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General Terms (“GT”) of BTC for the Delivery of Goods and Services

 

1. DEFINITIONS 
In the GT, the below listed expressions have the following meanings:
“BTC” means Bulgarian Telecommunications Company EAD, registered with UIC 831642181, Commercial Register of the Registry Agency, with registered address at: Sofia 1784, 115 I Tsarigradsko Shose Blvd.
“Agreement Date” means the date, on which the Agreement becomes effective and binding for the parties, namely, the earlier of the following two dates: the date of BTC’s reception of Provider’s statement of acceptance of the Order, within the meaning of Article 3.4. below, or Provider’s acceptance of these GT, if earlier than the acceptance of the Order.
“Delivery Date” is the date, on which the Provider has to deliver the Goods and/or provide the Services, defined in these GT and/or in the Purchase Order.
“Agreement” means the consent between the parties for the purchase/sale and delivery of the Goods and/or the assignment and performance of the Services, created pursuant to the Provider’s acceptance of BTC’s Purchase Order or the acceptance of these GT, whichever is earlier. Regardless of how the consent was reached, the Agreement shall be arranged and governed by these GT. The Agreement is comprised of the Order and these GT, unless the parties have executed an annex, expressly amending or excluding the application of these GT.
“Provider” is the person, to whom the Order is sent.
“Information Protection Act” means Bulgarian and European Data Protection Directive (95/46/EC) or other applicable laws or regulations, which may be amended from time to time, specifically, the Personal Data Protection Act and any and all existing and future regulations on its application.
“Personal Data” means information, defined as such in the Bulgarian Personal Data Protection Act and/or European Data Protection Directive (95/46/EC), or any information, which is considered personal under any information-related law or regulation.
“Goods Delivery Location” or “Service Location” are BTC-defined locations, where the Provider has to deliver the Goods and/or perform the Services, identified in these GT and/or the Purchase Order. Unless agreed-upon otherwise, the delivery terms indicate the DDP Goods Delivery Location or DDP Service Location, according to INCOTERMS 2000.
“Written Form” is the form of expression and validity of the parties’ statements, including on any amendments or revocations of these GT, for the exchange of messages and communication, incl. cable, fax and similar means of communication, in the language set forth in the GT.
“Order” is BTC’s Purchase Order, with form and details set forth in an appendix to these GT.
“Intellectual Property Rights” are any copyright and related rights, as well as any industrial property rights, belonging to the parties under these GT, or to third parties, including, but not limited to computer software, software products, works of literature, art and science, produced as a result of creative activities and expressed in any way and objective form, as well as any patents, trademarks, services, design rights (subject to registration, or not), know-how and other similar rights or obligations, subject to registration, or not, in any country.
“Acceptance” means a statement by BTC on the acceptance of the Goods or the deliverable of the Services, issued upon successful completion of acceptance tests, officially recognised by an Acceptance Record.
“Acceptance Record” means the document, containing the statement by BTC on the acceptance of the Goods or the deliverable of the Services, issued upon successful completion of acceptance tests.
“Business Hours” means the time between 09.00 and 17.00 (GMT + 02.00) on a Business Day.
“Business Day” means every day, except Saturday, Sunday, national or official holidays in the Republic of Bulgaria.
“Specification” are BTC’s technical requirements, plans, drawings, data, catalogues and any other technical information, related to the Goods and/or Services, which, upon Provider’s acceptance of the Order, become an integral part of the Agreement.
“Standards” are the functionality, safety and technical standards for the Goods and/or the Services, to which the Specification applies.
“Goods” are all goods and materials, including respective media, documentation and others, as described in the Order and/or any appendixes thereto, or incorporated by reference to Provider’s product catalogue, Service catalogue or pricelist, published on a web site, indicated by the Provider.
“Acceptance Tests” are the tests to confirm the compliance of the Goods and/or Services with the Agreement, to be performed by the Provider at its cost and in the attendance of BTC. The acceptance tests’ scope and parameters, and the procedures for their performance, are an appendix to the Agreement and, if these have not been arranged before the Agreement Date, they become an integral part of the Agreement upon their acceptance by BTC.
“Services” are all services (if any), described in the Order and any appendixes thereto, including trainings.
“Price” is the total amount for the Goods and/or Services, and/or their respective unit prices, indicated in the Order. The price includes all Provider’s costs and expenses, such as packaging, handling, shipping, transportation, insurance, according to the delivery terms, to the Goods Delivery Location or the Service Location, any Professional Liability insurances, as well as any licence fees and royalties, software upgrades and updates, if any.
2. GT APPLICATION
2.1. These GT are published at the following address: www.btc.bg. Unless the parties have reached another express agreement in Written Form, amending or entirely excluding the application these GT, regardless of whether these GT have been attached to the Order, or not, these GT are the only terms, governing the relationships between the parties for the purchase/sale and delivery of Goods and/or Services, and rescind any and all preceding statements, arrangements and agreements between the parties.
2.2. Upon acceptance of the Order, under the rules of Section 3 below, the Order creates the specific relationship between the parties on the purchase/sale and delivery of Goods and/or Services within the subject of the Order. With its statement on the acceptance of the Purchase Order, the Provider accepts and agrees with these GT. All relationships between the parties, created pursuant to the Order, are governed by the Order and these GT.
2.3. Upon any conflict between the GT and the Order, the Order has precedence, unless the parties have executed another express agreement in Written Form, amending or excluding the application of these GT. In the latter case, the provisions of the respective another agreement have precedence.
2.4. No Provider’s Standards and general terms will be applicable to the Agreement and in no way will be binding for BTC.
3. GOODS AND/OR SERVICE PURCHASE/SALE ORDERS
3.1. The purchase/sale and the delivery of the Goods and/or the performance of Services is based on individual Orders, which BTC, at its own discretion and considering its own needs and demand, assigns to the Provider.
3.2. With its Purchase Order, BTC makes a proposal to the Provider for the conclusion of an Agreement.
3.3. The Provider has to accept or decline the Order in Written Form, within 3 (three) Business Days after receiving it. If, within the time limit, indicated in the previous sentence, the Provider does not make any statement or declines the Order, the Order is considered cancelled, unless the parties do not agree upon another time limit for its acceptance by the Provider.
3.4. The Order is accepted by the Provider with an express statement on its acceptance in Written Form. The Order becomes effective and binding for the parties as of BTC’s reception of Provider’s statement on its acceptance. Pursuant to its statement on the acceptance of the Purchase Order, the Provider accepts and agrees with these GT.
3.5. BTC is entitled to amend and/or withdraw the Order, both within the time limit under Article 3.3., and within 5 (five) Business Days after its acceptance, within the meaning of Article 3.4. For the acceptance of the amended Order, the rules of acceptance of the Order under Article 3.3. apply. For any amendments or withdrawals, made under this Article, BTC is not liable to the Provider for any damages, caused by the Order’s amendment or withdrawal. Any withdrawals or terminations of Orders, after the time limit, agreed-upon in this Article, will be governed by the rules of Article 12 of the GT.
4. DELIVERY OF GOODS AND SERVICES. ACCEPTANCE
4.1. Unless provided for otherwise in Written Form, the Provider shall deliver the Goods to the Goods Delivery Location and/or perform the Services at the Service Location, within Business Hours.
4.2. Unless provided for otherwise in Written Form, the Provider shall deliver the Goods and perform the Services on the Delivery Date. The Goods and/or Services must be delivered on the exact agreed-upon Delivery Date.
4.3. The Provider has to package, label and secure the Goods, at its own expense, for the time of transportation to the Delivery Location, as well as for the time of their storage before their Acceptance. The Provider shall adhere to all regulatory requirements of the Bulgarian legislation on the packaging, labelling and delivery of the Goods. The respective shipping document also has to contain the following note: “Notify: M&M Air Cargo Service Bulgaria, Airport Sofia.” The indication of a customs agent does not relieve the Provider of its obligations to deliver the Goods to the Goods Delivery Location or from any other obligations, related to the delivery and/or arising from the Delivery terms under the rules of Incoterms 2010.
4.4. BTC is entitled to decline any partial delivery, unless provided for otherwise in Written Form.
4.5. If BTC is unable to accept the delivery for any reason, the Provider has to store the Goods, to guarantee their security, insure them and take any necessary steps to protect them from damage until the time of delivery, and BTC will reimburse the Provider for the respective costs (including insurance), incurred by the Provider, when the amount of such costs have been approved by BTC in advance. Notwithstanding any advance approval, the Provider shall provide evidence for such costs, using the required expense documents.
4.6. For the delivery of the Goods to the Goods Delivery Location, a handover record on the number of delivered packages with Goods and on the condition of their packaging is created and signed. After the Services have been provided, the parties create and sign a handover record. The signing of the handover record is neither a statement by BTC for Acceptance of the Goods/Services, nor a statement that the delivered Goods/deliverables of the Services are in good condition, with the required quantity and quality.
4.7. Acceptance of the Goods and/or Services: For the Acceptance of the Goods and/or of the deliverable of the Services, the parties conduct tests, according to the Acceptance Tests. The purpose of the Acceptance Tests is to establish, confirm and verify whether the Goods and/or the Services are in compliance with the Agreement and the Standards. The Acceptance of the Goods/ Services by BTC does not relieve the Provider of its responsibility for any hidden defects or any defects and faults, shown upon usage of the Goods/the deliverable of the Services. BTC may decline the Acceptance of any Goods/Services, which are not in compliance with the Agreement. If the Acceptance Tests show that the Goods and/or Services, or any part thereof, are defective or missing, or not in compliance with the Specifications and Standards, apart from the obligation to pay a penalty to the benefit ofBTC, the Provider must immediately rectify the defect or fault, after which, the Acceptance tests, or any part thereof agreed-upon by the parties, must be repeated within a reasonable period of time, up to a maximum of 2 (two) such repeated tests.
4.8. Before starting to perform the Services, Provider’s employees must pass an initial instruction on occupational health and safety, fire and emergency safety. Under Article 18 of the Health and Safety at Work Act (the HSWA), the parties shall, by the Agreement Date, sign an agreement to jointly provide occupational health and safety conditions, in the form of an appendix, which will be an integral part of the Agreement.
4.9. The Provider shall adhere to the internal order and hygiene at the sites of BTC. The Provider shall, using own means and at its own cost, remove from the site of BTC, any waste, generated during installation or repair, outside the site of BTC.
4.10. The Provider shall observe and adhere to BTC site access procedures and rules. BTC may decline access to any Provider employees, not observing said rules.
4.11. BTC may assign to any third party (independent external expert) to perform the procedure for the acceptance of the delivered goods or services.
5. TITLE AND RISK 
5.1. The Goods’ title and risk of destruction or damage is transferred to BTC on the Acceptance date.
5.2. BTC holds the title of any intellectual/industrial property items, created by the Provider over the course of performance of the Order.
6. PRICES AND PAYMENTS
6.1. BTC pays the Provider the Price of the Goods/Services within 45 (forty-five) days after the date, on which BTC has received an invoice for the Goods and/or Services, together with the respective Acceptance Record.
6.2. BTC reserves the right to withhold any amounts, payable by the Provider to BTC, from the Price.
6.3. Unless agreed-upon otherwise, each invoice of the Provider has to contain the BTC’s Order number, a description of the Goods and/or Services, unit prices, a total price of the Goods/total price of the Services, the price with and without VAT included, the payable VAT. BTC may decline payment and return invoices, not containing any of the above details.
6.4. The payments of the Price do not mean Acceptance by BTC.
6.5 In case the Orders are placed in foreign currency, and the payments are made in Bulgarian leva, the exchange rate, posted by the Bulgarian National Bank (BNB) for the payment date, shall apply, unless expressly agreed-upon in the Order or an annex that the BNB exchange rate for the invoice issue date shall apply.
6.6. BTC shall withhold from the Price and shall pay to the respective tax administration in the Republic of Bulgaria any and all payable taxes or fees, whenever the laws in the Republic of Bulgaria provide for such obligations for the Provider and require BTC to withhold the amounts and make the payment at the Provider’s expense. In these cases, BTC agrees to:
(i) upon Provider’s request, assist the Provider to obtain documents from the respective authorities on any taxes and fees, paid in the Republic of Bulgaria, so that such payments will be recognised in the Provider’s country of incorporation;
(ii) In the cases, when the Republic of Bulgaria is party to a double-taxation avoidance agreement with the Provider’s country of incorporation, and upon Provider’s request, BTC may assist to obtain approval from the respective authorities in the Republic of Bulgaria to apply the more favourable tax regime.
BTC’s assistance under this Article is not linked to any stipulated outcome of such assistance and will be provided under the condition that all documents and information, related to the above taxation, as well as any other, which may be requested by the respective authorities in the Republic of Bulgaria, have been presented by the Provider in time.
6.7. For any overdue payment, under the Agreement, BTC shall pay the Provider a penalty for delay in the amount of the legal interest rate, defined in the Republic of Bulgaria, per day.
7. WARRANTIES. WARRANTY RESPONSIBILITY AND WARRANTY SERVICE 
7.1. The Provider declares and guarantees, that the Goods:
(i) are with good quality and fit for their intended purpose, including any purpose, indicated by BTC;
(ii) are without any defects in terms of design, materials and workmanship;
(iii) are in compliance with the Standards and Specifications;
(iv) are in compliance with the legal rules and requirements with regard to the sales of Goods;
(v) are manufactured with proper care and skill;
(vi) the Goods are not encumbered with any restrictions or third-party rights over the Goods.
7.2. The Provider declares and guarantees, that: (i) it will perform the Services with good quality, proper care and skills; (ii) it will provide proper, qualified and experienced personnel, with any required authorisations or certifications, to perform the Services; (iii) it will perform the Services effectively and on time; and (iv) it will observe the requirements of BTC.
7.3 The Provider declares and guarantees, that the sale or use of the Goods or the deliverable of the Services do not violate any Intellectual Property Right of any third parties.
7.4. If any of the Goods or Services are not delivered or performed in compliance with the Agreement, then BTC may, without any restriction or forfeiture of its other rights under the Agreement:
(i) require the Provider to immediately Repair the Goods/the deliverable of the Services or deliver other such Goods/perform the Services again, within a reasonable period of time, set by BTC; or
(ii) cancel the Order or any part thereof and require the Provider to return any amounts, paid by BTC for any Goods or Services, which are not in compliance with the Agreement.
7.5. Unless another, longer period is agreed-upon, the warranty period of the Goods is 24 months and starts on the Acceptance date. The warranty terms become an appendix to the GT. Within the warranty period and without any additional payment by BTC, the Provider shall repair or replace any part of the Goods, which has become faulty or defective, or perform again the Services, which have not been provided properly or with a deliverable not compliant with the quality requirements, and also shall upgrade and update any software programmes and applications within the subject of the Agreement. Unless provided for otherwise, BTC sends the Goods to the Provider at the latter’s expense, and the Provider has to deliver the repaired or replacement ones to an end point, indicated by BTC, at its own expense.
8. RESPONSIBILITIES AND PENALTIES
8.1. The Provider shall reimburse BTC entirely for any liabilities, losses, damages and costs, arising directly or indirectly, or made, or paid by BTC in relation to:
(i) any damage to BTC’s property and any claims for losses or damages by third parties, caused by any failure by the Provider or any omissions of its employees, subcontractors or agents, occurring over the course of execution of the Order;
(ii) cases, when the Goods do not have the required quality and are not fit for the purpose, for which they have been purchased, or for other purposes, indicated by BTC;
(iii) any defect or error, discovered in the Goods, including any defects in design, materials and workmanship;
(iv) non-compliance of the Goods with the Standards and Specifications;
(v) non-compliance of the Goods with the legal requirements and rules with regard to the sale of Goods;
(vi) any encumbrances over the Goods;
(vii) any failure to perform or any bad, or delayed deliveries of Goods or Services;
8.2. If the Provider fails to deliver the Goods, or any part thereof, in time and/or fails to perform any Service(s) in time, BTC is entitled to receive, without any restriction to its right to other compensation under the Agreement, a penalty for delay, as follows:
(i) for the first ten days—an amount, equal to 0.1% (zero point one per cent) of the Price of the delayed Goods/Services for each day in delay;
(ii) if the delay continues for more than 10 (ten) days, the Provider shall owe a penalty for delay in the amount of 0.2% (zero point two per cent) of the Price of delayed Goods/Services for each day in delay.
(iii) upon failure to keep the agreed-upon time limit to clear any faults, the Provider shall owe a penalty in the amount of 0.1% (zero point one per cent) for each day overdue or for each hour overdue, according to the support levels, under the appendix, containing the warranty conditions, of its payment to provide support for the Goods, for which the Provider is non-performing, if such a payment has been agreed-upon, and if not—of the Price of the Goods.
9. PERFORMANCE GUARANTEES. INSURANCE
9.1. If requested by BTC, as a performance guarantee, the Provider shall issue, to the benefit of BTC an irrevocable and unconditional bank guarantee, payable upon first written request by BTC, as follows:
(i) within 10 (ten) Business Days of the Agreement Date, a bank guarantee with the following details: (ii) amount: 10% of the Price of the Order; (iii) validity period: 1 (one) month after the expiration of the warranty period under the respective Order;
Any bank fees and expenses, associated with the guarantee’s issuance and service, are borne by the Provider.
9.2. Within 10 (ten) Business Days after the Agreement Date, the Provider shall present to BTC an original for a Professional Liability insurance, issued to the benefit of BTC, covering all risks involved in the performance of the Services and with terms, as required or endorsed in advance by BTC.
10. SOFTWARE PROGRAMME USE RIGHTS
10.1. For any Orders for the delivery of software products or Goods with embedded software products, the Provider shall provide, to the benefit of BTC, in full volume, without any time restrictions and without any obligation to pay any royalties, the right to use such products for their intended purpose and with BTC’s desired functionalities.
10.2. If the Provider does not hold the rights in the software products, and is not authorised to sub-licence, or does not hold all the rights to transfer the use of the software products, the Provider shall ensure the transfer of rights under Article 10.1. to the benefit of BTC, without any payment additional to the Price.
10.3. If the end users of the software products are the customers of BTC, the Provider shall transfer to BTC all rights to licence its end users, pursuant to a sub-licence, or shall ensure direct licencing for the end users on behalf of the holder of the rights in the software products.
10.4. The Provider declares and guarantees, that all payments under the Agreement, with regard to—and related to—any software products within the subject of the Agreement, have repayment effect with regard to the holder of rights’ receivables for the use of the indicated software products by BTC or BTC’s customers.
11. CONFIDENTIALITY
11.1. All information, contained in the Agreement, or created with regard to—and related to—the Agreement, as well as in all communications between the parties, is confidential in nature and may not be disseminated or disclosed to any third parties without the prior written consent of the other party to the Agreement.
11.2. Each party to the Agreement, receiving confidential information of the other party, shall keep such information secret and use the same measures for its protection as it uses to protect its own Confidential Information, and shall also take any and all reasonable precautions to avoid any unauthorised disclosure of any similar information by it or its employees for the term of the Agreement and for 3 (three) years after the expiration of this term. Each Party to the Agreement indemnifies the other party for any losses, caused by such unauthorised disclosure.
12. TERM OF AGREEMENT. TERMINATION
12.1. The term of the Agreement is set forth in the Purchase Order or is agreed upon in an annex in Written Form between the parties.
12.2. BTC may cancel any Order, fully or partially:
(i) if the Provider fails to deliver the Goods or provide the Services on the Delivery Date or to the Goods Delivery Location, or Service Location;
(ii) if the Provider delivers any Goods or provides any Services, which are not in compliance with the Agreement;
(iii) if the Provider fails to perform or violates any of its obligations under the Agreement, including, but not limited to any of its obligations under Article 7, 9, 10, 11 of the GT.
12.3. In the above cases, unless agreed upon that delivery must be performed strictly on time, BTC may cancel the Order, by giving the Provider an additional time limit to perform, in any case no more than 7 days, with a notice that, upon expiration of the time limit, the Order will be considered cancelled. In the cases under Article12.2. (i) and (ii), if agreed upon that the delivery must be performed strictly at the agreed-upon time, BTC may cancel the Order immediately, without giving the Provider any additional time limit for performance.
12.4. Any cancellation of an Order results only in termination of the Agreement, related to the cancelled Order.
12.5. Upon cancellation of an Order or part thereof, BTC is entitled to:
(i) return to the Provider, at the latter’s responsibility and expense, any Goods and/or Services, which have already been delivered, and have the Provider reimburse the amounts, which have already been paid by BTC for any such Goods and/or Services, if any; and
(ii) have the Provider reimburse the amounts for any other additional expenses, incurred by BTC for the acquisition of any other Goods and/or Services to replace the Goods and/or Services, as well as to
(iii) receive from the Provider any penalties under Section 8, accrued to the date of cancellation of the Order or any part thereof.
12.6. BTC may terminate the Agreement or the Order, with regard to all or any part of the Goods and/or Services, with a 30 (thirty)-day written notice to the Provider. In this case, BTC shall pay the Provider only the Price for the Goods and/or Services, accepted before the termination date.
13. NOTICES
All notices, requests or any other communications, according to these GT, must be transmitted in written form in Bulgarian language or the language, in which the Order was made, and must also be delivered personally or sent by courier or fax, addressed to the other party on the address, indicated in the Order. All notices, requests or any other communications, sent by courier, will be considered delivered (in the absence of any evidence for earlier reception) in three days after the sending date. All notices, requests or communications, sent by fax, will be considered delivered on the next Business Day after sending.
14. SPARE PARTS
The Provider must maintain stocks of spare parts for the Goods, for a period of at least 5 (five) years after the Acceptance date, and in the cases, when the Goods or spare parts become obsolete, the Provider must notify BTC thereon, at least 6 months in advance, in Written Form.
15. TRANSFER OF RIGHTS. SUBCONTRACTORS
15.1. The Provider may not transfer the Agreement or any part thereof without BTC’s prior written consent.
15.2. BTC may transfer its rights and obligations under the Agreement to the benefit of companies, in which BTC has interest, or to the benefit of its successors.
15.3. The Provider shall perform a minimum of 51% of its assigned work using own resources—employees, materials and equipment.
15.4. Any use of subcontractors by the Provider is admissible only upon BTC’s prior written consent. BTC may object to certain subcontractors, after which the Provider may not use those subcontractors for the performance of its assigned work. The Provider is responsible for the actions of its subcontractors as if those were its own.
15.5. In case the Provider fails to duly inform BTC on its use of subcontractors or is using a subcontractor, to which BTC has objected, or its use of subcontractors exceeds the agreed-upon volume/percentage, BTC is entitled to: a) terminate the Agreement immediately, without any additional time limit for performance; and/or b) receive a penalty from the Provider in the amount of 10% of the value of all Goods/Services, ordered under the Agreement
15.6. BTC may, at all times, within the term of the Agreement, including by assignment to an independent external expert-auditor, verify the performance of the Agreement, to which the Provider shall provide full assistance.
16. FORCE-MAJEURE CIRCUMSTANCES
No party will be liable to the other party for any damages, caused to the other party by any circumstances outside the first party’s control, including natural disasters, war, acts of terrorism or insurgencies. The force-majeure circumstances do not include any strikes or blockades, labour disputes or any delay, or failure to manufacture, or deliver Goods or Services, by third parties.
17. INFORMATION PROTECTION
The parties are aware that, when delivering the Goods and Services, the Provider works with personal data. The Provider must have adequate technical protection and organisational safety measures in place to ensure information confidentiality protection in compliance with the Information Protection Act.
18. APPLICABLE LAW. DISPUTE RESOLUTION
18.1. For any cases, not governed by the Agreement, the provisions of the Bulgarian legislation will apply. The UN Convention on Contracts for the International Sale of Goods does not apply.
18.2. If a claim or controversy should arise, representatives of the parties shall meet at least once and will attempt in good faith to resolve the dispute.
18.3. If the parties fail to reach a mutually acceptable agreement within thirty (30) days after their first meeting, all disputes, arising from the Agreement or related to it, including those arising from or concerning its interpretation, invalidity, performance or termination, as well as the disputes for filling gaps in this Agreement or its adaptation to newly established facts, shall be referred for resolution to the Court of Arbitration at the Bulgarian Chamber of Commerce and Industry in compliance with its Rules for Litigations, based on arbitration agreements, by one arbitrator, appointed in accordance with the said Rules. The arbitration decision shall be final for the parties to the Agreement.
18.4. The venue of the arbitration procedure shall be in Sofia.
18.5. The Court of Arbitration shall also rule on the sharing of costs, pertaining to the arbitration procedure.
18.6. All procedures of the Court of Arbitration are held in Bulgarian language. All evidence and documents are presented in Bulgarian language.
These GT do not apply for any purchase and delivery of Goods intended for sale.