1. PREAMBLE

1.1  These Trade Terms and Conditions (hereinafter referred to as “Trade Terms and Conditions”) of Johann Malle Production s.r.o., Podbabská 1112/13, Bubeneč, 160 00 Praha 6, Business ID: 28768795, incorporated in the Commercial Register kept by the Municipal Court in Prague, Section C, Insert 208632 (hereinafter referred to as “JMP”; “Seller”), shall, in accordance with the provisions of Section 1751(1) of the Act No. 89/2012 Coll, Civil Code, as amended (hereinafter referred to as the “Civil Code”), the mutual rights and obligations of the Contracting Parties arising in connection with or on a basis of a purchase order (hereinafter referred to as the “Purchase Order”) confirmed by the Buyer (hereinafter referred to as the “Buyer”), in the Seller’s brick-and-mortar stores and by other means of remote communication (e.g. via e-mail).

1.2 The Trade Terms and Conditions apply to a buyer-consumer, as well as to cases when a person who has purchased the Goods from the Seller, is a legal entity or a person acting – upon ordering Goods – within his/her business or profession.

1.3 Provisions deviating from these terms and conditions may be agreed individually when placing an order. Any deviating provisions in a purchase order take precedence over the provisions of the Trade Terms and Conditions.

1.4 The provisions of these Trade Terms and conditions form an integral part of the purchase order. The purchase order and the Trade Terms and Conditions are drawn up in the Czech language. These Trade Terms and Conditions are available on the website, namely here: https://www.johann-malle.cz/prakticke-informace/obchodni-podminky/.

1.5 The Buyer acknowledges that the Seller is not obliged to conclude a Purchase Order for the offered Goods in justified cases, in particular if the Buyer is a person, who has previously substantially violated the purchase order or these Trade Terms and Conditions or a person, who is in default in payment of due obligations to the Seller. Provisions of the Section 1732(2) of the Civil Code shall not apply.

1. 6 The Seller may change or supplement the wording of the Trade Terms and Conditions unilaterally. This provision does not affect the rights and obligations arising during the validity of the previous version of the Trade Terms and Conditions

2. PURCHASE ORDER CONCLUSION

2.1 The conclusion of a Purchase Order shall take place (i) by signing the purchase order, or (ii) by payment of a deposit on a basis of the signed purchase order, or (iii) by acceptance of the proposal for conclusion of the purchase order by the Seller (e.g. via e-mail or otherwise). Until full payment and acceptance of the Goods by the Buyer the Goods shall remain the property of the Seller.

2.2 The Buyer is entitled to verify, test and check the Goods for completeness and the absence of any damages before the Goods acceptance.

2.3 The purchase price for the Goods is quoted inclusive of any and all taxes and charges.

2.4 By placing a purchase order, the Buyer agrees with these Trade Terms and Conditions and declares that he/she has had the opportunity to read these Trade Terms and Conditions before placing the purchase order.

3. CUSTOMIZED GOODS PRODUCTION

3.1 For the purpose of these Trade Terms and Conditions, customized Goods means Goods, which are not a part of the offered Seller’s standard range or Goods which are manufactured or customised to the Buyer’s wishes and for the Buyer as a person and which are at the same time reasonably indicated on the Website or in particular catalogues or other sales and marketing materials as such or otherwise implied by the circumstances.

3.2 Customized Goods shall be delivered within 5-6 weeks from the date of the deposit payment pursuant to clause 3.3 and the purchase order. Standard size Goods shall be delivered within 3-4 weeks from the date of the deposit payment pursuant to clause 3.3 and the purchase order.  In an event the Seller is unable to meet this term, the Seller shall agree by phone or via e-mail with the Buyer on the earliest possible alternative delivery date in order to fulfil the purchase order to the satisfaction of the Customer as soon as possible.

3.3 The Seller is entitled to request the Buyer to make a reasonable advance payment of the purchase price, which in case of customized Goods amounts up to 50% of the purchase price. The Buyer shall pay the rest of the purchase price to the Seller no later than upon the Goods delivery or another term as agreed.

3.4 In case of customized Goods, the Buyer is not entitled to exercise the right to withdraw from the purchase order in compliance with Section 1829 of the Civil Code, as these are Goods within the meaning of Section 1837 (d) of the Civil Code.

3.5          In an event that a customized product is not made for reasons on the part of the Seller within the time limit specified in the purchase order and the Buyer withdraws from the purchase order due to such delay on the part of the Seller, the Seller shall be obliged to return the received deposit payment to the Buyer in the same manner, in which it has been provided to him or in any other manner determined by the Buyer.

4. MATRASSES

4.1 All Johann Malle mattresses must be exclusively applied on fixed, non-reclining mattresses – the high quality board base shall not have sharp slatted edges and must occupy at least 2/3 of the area under the mattress. The maximum permissible distance between individual slats is 30 mm. All natural mattresses and Johann Malle mattresses are designed for non-reclining bed bases.

4.2 The specified mattress height is measured at the highest point of the new mattress without load, where a variation of up to ± 3% on either side is permissible and is determined by the properties of the natural core layers.

4.3 Natural mattresses have to be turned around and patted approximately 2 – 3 times a month.

5. PRICE OF GOODS AND PAYMENT TERMS

5.1 The price of the Goods and any costs associated with the delivery of the Goods according to the purchase order may be paid by the Buyer to the Seller either in cash or using such means and methods of payment as the Buyer technically allows.

5.2 In an event of a cash payment, the purchase price shall be payable to an authorised officer of the Seller, in case of the Goods delivery to the Buyer’s address.

5.3 In an event of a payment on delivery (where this payment option is available), the purchase price is payable upon receipt of the Goods.

5.4 An event of a non-cash payment by bank transfer (where this payment option is available), the purchase price is payable within the agreed period specified on the advance invoice; in an event of delay in payment of the purchase price, the Seller is entitled to withdraw from the purchase order. In an event of a non-cash payment, the Buyer is obliged to indicate the payment reference number for the payment, which the Seller will communicate to the Buyer at the Buyer’s electronic address or in another agreed manner. In an event of a non-cash payment, the Buyer’s obligation to pay the purchase price is fulfilled at the moment of crediting the particular amount to the Seller’s account.

5.5 The Seller is entitled, in particular in an event that the Buyer fails to provide the additional purchase order confirmation requested by the Seller, to require the payment of the full purchase price before the Goods are shipped to the Buyer. Provisions of the Section 2119(1) of the Civil Code shall not apply.

5.6 Regarding payments made on a basis of the purchase order the Seller shall issue a tax document – an invoice to the Buyer in compliance with the relevant legislation. The Seller is a value added tax payer in the amount according to the applicable legislation of the Czech Republic. The Seller shall be entitled to issue a tax document – an invoice in electronic form and to submit it to the Buyer by sending it to the Buyer’s electronic address.

5.7 The Seller is obliged to issue a receipt to the Buyer Pursuant to the Sales Records Act. Furthermore, the Seller is obliged to register the received sales with the tax administrator on-line; in case of technical failure he must do so within 48 hours at the latest.

5.8 Any contractual penalties are payable on the date of the invoice receipt and can be set off against a received deposit or other payments received from the Buyer.

6. TRANSPORT AND DELIVERY OF THE GOODS

6.1 Transportation of the Goods from the concluded purchase order is carried out in the manner agreed in the purchase order. Transportation of the Goods is free of charge throughout the Czech Republic.

6.2 Delivery outside the Czech Republic may only be made on the basis of an individual agreement between the Seller and the Buyer.

6.3 If the method of transportation is agreed on a basis of a special Buyer´s request, the Buyer bears the risk and any additional costs associated with this method of transportation.

6.4 The Buyer is obliged to accept the Goods upon delivery.

6.5 If for reasons on the part of the Buyer side it is necessary to deliver the Goods repeatedly or by a different method than agreed, the Buyer shall pay any expenses associated with the repeated delivery of the Goods or any expenses associated with a different method of delivery.

6.6 Upon the receipt of the Goods from the carrier, the Buyer shall check the integrity of the Goods packaging and in an event of any defects, notify the particular carrier immediately. In the event that the packaging is realized to have been tampered with, the Buyer is not obliged to accept the shipment from the carrier. In an event the packaging of the delivered products has been damaged or if the Buyer does not accept the shipment for any other reasons, the Buyer is obliged to inform the Seller and to provide the required assistance to the Seller to claim from the carrier.

6.7 Any other rights and obligations of the parties related to the Goods transportation may be governed by special delivery conditions of the Seller or the relevant carrier, which have been communicated to the Buyer in advance.

6.8 If the Buyer does not accept the purchased products within 21 days from the date agreed in the purchase order, despite having been requested in writing (via e-mail, text message or fax) to do so by the Seller:

(a) the Seller may withdraw from the purchase order and sell the products to another person. In this event the Buyer will have no claims for damages, e.g. lost profits, etc.

(b) the Seller shall be entitled to invoice the Buyer a contractual penalty corresponding to 1% of the value of the products for each day of delay exceeding 21 days, however in the minimum amount of CZK 300 per day.

7. SPECIAL PROVISIONS IN AN EVENT OF THE PURCHASE ORDER CONCLUSION IN A DISTANT METHOD OR OFF-PREMISES

7.1 The Buyer acknowledges that prices of Goods may vary in various brick-and-mortar stores.

7.2 Except for a case referred to in Article 7.3 of the Trade Terms and Conditions or any other case where it is not possible to withdraw from the purchase order under applicable legal regulations, the Buyer, who is a consumer, is entitled to withdraw from a purchase order concluded by distance or outside the business premises (outside the usual place of business) of the Seller within 14 days of receipt of the Goods, whereas if several types of Goods or the delivery of several parts is subject to the purchase order, this period starts from the date of receipt of the last delivery of Goods. The withdrawal from the purchase order must be sent to the Seller within the period specified in the previous clause. To withdraw from the purchase order, the Buyer may use the specimen form provided by the Seller, which forms an annex to these Trade Terms and Conditions. The Buyer may send the withdrawal from the purchase order to, inter alia to the Seller’s business address or to the Seller’s electronic address indicated in the form.

7.3 The Buyer acknowledges that pursuant to the provisions of Section 1837 of the Civil Code, it is not possible to withdraw from an order for the delivery of Goods that have been customized according to the Buyer’s wishes or for himself (customized Goods) and any Goods in closed packaging that the consumer has removed from the packaging and cannot be put back for hygienic reasons.

7.4 In an event of the purchase order cancellation pursuant to Article 7.2 of the Trade Terms and Conditions, the purchase order shall be cancelled from the outset. The Goods must be returned to the Seller within 14 days of the Buyer’s withdrawal. If the Buyer withdraws from the purchase order, the Buyer shall bear the costs associated with the return of the Goods to the Seller, even if the Goods cannot be returned due to their nature by the usual postal route.

7.5 In an event of withdrawal from the Agreement according to Article 7.2 of the Trade Terms and Conditions, the Seller shall return the financial amount, i.e. the price of the Goods, received from the Buyer within 14 days of the Buyer’s withdrawal from the purchase order, in the same manner as the Seller received it from the Buyer. The Seller is also entitled to return the performance provided by the Buyer upon the return of the Goods by the Buyer or in another way, provided that the Buyer agrees to this and no additional costs incur to the Buyer. In an event the Buyer withdraws from the purchase order, the Seller is not obliged to return the received financial amount to the Buyer before the Buyer returns the Goods to the Seller or proves that he has sent the Goods to the Seller.

7. 6 The Seller is entitled to unilaterally set off the claim for payment for damage to the Goods against the Buyer’s claim for reimbursement of the purchase price.

7.7 In cases where the Buyer is entitled to withdraw from the purchase order in accordance with the provisions of Section 1829 (1) 1 of the Civil Code, the Seller is also entitled to withdraw from the purchase order at any time until the Buyer accepts the Goods. In this case, the Seller shall refund the purchase price to the Buyer without undue delay, in cash to the account designated by the Buyer.

8. RIGHTS FROM DEFECTIVE PERFORMANCE, QUALITY WARRANTY, WITHDRAWAL
9. 1 The rights and obligations of the contracting parties with regard to rights arising under the defective performance shall be governed by the relevant generally binding legal regulations (in particular the provisions of Sections 1914 to 1925, 2099 to 2117 and 2161 to 2174 of the Civil Code and the Act No. 634/1992 Coll., on Consumer Protection, as amended, provided the Buyer is a consumer).).
10. 2 The Seller shall be liable to the Buyer that the Goods are free from defects upon receipt. In particular, the Seller shall be liable to the Buyer that upon the receipt of the Goods by the Buyer:

(a) the Goods have the qualities agreed between the Parties and, in the absence of an agreement, have the qualities described by the Seller or the manufacturer or expected by the Buyer considering the nature of the Goods and on a basis of the advertising carried out by them,

(b) the Goods are fit for the purpose indicated by the Seller states for their use or for which Goods of that kind are usually used,

(c) the quality and/or workmanship of the Goods correspond to the agreed sample or specimen in an event the quality and/or workmanship have been determined by reference to the agreed sample or specimen,

(d) the Goods have been delivered in the appropriate quantity, measure or weight.

(e) the Goods comply with the requirements of the applicable legislation.

8.3 In an event of defects, if the defective performance is a material breach of the Agreement, the Buyer shall be entitled to:

1. a) to the defect remedy by being provided with a new item without defect or by supplying a missing item, unless this is disproportionate regarding the nature of the defect, but if the defect only relates to a part of the item, the Buyer only is entitled to request the replacement of the part; if this is not possible, he may withdraw from the Agreement. However, in an event this is disproportionate regarding the nature of the defect, in particular if the defect can be remedied without undue delay, the Buyer is entitled to free of charge defect removal;

(b) to have the defect rectified by repairing the item;

(c) a reasonable discount on the purchase price; or

(d) to withdraw from the Agreement.

8.4 The Buyer shall notify the Seller of the right he has chosen when notifying the defect or without undue delay after notification of the defect. The Buyer is not allowed to change his choice made without the consent of the Seller; this shall not apply in an event the Buyer has requested the repair of a defect, which proves to be irreparable. If the defective performance means a material breach of the Agreement and if the Seller fails to remedy the defects within a reasonable time or notifies the Buyer that he will not remedy the defects, the Buyer may demand a reasonable discount on the purchase price instead of remedying the defect or may withdraw from the Agreement. In an event the Buyer fails to exercise his right in time, he shall have the same rights as in the case of an insubstantial breach of Agreement.

The Buyer is also entitled to a reasonable discount if the Seller is unable to supply a new item free of defects, to replace a part of the item or to repair the item, as well as in an event the Seller fails to remedy the defect within a reasonable time or in an event the remedy would cause significant difficulties to the Buyer.

8.6 If the defective performance has a nature of an insubstantial breach of the Agreement, the Buyer is entitled to get the defect remedied or to a reasonable discount on the purchase price of the Goods. As long as the Buyer does not exercise his right to a discount on the purchase price or does not withdraw from the Agreement, the Seller may supply what is missing or remedy the legal defect. The Seller may remedy other defects by repairing the item or supplying a new item at his option.

8.7 If the defective performance means an insubstantial breach of the Agreement and if the Seller fails to remedy the defects in time or refuses to remedy the defect, the Buyer may demand a discount on the purchase price or may withdraw from the Agreement. The Buyer is not allowed to change the made choice except for with the Seller’s consent.

8. 8 The Buyer also is entitled to the to the delivery of a new item or the replacement of a part in an event the case of a removable defect if he cannot use the item properly because of the recurrence of the defect after repair or because of multiple defects. In such a case, the Buyer is also entitled to withdraw from the Agreement.

8.9 If the Buyer fails to notify the defect without undue delay after he could have discovered it with timely inspection and sufficient care, the court shall not grant him the right of defective performance. In an event of a hidden defect, the same shall apply in case the defect was not notified without undue delay after the Buyer could have discovered it with sufficient care, but at the latest within two years after the handover of the goods.

8.10 Provisions set out in the Article 8.2 of the Trade Terms and Conditions shall not apply with the goods sold at a lower price to a defect, due to which the lower price has been agreed, the wear and tear caused by normal use of the goods, to a defect in second-hand goods or wear and tear that the goods manifested already upon the takeover by the Buyer, or if this is apparent from the nature of the goods.

8.11 If the defect becomes obvious within six months of receipt, the Goods shall be deemed to have been defective upon receipt if the Buyer is a consumer. The Buyer, who is also a consumer, is entitled to exercise the right to claim for any defects manifested in consumer goods within twenty-four months from the goods takeover. The Buyer, who is an entrepreneur, is entitled to exercise the right to claim for any defects manifested in consumer goods within six months from the Goods takeover.

8.12 The Buyer has no right of defective performance in an event the Buyer knew before taking over the item that the item had been defective or in an event the Buyer him/herself caused the defect.

8.13 The Buyer shall assert the rights of defective performance at the Seller’s business operation address where the acceptance of the claim is possible with regard to the range of sold goods, or at the registered office or place of business.

8.14 Other rights and obligations of the Contracting Parties related to the Seller’s liability for defects may be governed by the Seller’s complaint regulations.

8.15. In an event a is provided to the Buyer together with the Goods, the gift agreement between the Seller and the Buyer is concluded with the condition that if the Buyer withdraws from the purchase order (whether pursuant to clause 7, 8 or otherwise), the gift contract in respect of such gift shall cease to have effect and the Buyer shall be obliged to return the gift to the Seller together with the Goods.

8.16 Any withdrawal from the Agreement must be in writing and must be delivered to the other party.

9. OTHER RIGHTS AND OBLIGATIONS OF THE PARTIES

9.1 The Seller is not bound by any codes of conduct in relation to the Buyer within the meaning of Section 1826(1)(e) of the Civil Code.

9.2 Any consumer complaints are handled by the Seller via the e-mail address info@johann-malle.cz. The Seller shall send information on the handling of the Buyer’s complaint to the Buyer’s e-mail.

9.3 The Czech Trade Inspection Authority, with its registered office at Štěpánská 567/15, 120 00 Prague 2, is competent for the out-of-court settlement of consumer disputes arising from an order. Business ID: 000 20 869, website:
http://www.coi.cz. The online dispute resolution platform located at http://ec.europa.eu/consumers/odr can be used to resolve disputes between the Seller and the Buyer under the purchase  order.

9.4 The European Consumer Centre of the Czech Republic, with its registered office at Štěpánská 567/15, 120 00 Prague 2, website: http://www.evropskyspotrebitel.cz is the contact point under Regulation (EU) No 524/2013 of the European Parliament and of the Council of 21 May 2013 on on-line dispute resolution for consumer disputes and amending Regulation (EC) No 2006/2004 and Directive 2009/22/EC (Regulation on on-line dispute resolution for consumer disputes).

10. PERSONAL DATA PROTECTION

10.1 The protection of personal data of the Buyer, who is a natural person, is provided by the Act No. 110/2019 Coll., on the processing of personal data, as amended.

10.2 The Buyer acknowledges that the Seller may process the following personal data if provided to the Seller within the conclusion of the Purchase Order: title, name, residential address, e-mail, phone number and bank account number (“Personal Data”), and that the Personal Data processing by the Seller is carried out for the purpose of implementing the rights and obligations under the purchase order.

10.3 The Buyer provides his consent with sending information relating to the goods, services or business of the Seller to the Buyer’s e-mail or via text messages to the Buyer’s phone number and further his consent to sending commercial communications by the Seller to the Buyer’s e-mail, whereas the Buyer is entitled to withdraw this consent in its entirety at any time.

10.4 The Seller may delegate the processing of the Buyer’s personal data to a third party processor. In addition to persons transporting the goods and the persons in charge of handling complaints, personal data will not be passed on to third parties by the Seller without the Buyer’s prior consent.

10.5 Personal data will be processed for the time required to fulfil the purposes of the processing. Personal data will be processed in electronic form in an automated manner or in printed form in a non-automated manner.

10.6 The Buyer states and confirms that the provided personal data are accurate and that he/she has been informed that this has been a voluntary provision of personal data. The Buyer is obliged to inform the Seller without undue delay of any change in his personal data.

10.7 In an event the Buyer believes that the Seller or the processor is carrying out processing of his/her personal data which is contrary to the protection of the Buyer’s private and personal life or contrary to the law, in particular if the personal data are inaccurate in terms of the purpose of their processing, he/she may ask the Seller or the processor for an explanation and require that the Seller or the processor remedy the occurred situation. In particular, this may be case of blocking, rectification, completion or destruction of the personal data. If the Buyer’s request pursuant to the preceding sentence is found to be justified, the Seller or processor shall rectify the defective condition without delay. If the Seller or processor does not comply with the request, the Buyer has the right to contact the Data Protection Authority directly. This provision is without prejudice to the right of the Buyer to address his complaint directly to the Data Protection Authority.

10.8 In an event the Buyer requests information about his personal data processing, the Seller is obliged to provide him with this information.

11. FINAL PROVISIONS

11.1 If a relationship established by the purchase order contains an international (foreign) element, the Parties agree that the relationship is governed by Czech law. This is without prejudice to the consumer’s rights under generally binding legislation.

11.2 In an event any provision of the Trade Terms and Conditions is or becomes apparent, invalid or ineffective, the invalid provision shall be replaced by a provision, the meaning of which is as close as possible to the invalid provision. The invalidity, nullity or ineffectiveness of one provision shall not affect the validity of the other provisions.

11.3 The Seller’s current contact details are set out at the Website.

11.4 These terms and conditions are valid and effective from 1 October 2022.

Annex: Specimen withdrawal from the Agreement