider. The precise place of the provision of services and any costs connected to it must be specified in the Order.
1.32 The Client is obliged to provide Service Provider’s Staff who shall fulfil a given Task with access to the place of the provision of services, if it is on the premises of the Client or the Final Customer, and to provide them with any required resources for the purpose (ID cards, tags, etc.).
1.33 The Client is obliged to provide suitable space for the provision of services as well as for associated activities (e.g. the delivery and collection of materials), and adequate equipment within this space to allow for the efficient provision of services.
1.34 The Client is responsible for ensuring that the place of the performance of services meets all requirements stipulated by relevant legislation, in particular regarding occupational health and safety and fire prevention.
Article VII.
1.35 The Service Provider undertakes to ensure commencement of the implementation of a Task at the time agreed in the Order, or otherwise at a usual time with regard to the distance and accessibility of the place where the Task is to be fulfilled.
1.35.1 A prerequisite for maintaining the commencement of the implementation of a Task on the part of the Service Provider is the provision of all necessary cooperation on the part of the Client/Final Customer pursuant to Article VIII of these GBTC.
1.36 The number of hours of the provision of services shall be continuously recorded in a Worksheet processed by a technician and confirmed by a person of the Client (point 9.3 of these GBTC).
1.37 The time of the provision of services recorded in a Worksheet shall also include the time necessary for:
a) the logistical transfer of materials,
b) packaging work,
c) idle time not caused by Service Provider’s Staff,
d) the length of work breaks stipulated by law,
e) organisational securing of a Task,
f) the provision of sub-reports (point 9.4 of these GBTC), reports and final Task documentation.
Article VIII.
Cooperation by the Client
1.38 In relation to the implementation of a Task, the Client is obliged to provide the Service Provider with all necessary cooperation, consisting in particular:
a) of the provision of all expert technical information required for the due provision of services
b) of the provision of components which are to make up the subject matter of the provision of services, or in allowing access to it
c) of the provision of access to the place of the provision of services,
d) of the provision of a work environment which complies with relevant legislation regarding occupational health and safety,
e) of the provision of necessary additional instructions and specification of requirements concerning a specific Task,
f) of the provision of work supplies, tools and other equipment not provided by the Service Provider,
g) of the provision of cooperation arising from the provisions of these GBTC (e.g. points 5.1, 6.3 and 7.2),
h) of the provision of other, particularly requested, cooperation.
1.39 If the Client fails to provide the Service Provider with the required cooperation pursuant to the preceding points, the Service Provider shall be entitled to interrupt the provision of services.
1.40 If, as a result of failure to provide the required cooperation on the part of the Client the provision of services is interrupted, for the duration of the delay of the provision of services pursuant to point 8.2 of these GBTC the Service Provider shall not be in arrears with the fulfilment of its duties and shall not be liable for any damages which arise in direct connection with such an interruption. In such a case the time for which the provision of services is interrupted shall be considered idle time not caused by Service Provider’s Staff pursuant to point 7.3 c) of these GBTC and the Service Provider shall be entitled to full remuneration as if this idle time had not arisen.
1.41 If the Client does not specify an employee from its financial department for matters of invoicing, it must notify the Service Provider in a demonstrable manner within 10 days of signing the Order.
1.42 The provisions of this Article also apply directly to the Final Customer if a Task is implemented on its premises or with components which the Final Customer has at its disposal. In such cases the Client is obliged to ensure the provision of cooperation from the Final Customer to the necessary extent (especially pursuant to the provisions of this Article), and shall be liable for potential failure to cooperate on the part of the Final Customer as if it had failed to provide cooperation itself.
Article IX.
Worksheet and Sub-Reports
1.43 A technician shall prepare a Worksheet on the provided services.
1.43.1 The Worksheet must contain:
a) the number of hours of services provided by all Service Provider’s Staff or
b) the number of other measurable units of the provided services, if they are defined in the Order (point 4.2.1 b) of these GBTC),
c) the price for the provided services.
1.43.2 The Worksheet may contain:
a) a list and the quantity of components which make up the subject matter of the provided services and/or the type of services provided,
b) information on the number of missing components discovered and on the number of repaired components,
c) the number of Service Provider’s Staff who provided the services,
d) other details on which the technician and Quality Department Operative agree.
1.44 A Worksheet shall be prepared after the implementation of a Task or at the end of a calendar year (if the Task lasts for more than 60 days).
1.44.1 Upon agreement between the Client and the Service Provider a Worksheet may also be drawn up by another mutually agreed deadline.
1.45 A Worksheet confirmed by a person of both parties specified in the Order (point 4.2.2 b) of these GBTC) shall be a supporting document for an invoice. If the Client's Order fails to specify such a person, the person pursuant to point 10.3 of these GBTC shall confirm the Worksheet on behalf of the Client by signing it. The employee of the Client who confirms the Worksheet with his/her signature shall state his/her name, surname and job position or function. The employee of the Client who is to confirm a Worksheet drawn up by the Service Provider in accordance with internal responsibilities is obliged either to confirm or to comment on the report by e-mail, letter or fax within 7 (seven) days of the day the Client receives the report. If the Client fails to comment on the Worksheet within the specified period, the Worksheet shall be considered approved even if it is not approved within the specified period (i.e. fictional approval shall apply). The Worksheet shall also be considered approved if the Service Provider duly integrates all comments from the Client from the moment that a thus processed new Worksheet is sent.
1.46 On the basis of a request from the Client, the Service Provider may also process sub-reports which shall contain information requested by the Client in a form and/or periodicity it specifies. The processing of such sub-reports is only obligatory however, if it is recorded in the Order (point 4.2.2 f) of these GBTC). Sub-reports are not a supporting material for invoicing and serve only for the needs of the Client.
Article X.
Authorised Persons
1.47 Persons of the Service Provider authorised to sign a Order are:
a) a statutory representative of the Service Provider
b) an agent of the Service Provider, if one is appointed
c) a branch manager of the Service Provider and
d) technicians,
in all cases independently.
1.48 If the Client does not specify a Quality Department Operative in the Order for matters reserved for a Quality Department Operative in these GBTC, any worker of the Client whose function corresponds to the specified position, where the Service Provider is not obliged to investigate whether such a worker is exceeding his/her authority shall be entitled to act on its behalf (in particular an employee or collaborator). The Client is bound by the actions of such a worker to their full extent, with the exception of a case where the Service Provider was clearly aware that the worker's authority had been exceeded and failed to inform the Client of this fact without undue delay upon discovering it.
1.48.1 The Client is entitled, in a demonstrable manner, to notify the Service Provider at any time of missing contact details of a particular Quality Department Operative or of a change to these details. In the notification, it must be clear who made the change on behalf of the Client.
1.49 The provisions of point 10.2 of these GBTC similarly apply to a person of the Client who is authorised to sign a Worksheet (point 4.2.2 b) of these GBTC) if one is not specified in the Order.
Article XI.
Remuneration for Services Provided
1.50 The Client undertakes to pay the Service Provider remuneration for the services provided in the amount agreed in the Order and which arises from these GBTC.
1.51 The relevant statutory VAT rate shall be calculated in the remuneration. Remuneration shall be invoiced according to the actual number of hours and/or other measurable units (point 4.2.1 b) of these GBTC) for the provided services specified in a confirmed Worksheet in accordance with the provisions of this Article.
1.52 Additional pay added to the basic hourly price agreed in the Order for the services provided:
a) nights (10 p.m. – 6 a.m.) 25%,
b) Saturdays 50%,
c) Sundays and other days off (e.g. bank holidays) 100%.
The Service Provider has the right to additional pay pursuant to this point on the basis of a special agreement in the Order. If additional pay amounts agreed in the Task form are in a different amount or are excluded, the provisions of the Order shall apply.
1.53 Besides remuneration for the services provided, the Client is also obliged to reimburse the Service Provider for any separate expenses agreed in the Order.
Article XII.
Payment Terms and Sanctions
1.54 Remuneration for services provided shall be due on the basis of an invoice drawn up by the Service Provider based on a Order and/or Worksheet:
a) after implementation of the Task is complete or
b) at the end of the relevant calendar month for services provided in that month or
c) at the end of a calendar week, if remuneration for services provided in the relevant calendar week exceeds €2000.00.
1.55 The due date of the invoice shall be 14 days after it is delivered to the Client, unless a later due date is specified in the invoice itself. If the due date in the invoice is earlier than that specified in this point, the date specified in this point shall be decisive for a delay on the part of the Client in paying the Invoice.
1.56 By sending a Order to the Service Provider (Art. IV of these GBTC) the Client agrees with the processing of an electronic invoice.
1.56.1 The Service Provider shall firstly send the invoice to the person who drew up the Order for the Client or the person who the Client designated in the Order. The Service Provider may however, send it to a general e-mail address of the Client which it has at its disposal or which is specified on the Client's website, especially in cases when the invoice is returned as undelivered or the requested notification of delivery is not sent from the address specified at the beginning of this clause.
1.56.2 If the Client requires that a paper invoice also/only be sent, this must be stated in the Order. The Service Provider is also obliged to accommodate the Client upon a later request for a paper invoice to be drawn up.
1.57 An invoice must meet all the requirements of a tax document, must be drawn up in accordance with the provisions of these GBTC and must be duly delivered to the Client.
1.58 A copy of the relevant Worksheet, which is considered confirmed under the provisions of these GBTC, must be attached to an invoice to prove its legitimacy.
1.59 If the Client is delayed in paying an invoice, it shall be obliged to pay the Service Provider interest on arrears in the sum of 0.04% of the invoiced sum for every commenced day of the delay.
Article XIII.
Quality Guarantee and Liability for Defects
1.60 The Service Provider is a holder of ISO 9001: 2008, ISO 14001: 2004 and BS OHSAS 18001: 2007 Integrated Management System certificates, which are guarantees of the quality of provided services. The Service Provider undertakes to provide services with due professional diligence and in the quality pursuant to the specified certificates.
1.61 In the interest of ensuring the quality of services, the Service Provider undertakes to continuously monitor them and if it observes any obstacles on the part of the Client to achieving the required quality of services provided, it shall immediately inform a Quality Department Operative through a technician. if the technician provides this information verbally, he/she shall also be obliged to send it by e-mail or fax to the Quality Department Operative , if his/her contact details are specified in the Order, or the Client has informed the Service Provider of them pursuant to point 10.2.1 of these GBTC. A Quality Department Operative is also authorised to carry out a check of compliance with the quality of services provided. If doubts are raised on the quality of the services provided, he/she shall inform a technician of this fact without delay. After discussing the doubts raised on the quality of services provided with the Quality Department Operative , the Technician shall arrange for a repeat inspection of the components connected with the potential remedy of defects and shall prepare and sign a written record of this fact. This shall also be signed by the Quality Department Operative . If a repeat inspection proves the services provided to be defective, the Service Provider shall not be entitled to remuneration for the time taken to carry out the repeat inspection. If a repeat inspection does not prove the services provided to be defective, the time for the repeat inspection recorded in the Worksheet shall be considered part of the time for the provision of services, for which the Service Provider shall be remunerated in accordance with the provisions of these GBTC.
1.62 If, after the provision of services, but no later than the initial mounting of components into the relevant object, whose first direct part is a component (e.g. a larger component, system component, module, integrated module, car, etc.), it is discovered that the services have not been provided in the guaranteed quality, the Client is obliged to notify the Service Provider of the ascertained defect in the services provided in writing (hereinafter referred to as a "claim"), without undue delay, but no later than 5 days after discovering the defect in question. In the opposite case, by the lapse of the specified period, the Client shall lose the right to apply any claims arising from the liability for defects in the provided services.
1.63 The Service Provider shall not be liable for defects arising due to:
a) inappropriate or incorrect handling of the subject matter of the provided services after the provision of services by a person other than the Service Provider,
b) if the Service Provider identifies the subject matter of services, or a part thereof, as unsuitable or not corresponding to conditions in accordance with the work procedure and the Client (or an associated person, e.g. the Final Customer) releases such subject matter for further use or into further circulation in spite of such a situation,
c) an error in the work procedure which, however, was approved by the Client,
d) a force majeure, where for these purposes a force majeure is considered to be in particular (but not exclusively) war, invasion, acts of a foreign enemy, foreign hostilities, civil war, revolt, a revolutionary uprising of the population, the consequences of military or a usurpatory power, confiscation, nationalisation, removal or destruction by Task or execution of the state or other public authorities, consequences of the use of any military weapon using nuclear fission or radioactive force, regardless of whether in peacetime or at war, accidents, natural disasters, prolonged power cuts, states of emergency and/or other exceptional circumstances. A force majeure, however, is not considered in particular to be a lack of skilled labour, failure to fulfil obligations by persons cooperating with the contracting parties or an unfavourable economic situation of the counterparty.
1.64 The Client is obliged to provide the Service Provider with all required cooperation when examining a claim, and in particular is obliged to provide (particularly, although not only requested by the Service Provider) photographic documentation, supporting documents, records of communication and data which the Client or Final Customer has at its disposal and which relates to or could regard a claim or claimed services.
1.64.1 A violation of the Client's obligations pursuant to point 13.5 of these GBTC shall result in the termination of the entitlement to the claimed defects.
1.65 A claim must begin to be processed without undue delay, at the latest 10 working days after it is applied, and shall be resolved in the shortest possible time. The Service Provider undertakes to acknowledge or reject a claim up to 15 days after it is applied.
1.65.1 If the Service Provider acknowledges a claim, the Client shall be entitled to have the defect remedied free of charge unless it demonstrably agrees to a different means of resolving the claim with the Service Provider.
1.66 If the Client uses the standard 8D message, the Service Provider undertakes to provide the Client with an 8D message pursuant to 8D deadlines.
1.67 In the case of a written record on the means of settling a claim, this must be signed by the Client and the authorised person of the Service Provider specified in point 10.1 of these GBTC. The Client is entitled to express all its views in a written record.
1.68 In a written record of the means of settling a claim, the contracting parties may always agree on a different means of settling or resolving it.
Article XIV.
Ownership of Components, Liability for Damages and Compensation
1.69 The Service Provider shall not become the owner of components accepted for the purposes of implementing a Task.
1.70 The Service Provider is liable for culpable acts of its employees which result in damage to, loss or destruction of components, which it took over from the Client (or Final Customer) for the purpose of implementing a Task, if such actions arise during the implementation of a Task. It shall not be liable for such acts if the damage, loss or destruction would have arisen regardless of such a culpable act or if it concerns an action with which the Service Provider's employee averts a direct danger, which he/she did not cause or if he/she causes damage in necessary defence against a threatening or lasting attack.
1.71 If damages arise, for which the Service Provider is liable pursuant to point 14.2 of these GBTC, it shall cover the damages by returning an object to its original condition or with monetary compensation. The Service Provider has the right to choose.
1.72 Limits to compensation for damages
1.72.1 If the right to compensation for damages arises, the Service Provider shall provide compensation for damages in full, up to a maximum of 25% of the volume of the Task in accordance with the Order and for long-term Tasks (lasting longer than 30 days) up to a maximum of 25% of the monthly volume of the Task which the damages concern. Tasks are considered long-term if they last more than one month and the maximum limit of compensation for damages is (regardless of the abovementioned limit) €100,000.00 for each individual Task according to the Order.
Article XV.
Delivery, Confidentiality of Information and Secrecy
1.73 A contracting party shall reply to any notifications, applications, requests, requests for approval or any other communications submitted by the other party by e-mail, fax or letter in the same or a similar manner, i.e. a reply must also be sent by e-mail, fax or letter allowing for the content of the reply to be easily recorded. In the case of non-compliance with the prescribed form of reply, this shall be a burden to its content and the delivery of a reply shall encumber its sender.
1.74 The content of a fax shall be considered delivered if the sender receives output from the fax machine confirming its problem-free delivery. If any technical problem should occur while sending a fax preventing it from being read, the recipient shall be obliged to inform the sending party of this fact immediately by a suitable means and to request that it send the fax again, or send the information by another means. The Service Provider shall accept fax messages on work days between 8:30 a.m. and 3:30 p.m. (hereinafter referred to as its "opening hours"). A fax delivered outside the specified hours shall be considered delivered at the beginning of the nearest opening hours (i.e. at 8:30 a.m. on the nearest work day).
1.75 The content of an e-mail shall be considered delivered in the event of manual confirmation that it has been received or read, or a reply by e-mail containing the text of the original e-mail. Neither an automated response nor automatic confirmation of delivery sent by the mail server of the addressee shall be considered confirmation.
1.76 Documents sent between the contracting parties shall be considered delivered:
a) the day of their actual delivery to the other party – the addressee,
b) the day the period for takeover of a parcel lapses, even if the addressee was unaware it had been deposited,
c) the day of an unsuccessful attempt at delivery, if delivery was prevented because the addressee was unaware that a parcel had been deposited or by a deliberate act of the addressee, particularly refusal to accept a parcel.
1.77 The contracting parties are obliged protect the confidentiality of all details which they learn of in relation to a performance based on a contractual relationship entered into in accordance with these GBTC and which relate to the other contracting party, if such information has demonstrable economic significance for the other party or other market competitors.
1.77.1 All facts and information which are the subject of a trade secret pursuant to Section 504 of Act No. 89/2012 Coll. of the Civil Code, as amended, shall also be considered confidential, as shall information clearly and demonstrably indicated as confidential by the other party. Without being affected by the previously specified provisions, confidential information also includes any information which is publicly inaccessible, technical, commercial or other kinds of information which one of the contracting parties designates as confidential or which should be treated (given the circumstances known to the other party during its disclosure) as confidential or other information which by its nature is understood to be confidential by any averagely versed person. Confidential information further includes any technical, trade or commercial information (including product plans, development plans, forecasts, analyses and strategies), specifications, plans, diagrams, training materials, formulas, blueprints, models, specimens, procedures, ideas and inventions (even if not subject to special protection), data, computer programs, software or documentation in any form whether recorded physically or provided verbally, as well as information received from a person other than a contracting party if such a party is bound to treat it as confidential. Confidential information also includes information on the circumstances of one contracting party or the other, its products, processes and performances.
1.77.2 In the interest of avoiding disputes on the nature of information, the contracting parties agree that the party which provides information to the other, which shall be considered confidential pursuant to the provisions of this Article, shall also clearly mark such information as confidential.
1.78 The obligation of secrecy does not apply to details which:
a) in relation to a performance on the basis of a contractual relationship arising in accordance with these GBTC, are or shall be accessible to employees or third parties, who must be aware of such information with respect to their job, functional classification or role in the contractual performance, where, however, these persons must be informed of the confidentiality of this information by the relevant contracting party for which they are active,
b) was demonstrably obtained from a third party which is authorised to disseminate such information, or
c) was independently developed by a contracting party without the use of any confidential information pursuant to this Article.
1.79 The following are not considered a breach of the obligation of secrecy:
a) the provision of information to third parties who have a stake in one of the contracting parties, where these persons must always be informed in advance of the obligation of secrecy and bound in writing to maintain it,
b) information provided by a lawyer or other representative, who are bound to the obligation of secrecy by law, for the purposes of duly performing their activities, where these persons must be informed in advance of the obligation of secrecy in the present matter,
c) the provision of information in the case of express prior written consent of the other contracting party to access various information protected by the obligation of secrecy,
d) the provision of information for the purpose of proceedings at a court, arbitration body and/or any other public authority which must first be familiarised with the confidential nature of the information in Task to take necessary measures (e.g. exclusion of the public),
e) the provision of information from a government, bank, tax or other controlling body which is authorised and competent to request it in accordance with legislation, where this body must first be familiarised with the confidential nature of the information in Task to take necessary measures (e.g. exclusion of the public),
f) the provision of information which the counterparty is obliged to communicate by law.
1.80 The contracting parties further undertake to protect information regarding the other party which is subject to confidentiality arrangements pursuant to this Article, at least to such an extent as if it were its own property and undertake to the same extent to commit to secrecy of its organisational bodies, managerial employees or employees (or collaborators) who come into contact with such information, whereby each party shall be liable to the full extent for a breach of these person's obligations.
1.81 The obligation of secrecy shall last for the duration of the relevant contractual relationship arising from these GBTC and for a further 3 years after it elapses and shall also be passed on to any legal successors of the contracting parties.
Article XVI.
Joint and Final Provisions
1.82 A contractual relationship between the parties which is neither regulated by these GBTC nor by a Order shall be governed by the relevant provisions of generally binding legislation applicable in the country of the Service Provider's seat (i.e. the Czech Republic), in particular the relevant provisions of the Civil Code, Act No. 89/2012 Coll. (and especially provisions on a contract for work), as amended. If these GBTC and/or a Order regulate any relationships between the contracting parties differently than does the law, the GBTC and contractual arrangements shall apply on condition that there is a conflict with provisions of the Act which may be deviated from. In the event of a conflict between the provisions of these GBTC and a Order, the provisions of the Order shall take precedence.
1.82.1 If a contractual relationship is entered into between the Service Provider and the Client by an independent contract (i.e. not by a Order pursuant to Art. IV), where these GBTC refer to a Order, such a contract shall be understood.
1.83 For the purpose of determining jurisdiction, the place of performance shall be the place of fulfilment of a Task (point 4.2.1 c) of these GBTC).
1.83.1 In the case of conflict of law rules allow for a choice of law, a relationship between the Client and the Service Provider arising pursuant to these GBTC shall be governed by Czech law. If conflict of law rules allow for a choice of jurisdiction, the relevant Czech Courts shall rule on disputes between the Client and the Service Provider in a contractual relationship arising pursuant to these GBTC.
1.84 These GBTC shall enter into force and effect on the date specified in the document header. At the same time the GBTC issued by the Service Provider on 1 February 2011 shall hereby expire. For a contractual relationship arising on the basis of a Order of which included the previous GBTC however, the previous GBTC shall apply.
1.85 The Service Provider is entitled to unilaterally alter these GBTC at any time. For a contractual relationship between the Client and the Service Provider founded by a specific Order, the GBTC in force at the time of due delivery of the confirmed Order to the Service Provider shall always be decisive.
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