Contract
VZ-9-2024
2024/117
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: ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇/▇, ▇▇▇ ▇▇ ▇▇▇▇▇ ▇ - ▇▇▇▇▇ IČO: 613 88 955 DIČ: CZ61388955 Bankovní spojení: XXXXXXXXXXXXXXX Číslo účtu: XXXXXXXXXXXXXX Zastoupená: ▇▇▇▇. ▇▇▇▇▇▇ ▇▇▇, Dr. rer. nat. DSc., ředitel
(dále jen „kupující“)
a
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Se sídlem: ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ IČO: A 92086915 DIČ: DE129769388 Bankovní spojení: XXXXXXXXXXXXXX Číslo účtu: XXXXXXXXXXXXXX Kontaktní osoba: XXXXXXXXXXXXXX tel.: +XXXXXXXXXXXXXX e-mail: XXXXXXXXXXXXXX
(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:
▇. ▇▇▇▇▇▇▇▇▇ 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: ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇/▇, ▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ID No.: 61388955 Tax ID No.: CZ61388955 Banking contact: XXXXXXXXXXXXXX Account no.: XXXXXXXXXXXXXX Represented by: ▇▇▇▇. ▇▇▇▇▇▇ ▇▇▇ Dr. rer. nat. DSc., director
(hereinafter referred to as the “Purchaser”)
and
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Registered office: ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ID No.: A 92086915 Tax ID No.: DE129769388 Banking contact: XXXXXXXXXXXXXX Account no.: XXXXXXXXXXXXXX Contact person: XXXXXXXXXXXXXX Phone: +XXXXXXXXXXXXXX e-mail: XXXXXXXXXXXXXX
(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, adjustment, as well as execution of other operations and activities necessary to enable the equipment to fulfil the agreed or customary purpose, as well as the training of the operators of the Purchaser.
Training the operators shall mean an explanation of the design and operation of the equipment, demonstration of the servicing of the equipment, including the procedures of all routine measurements and maintenance of equipment performed by the operator, methodical guidance and inspection of the multi-member group of operators in the practical training of the servicing and maintenance performed by the equipment operator.
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, under the terms of this Agreement, the Reflectron time-of-flight mass spectrometer (hereinafter referred to as the "Equipment") and to transfer ownership of the Equipment to the Purchaser. The spectrometer will be equipped with an electron-impact ionization source with a tunable electron energy 0-100 eV. The spectrometer will have a possibility for a bipolar detection of positive and negative ions and it will be equipped with one turbomolecular and one pre-vacuum pump.
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 (Seller’s Tender).
2. The Equipment must be new, unused, fully functional, unrenovated, complete, not lent, not leased, not having 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 Requirements, such that the it can be fully utilised.
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 responsible representative of the Seller will be present in the place of performance will, in the Seller’s name and at the Seller’s expense, there see to the following: 3.1.1. organising the unloading and taking delivery of the Equipment from the transport company; 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; 3.2. unpacking the Equipment from its transport packaging and checking the Equipment 3.3. installing the Equipment; 3.4. commissioning and setting of the equipment; 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); 3.6. any inspections, if prescribed by the manufacturer or the operator of the Equipment or by statutory standards; 3.7. training of multi-member group of operators selected by the Purchaser, on the premises of the place of performance; 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; 3.9. ensure, in its name and at its own expense, the professional disposal all packaging and other materials used in the delivery of the Equipment, in accordance with the provisions of Act No. 185/2001 Coll., on Wastes and on Amending Certain Other Acts, and with the applicable Decree of the municipality, where the packaging/materials will be disposed of; 3.10. at the time of equipment hand-over (Article 5 of thi Contract), the Seller shall to participate in the preparation of the Acceptance protocol and hand over to the Purchaser the “handover documentation” according to Article V (5) of this Agreement.
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”)
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.
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: XXXXXXXXXXXXXX. 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 142,500.00 excluding VAT EUR 0,00 VAT EUR 142,500.00 with 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: XXXXXXXXXXXXXX.
5. The invoice shall be due and payable within 30 calendar days. The Purchaser's obligation to pay the purchase price shall be fulfilled on the date that the invoiced amount is deducted 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 2024/117 d) a description of the content of the tax document: “Reflectron time-of-flight mass spectrometer” public contract VZ-9-2024 is funded by the European Union under Operational Programme ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇, project name: QUEENTEC. Project registration number: CZ.02.01.01/00/22_008/0004649; 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 30.6.2025 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 retention money, if applicable to the Purchaser under the Agreement, shall be no more than 30 days from the date of removing the last defect or the last outstanding work stated in the acceptance protocol.
IV. Place and period of performance
1. The place of performance (handover and takeover of the Equipment) is: the building housing the purchaser’s registered office: ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇/▇, ▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇, (room no. 011).
2. The persons who have been authorized by the Purchaser to take over the Equipment are listed in Article XIII (9) of this Agreement, or another person, supplementally authorized (in writing).
3. Period 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 June 30th, 2025. 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 by 28 business days after its commencement, but no later than 30 working days after its commencement 3.3. Reserved change in the obligation with regard to the time of performance (delivery): The Purchaser reserves the right to extend the delivery date of the Equipment and the date of performance under Article II(3) of this Agreement on the grounds of force majeure (e.g. natural disasters, war, terrorism, epidemics, pandemics, revolutions) or other unexpected circumstances that occur through no fault of either party and temporarily prevent one of the parties from fulfilling the terms of the Agreement. In such an event, but only after prior written notification of the Seller substantiated by conclusive facts and delivered by e-mail to the contact e-mail address: XXXXXXXXXXXXXX, and with the consent of the Purchaser delivered by e-mail to the contact e-mail address of the Seller, the delivery date shall be automatically extended by at most the number of days for which the subject matter of the Agreement could not be performed due to the reasons mentioned above – but at most until 30.09.2025 in view of to the obligation to draw down the subsidy.
4. The instrument must be delivered whole, partial supply 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 outside this time period shall be possible only in exceptional cases and upon prior written (by e-mail) agreement with the Purchaser.
6. The Seller is obliged to come to agreement with the Purchaser in writing about the deadlines for: 6.1. delivery of Equipment to the place of performance; at least 10 business days in advance 6.2. installation of Equipment and commissioning at the place of performance, at least 10 business days in advance 6.3. training of the operators, at least 2 business days in advance 6.4. handover of fully functional Equipment, at least 2 business days in advance 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.
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; 5.2. technical or system documentation for the Equipment; 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; 5.5. records of any inspections in accordance with Article II(3)(6) of this Agreement; 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; 5.7. a declaration of compliance confirming that all the Equipment and ancillary devices delivered comply with the approved standards; 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.
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 ▇▇▇.▇▇▇▇▇▇▇▇.▇▇ or by electronic mail (e-mail) - to the contact e-mail address: XXXXXXXXXXXXXX
ii. or in person on a data medium within 3 working days of the handover of the Equipment.
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”; 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.
8. If the Seller fails to provide the complete record of acceptance, the delivery of the Equipment shall not be deemed to be properly.
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 duties of the contractual 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, in the agreed quantity, quality, design and time.
2. The Purchaser undertakes to take over 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 guarantees that if any critical material that is at the time of its use known to be harmful or does not meet hygienic or environmental parameters has been used in the delivery of the Equipment, it shall be safely secured. The Seller also guarantees that handling of such material will only be carried out by trained personnel.
The Seller further undertakes not to use materials that do not have the required certification in carrying out the delivery of the Equipment, if their certification is required by applicable regulations. If the Seller fails to comply with these obligations, he is obliged to promptly make a correction at the purchaser’s written request, and bear all costs thereby incurred.
The Seller shall provide at the invitation of the Purchaser, but at the latest within the period for the delivery of the Equipment, in accordance with Article IV (3) of this Agreement, a set of certificates of critical materials and supplies.
4. The Seller, in performing under this Agreement, is obliged to proceed with professional care, comply with all valid, 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, hygienic, 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, to the extent and in the manner prescribed by the relevant regulations. 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 the knowledge of his employees about safety and health at work and fire protection. 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. 5.4. The Seller is fully responsible for the safety and health of all persons who, so far as it is aware, tarry at the place of performance, and it is required to ensure that they are equipped with protective working aids. 5.5. The Seller is obliged to carry out self-supervision and continuous control of work safety and fire protection during the delivery of the Equipment. 5.6. In the event of any injury occurring in the delivery of the Equipment at the place of performance or in activities related to the delivery of the Equipment at the place of performance, the Seller is obliged to ensure an examination of the injury and to write a relevant record. The Purchaser is obliged to provide the Seller with the necessary cooperation.
6. The Seller is obliged to keep all documents and documents prepared for performance of the Public Contract, for the period and in the manner stipulated by the applicable legal regulations (Act No. 563/1991 Coll., on Accounting, as amended, and Act No. 499/2004 Coll., on Archives and the Filing Service and on the amendment of certain laws, 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 may be requested by the inspection authorities, until December 31st, 2035.
8. The Seller will be, a person obliged to cooperate in the performance of the financial control, in accordance with Section 2 (e) of Act No. 320/2001 Coll., On Financial Control and on Amending Certain Acts. At the same time, the Seller undertakes to the archive all written documents relating to the fulfilment of the subject 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 their premises and land to verify the conditions of performance of the subject of purchase under this Agreement. The above cooperation will also be provided by the Seller in the case of a check by the provider of institutional support.
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. 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.
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 express his intention in this regard within the stipulated deadline, the Purchaser shall be deemed to agree to the change in the position of the subcontractor.
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 this overview to the Purchaser without delay, no later than 7 calendar days from the date of receipt of a request.
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 contractual parties shall make every effort to create the necessary conditions for the realization of the subject matter of this Agreement, in correspondence to their contractual status. This also applies in cases where this is not expressly laid down in the individual provisions of this Agreement.
2. If any of the contractual parties is aware of circumstances preventing it from complying with its contractual obligations, it shall immediately inform the other contractual party of that, in writing. The contractual parties undertake to, without delay and insofar as possible, remove the circumstances preventing them from fulfilling their contractual obligations. If the circumstance is not remedied, the other contractual party shall be entitled to request the fulfilment of the obligation by a substitute date, which shall be determined taking into account the nature of the matter.
VIII. Contractual warranty
1. The Seller is responsible for defects in the Equipment at the time of delivery, the defects found between the delivery of the Equipment to the purchaser and the beginning of the warranty period, and the defects found during the warranty period. The warranty period does not run 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 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 begins to run on the day of signing of the acceptance protocol on the taking over of fully functional, flawless Equipment, by the Purchaser. If the Equipment is taken over by the Purchaser with at least one defect or incompletion, the warranty period begins to run when the last defect or outstanding work has been removed.
3. The agreed warranty period does not apply to Equipment with a longer manufacturer’s warranty period. In this case, the Seller undertakes to provide the Purchaser with this 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 term for the removal of the defects by the Seller; provided that the claim is legitimate, he is entitled to: a) if the defects are immaterial (§ 2107 CC), the Purchaser is entitled to the delivery of the missing Equipment, the removal of other defects in the Equipment, or a discount from the purchase price; b) if the defects are material (§ 2106 CC), the Purchaser is entitled to demand the removal of the defects by supplying a new flawless item or by supplying the missing item, to request the removal of defects by repairs of the Equipment, if the defects are repairable, to demand a reasonable discount from the purchase price, or to withdraw from the contract.
5. The Seller is obliged to confirm to the Purchaser the receipt of the claim, within 2 working days after receiving it, in writing (by e-mail) and then initiate a "fault diagnosis" or initiate "defect removal", by having its service technician visit the place of performance within 2 business days from the confirmation of receipt of the claim, or within a term stipulated by agreement of both 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. 5.2. If service technician fails to remove the claimed defect during his visit, the Seller undertakes to investigate the claim, notify the Purchaser whether he acknowledges the claim, and agree on the deadline for remedying the defect, only in writing, within 5 business days of receipt of the claim. 5.3. If, during this period, the Seller fails to deliver a written statement to the Purchaser about the claimed defect, the Seller is deemed to have acknowledged the claim in its entirety. Even claims submitted by the Purchaser on the last day of the warranty period are deemed to have been lodged in time.
6. The Seller is obliged to remove any defects claimed, which he has acknowledged or not responded to, in accordance with paragraph 5.3. of this Article, at the place of performance, no later than 30 business days from the date of delivery of the notice of claim, free of charge.
7. The manner by which the claim is resolved shall be determined by the Purchaser.
8. The warranty period is automatically extended by the number of days elapsed from the report of the defect to the signature of the defect removal protocol.
9. The Seller undertakes to provide the Purchaser with direct telephone and e-mail access to the experienced professionally qualified staff of the manufacturer, throughout the warranty period, from the date of the handover.
10. The Seller undertakes not to charge travel or other costs associated with the claim during the warranty period. In addition, he undertakes to provide basic diagnoses of failures by telephone or e-mail, and possibly validate solutions with the Purchaser by phone or e-mail, free of charge. The technical support provided to the Purchaser by phone or e mail will also be provided free of charge.
11. The Seller’s contact person for warranty service:
name XXXXXXXXXXXXXX, address ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, e-mail XXXXXXXXXXXXXX, phone XXXXXXXXXXXXXX
12. The warranty does not apply to defects where the Seller proves that the Purchaser has caused them (e.g., defects due to poor maintenance, improper or inappropriate handling, use contrary to training).
13. The warranty also does not apply to defects resulting from a 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 defects claimed within the period referred to in paragraph 6 of this Article, or if he notifies before the expiry of the period that he shall not remove the defects, the Purchaser shall be entitled to ask a third party to perform repairs. In this case, the Purchaser may claim from the Seller payment of the amount the Purchaser pays to a third party that is attributable to this procedure. The Purchaser's claiming of a contractual penalty from the Seller in this case will not be extinguished.
15. The rights and obligations of the warranty do not expire, either in respect of the Purchaser of transferred Equipment, or in the case of the withdrawal of one of the parties from the Agreement. Claims for liability for defects do not prejudice claims for damages or contractual penalties.
IX. Contractual fines and interest on default
1. If the Seller is in default in the delivery of Equipment or its commissioning 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, exclusive of VAT, for each commenced day of default, until full performance of the obligation.
2. If the Seller is in default in clearance of the place of performance and in the removal of defects of the Equipment claimed in the acceptance protocol 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 of the Seller, of 0.05 % of the total purchase price, exclusive of VAT, for each defect and outstanding work with which it is in default, and for each commenced day of default, until the signature of the protocol about removing the defect.
3. In the event of non-compliance with the due date of invoices issued by the Seller, the Seller is entitled to claim default interest of the Purchaser, in the amount of 0.01 % of the outstanding amount for each commenced day of default in 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 following the expiry of the invoice maturity.
5. Contractual penalties and default interest are payable no later than 14 calendar days from the date of delivery of the written notice by which they are claimed.
6. The contractual parties have agreed that the 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., an amount in excess of an invoiced or paid contractual penalty, and it is also without prejudice to the proper performance of the obligations under this Agreement.
X. Special arrangements
1. The Seller declares that the Equipment is not encumbered by third party rights.
2. The Seller undertakes to maintain confidentiality regarding all facts that become known to him in the performance of this Agreement. This 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.
4. Both contractual parties are obliged without undue delay to communicate in writing any facts that affect the modification of any of their basic identification data or contact details, including legal succession.
5. The contractual parties shall exclude the acceptance of this Agreement with any derogation, even if it is a derogation which does not materially alter the original conditions. The same shall be applied to the negotiation of any changes to this Agreement.
6. The provisions of this Agreement must be interpreted in accordance with the tendering conditions of the Public Contract specified in the Preamble of this Agreement.
7. The Purchaser undertakes to ensure the publication of the Agreement through a register of contracts in accordance with Act No. 340/2015 Coll., on Special Conditions for the Effectiveness of Certain Contracts, the Public Disclosure of These Contracts, and the Register of Contracts, as amended, and on the profile of the Contracting Entity according to 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 in the profile of the Contracting Entity, it is obliged to submit a copy of the Agreement to e-mail XXXXXXXXXXXXXX in electronic form (* PDF format) with a visible mark (crossed out) of those provisions in the Agreement or in annexes to be excluded from publication, in accordance with the Act on the Register of Contracts, before the Agreement is signed. Every page of this 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 be protected 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 responsible for any damage that may be caused by the non-disclosure of business secret information.
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 contractual parties shall expire by:
1. Performance
2. Written agreement of the contractual parties in the form of an addendum
3. Withdrawal from the contract Either contractual party may withdraw from the contract if the other party materially breaches its contractual obligations, in spite of having been notified of this in a demonstrable manner (by registered letter).
If the entitled contractual party sets a substitute (additional) period for the other party to fulfil its obligation, the right to withdraw from the Agreement shall arise only after the expiry of that period. This does not apply if the other party states within this period that it will not fulfil its obligation. In such a case, the entitled contractual party may withdraw from the Agreement even before the expiry of the additional performance period, upon receipt of the declaration of the other contractual party.
The Purchaser is also 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 in delivery of the Equipment for more than 30 calendar days; and/or
c) if it is determined that the parameters of the Equipment do not correspond to the requirements of the Purchaser specified in the tender documentation or the Seller’s bid (even during tests or attestation tests); and/or d) if it is determined that the Equipment that is the subject of performance is not new, is used, pledged, borrowed, leased or otherwise legally defective, and infringes the rights of third parties under patent or in other forms of intellectual property; and/or e) where the Seller indicated in his bid, 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 It, as amended, the subject of which will be the bankruptcy or impending bankruptcy of the Seller, the Seller is obliged to inform the Purchaser of this fact without delay, no later than 7 calendar days from the day of initiation of the proceedings; and/or g) the Seller does not remove defects within the warranty period; and/or h) 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 is in default in payment of the purchase price or retention, within the due dates of this Agreement.
Withdrawal from this Agreement shall be in writing and shall take effect on the date of delivery of this 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 set out in the Act or this Agreement, within 30 calendar days of the legal effects of the withdrawal or within the agreed period.
Termination of this Agreement by withdrawal from the contract or by other 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 The liability ceases due to the impossibility of performance, if the debt becomes unfeasible after the establishment of the obligation (Section 2006 and ff of CC).
5. Termination or expiration of the Agreement With the termination or expiration of the Agreement all obligations of the contractual parties arising from the Agreement shall cease. Termination or expiration 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 contractual parties which survive by virtue of the Agreement, their nature, or statutory provision.
XII. Liability for damages
1. If one of the contractual parties breaches its obligations under this Agreement, it shall compensate the other contractual party for damages thereby sustained. This applies even if the damage has been committed by employees of the contractual party or subcontractors.
2. The obligated contractual party shall be released from its obligation to pay compensation for damages, if it proves to have been temporarily frustrated in performance of its obligations under the Agreement 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 addressed in 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) CC and other legal provisions related to the subject matter of this Agreement.
2. Any disputes which the contractual parties will not be able to resolve through the amicable settlement will be settled by the court having subject-matter and local jurisdiction in relation to the Purchaser.
3. This Agreement is made out in one counterpart in electronic form.
4. This Agreement may be amended or supplemented only by written, mutually agreed, upwardly numbered supplements, which shall become an integral part thereof. Appendices must also be concluded in accordance with the PPA. The exchange of e-mail or other electronic messages is not considered as a written form for this purpose. Invalid additions due to formal non-compliance may be objected at any time, 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 when the delivery deadline is extended in accordance with Article IV(3)(3)(3) of this Agreement and 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 IV(3)(3)(3) and 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 will not invalidate the entire Agreement. In such a case, the contractual 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 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 testament of which the authorized representatives of the contractual parties 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 fulfilled an obligation to inform it, in the meaning of the provisions of Section 11 of Act No. 101/2000 Coll., on the Protection of Personal Data, as amended, concerning, in particular, the scope, purpose, the places of processing of the data of the data subject, and the possibilities of their handling, as well as the processor entity. By signing this agreement, the Seller agrees to the processing of personal data. The consent to the processing of personal data is voluntary and the Seller may at any time withdraw it in whole or in part. In the event of withdrawal of consent by the Seller, the Purchaser will no longer process the personal data, except that for which the Seller does not require the Purchaser´s consent, according to the law.
9. The Purchaser has appointed these representatives responsible for communicating with the Seller in connection with the subject of performance under this Agreement. 9.1. As concerns notification of the delivery date of the Equipment under Article IV (6) of this Agreement: XXXXXXXXXXXXXX, e-mail: XXXXXXXXXXXXXX
9.2. In technical matters and communication matters in connection with the performance of services under Article II (3) of this Agreement: XXXXXXXXXXXXXX, e-mail: XXXXXXXXXXXXXX
9.3. Purchaser's correspondence address for written particulars of this Agreement:
Mailing address: address listed in the header of this Agreement. e-mail: XXXXXXXXXXXXXX; to the attention of the contact person: XXXXXXXXXXXXXX.
10. The Seller has appointed the following representatives as being responsible for communication with the Purchaser in connection with the performance of this Agreement: 10.1. In the matter of sending notification to the Purchaser of the date of delivery of the Equipment to the place of performance: XXXXXXXXXXXXXX, e-mail: XXXXXXXXXXXXXX address: ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ tel.: XXXXXXXXXXXXXX
10.2. In technical matters and for communication in connection with the performance of services pursuant to Article II(3) of this AgreementXXXXXXXXXXXXXX address: ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ tel.: XXXXXXXXXXXXXX
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: XXXXXXXXXXXXXX, for the attention of the contact person – see above
11. The following form an integral part of this Agreement: Appendix 1: Technical specification, version submitted in the tender in public procurement ref. no. VZ-9-2024 Appendix 2: List of Subcontractors 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) |
V Praze dne 6. 11. 2024 / Prague, on 2024, November 6th
____________
za kupujícího / for the Purchaser
Ústav fyzikální chemie J. Heyrovského AV ČR, v. v. i.
▇. ▇▇▇▇▇▇▇▇▇ Institute of Physical Chemistry of the Czech Academy of Sciences, v. v. i.
▇▇▇▇. ▇▇▇▇▇▇ ▇▇▇, Dr. rer. nat. DSc., ředitel / director
V Mnichově dne 7. 11. 2024 / Munich, on 2024, November 7th
___________
za prodávajícího / for the Seller
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Ver AK 19.4.2024