General Terms and Conditions of B2B Sale
Validity date from: 15th May 2023
1. General Remarks, Scope of Application
1.1 The following General Terms and Conditions of Sale (“GTCS”) shall apply to all sale relationships including services associated therewith (supply agreements) between Kajtar.SI, Andreja Draksler Majcen s.p. (“Seller”) as Seller and its customer (“Buyer”) insofar as the Buyer is a business owner, legal entity under public law, special fund organized under public law or private person with B2B access.
1.2 These GTCS in their respective version shall also serve as a framework agreement for future agreements on the sale and/or supply of goods or services (“Products”) executed with the same Buyer without Seller having to refer to them again in each individual case.
1.3 These GTCS shall apply exclusively. Any general terms of Buyer which differ from, contradict or supplement these GTCS shall be considered a part of the parties’ contract only if and insofar as Seller has explicitly agreed to their applicability on a case-by-case basis. This consent requirement shall apply in all cases, even if Seller supplies Buyer in awareness of Buyer’s general terms without explicitly rejecting such deviating terms.
1.4 Material declarations and notices to be provided to Seller by Buyer after conclusion of the contract (e.g., setting of deadlines, notification of defects, cancellation of contract or reduction of payments) must be in writing in order to be effective.
1.5 References to the applicability of legal provisions are for purposes of clarification only. Therefore, unless they are directly changed or explicitly excluded in these GTCS, legal provisions shall apply even in the absence of such clarification.
1.6 Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by the Seller shall be subject to correction without any liability on the part of the Seller.
2. Offers, Contract Execution
2.1 Seller’s offers are non-binding and subject to change unless they have expressly been labeled as binding with reasonable certainty or they contain a certain term for acceptance.
2.2 The ordering of Products by Buyer shall constitute a binding offer to enter into a contract. Unless the order specifies differently, Seller shall have the right to accept this offer within three (3) weeks following its receipt.
2.3 The supply agreement including these GTCS shall only be considered as concluded when Buyer provides its acceptance of the binding offer of Seller within the specified time limit, or when Seller accepts and provides written acknowledgement of its acceptance of Buyer’s order within the time limit. Seller is not required to provide such written confirmation if it is not expected under the circumstances or if Buyer waives it.
2.4 All aspects of the legal relationship between Seller and Buyer shall be based upon the concluded contract as defined in Section 2.3, which fully contains all prior understandings between the parties concerning the subject matter of the supply agreement. Oral covenants of Seller prior to the execution of the contract shall not be considered as binding, and verbal agreements between the parties shall be replaced and superseded by the written contract unless their content implies explicitly and in each case that they were intended to continue as legally binding.
2.5 Product descriptions, documents and data (such as weights, dimensions, serviceability, tolerances or technical data) provided by Seller to Buyer, including those in electronic format, shall not constitute guaranteed compositions of the Product. Customary deviations, deviations resulting from legal regulations, as well as other minor deviations, shall be permitted unless they interfere with the usability of the Product for the purpose as indicated in the contract.
3.1 Unless expressly stated otherwise by the Sellers, all prices quoted are ex works and exclude the cost of packing. Any applicable value added tax or any other sales tax or excise duties paid or payable by the Seller shall be added to the price and shall be payable by the Buyer.
3.2 The Seller may, at their sole absolute discretion, accept or reject any order placed by the Buyer. The Seller may change the price of goods for future invoiced goods to the Buyer without notice.
3.3 In the event of the Buyer cancelling a part of the order in accordance with the provisions of Section 15, the Seller reserves the right to revise the price or prices quoted for goods already delivered.
3.4 The contract price is, unless specifically agreed upon in writing by the Seller, payable in Euros (“EUR“). The Seller reserves the right to review the contract price(s) in the event of devaluation of the EUR or substantial change in the value of EUR in the foreign exchange markets.
4.1 Seller shall not be liable for the normal manufacturing defects nor any customary variations from quantities or specifications.
4.2 The Seller has undertaken no responsibility for learning about the end purpose or use for which the goods are to be used, and the Buyer shall undertake to conduct whatever tests or examinations are necessary to confirm that goods are suitable for such end use.
4.3 Whilst all description and illustrations of the goods in (interalia) catalogues, brochures, web sites and price lists provided by the Seller have been carefully prepared, they are intended nevertheless for general guidance only and do not form part of any contract for sale of goods and no responsibility is accepted for any errors or omissions therein or for any loss or damage resulting from reliance on such descriptions and illustrations.
5. Quality of Products, Technical Advice
5.1 Unless otherwise agreed, the quality of the Products shall be exclusively determined in Seller’s Product descriptions, specifications and labels.
5.2 Any technical advice rendered by Seller – whether verbal, in writing or by way of tests – is given to the best of Seller’s knowledge, but without any warranty; this also applies where proprietary rights of third parties could be involved. It does not release the Buyer from its obligation to test the Products supplied by Seller as to their suitability for the intended processes and purposes. The application, use and processing of the Products are beyond the control of Seller and therefore the Buyer bears the entire corresponding responsibility.
5.3 Properties of specimens and samples shall be binding only insofar as they have been explicitly agreed to define the qualities of the Products.
6.1 Products has limited Seller warranty. By opening or using of Seller products Buyer and confirms that he/she fully understand possible instructional manuals and have the skills to properly install and use Seller’s products. It is arranged that for any potentional damage to the consumer, Seller is not responsible for any damage, which happens to the customer / consumer. Special conditions applies to custom made products like kite lines made to length and replacement inflatable bladders.
6.2 Unless stated otherwise the warranty period on the products and repairs is one (1) year, welded valves one (1) year, UNIPUMP valves lifetime, and on inflatable bladders five (5) years from the invoice date. The warranty applies only to the first case of warranty.
6.3 Warranty includes: defects in material itself; workmanship errors and weld errors for replacement inflatable bladders; universal lines length errors above 2% of total length; tape length errors within 2% of total length.
6.4 Warranty excludes: Normal wear and tear; Any rips, punctures, scratches or any other damage caused by foreign objects; Sun/UV, water, sand and wind affected degradation; Damage caused by misuse, hard crashes/impacts on any surface, abuse, neglect or user error; Damage caused by assembly or set up error; Damage caused by improper handling or storage; Damage caused by use in the waves or shore break; Damage caused by jumping; Damage due to excess inflation; Damage caused by any modifications, or defacing the serial number; Damage caused by anything other than listed in Section 6.3.
6.5 Warranty is void if any modification or alteration has been made to the product or the product has been previously repaired.
6.6 Warranty excludes commercially used kites and boards, such as kite schools, rentals, test / demo / pre-production kites, etc.
6.7 Warranty is void if Buyer decides not to repair as recommended by Seller.
6.8 Buyer must allow Seller the time and opportunity required for the supplementary performance owed and, in particular, return the products concerned for testing purposes.
6.9 Should a product found to be defective by Seller, in its sole discretion, Seller will decide to either repair or replace the defective item. In case of replacement, Buyer must return the defective products to Seller upon request on it’s own costs.
6.10 Seller will ship the warranty product to Buyer via economy shipping. Seller can ship the warranty product to the end customer if advised by Buyer, covering the economy shipping costs only.
6.11 Seller cannot be held responsible for any other expenses or damages sustained as a direct consequence.
6.12 The warranty for any repaired or replaced product is accepted from the date of the original purchase only.
6.13 There are no warranties that extend beyond the warranty specified herein
6.14 Before taking any actions Buyer must contact Seller with a claim, and not customer. Warranty claims must be processed and be issued a return authorization prior shipping to Seller. When submitting claim, Buyer must include claim description, photo or video proofs, photo of serial or date number (if applicable), Proof of purchase (receipt, invoice etc.).
6.15 Seller undertakes that he will carry obligations resulting from warranty conditions.
7. Period and Delay of Delivery
7.1 Unless a fixed delivery date has been agreed to in an individual case or has been explicitly stated by Seller upon acceptance of an order, Seller will at all times endeavor to deliver as quickly as possible. If shipping was agreed, the delivery periods and dates shall refer to the date and time of handover to the shipper, carrier or other third party commissioned to provide transportation. This does not apply if Seller has entered into an obligation to deliver to the location of Buyer.
7.2 If Seller is unable to meet binding delivery dates for reasons beyond its responsibility, Seller will promptly inform Buyer accordingly and at the same time indicate the new prospective delivery date.
7.3 The date of delivery shall be the day on which the Products leave Seller’s plant or a warehouse or, if such date cannot be ascertained, the day on which the Products are placed at the disposal of Buyer.
7.4 The occurrence of a default of delivery is governed by the applicable statutory law. In the case of delay, Buyer shall set a reasonable grace period.
8. Delivery By The Seller
8.1 Delivery shall be effected from the respective shipping point in accordance with the Delivery Policy found on this link (https://drtuba.eu/content/delivery-policy). Delivery Policy is inseparable part of this Terms & Conditions and can be read here.
8.2 Unless otherwise agreed, Seller shall be entitled to select the mode of shipment (especially with regard to carrier, route of shipment, packaging). Any additional costs incurred as a result of special shipping requests made by Buyer shall be borne by Buyer. Unless a carriage free delivery has been agreed, Buyer shall also bear any increases in shipping rates, any additional costs resulting from rerouting a shipment, storage expenses, customs, taxes, weight change, etc., occurring after the contract has been concluded.
8.3 Any dates quoted for delivery of the goods are approximate only and the Seller shall not be liable for any delay in delivery of the goods howsoever caused. Time for delivery shall not be of the essence unless previously agreed by the Seller in writing.
8.4 The Seller reserves the right to deliver goods by instalments and in such event each instalment shall be treated as a separate contract save that the delivery of further instalments may be withheld until goods contained in earlier instalments have been paid for in full.
9. Collection by The Buyer
9.1 Where goods are sold “ex-factory” the Buyer shall collect the goods at the Sellers premises within seven days of the Seller’s notifying the Buyers that the goods are ready for collection.
9.2 If the Buyer fails to collect the goods within seven days of notification that they are ready for collection, then, without prejudice to any other right or remedy available to the Seller, the Seller may:
i. Store the goods until actual delivery and charge the Buyer for reasonable costs (including insurance) of storage; or
ii. Sell the goods at the best price readily obtainable (after deducting all reasonable storage and selling expenses) account to the Buyer for the excess over the price under the contract or charge the Buyer for any shortfall below the price.
10. Damage, Loss, Short Delivery
10.1 The risk of accidental destruction, deterioration or loss of Products shall pass to Buyer.
10.2 On delivery, the Buyer shall examine the goods for defects and completeness. Thereafter no claim for damage in transit, for shortage in delivery, or for loss of goods will be entertained except, in the case of damage, a separate notice in writing is given to the Carriers or to the Seller within three days of the receipt of the goods, followed within 14 days of the date of advice of despatch by a complete claim in writing; or, in the case of loss of goods, a separate notice in writing and a claim is given to the Seller and Carriers within 14 days of the date of the Seller’s advice of despatch to the Buyer. In all cases a signature “unexamined” shall be deemed to be an unconditional acceptance of the goods.
10.3 The Seller shall not in any circumstances be liable, whether in contract or tort, to the Buyer for any indirect or consequential loss or damage (including without limitation, loss of profits, loss of contracts or damage to property) or for any claim against the Buyer by any third party.
10.4 The Seller’s liability for damage or non-delivery of goods duly notified in accordance with the above shall in any event be limited to replacement of the goods within a reasonable time (or, at the Seller’s option, refunding the price thereof) whether the damage or non-delivery is due to the Seller’s negligence or otherwise.
11. Period of Notice for Defects
11.1 Buyer must notify Seller in writing (written form), giving an exact description of the defect; for obvious defects, such notification must take place immediately after delivery and, for defects that can be discovered when the Products are properly inspected, no later than two (2) weeks following receipt of the Products. In case of hidden defects, Section 462. of the Slovenia Obligatory Code (Obligacijski zakonik OZ-NPB3) applies; here too, the written form and an exact description of the defect are required for the notification. If Buyer fails to notify Seller of a defect within the specified time limit, the delivered Products shall be deemed accepted.
12. Product Sizing, Shape, Parts Replacements
12.1 Where goods are sold as a measured size/length there may be a variation in length of plus or minus 2%. In the event of a claim the Seller reserves the right to insist that the roll be returned for measuring before a settlement is agreed. Replacement bladders are made upon brand's original blueprints if not stated otherwise. There can be differences between brand's blueprints sizing and factory bladder sizing, and it's agreed that differences are not a base for warranty claim.
12.2 When original valves are not available anymore, or are in bad quality, or Seller can't find exact valves, we have the right to use our own replacement valves, without prior notice.
12.3 Due to nature of the workmanship or welding processes there may be some standard shape and welding derivations from original blueprint's valve centre positions.
12.4 Seller guarantees proper functionality of the inflatable bladders where Seller had to replace original valves with their own or replacement ones or alter product shape.
13. Credit Agreements
13.1 Where the Sellers has granted the Buyer a credit facility, the price of goods and/or service shall be paid by the Buyer as per the payment terms specified on the invoice or, if the Seller shall so require under Section 13.2, to be paid on demand without any period of notice.
13.2 The Seller reserves the right to withdraw or vary credit facilities at any time to the Buyer without either giving any reason for doing so, or thereby incurring any liability to the Buyer.
13.3 If the Buyer takes goods from the Seller in excess of the Buyer’s credit limit, the Seller may require payment on delivery for such excess of goods.
14. Invoicing, Payments, Set-Off, Rights of Retention and of Refusal to Perform
14.1 The purchase price shall be due upon receipt of the proforma and, unless otherwise agreed or specified, payable 100% in advance. Invoices shall be deemed received at the most recent billing address or email provided by the Buyer no later than three (3) days following the invoice date.
14.2 Payments shall not be deemed effected until the due amount has been definitively cleared into one of Seller’s bank accounts.
14.3 Seller reserves the right to apply payments towards the unpaid invoices first plus the late, legal (“ZOM”) interest accumulated on those invoices and the costs of collection in the following order: costs, interest, principal. “ZOM” legal interests are defined by Slovenian Law (Bank Of Slovenia - https://www.bsi.si/statistika/obrestne-mere/temeljna-in-zamudna-obrestna-mera).
14.4 When payment of any of the Seller’s invoices is overdue, the Seller may suspend their performance of the contracts to which the invoice relates an/or of any other contract then subsisting between the Seller and the Buyer.
14.5 Any errors/mistakes do not delay the obligation to pay undeniable part of the invoice. Issues/Claims regarding to the invoice or part of the invoice does not stop payment of the invoice and are solved separately.
14.6 Unless otherwise expressly agreed upon in writing, no other discounts or commissions are to become due or allowable to the Buyer (any previous course of dealing between the parties notwithstanding).
14.7 Retention by Buyer shall be excluded. Buyer is only entitled to offset if its claims are undisputed or judicially established as final and absolute.
14.8 All goods shall be considered as Seller’s property until the final payment.
14.9 In the event of legal action being taken by the Seller against the Buyer for breach of payment obligations hereunder, the Buyer shall be responsible for all costs and disbursements incurred by the Seller on a full indemnity basis.
15. Customer Order Cancelation
15.1 The Seller will only accept goods being returned by customers if prior consent has been given by the Seller. In the event of wishing to return goods customers must contact the Seller to obtain a ‘goods return note number’ that must then be attached in an appropriate manner to the goods. The Seller reserves the right to refuse to accept goods being returned by a Buyer. In cases where the Seller does agree to accept a return, the Seller reserves the right to charge a handling fee of minimum 15€, but not exceeding 50% based on the invoice price of the goods.
15.2 Buyer can not cancel the order of custom products, such as inflatable bladders or custom made lines, once the order is in production. Seller reserves the right to withdraw any agreement for credit with the Buyer or to charge a handling fee. Seller can stop the production of the remaining order on Buyer instruction only.
15.3 Excluding circumstances where goods are being returned for the reason of damage or are subject to warrantee claim, goods being returned to the Seller must arrive in a condition that allows them to be re-sold and are fully functional without any damage. In the event that returned goods are not in good condition the Seller reserves the right to withdraw any agreement for credit with the Buyer or to charge a handling fee.
16.1 The obtaining of any necessary consents for the installation of the goods, whether from local or other authorities or for ensuring that the installation of the goods is in accordance with the provisions of any bylaws, regulations or statues shall not be the responsibility of the Seller.
17. Force Majeure, Impediments
17.1 Force majeure of any kind, unforeseeable production, traffic or shipping disruptions, fire, explosion, natural disasters, epidemic, pandemic, flooding or low water levels, unforeseeable shortages of labor, energy, raw material and supplies, strikes, lockouts, war, political unrest, acts of terrorism, acts of government, incorrect or delayed delivery by suppliers or any other hindrances beyond Seller’s control which diminish, delay or prevent production, shipment or availability of the products or make it an unreasonable proposition, shall release Seller from its obligation to perform for the duration and to the extent of that such disruption or hindrance prevails.
17.2 In case of a partial or complete shortfall of its then existing sources of supply, Seller shall not be obliged to purchase or otherwise obtain alternative supplies from other suppliers. Instead, Seller shall have the right to allocate available quantities of products under consideration of its own requirements and other internal as well as external supply obligations.
17.3 If a of force majeure event lasts longer than four (6) weeks and if the disruption is more than insignificant, then Seller will try to set up the production at Seller’s Buyers or other Seller's partners if possible and priority list of product delivery is made by Buyer. In case of temporary hindrances, any delivery or performance periods will be extended or postponed by the duration of the impediment plus a reasonable startup period.
17.4 Seller cannot be held responsible for loss or damage attributable to any of the circumstances identified in Section 17.1 of this agreement.
18. Retention of Title
18.1 Until receipt of full payment of all current and future receivables under the current business relationship between Seller and Buyer including incidental receivables and claims for damages (“Secured Receivables”) Seller reserves title in the Products sold (“Products under Title Retention”).
18.2 If Products under Title Retention are intended for commercial resale by Buyer, Buyer is entitled to sell them to its customer as part of its ordinary course of business. With respect to such a resale, the Buyer hereby assigns to Seller, and Seller hereby accepts, as security all of the future claims, including subsidiary claims, the Buyer will have against its customer in consideration for the resale of the Products under Title Retention. Seller is entitled to collect the claims so assigned on its own behalf if the Buyer is in default of meeting its payment obligation concerning the Products under Title Retention, if a petition for the initiation of insolvency proceedings has been filed or in case of another lack of the Buyer’s capacity of performance from which Seller can deduce a potential threat to the realization of its claims. In such events, Seller may request that Buyer discloses to Seller the assigned debt claims and the respective debtors, provides all necessary information for debt claim recovery, hands over all documents pertaining and notifies the debtors (third parties) of the assignment.
18.3 If Products under Title Retention are not resold, Buyer shall be obligated to safeguard the Products under Title Retention on behalf of Seller, to maintain and repair them as needed at its own expense, and to insure them against loss and damage at a level of coverage expected of a prudent businessman, for as long as title is retained. In the event Products under Title Retention are lost or damaged, Buyer agrees to assign its insurance claims to Seller.
18.4 Any processing of the Products under Title Retention shall be carried out on behalf of Seller; such processing shall not entitle Buyer to any claims against Seller.
18.5 In the event of a combination or inseparable commingling of the Products under Title Retention with other items not belonging to Seller in such a way that one of the other items becomes the principal item, the parties are deemed to have agreed that the Buyer shall transfer to and maintain for Seller a co-ownership interest in the newly created item in proportion to the value of the Products under Title Retention relative to the value of the other combined or commingled items. The parties hereby consent now to the passing of title that would accompany such a combination or commingling.
19. Release Of Liability
19.1 By assembling or using Seller's products (further named only as product), you agree that you have read and understood instructional manuals and have the skills to properly install and use product, prior usage. You also agree that you will ensure any other user of this product to read and understand the manuals before allowing any 3rd party or person to use the product.
20. Assumption of risk
20.1 Using Seller's products (further named only as product) involves certain inherent risks, dangers and hazards, and can cause severe injuries, damage, or death to both the user and to non-user third party. The user of this product assumes and accepts any and all risks related to the usage of this product. The risk of using this product can be greatly reduced by acquiring training lessons in an accredited school, following the guideline principals and by using common sense.
21. Limitations of Liability
21.1 Seller shall not be liable for loss or damage (including expenses) suffered by the Buyer as a result of:
i. Seller’s slight negligence or the slight negligence of its legal representatives, employees, workers, agents and vicarious agents
ii. Standard miss-alignment of valve positions and valve orientations due to specific welding process.
iii. Standard shape, dimensions, reinforcement differences of the inflatable bladders compared to original ones or compared to blueprints due to specific material differences and cutting process.
iv. In case of occurred damage made by Seller (in relation to Buyer) as a consequence of bad production (ect. unqualified production, serial errors by production of bladders - all mistakes as a consequence about mistakes on valves or bad quality of them are excluded), he is commited to eliminate or fix the damage in a way to send the new product or eliminate the error in time arranged with Buyer.
22.1 The Seller shall have the right to terminate the contract forthwith where the Buyer becomes insolvent or bankrupt or makes arrangements with its creditors or suffers a receiver to be appointed or being a body corporate enters into liquidation (other than in connection with a reconstruction or amalgamation) in any of which cases the Seller shall have no further obligation hereunder and the price for all goods delivered and work done shall become immediately due and payable.
23.1 The offer or supply of substitute goods to third parties instead of the Products of Seller while referring to the Seller Products, or the association in price lists and similar business documents of product names of Seller (whether trademarked or not) with the word “substitute” or similar words that convey the same meaning or juxtaposition of Seller product names with the names of substitute goods, is prohibited.
23.2 It is also not permitted, when using Seller Products for manufacturing purposes or in processing, to use product names of Seller, especially its trademarks, as a named component on such goods or their packaging or in related printed and advertising materials without the prior written consent of Seller. The supply of Products under a trademark shall not be construed as an agreement on the use of this trademark for the goods manufactured from it.
24.1 No provision hereof shall be deemed waived and no breach or default excused unless such waiver or excuse is in writing signed by an authorised officer of the party making the writing.
24.2 If any provision or part of a provision of this Agreement shall be, or found by any authority or court of competent jurisdiction to be, invalid or unenforceable, such invalidity or unenforceability shall not affect the other provisions or parts of such provisions of this Agreement, all of which shall remain in full force and effect.
24.3 The headings in this document are inserted for convenience only and shall not constitute a part of or are referred to in its interpretation.
25. Governing Law, Jurisdiction
25.1 This Agreement and its validity, construction and effect shall be governed by the Slovenian law. Any disputes or claims arising out of or relating to this Agreement or any breach thereof shall be finally settled by the competent court in Ljubljana, Slovenia. However, Seller is also entitled to take legal action at the general venue of the Buyer.
May 2023. Kajtar.SI, Andreja Draksler Majcen s.p., Novi dom 31, 1430 Hrastnik, Slovenia.
Document version: v1.0.4