Business terms

1. Opening Provisions and Definitions

1.1. Opening Provisions

These Business Terms are an integral part of the agreement, according to which the Provider undertakes to provide the services therein specified and the Client undertakes to pay the agreed fee (price). Provision of the services specified in the agreement and in these Business Terms means the sum of all activities and transactions related to the warehousing and packing of goods, as well as transport of packages to recipients. By signing the agreement or any amendment thereof, the Client acknowledges to have read these Business Terms (hereinafter “BT”) and agrees to comply with the BT. The BT and the quotation intended as pricelist of the services are an integral part of the agreement in line with Section 1751 et seq. of Act no. 89/2012 Coll., Civil Code (hereinafter the “NCC”).

1.2. Basic Definitions

Following terms shall have following meaning in the agreement and the Business Terms:

a) Provider means the provider of warehousing, completion, packing and dispatch services, as well as provider of cash on delivery services, hereinafter as the “Provider”. For the purposes of these BT, the Provider shall be ComGate, a.s., a company with Id. No.: 26508842 and registered seat at Jankovcova 1596/14a, 170 00 Prague 7 – Holešovice, registered in the commercial register maintained by the Municipal Court in Prague, Section B, file 7523;

b) Client shall mean the recipient of the Provider’s services, hereinafter only as the “Client”;

c) Recipient – is the recipient (addressee) of a package;

d) Package – means one or multiple pieces of goods intended to be delivered;

e) eLogist – is the IT warehousing system of the Provider used to order goods for acceptance to the warehouse, its registration, dispatch ordering and cash on delivery monitoring;

f) Price List – an offer of services attached to the Client’s agreement shall be used as the price list of the services and shall prevail over the general price list;

g) General Price List – specifies basic prices of the services provided by the Provider and is available in the eLogist system (Client menu / General Pricelist). Other definitions may be specified in the Business Terms below.

2. Goods Warehousing

2.1. Warehousing Order

Warehousing of goods in the Provider’s warehouse is ordered by the Client electronically, exclusively via the eLogist application. A warehousing order must specify: name of supplier, name of goods, goods identifier (ID), barcode (EAN), goods variants, number of pieces, expiration date. The Client is entitled to cancel an order in the eLogist application until the goods are physically received by the Provider. The Client or the supplier of the goods sends the consignment of goods to be stored to an address designated by the client. A consignment must be marked in the “Provider-Client” format. The Provider operates its warehousing services at: ComGate a.s., P3Park Hala D1, Do Čertous 2635/20, 193 00 Prague 913, or ComGate a.s., Areál Elitex, Vrchlického 323, 517 21 Týniště nad Orlicí, or ComGate s.r.o, Nádražná 1958, 900 28 Ivanka při Dunaji – Bratislava.

2.2. Reception of Goods

The Provider shall receive a consignment of goods to be stored or forwarded based upon a warehousing order in the eLogist application.

The Provider checks the received consignment as to the number and quantity of the consignment within a reasonable period, in any case not later than 2 business days from receiving the consignment. If the goods are labeled or assembled by using individual components on reception or if another nonstandard measure is required on reception, the Provider shall immediately notify the Client about the time of reception of the consignment. If the goods are not properly marked, the Provider shall be entitled to label the goods with its barcodes. Costs of such labeling shall be borne by the Client. The price of such labeling is available in the Provider’s General Price List in the eLogist system (menu Client / General Price List). The Provider shall be entitled to reject a consignment:

a) if the warehousing order is not duly registered in the eLogist;

b) if the Provider concludes that the consignment is obviously damaged in a way that may affect the look or function of the goods or its non-transit package;

c) if the adhesive tape preventing the package from opening is damaged;

d) if the Client owes outstanding debts to the Provider past their maturity dates;

e) if the consignment exceeds the proportion or weight limits determined by the Provider;

f) containing firearms, ammunition, gunpowder, primers, bullets, explosives, combustibles, dangerous chemicals, narcotics or drugs, biological or nuclear material or other similar substances or things, the handling of which is controlled or which are dangerous by their nature;

g) containing goods not protected, packed or secured in a manner appropriate to their weight, shape, properties or nature (character) or containing goods, which might damage other consignments or might damage transport and transit machinery of the Provider or a carrier or which might be, conversely, damaged by such machinery or goods, which may endanger life, health or property of the Provider or a carrier or their workers. This provision shall apply even if such properties or nature (character) of the consignment, insufficiency or unsuitability of its package, securing etc. show only during transit or after physical reception by the Provider or a carrier. The Provider or the authorized carrier shall determine, at its own discretion, how to further handle such consignment. In such cases, the Client acknowledges the correctness of the measures adopted by the Provider or its authorized carrier without any reservations, including the sufficiency and indisputability of any evidence (especially photographs) provided by the Provider or its authorized carrier to the Client.

h) containing living animals or organisms, plants or any biological material; containing goods to be handled in controlled temperature mode, plants, perishable goods (e.g. perishable food);

i) if the consignment is sent as cash on delivery.

2.3. Goods Handling

The Provider undertakes to handle the goods solely for the purpose of their reception at the warehouse, order picking and packing and solely within the Provider’s premises. Handling means moving the goods within the warehousing premises of the Provider or between the individual establishments of the Provider.

2.4. Goods Warehousing, Warehousing Premises

The goods are stored exclusively in premises operated by the Provider, either on palette racks, storage shelves or independently. Climatic conditions within the Provider’s premises are kept within the values allowing for storage of common types of goods. Air temperature on the Provider’s premises ranges from 8 to 38 degrees centigrade, humidity does not exceed 80 %. The Client shall be entitled to order warehousing only in respect of goods suitable to be stored in the above-specified conditions within the Provider’s warehousing premises.

3. Goods Packing

3.1. Goods Completion

Completion of goods means:

a) inserting of one or multiple pieces of goods into a single transport package;

b) inserting the required printed material (invoices, warranty cards, delivery receipts etc.) in the transport package. The Provider completes good in order to create a package. A package is completed using goods listed in the transport order (see 4.1). If there is free space between the goods and the transport package, the Provider may use suitable filler to prevent the goods from freely moving inside the package.

3.2. Packaging

If so required by the Client based upon specifications included in the agreement or if it is a condition of transport, the Provider shall:

a) wrap the package in paper or foil wraps;

b) tie the package with a polyethylene tape;

c) seals all joints with a paper or plastic adhesive tape. The tape may bear the Provider’s corporate logo.

3.3. Labeling

The Provider shall be entitled to attach an identification adhesive label to the package specifying information necessary to deliver the package to the recipient, including especially:

a) name, surname, address and telephone of the recipient;

b) name and address of the Provider;

c) name and address of the Client;

d) cash on delivery amount. If the Client demands that an identification label should be attached directly to the product package of the goods, this must be specified in the agreement. In such case, the goods are placed inside the transport package and the label is attached to the package.

4. Package Delivery

4.1. Package delivery order

The Client may order package delivery by the Provider electronically via the eLogist application, independently of the warehousing order. The Client may cancel the order in the eLogist application until the moment, when the order reaches the “completion” stage. The order normally specifies information regarding type of the goods (and other designations), number of pieces, cash on delivery, transport method and delivery address, which is printed on the identification adhesive label attached to the package (see 3.3). A transport order may be created in advance, even if the goods are not currently stored. In such case, the transport order awaits the arrival of the goods to the warehouse. If the Client demands package transport on the business day following the transport order, the order must be input in the eLogist system by 3:00 PM on the business day preceding the package transport.

4.2. Package delivery

Normally, the Provider secures delivery of a package during the business day following the day of handing the package over to the carrier. However, the Provider shall not be liable for any damage caused to the Client or third parties due the failure to meet the mentioned normal delivery deadline. A carrier is authorized, however not obliged, to contact the recipient by telephone to arrange the time of delivery. A package is delivered to the recipient or a person, who demonstrably belongs to the recipient. The recipient or such person confirms reception of the package by signing a document presented by the Provider. At the same time, the recipient may be asked to present an identity document (citizen ID or passport). The number of the ID may be recorded in the document designated by the Provider. If the recipient is an entrepreneur or a legal entity, the ID shall be substituted by the recipient’s stamp. The Client may require the Provider to have the recipient sign documents designated by the Client. If the travel order includes cash on delivery collection, the package shall be delivered against cash payment equal to the cash on delivery amount. The person delivering the package shall not be obliged to attend the inspection of the content of the package by the recipient.

4.3. Undelivered and refused packages

If the first attempt to deliver a package fails, messenger services normally attempt to deliver the package once more. If the second attempt also fails, the package is returned to the warehouse. In case of postal delivery, the package is deposited at the applicable post office after the first unsuccessful attempt, where the recipient may collect it during the period of 14 days from the notice being left in the mailbox. If the recipient fails to collect the package within 14 days, the package is returned to the warehouse. If the recipient refuses to receive the package, the delivering person records the grounds of refusal in the document designated by the provider, if the recipient agrees to state such grounds. Such returned package is consequently accepted in the warehouse and recorded in the eLogist application as undelivered, specifying the reason. If a package is undeliverable , refused by the recipient or if the recipient does not exist, resulting additional costs (e.g. to transport the package back, to deliver the package outside normal delivery times, to destroy the package, warehousing fees etc.) shall be paid by the Client, who hereby undertakes to pay such costs according to the Provider’s instructions. All payments, fees, costs, additional costs, damages etc. related to procuring and carrying out the transport shall be paid by the Client without any reservations. In such cases, Section 1976 NCC shall apply analogously.

4.4. Cash on delivery

If collection of cash on delivery is ordered with a package transport, the Provider shall secure also collection of cash equal to the cash on delivery sum from the recipient against the delivery of the package. Without undue delay after crediting the collected sum to the Provider’s account, however not later than within 14 business days, the Provider shall transfer the cash on delivery sum to the Client’s account specified in the agreement. Transfer shall mean deduction of the applicable sum from the Provider’s account. The parties declare that cash on delivery is an additional service of the services provided according to the agreement.

4.5. Package insurance

Insurance of the transported packages shall be governed by BT of the applicable carriers.

5. Price of Services, Payment Terms

The Client undertakes to pay, in consideration of the provision of services according to the agreement, price determined according to the price list attached to the agreement. If the Price List is not attached to the agreement, the prices shall be determined according to the General Price List of the Provider. The Client undertakes to pay the Provider the price for provision of the services by the date specified in the invoice issued by the Provider to the Client. In case of default on the payment of the invoice, the Client shall pay the Provider a contractual penalty of 0.08 % of the sum due for each started day of delay. The Client acknowledges that a package is considered pledged to the Provider as per Section 2481 NCC or 2571 NCC and that, in case of default, the Provider may apply the procedure under Section 1359 et seq. NCC (according to Section 1360 et seq. NCC, the Provider, being entitled from the pledge, agreed with the Client as the pledgor that the Provider may sell the pledged package also outside public auction) or set-off mutual debts according to applicable provisions of the NCC.

6. Liabilities

6.1. Provider’s liability for damage

The Provider shall be liable to the Client for any damage to the goods and packages during the storage of the goods, handling of the goods, packing and package transport. Actual damage shall mean the sum, by which the value of a package decreased as a result of an accident, normally the purchase price of the goods. The Provider shall not be liable to the Client or third parties for any profit lost or other damage possibly suffered in relation to the provision of the services. The Provider shall not be liable for any damage to received goods:

a) that the Provider cannot have prevented even when exercising care usual for warehousing services or if the breach of duty on the part of the Provider resulted from circumstances preventing its liability

b) suffered in relation to the transport of a package handed over to the Provider in violation of law or these BT

c) caused by the Client or recipient of the package or supplier of the goods.

d) caused by the package being defectively or insufficiently packed or secured or packed or secured in an unsuitable manner

e) caused by failure to label or sufficiently label the package

f) resulting in case of pooling several packages into a single whole under a single barcode

g) caused by defect or properties of the package or by its nature, even if discovered only during the transport of the package

h) occurring during a period, when the package was not under the Provider’s control

i) (including additional costs, profit loss, contractual penalties, penalties etc.)

j) resulting from damage, destruction or loss of the package due to failure to meet the usual delivery times or in case of late delivery of the package.

The provider shall not be liable for any damage to the received goods or packages if the Provider could not have prevented the damage when exercising usual care. The Client acknowledges that goods may be damaged during normal operation of logistic services, even when the Provider exercises due care. The Provider and the Client agree that the acceptable amount of goods thus damaged shall be 0.25 % of pieces of the total volume of the foods received for warehousing from acceptance in the warehouse or the last stock-taking.

6.2. Client’s Liability

The Client shall be liable for any damage caused to the Provider or third parties resulting from a breach of duty by the Client deriving from these BT or the agreement.

6.3. Complaints

Authorized persons may complaint about defects and claim damages from the Provider only in writing and by specified deadlines. The Client shall be obliged to demand that a package should be visually checked by the recipient on delivery. Obvious damage or partial loss of a package must be recorder by the recipient to the designated carrier’s document on delivery. Later complaints shall be disregarded by the Provider. In case of damage not obvious on delivery, complaint periods shall be governed by applicable laws governing carrier contracts. Damage shall also not include incompleteness of or other disturbance of a package. The Provider must be given opportunity to personally check the type and scope of damage, provided that further manipulation with the damaged package must be carried out according to the Provider’s instructions. The provider shall not be liable for carriers and the Provider shall bring any claims against carriers on the Client’s account. When exercising claims against carriers, the Client shall render assistance to the Provider (especially regarding provision of documents concerning the package and documents supporting the claim against the carrier – e.g. proofs of purchase price etc.). Claims against carriers shall be governed by applicable law for carrier contracts. The Client shall be fully liable for any damage suffered by the Provider or carrier if the Client hands over for transport a package incompatible with the terms specified in these BT, including any resulting costs. Any such costs incurred by the Provider or carrier (e.g. costs of destruction of the goods) shall be paid by the Client immediately on the Provider’s or carrier’s request. Neither the Provider, nor its authorized carrier, shall be liable to third parties for any damage resulting from the transport of the packages handed over to them in violation of applicable law or the terms of these BT, provided that such damage shall also not be covered by their insurance. The Provider assumes no liability for packages handed over for transport with barcodes assigned to the Client or an entity authorized by the Client and consequently misused by a third party. The Client shall notify any hidden damage of a package to the Provider within 3 business days from the day of delivery of the package. In case of damaged packages, the Client or the recipient shall allow an inspection of the package also by representatives of the Provider’s insurance company. Any complaints regarding damage to the goods may only be brought by the Client within 6 months from the date of reception of the package.

6.4. Personal data protection

As a part of the performance rendered pursuant to the agreement, the Provider will or may be presented with personal data of third parties. In such case, the Provider shall comply with the applicable provisions of Act no. 101/2000 Coll., on personal data protection, as well as of the EU Regulation no. 2016/679/EU (General Data Protection Regulation). This means that the Provider will be in the position of a personal data processor (hereinafter the Processor) and the Client in the position of personal data controller (hereinafter the Controller). The Processor shall be responsible for the use of the personal data in relation to the applicable provisions of the mentioned Act and GDPR. The Processor shall adopt technical measures to prevent loss or abuse of personal data. The Processor shall comply with the duties prescribed by the mentioned Act and GDPR. To comply with the duties imposed by GDPR, the Processor shall especially:

a) process the personal data solely for the purpose of provision of the services, as may be subsequently agreed between the parties, provided that the Processor shall act only based upon demonstrable instructions of the Controller; any instruction done via the eLogist system shall be deemed written instruction from the Controller;

b) not control the personal data itself, transfer or intend to transfer the personal data to third parties, except for instances, when the Controller may ask for the same by demonstrable explicit instruction;

c) not process or use the personal data for any other than required purpose, which is necessary to comply with the duties deriving from this Agreement;

d) not process personal data for its own purposes or include the personal data in any product or service offered to the third parties;

e) report all instances of breach of security of the personal data; the Processor shall handle the personal data for the purpose of complying with the duties deriving from the Agreement between the Processor and the Controller.

The purpose of the processing is especially sending packages to recipients, handling communication with the recipients, accepting recipients’ complaints, record keeping and other services carried out by the Processor for the Controller based upon the Agreement. The Controller shall transfer or may transfer to the Processor for processing especially the following personal data:

a) name and surname;

b) date of birth;

c) birth identification number;

d) account number;

e) address;

f) e-mail address;

g) IP address;

h) other personal data necessary to comply with the Controller’s duties owed to the recipients based upon the package delivery.

The Processor shall be entitled to transfer the personal data of recipients to third parties in order to comply with the duties deriving from the Agreement, especially to:

a) carriers;

b) payment service providers;

c) state and local agencies in accordance with its statutory duties;

The Processor shall be entitled to include another processor in the processing and the Controller hereby grants its general consent, in line with Article 28 paragraph 2, thereto. Such other processor shall comply with all duties herein specified in the same scope as the Processor. The Processor undertakes to keep confidential any information concerning the personal data processing. The Processor shall not transfer the personal data for processing outside the states of the European Union. The Processor shall comply with the valid Data Protection Act and GDPR and shall comply with its duties deriving from this agreement in relation to the personal data in order to protect the Controller from violating any of its duties prescribed by the valid Data Protection Act and GDPR. The Processor shall provide the Controller with assistance, collaboration and information reasonably required by the Controller to comply with its duties deriving from the valid Data Protection Act and GDPR and shall collaborate and comply with all instructions or decisions of the competent Data Protection Office, always by the deadline, which allows the other party to meet any deadline defined by the Personal Data Protection Office. Within 15 (fifteen) days from receiving the Controller’s request, the Processor shall provide the Controller with a written report of processing personal data on behalf of the Controller. The Processor shall adopt all necessary measures reasonably required by the Controller based upon a request raised by a data subject concerning the subject’s rights according to GDPR (especially the right of deletion, right to demand information, right to access, right to be forgotten, right of correction, right of limitation of processing and other related subject rights under GDPR). The Processor shall adopt such measures by the deadlines specified in GDPR. The Processor shall be entitled to reimbursement of reasonable costs incurred in relation to or as a result of compliance with the Controller’s instructions related to the provision of the services or any other duty deriving from this agreement or valid Personal Data Protection Act. The Controller shall be liable for the personal data being processed in compliance with GDPR. If the Processor appoints a data protection officer under Article 37 et seq. GDPR, the Processor shall provide the data protection officer with all necessary assistance for the officer to perform his or her duties. If the Controller undertakes to adhere to Codes of Conduct as per Article 40 GDPR, the Controller shall notify the Processor thereabout and the Processor shall comply with such codes correspondingly. The Processor shall appoint a data protection officer. Contact information and other information duties of the Processor under GDPR are published on www.comgate.cz/cz/gdpr.

6.5. Electronic registration of sales (EET)

If the Client’s sales are subject to the procedure prescribed by Act no. 112/2016 Coll., on mandatory electronic registration of sales, the Client shall comply with the mentioned Act and duly register all sales in all cases. The Client acknowledges that the Provider is not a mandatory taxpayer in relation to the services provided to the Client according to the mentioned Act and does not even act as indirect representative under Section 8 of the Registration of Sales Act. The Client shall be liable for any damage caused to the Provider as a result of any breach of duty of the Client to comply with the Registration of Sales Act. The Client shall pay the Provider all costs incurred by the Provider as a result of compliance with the duties prescribed by the Registration of Sales Act in favor of the Client.

7. Final provisions

The agreement is entered into for an indefinite period of time, unless specified therein otherwise. Both parties to the contractual relationship shall be entitled to terminate the agreement for convenience. The notice period shall be one month starting from the first day of the month following the delivery of the termination notice to the other party. The Client acknowledges that the Provider is entitled to retain the stored goods under Section 2429 NCC if the Client defaults on the payment of any sum due according to the Agreement. If the sums owed are not paid, the Provider shall be entitled to exercise the retention according to Section 1398 combined with Section 1359 NCC. The Client acknowledges and agrees that the retention shall have priority over pledges or ownership title of third parties and that the claim of the Provider shall be satisfied as the first if the right of retention is exercised. Unless specified otherwise in the agreement or its annexes, the logistic services are subject to the General Price List of the Provider. Any changes of the Price List shall be notified by email usually at least 10 business days prior to the effect of the proposed changes. The Client shall be entitled to withdraw from the agreement in line with the applicable provisions of the Civil Code, without any notice period, if the Client defaults on the payment of any monetary sum herein specified for more 14 days or in case of material breach of these BT. The Provider shall be authorized to amend and supplement the Warehousing Agreement, including the business terms and prices. Any proposed change of the Agreement, business terms or prices must be notified by the Provider to the Client in writing, by fax or e-mail, normally at least 10 business days prior to the day of effect of the intended changes. If the Client fails to notify the Provider in writing of its disapproval at least 1 business day prior to the day of effect of the proposed changes, or orders delivery of packages after the day of effect of the proposed changes, the Client shall be deemed to agree with the proposed changes or supplements. These Logistical and Warehousing BT are valid as of: 1st July 2018.