General Terms and Conditions of Sale

of goods by Fabryka Transformatorów w Żychlinie Spółka z ograniczoną odpowiedzialnością, Żychlin

  1. DEFINITIONS AND INTERPRETATION
    1.1 In this document, the term: 1) “GTCS”: means these General Terms and Conditions of Sale.
    2) “Agreement”: an Agreement for the Sale of Goods on the conditions specified in the GTCS or otherwise defined by the Seller and the Buyer.
    3) “Buyer” means a natural or legal person, or an organisational entity without legal personality which is vested legal capacity by law, which enters into an Agreement with the Seller,
    4) “Seller” means: Fabryka Transformatorów w Żychlinie Spółka z ograniczoną odpowiedzialnością, Żychlin,
    5) “Sale” means: the delivery of the Goods and transfer of ownership according to the rules stipulated in the Agreement and the GTCS; unless otherwise provided for in the Agreement, Goods are delivered according to the DAP formula of INCOTERMS 2010,
    6) “Goods” means: the object indicated in the Agreement, particularly transformers manufactured by the Seller,
    7) “Guarantee” means: a guarantee in the sense of the Polish Civil Code with the scope defined in the Agreement, the Guarantee Certificate and the GTCS,
    8) ”Implied warranty for defects” means: an implied warranty for defects in the sense of the Civil Code. Unless otherwise provided for in the Agreement, the Parties exclude the Seller’s liability under the implied warranty for physical defects in the Goods. If the Agreement stipulates that the Seller is liable under the implied warranty for defects, the scope of such implied warranty shall be defined either in the Agreement or in the GTCS,
    9) “Order” means an order placed with the Seller by the Buyer, which the GTCS are an integral part of.
    10) “Intellectual property rights” means: any proprietary rights of the author, rights in utility models, decorative patterns, trade names, trademarks, all effects of creative work,
    11) OMM – Operation & Maintenance Manual.
  2. APPLICATION OF GTCS.
    2.1. These General Terms and Conditions of Sale shall apply unless the Agreement stipulates otherwise.
    2.2. In the event of discrepancy between these General Terms and Conditions of Sale and the Agreement, the provisions of the Agreement shall prevail.
    2.3. The Buyer is not authorised to alter, amend or cross out any provisions of the GTCS. Any departure from the GTCS shall be invalid unless it stems from the Agreement.
    2.4. No other conditions, specimen agreements or rules and regulations supplied by the Buyer shall apply to the relationship between the Seller and the Buyer unless the Seller agreed to their incorporation in the Agreement in writing.
  3. CONCLUSION OF AGREEMENT.
    3.1. An Agreement may be entered into in any of the following ways:
    3.1.1. in the form of a document executed by both Parties, or
    3.1.2. by the Seller’s accepting and confirming the Order placed by the Buyer,
    3.1.3. by the Buyer’s acceptance of an offer made by the Seller.
    3.2. An Agreement shall be entered into in the manner stipulated in 3.1.1. following negotiations between the parties or acceptance by one Party of the text of the Agreement drawn up by the other Party. Such a document shall contain a clause concerning the applicability of the GTCS or clauses stipulating that certain provisions of the GTCS shall not apply or shall be modified.
    3.3. An Agreement shall be entered into in the manner stipulated in 3.1.1. in writing either by way of execution of the document by each party or by way of exchange of an identical counterpart of the Agreement executed by each Party.
    3.4. Where one document is executed without the presence of both Parties, the Buyer shall execute at least two counterparts of the Agreement and send them to the Seller’s address. The Seller shall execute the counterparts of the Agreement he has received and shall send the counterparts of the Agreement intended for the Buyer to the Buyer at the address stipulated by the Buyer. Unless the Parties explicitly agree otherwise, the Agreement shall take effect upon receipt by the Buyer of the counterparts of the agreement intended for the Buyer. Where the Agreement is executed in the presence of both Parties, it shall take effect as of the date it is executed by the last signatory.
    3.5. An Order must at least identify the Parties, precisely define the object of the Agreement, specify the price, date and place of delivery. The Order must also contain a clause that the relationship between the Parties shall be governed by the GTCS.
    3.6. If the Order does not specify the date until which the Buyer will await confirmation of the Order, the Seller may provide such a confirmation not later than 14 days of the receipt of the Order from the Buyer.
    3.7. An Order may not contain any proposal to amend or waive any of the provisions of the GTCS.
    3.8. The Agreement shall be concluded upon the receipt by the Buyer of the Order Acceptance Confirmation from the Seller. Implicit or tacit acceptance of the Order shall be excluded.
    3.9. The Order and the Order Acceptance Confirmation shall be delivered:
    3.9.1. in writing,
    3.9.2. in electronic form,
    3.9.3. by facsimile.
    3.10. An offer shall be made to the Buyer by the Seller. Such offer shall include the crucial components of the Agreement and a declaration on the applicability of all or some of the GTCS. The offer may alter some of the GTCS.
    3.11. An offer shall be made in one of the ways specified in clause 3.9.
    3.12. Where an offer is made in electronic form, the offer shall be binding on the Seller as stipulated therein and in the GTCS if the Buyer confirms the receipt of the offer without delay. In mutual relations, the Parties exclude the applicability of art.66¹§2 of the Polish Civil Code.
    3.13. An offer shall be binding on the Buyer upon acceptance. The offer shall be accepted in one of the forms stipulated in clause 3.9.
    3.14. Qualified acceptance of the offer in the sense of art.68¹§1 of the Polish Civil Code shall be excluded in the relations between the Parties. Implicit or tacit acceptance of the offer shall also be excluded.
  4. SELLER’S OBLIGATIONS.
    4.1 The Seller shall deliver the Goods on the following conditions:
    4.1.1 in compliance with the general law;
    4.1.2 observing the quality standards stipulated in the Agreement;
    4.1.3 free of any defect or encumbrance with third party rights;
    4.1.4 by the deadline stipulated in the Agreement;
    4.1.5 in the quantity stipulated in the Agreement.
    4.2. Unless otherwise provided for in the Agreement, the Seller is allowed to use subcontractors.
    4.3. Any prohibition of use of subcontractors stated in the Agreement shall not mean that the use by the Seller of supplies of certain devices from sub-suppliers is prohibited.
    4.4. Along with the Goods, the Seller shall supply the OMM to the Buyer.
  5. BUYER’S OBLIGATIONS.
    5. 5.1. The Buyer is obliged to: 5.1.1. receive the Goods; 5.1.2. take part in the acceptance of the Goods; 5.1.3. pay the price.
  6. DELIVERY.
    6.1. Unless the Agreement stipulates otherwise, the Goods shall be delivered by the Seller according to the DAP formula of INCOTERMS 2010 to the place of delivery specified in the Agreement. If the Agreement does not specify the place of delivery, the Buyer’s registered office shall be understood as the place of delivery.
    6.2 The Seller shall ensure that every Delivery contains a delivery document (WZ) containing at least the following details: the date of the Agreement (Offer, Order), the number of the Agreement (Offer, Order), specification of the delivered Goods (if the Goods are delivered in batches, indication of the quantity of the Goods that remain to be delivered),
    6.3 The Goods shall be delivered within the time frame agreed with the Buyer by telephone and, if not agreed in this way, during the office hours of the Buyer.
    6.4 Unless explicitly agreed otherwise, ownership of the Goods is transferred to the Buyer upon payment.
    6.5. The Seller shall deliver the Goods using its own or third-party transport.
    6.6. Upon delivery of the Goods to the Buyer, all the risks of loss or damage of the Goods shall transfer to the Buyer.
  7. ACCEPTANCE OF GOODS.
    7.1. Unless otherwise provided for in Agreement, the Parties shall carry out:
    7.1.1. factory acceptance of the Goods when the Seller reports readiness for acceptance,
    7.1.2. final acceptance upon delivery of the Goods by the Seller.
    7.2. The Parties shall draw up a delivery-acceptance certificate in respect of the acceptance.
    7.3. If the Buyer fails to take part in the acceptance procedure, the Seller shall sign the certificate unilaterally and the effect of this shall be unqualified acceptance.
    7.4. If the Goods do not have the properties defined in the Agreement (Order, Offer), the Buyer shall be entitled to refuse to accept the Goods until such defects, if capable of curing, are cured and if not – until Goods free of any defects are delivered. The defects shall be cured within the time frame agreed by the Parties and if the Parties have not agreed such a time frame, then not later than in 14 days. If the Goods need to be replaced with other Goods free of any defects, in the absence of a specific arrangement by the Parties, the exchange shall be effected within 60 days. (The Seller shall cure the defects within the mutually agreed time frame).
    7.5. In the event of delay in delivery of the Goods or curing of the defects identified at acceptance, the Buyer shall be entitled:
    7.5.1. to demand payment of a contractual penalty at the rate of 0.1% of the value of the undelivered Goods for each day of the delay, if the delay exceeds 7 days, however in total not more than 10% of the value of such undelivered Goods,
    7.5.2. if the delay in the delivery of the Goods exceeds 30 days, the Buyer shall be entitled to withdraw from the Agreement with immediate effect and to demand a contractual penalty from the Seller, which shall amount to 10 times the value of the undelivered Goods. Withdrawal from the Agreement shall only apply to the failed delivery.
    7.5.3. with regard to a delay in the curing of the defects, clause 7.5.1. shall apply accordingly,
    7.5.4. with regard to a delay in the replacement of the Goods with ones that are free of defects, clause 7.5.2. shall apply accordingly.
    7.6. If there are different grounds for the application of contractual penalties, the total amount of penalties may not exceed 10% of the value of the Agreement.
  8. SETTLEMENT OF ACCOUNTS BETWEEN PARTIES.
    8.1. The amount of remuneration due to the Seller is stipulated in the Agreement entered into by the Parties.
    8.2. A VAT invoice shall be issued within 14 days of the occurrence of one of the following events: - report of factory readiness after factory tests when the Goods are stored in the Seller’s deposit, - delivery of the Goods to the Buyer’s premises, when the Goods are delivered by the Seller to the Buyer’s premises. - the execution by the Parties of an unqualified delivery-acceptance certificate within a non-extendible period of 14 days of the date of positive factory tests.
    8.3. The remuneration shall be increased by the output goods and services tax (VAT) at the rate applicable at the date of issuance of the VAT invoice, in line with the pertinent regulations.
    8.4. Payment shall be made into the bank account specified by the Seller in the VAT invoice.
    8.5. The date of payment shall be understood as the date of crediting of the Seller’s bank account.
    8.6. The Buyer shall not be entitled to set off any claims, including any contractual penalties or other, against the remuneration due to the Seller.
    8.7. If the Buyer is unable to accept the Goods for other reasons than for the Seller’s fault, the Seller shall be entitled to issue a VAT invoice covering the remuneration and a monthly fee paid by the Seller for the storage of the Goods, amounting to PLN 1,000 plus VAT.
  9. GUARANTEE AND IMPLIED WARRANTY FOR DEFECTS.
    9.1. The Seller grant the Buyer a guarantee and an implied warranty for defects on the terms and conditions stipulated in these GTCS and the Guarantee Certificate.
    9.2. The Guarantee Certificate shall be handed over to the Buyer by the Seller after the execution of an unqualified delivery-acceptance certificate.
    9.3. Unless otherwise stipulated in the Agreement, the guarantee and the implied warranty for defects shall be granted for 24 months.
    9.4. The guarantee covers the Seller’s liability for defects existing in the sold object.
    9.5. The implied warranty for defects covers the Seller’s liability for defects existing in the Goods, impairing the usefulness of the sold Goods or if the Goods were delivered to the Buyer incomplete and such incompleteness could not have been detected during acceptance. It is a prerequisite for the liability under the implied warranty for defects in connection with an impairment of the usefulness of the Goods that the Parties determine the parameters whose existence was guaranteed by the Seller to the Buyer.
    9.6. The Seller’s liability under the guarantee or implied warranty for defects starts running on the date of execution of the certificate concerning positive factory tests.
    9.7. The guarantee and the implied warranty for defects run in parallel.
    9.8. If a defect occurs during the period of guarantee and implied warranty, such period of guarantee and implied warranty shall be extended by the time during which the Buyer was unable to use the Goods.
    9.9. A claim under the guarantee or implied warranty for defects shall be reported on the following conditions:
    9.9.1. a report shall be submitted in writing or by e-mail,
    9.9.2. a report shall be made without delay, in any case not later than 24 hours from the occurrence of the defect,
    9.9.3. in the report, the Seller shall specify the defect and the time of its occurrence.
    9.10. The Seller shall proceed to cure the defect without delay, in any case not later than 72 hours after it was reported.
    9.11.The Seller shall cure the defect as soon as possible.
    9.12. If in order to cure the defect, it is necessary to do repairs in the Seller’s premises, the Goods shall be transported at the Seller’s expense.
    9.13. If a defect occurs, the Buyer may demand, under the guarantee or implied warranty for defects that the Seller repair the Goods and if it is technically impossible to repair the Goods, the Buyer may also demand replacement of the Goods.
    9.14. The Buyer shall not be entitled to a claim under the guarantee or implied warranty for defects in the event:
    9.14.1. of mechanical damage,
    9.14.2. that the Buyer or a third party conducts the repair without the Seller’s permission,
    9.14.3. of fortuitous events or circumstances which the Seller is not responsible for,
    9.14.4. that the Goods are not used in full compliance with the OMM.
    9.15. The Buyer may not assign the rights under the guarantee and implied warranty for defects to any third party.
  10. INTELLECTUAL PROPERTY RIGHTS.
    10.1. All intellectual property rights shall remain vested in the Seller.
    10.2. Upon payment, the Buyer shall acquire only the right to use the Operation & Maintenance Manual to the extent necessary to use the Goods in accordance with their purpose.
    10.3. In particular, the Buyer shall not acquire a right to copy, modify, create derivative work or promulgate the OMM.
  11. FORCE MAJEURE.
    11.1. The Parties shall not be liable for non-performance caused by force majeure.
    11.2. The Parties understand force majeure to be an external event which a Party was unable to foresee upon entering into the Agreement, which it could not avoid and which is beyond its control.
    11.3. Either Party shall notify the other Party of the occurrence of a force majeure event without delay.
    11.4. Where a force majeure event lasts for more than 30 days, either Party shall be entitled to withdraw from the Agreement with immediate effect.
    11.5. Where the Agreement is terminated due to force majeure occurring on the Buyer’s side, the Seller shall have the right to claim payment for the Goods according to the advancement of production of the Goods as at the Agreement termination date.
  12. CONFIDENTIALITY.
    12.1. The Parties shall preserve the confidentiality of all the information about the other Party which they acquired during the performance of the Agreement, especially information about the prices charged, technologies, technical and organizational solutions employed.
    12.2. Confidential information may only be used for the purpose of performance of the Agreement.
    12.3. A Party shall protect confidential information the same way at it protects its own confidential information.
    12.4. The duty of confidentiality is excluded if:
    12.4.1. the information in question is in public domain,
    12.4.2. the Party holding the right has permitted the disclosure of such information,
    12.4.3. the disclosure of information has been requested by a competent state authority,
    12.4.4. the disclosing party has received the information in question from a third party, which had a legal right to disseminate it.
  13. NOTICES.
    13.1. Unless otherwise provided for in the Agreement or the GTCS, all notices shall be served by registered mail, courier, fax or e-mail at the address of the respective Party stated in the Order or at such other address specified for this purpose, which was communicated by one Party to the other in writing. Notices sent by e-mail or fax require a written confirmation of receipt from the receiving Party. Under no circumstances will any automatically generated certificate be treated as the confirmation of service of a notice. Electronic signatures shall not be valid unless explicitly approved in writing by duly authorised representatives of the Parties.
  14. LIABILITY.
    14.1. The Seller shall be liable to the contractual penalties stipulated in the Agreement or the General Terms and Conditions of the Order.
    14.2. The Seller’s liability on the generally applicable rules shall be excluded.
    14.3. Regardless of the above, the total liability of the Seller may not exceed the value of the Goods which a claim in question relates to. In particular, the Seller shall not be liable for any loss of profit or indirect losses.
    14.4. This limitation of liability shall not apply to any loss caused by wilful misconduct consisting in bodily harm or loss of life by any employee of the Buyer.
    14.5. The provisions of sections 14.1. – 14.4. shall not apply to liability for the recruitment of staff and the confidentiality undertaking.
  15. PROHIBITION OF ASSIGNMENT AND RECRUITMENT OF EMPLOYEES.
    15.1. The Buyer shall not assign his rights under the Agreement without the Seller’s consent.
    15.2. Neither Party is authorised to hire any employees of the other Party during the term of their employment relationship and six months after its cessation.
    15.3. If the prohibition stated in section 15.2. is breached, the Party who hired an employee of the other Party shall pay that Party a contractual penalty of PLN 50,000 (fifty thousand Polish zlotys.
  16. TERMINATION.
    16.1. If the Agreement is terminated on any legal grounds, the Parties shall be obliged to settle accounts under the Agreement according to the status of completion as at the termination date.
    16.2. Obligations incurred during the term of the Agreement shall be performed also after its termination.
  17. GOVERNING LAW AND COMPETENT COURT.
    17.1. Matters not provided for in the Agreement and the GTCS shall be governed by the provisions of the Polish law, particularly the Polish Civil Code.
    17.2. The Parties hereby exclude the applicability of the United Nations Convention on Contracts for the International Sale of Goods dated 11 April 1980.
    17.3. Any disputes arising from the Agreement and these GTCS shall be referred to the public court of competent jurisdiction for the Seller’s registered office.
  18. MISCELLANEOUS.
    18.1. The Agreement and the GTCS constitute the entire agreement between the Parties. The Seller shall not be liable for any obligation not stated in the Agreement and the GTCS.
    18.2. No alteration of the GTCS during the term of the Agreement shall be binding on the Buyer unless the Buyer has accepted such alteration.