1.These General Terms and Conditions (GTC) shall apply to all our commercial relationships with our customers (hereinafter referred to as “Purchasers”). The GTC shall only apply if the Purchaser is an entrepreneur in the understanding of Polish Law.
2.The GTC shall in particular apply to contracts for the sale and delivery of chattels (hereinafter also referred to as "products" or "goods"). The GTC shall apply as amended as a framework agreement, including to future contracts for the sale and delivery of our products to the same Purchaser, without a need for us to refer to them in each individual case. We shall inform the Purchaser without delay of any changes to our GTC.
3.Our GTC shall apply exclusively. Any deviating, conflicting or supplementary General Terms and Conditions of the Purchaser shall not become an integral part of the agreement, unless expressly consented to by us. This requirement for consent shall always apply, also when knowing the Purchaser's GTC, we supply the Purchaser without restrictions.
4.Individual agreements concluded with the Purchaser (including ancillary agreements, additions and amendments) shall prevail over these GTC. Our written confirmation and/or a written contract shall determine the content of such agreements.
5.Declarations and notifications of legal relevance which the Purchaser issues to us after contract conclusion (e.g. setting of time limits, notifications of defect) must be in writing to be valid.
2. Offer and conclusion of contract
1.Our offers are subject to change and non-binding. Ordering of goods by the Purchaser shall be deemed a binding offer to enter into a contract. We shall be entitled to accept this offer of contract within 14 days of receipt.
2.Acceptance may be declared in writing (e.g. by order confirmation) or by delivery of the goods to the Purchaser.
3.The written purchase agreement, including these General Terms and Conditions of Supply, shall exclusively determine the legal relations between us and the Purchaser. This shall be a complete record of all agreements between the parties on the subject of the contract. Verbal promises on our part made prior to contract conclusion shall not be legally binding, and any verbal agreements between the parties shall be replaced by the written agreement, unless it expressly follows from them that they shall bindingly continue to apply.
4.Additions and amendments to concluded agreements, including to these General Terms and Conditions of Supply, must be in writing to be valid. With the exception of managing directors or authorised signatories, the Purchaser's employees shall not be entitled to conclude verbal agreements in deviation from the above. Written form shall be deemed observed if submission is made by fax or email, provided that a copy of the signed declaration is submitted.
3. Delivery, transfer of risk, delay in acceptance
1.Unless otherwise agreed, delivery shall be ex works, which shall also be the place of performance. At the Purchaser's request and expense the goods shall be sent to a different place of destination (sale by delivery to a place other than the place of performance). Unless otherwise agreed, we shall have the right to determine the type of shipment (particularly the carrier, the route and the packaging).
2. The risk of accidental loss and accidental deterioration of the goods shall transfer to the Purchaser as soon as they are properly packed for transport and ready for collection by the Purchaser, however, at the latest upon handover to the Purchaser. In case of sale by delivery to a place other than the place of performance, the risk of accidental loss and accidental deterioration of the goods and the risk of delay shall transfer to the Purchaser upon handover of the goods to the shipping company, the carrier, or another person instructed to perform the delivery. A delay in acceptance on the part of the Purchaser shall be deemed completed handover.
3.In the event of a delay in acceptance on the part of the Purchaser we shall be entitled to claim any resulting damage, including additional costs (e.g. storage costs). The same shall apply if the Purchaser fails to render a due act of cooperation or our delivery is delayed for any other reason for which the Purchaser is responsible. We shall in these cases charge a flat-rate fee of EUR 25 per pallet per week, starting on the delivery deadline or – in the absence of a delivery deadline – upon notification of readiness to dispatch of our products, plus a flat-rate fee of EUR 25 per delivery for repackaging costs (regardless of package and/or pallet quantities).
This shall not affect the right to prove higher damage, nor our statutory rights (in particular reimbursement of additional expenses, adequate compensation, termination). The above flat-rate fees shall be credited against any further monetary claims. The Purchaser shall be entitled to prove that we did not incur damage at all or only to a significantly smaller extent than is covered by the flat-rate fees.
4.The delivery shall be insured by us against risk of theft, damage, transport, fire, water damage or other insurable risks only at the express request and at the expense of the Purchaser.
4. Payment terms and prices; minimum order value
1.Our current prices at the time of contract conclusion shall apply, ex works, exclusive of statutory VAT, unless otherwise agreed with the Purchaser.
2.In the case of sale by delivery to a place other than the place of performance, the Purchaser shall pay the costs of transport from the warehouse and the costs of any transport insurance requested by the Purchaser. The Purchaser shall be liable for any customs duties, fees, taxes and other official charges. .
3.Unless expressly agreed otherwise, payment of the purchase price shall be due within 30 days of invoicing and supply of the products. We reserve the right to deliver only against prepayment in particular cases (e.g. delivery to certain countries) and shall specify this in the respective order confirmation.
4.Upon expiry of the above payment term the Purchaser shall be deemed in default. An interest rate of 8 % above the applicable base rate shall be charged on the purchase price for the period of default. We reserve the right to claim any further damages resulting from the default.
5.The Purchaser shall only have the right to offset claims where its counterclaims are finally established by a court of law or undisputed.
6.Where, after contract conclusion, it becomes apparent that our claim to the purchase price is jeopardised by a lack of payment ability on the part of the Purchaser (e.g. due to an application to open insolvency proceedings), we shall be entitled to refuse service performance and withdraw from the contract.
7.The minimum order value is EUR 150 net. Where, in justified exceptional cases, the minimum order value is not reached and we nevertheless supply, an administration fee of EUR 15 shall be charged. Where costs exceed the above flat fee we shall only supply against prior acknowledgment of the cost, with the cost to be specified by us.
5. Delivery terms and delay in delivery
1.Time periods and dates for deliveries and services specified by us shall only ever be approximate, unless a fixed time period or date has been expressly promised or agreed. Where shipping has been agreed, the delivery time periods and delivery dates shall refer to the time of handover to the shipping company, carrier or other third party instructed to carry out transport.
2.We shall be entitled – without prejudice to our rights from default on the part of the Purchaser – to request an extension of delivery and service time periods or a postponement of delivery and service dates from the Purchaser equivalent to the time period for which the Purchaser fails to comply with its contractual obligations to us.
3.We shall not be liable for impossibility of supply or for delays in supply which occur due to force majeure or other events which were unforeseeable at the time of contract conclusion (e.g. operational malfunction of any kind, transport delays, strikes, lawful lock-outs, shortage of employees, energy or raw materials, difficulties in obtaining necessary official permits, measures by public authorities, or failure to supply, to supply correctly or to supply on time on the part of the manufacturer) and for which we are not responsible. Where such events significantly impede our ability to supply the delivery or service, or render supply impossible, and the obstruction is of a non-transient nature, we shall be entitled to withdraw from the contract. In case of obstructions of a transient nature, delivery or service periods or dates shall be extended or postponed by the duration of the obstruction, plus an appropriate relaunch period. Where the Purchaser cannot reasonably be expected to accept the delivery or service due to the delay it may withdraw from the contract by prompt written declaration to us.
4.We shall be entitled to perform part-deliveries ending the delay in delivery, if
- the part-delivery is useable by the Purchaser within the contractually determined purpose,
- the supply of the rest of the ordered goods is secured.
6. Retention of title
1.We reserve ownership of the sold products until full payment of all our current and future claims from the purchase agreement and the current commercial relationship (secured claims) has been received.
2.Products subject to retention of title may not be pledged to third parties nor transferred as security until full payment of the secured claims has been rendered. The Purchaser shall inform us immediately in writing if and to what extent third parties access products belonging to us.
3.In the event of breach of contract on the part of the Purchaser, in particular in the event of non-payment of the due purchase price, we shall be entitled to withdraw from the contract and to demand surrender of the products on the basis of the retention of title and the withdrawal. Where the Purchaser fails to pay the due purchase price we may only exercise these rights if we have previously unsuccessfully set the Purchaser a reasonable time period for payment. or such setting of a time period is not required according to statute.
4.The Purchaser shall be entitled to resell and/or process the goods subject to our retention of title in the course of ordinary business proceedings. In this case, the following provisions shall additionally apply.
(a) The retention of title shall extend to the products created by processing, mixing or combination of our goods, to the full value of those products, and we shall be deemed the manufacturer. Where a property right of third parties is maintained through processing, mixing or combination with goods of third parties, we shall obtain co-ownership in proportion to the invoice values of the processed, mixed or combined goods. In other respects, the same provisions shall apply to the product created as for the goods supplied subject to retention of title.
(b) As security, the Purchaser with immediate effect assigns to us any claims against third parties resulting from a resale of our goods or the product in full or to the extent of any coownership on our part in accordance with the preceding paragraph. We accept the assignment. The Purchaser's obligations specified in paragraph 2 shall also apply with regard to the assigned claims.
(c) The Purchaser shall, in addition to us, be entitled to collect the claims. We undertake to refrain from collecting the claims for as long as the Purchaser complies with its payment obligations to us, is not in default with regard to payment, no application to open insolvency proceedings has been filed and there is no other impediment to the Purchaser's ability to perform. However, where any of these are the case, we may demand that the Purchaser disclose to us the assigned claims and the associated debtors, render all information required for collection, surrender all pertaining documentation and notify the debtors (third parties) of the assignment.
(d) Where the realisable value of the securities exceeds our claims by over 20% we shall release securities chosen by us at the Purchaser's request.
7. Purchaser's rights in case of defects
1.Our liability for material defects shall be based primarily on the agreement concluded on the quality of goods. Agreements on the quality of goods are defined as product descriptions designated as such which the Purchaser was provided with prior to its order or which were included in the contract in the same manner as these GTC.
2.Where no agreement on quality is in place, the statutory provisions shall determine whether a defect is present (556.1 the Polish civil code). We do not accept liability for public statements of third parties (e.g. advertising statements).
3.Claims based on defects by the Purchaser are conditional upon the Purchaser's compliance with its duties to inspect and notify. Where a defect becomes apparent in the course of inspection or at a later date, the Purchaser must promptly notify us in writing. Notification of defect shall be deemed issued promptly if it is issued within two weeks, with dispatch of the notification within this time period being sufficient. Any obvious defects, including wrong delivery or short delivery, must be notified within two weeks of supply irrespective of this duty to inspect and notify, again with dispatch of the notification within this time period being sufficient. Where the Purchaser fails to perform due inspection and/or duly render the notification of defect, our liability for the non-notified defect shall be excluded.
4.Where the supplied good is defective we shall be entitled at our choice, to be exercised within a reasonable time period, to remedy the defect (rectification) or supply a good free from defects (replacement).
5.We shall be entitled to make due subsequent performance conditional upon payment of the due purchase price by the Purchaser. However, the Purchaser shall be entitled to retain a part of the purchase price appropriate to the defect.
6.The Purchaser shall allow us the time and opportunity required for due subsequent performance, in particular, it shall provide the good complained about for inspection purposes. In the case of replacement, the Purchaser shall return the defective good in accordance with the Polish civil code provisions.
7.Where a defect is found, we shall bear the necessary costs associated with inspection and subsequent performance, in particular transport, travel, labour and material costs. However, where a request to rectify a defect on the part of the Purchaser proves to be unjustified we may request reimbursement of the costs incurred as a consequence from the Purchaser.
8.In urgent cases, e.g. in the case of risk to operational safety or to prevent disproportionate damage, the Purchaser shall have the right to rectify the defect itself and demand compensation for the objectively required associated costs from us. The Purchaser must inform us of the performance of such self-remedy immediately, where possible in advance. The right to self-remedy shall not apply where we would have been entitled to refuse the appropriate subsequent performance according to statute.
9.The Purchaser shall only be entitled to claims to damages or compensation for wasted expenditure as set out in the following Section 8; such claims shall otherwise be excluded.
8. Other liability
1.Unless otherwise stipulated by these GTC, including the following provisions, we shall be liable in case of breach of contractual and extra-contractual obligations in accordance with the relevant statutory provisions.
2.We shall be liable for damages – regardless of legal grounds – in cases of intent and gross negligence. In cases of ordinary negligence, we shall only be liable
(a) for personal injury or death,
(b) for damages incurred as a result of breach of an essential contractual duty ; however, our liability in such a case shall be limited to typically occurring, foreseeable damage.
3.The limitations of liability in paragraph 2 shall not apply where we have maliciously concealed a defect or assumed a guarantee for the quality of the goods. The same shall apply to the Purchaser's claims pursuant to the Polish Product Liability Law.
9. Limitation periods
1.The general limitation period for claims from defects in quality and title shall be one year from supply.
2.This shall be without prejudice to special statutory provisions on third parties' claims in rem for return, malice, and claims in the course of supplier's recourse in the case of final delivery to a consumer.
10. Choice of law and place of jurisdiction
1.These GTC and all legal relations between us and the Purchaser shall be governed by the law of the Republic the Poland, to the exclusion of unified international law, in particular UN law on the sale of goods (CISG).
2.Where the Purchaser is an entrepreneur in the understanding of Polish Law, the exclusive – and international – place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship shall be our registered business seat in Gliwice. However, we shall in addition be entitled at our discretion to commence legal action at the Purchaser's general place of jurisdiction.