GENERAL TERMS AND CONDITIONS OF SALE
1. DEFINITIONS
The following definitions shall apply to the General Terms and Conditions of Sale and the Exection Contract.
1. The term “Terms and Conditions” shall mean these General Terms and Conditions of Sale.
2. The term “Seller” shall mean TES Sp. z o.o., Magnacka 6, 80-180 Kowale, PL, TIN (tax identification number): PL5830004389
3. The term “Buyer” shall mean any entity, domestic or foreign (a legal person, natural person or legal entity without legal personality) purchasing goods from the Seller.
4. The term “Party” shall mean the Seller or the Buyer, and “Parties” shall mean the Seller and the Buyer jointly.
5. The terms “Goods” or “Devices” or “Subject Matter of the Contract” shall mean: devices and equipment subject to sale, constituting the Seller’s range of products.
6. The terms “delivery date” or “delivery” or “Contract execution date” or “dispatch date” shall mean: the date on which the Devices are declared as ready for loading from the Seller’s facility, upon the expiry of the period agreed in the Execution Contract. For tax purposes, the above dispatch date is also defined as the moment of taking economic possession of the Goods and transferring the right to dispose of the Goods as the owner.
7. The terms “Execution Contract” or “Contract”, used interchangeably, shall mean: the sales Contract concluded by and between the Seller and the Buyer, including in particular: the quantity, price, technical specifications of the Goods, dispatch date, payment terms, contractual penalties and other special provisions.
8. The term “Civil Code” shall mean: The Act of 23 April 1964 – the Civil Code applicable in the Republic of Poland.
2. GENERAL PROVISIONS
1. The Parties shall be bound by the Terms and Conditions during all transactions, regardless of their subject matter.
2. Provisions of Contracts between the Parties that are inconsistent with the Terms and Conditions shall not be binding upon the Seller, even if not expressly negated thereby. The Terms and Conditions may be amended only by an appropriate provision in the Execution Contract. In such a case, the provision of the Contract shall prevail.
3. CONCLUSION OF THE CONTRACT
1. Catalogues, price lists and other information addressed to customers shall not constitute an offer within the meaning of the Polish Civil Code.
2. The Subject Matter of the Contract shall be the sale of the Devices whose technical specification is set out in an appendix to the Contract.
4. EXECUTION OF THE CONTRACT
1. Placement of an order by the Buyer shall not bind the Seller until the Parties sign the Execution Contract.
2. The receipt of the payment specified in section 3 subsection 2 point a) of the Contract shall condition the commencement of the contractual deadlines.
3. After receiving all required technical data from the Buyer, the Seller reserves the right to modify the technical specification of the Devices, however, keeping the same functionality.
4. If the Seller prepares a configuration layout of the Devices, the Buyer is obliged to submit comments on it within 2 working days. The Buyer shall be entitled to a maximum of three rounds of layout modifications (total process time of 6 working days).
5. The Buyer shall approve the configuration layout of the Devices within 4 working days of receipt of the final (fourth) version thereof by means of signing by authorized signatories, stamping and sending by email.
6. The Parties allocate a total of 10 working days for the processes described in subsections 4 and 5. The Buyer’s failure to meet these time limits shall result in an extension of the Contract execution date by at least the same number of days and an additional fee to be charged for a greater number of modifications.
7. Any modifications to the configuration layout of the Devices, introduced by the Buyer after its approval may cause an increase in the value of the Contract, the amount of which shall be agreed between the Parties in each instance. Modifications may result in an extension of the Contract execution date.
8. If the Seller prepares technical designs for packaging (bottles, labels, cartons, trays, etc.), the Buyer is obliged to submit comments on it within 2 working days. The Buyer shall be entitled to a maximum of three rounds of version modifications (total process time of 6 working days) for each packaging.
9. The Buyer shall approve said technical designs within 4 working days of receipt of the final (fourth) version thereof by means of signing by authorized signatories, stamping and sending by email.
10. The Parties allocate a total of 10 working days for the processes described in subsections 8 and 9. The Buyer’s failure to meet these time limits shall result in an extension of the Contract execution date by at least the same number of days and an additional fee to be charged for a greater number of modifications.
11. Any modifications to the technical designs introduced by the Buyer after their approval may cause an increase in the value of the Contract, the amount of which shall be agreed between the Parties in each instance. Modifications may result in an extension of the Contract execution date.
12. The Buyer’s failure to comply with the time limits set out in section 4 of the Contract shall result in an extension of the Contract execution date by at least the same number of days.
13. The Seller may request a larger amount of consumables than defined in section 4 of the Contract, and the Buyer is obliged to deliver it as requested.
14. The Seller shall not be responsible for any delays in the execution of the Contract in the event of changes being introduced by the Buyer in the Subject Matter of the Contract, effecting the production time, assembly time or start-up time of the Devices, or in the event of the Buyer’s failure to comply with its obligations.
15. Meeting the contractual deadlines depends on the timely fulfilment of obligations by the Buyer and timely fulfilment of obligations by contractors or subcontractors of the Seller.
16. The Seller shall not be liable for failure to meet contractual deadlines if the reason for such failure was force majeure or other circumstances beyond the Seller’s control. Until the cessation of the obstacle, the Seller may suspend or limit the execution of the Contract and the course of the delivery date shall be suspended.
17. In the above-mentioned situations, the Seller shall not be deemed to have failed to perform its obligation in a timely or proper manner, and the Buyer shall not be granted the right to claim damages or contractual penalties, or the right to withdraw from the Contract.
5. DELIVERY OF GOODS, TRANSPORT, STORAGE
1. The Devices shall be deemed delivered on time if reported as ready for loading at Seller’s facility before the agreed Contract execution date.
2. Each dispatch may be made by the Seller partially. It is the Seller who determines the quantity, type and delivery date of the Goods partially dispatch.
3. The Buyer shall collect the Goods up from the Seller’s facility within two weeks of the date on which the Goods are confirmed ready for loading by the Seller.
4. If dispatch is delayed for reasons not attributable to the Seller or if the Goods are not collected by the Buyer in a timely manner in accordance with subsection 3, the Seller shall at its sole discretion and without any liability whatsoever have the right to store the goods at the Buyer’s risk and to charge the Buyer for storage costs starting from the date of notification of readiness for loading. Storage costs shall be the equivalent of EUR 1 000/week.
5. If the delay in collection or dispatch for the reasons set out in subsection 4 is more than 60 calendar days, the Seller may dispose of the Goods freely, and the Buyer shall have no right to make claims for untimely performance or nonexecution of the Contract. The Seller shall have the right to claim reimbursement from the Buyer for the costs incurred.
6. Organisation of transport:
a) Transport shall be organized according to the terms of FCA Kowale, PL INCOTERMS 2020, upon payment by the Buyer of all such amounts as the Buyer is required to pay before dispatch, in accordance with the provisions of this Contract. The Buyer shall organize and pay for transport.
b) The Seller shall allow for INCOTERMS2020 CPT or CIP (place of delivery) rules to be applied to the transport of the Devices. In such cases, the goods shall be deemed delivered if conveyed by the Seller, a carrier or dispatcher to the delivery location.
c) The Buyer agrees to apply INCOTERMS2020 DAP or DPU or DDP (place of delivery) rules to the transport of Devices whenever delivery of Goods under the Contract is defined for the Seller as indirect export. In order to confirm the transaction, the Buyer shall be obliged to provide the Seller with an IE599 document and a form “Confirmation of Collection of Goods in Indirect Export” approved with a stamp and signature. The Goods shall be deemed to have been timely delivered by the Seller in accordance with subsection 1.
7. The Parties declare that they are familiar with the provisions of INCOTERMS2020 rules and knowingly incorporate their application.
8. The risk of accidental loss, destruction or deterioration of the Goods, as well as any damage resulting from their possession shall be transferred to the Buyer no later than at the time of the release of Goods by the Seller to the forwarder or carrier (also partially). The Seller shall not be liable for any loss or shortage in the Goods themselves or their packaging occurring after that time.
9. The Buyer shall ensure shall provide the equipment and local manpower to unload, store the Goods on suitable premises or place them directly at the final assembly site in accordance with the approved layout.
10. The Buyer shall store the delivered Devices in appropriate conditions: protected from rain, snow, sand, wind, at a temperature between 5°C and 35°C. The Seller shall not be responsible for any destruction or malfunction of the Devices, or for defects preventing correct assembly, resulting from failure to comply with this obligation and may charge additional fees for any repairs and removal of damages caused thereby.
11. The Buyer shall provide premises secured against third party access, allowing storage of the Devices, auxiliary materials and tools in safe conditions.
12. The Buyer must inspect the Goods upon delivery for damage in transport and notify the Seller in writing of any damage discovered within 24 hours of unloading.
13. The lack of such a notification shall mean that there are no objections. Goods so received shall be deemed to be without defects.
6. INITIAL TEST – FAT
1. Prior to dispatch the Devices shall be inspected and tested at the premises of the Seller in accordance with the internal procedures. To this end, the Buyer shall provide consumables for this purpose in accordance with the terms of the Contract.
2. Consumables containing easily deteriorating, dangerous or toxic substances shall be subject to approval by the Seller only upon written authorization. The Seller shall have a right to refuse to accept such consumables and return them to the Buyer. The costs and risks of any such return shall be borne in whole by the Buyer.
3. Upon completion of initial test (FAT), the Seller shall return consumables and accessories to the Buyer at the Buyer’s risk and expense. If the consumables cannot be returned, the Seller shall be entitled to use or recycle said consumables at the Seller’s own discretion without a written authorization from the Buyer. Any and all costs relating to such recycling shall be borne by the Buyer.
4. Should the Buyer fail to provide the consumables or other necessary accessories for conducting the initial test within the contractual deadlines, including if such consumables are non-compliant in regards to quantity or incompatible with the technical specifications, the Seller will conduct an initial test/FAT as follows:
a) if possible, the Seller will purchase the necessary quantity of consumables of the same type, charging the entire cost to the Buyer
b) if this type of consumables is unavailable, the Seller will purchase the necessary quantity of materials of the most similar type; provided that the Seller unilaterally determined it to be a suitable substitute. All possible adjustments, adaptations and modifications usually carried out at the premises of the Seller during FAT will be performed at the Buyer’s premises during start-up. All costs of purchase and activities carried out shall be borne by the Buyer
c) if the consumables set out in a) or b) are not available, the Seller may, at its own discretion:
– decide unilaterally to deliver partially tested Devices. All adjustments, adaptations and modifications carried out at the seat of the Seller during FAT will be performed at the Buyer’s premises during start-up. All costs of purchase of consumables and activities carried out shall be borne by the Buyer
– suspend the performance of the Contract, imposing contractual penalties on the Buyer
5. The objectives of FAT testing are as follows:
a) visual inspection of Devices not subject to initial test
b) initial verification of compliance of the tested Devices with the specification of the Contract
6. The date for the FAT test will be communicated to the Buyer prior to the scheduled test. After completing the test, the Devices will be dismounted and packed for shipment.
7. The Buyer shall notify the Seller of its intent to participate in FAT within one week of notification of the scheduled testing date. The Buyer’s participation in the initial test shall be at the Seller’s cost and responsibility, but is not obligatory for him.
8. If the Buyer is not present during the FAT test, the Seller will, at the Buyer’s request, send a video documenting the test.
9. After initial test, the Parties shall sign a report prepared by the Seller, confirming the execution of FAT. If the Buyer fails to attend, said protocol will be signed unilaterally by the Seller. Should a portion of payment be conditioned upon a satisfactory execution of the FAT test, the Buyer’s absence shall not affect Seller’s right to receive payment upon presentation of a report signed unilaterally.
10. Should any defect arise during the test, the Seller is obliged to remove them within a period agreed with the Buyer.
7. PREPARATION FOR ASSEMBLY
If the Parties have agreed that supervision of the assembly or the assembly is to be carried out by the Seller, the following provisions shall apply.
1. The Buyer undertakes on his own and at his own expense to:
a) complete the necessary earthworks, construction and welding one week prior to the start of assembly
b) finish arrangements with the power company and obtain the required permits one week before the start of assembly
c) hand over the premises to the Seller in a condition sufficient for assembly works no later than 3 days prior to the planned start of the works. This shall mean in particular:
– providing utilities necessary for the performance of the Contract, including hot water, locker rooms with access to sanitary devices, access to the Internet,
– power connection to the points indicated by the Seller
– ensuring appropriate lighting and earthing
– ensuring appropriate temperature, air circulation and venting. The temperature in premises during work must be maintained within the 19-24°C range
– preparation of infrastructure (process media installations: steam, process water, other media required by the scope of the Contract)
d) deliver the consumables for the start-up of Devices, one week prior to completion of assembly:
– if the start-up covers one container format: in such quantity as to cover the need for 80 work-hours of the Devices at maximum output
– ff the start-up covers more than one container format: in such quantity as to cover the need for 80 work-hours of the Devices at maximum output, whereby 60% of materials are to be prepared for the reference format and the rest are to be prepared in equal parts for the remaining formats
e) complete welding works before and during assembly
f) provide personnel for the placement of the Devices and assembly works, min. 4 people
g) provide qualified operators for the Devices, whereby said operators are to be the recipients of training and handover of responsibilities
2. Should the Buyer fail to comply with the obligations set out in subsection 1, the Seller shall be entitled to refuse to perform the work. In such a case, the Buyer shall not be entitled to claims for damages against the Seller and the Seller’s performance of the works at a later date shall not constitute its delay in performing the obligation. The Buyer shall bear the cost of stoppage of work.
3. The Buyer shall provide the Seller with an opportunity to commence the works no later than 4 weeks following the date of notification of readiness for loading. Should the aforesaid time window be extended to 6 weeks or more, the Seller shall unilaterally decide whether there is a need to perform an inspection of the Devices upon delivery. Inspection and removal of defects resulting from long-term storage will be carried out at the Buyer’s expense.
4. If the Buyer fails to provide the Seller with an opportunity to commence the works within the aforesaid 4 weeks, the date for commencement shall be set by the Seller. The date defined by the Seller for commencement shall be no less than 7 calendar days from the date of its notification to the Buyer. Should the Buyer fail to attend at the time appointed by the Seller, the assembly, start-up and technical acceptance shall be deemed completed.
5. The date of completion of assembly shall be the date of written Seller’s notification of the Buyer of the completion of said works by means of a service report.
6. The Seller may entrust the execution of assembly services to entities authorized thereby.
7. The Seller shall organise on its own the visits of its personnel, charging the Buyer for the costs of air flights, travel, visas, accommodation, alimentation, local transport for the Seller’s personnel, along with such other costs as may prove necessary for the execution of the assembly.
8. START-UP, SAT TECHNICAL ACCEPTANCE, TRAINING
1. Start-up shall mean putting the Devices into operation and handing them over for the use to the Buyer. The date of completion of start-up shall be the date of written Seller’s notification of the Buyer of the completion of said works by means of a service report.
2. Following start-up, SAT technical acceptance and training will take place. A SAT technical acceptance and training protocol shall be drawn up. SAT technical acceptance confirms the Devices’ technical parameters.
3. Issuance to the Buyer of a bilaterally signed protocol of the SAT technical acceptance protocol shall be equivalent to technical acceptance of the Devices by the Buyer. The Buyer thereby acknowledges without reservation that the Devices perform the functions as specified in the Contract and comply with its specifications.
4. Changes to the functionality of the Devices shall be undertaken by the Seller for a fee, not earlier than after the issuance of the SAT technical acceptance protocol.
5. The Seller undertakes to carry out the start-up, SAT technical acceptance and training of Buyer’s personnel on condition of the Buyer’s due performance of the obligations defined in section 7.
6. Should the Buyer fail to comply with the conditions set forth in section 7, or should the Buyer fail to enable the Seller to attempt start-up and SAT technical acceptance directly after assembly, the date for any such subsequent attempt shall be set by the Seller. The date set shall not be less than 7 days from the date on which it is notified to the Buyer.
7. Should the Buyer fail to appear for start-up or technical acceptance within a total time of 30 calendar days from the completion of assembly, or should the Devices be being used by the Buyer for production purposes after that time despite uncompleted start-up or the lack of technical acceptance, start-up shall be deemed to be completed and the Devices shall be deemed to have been transferred to the Buyer for operation without objections and to have undergone SAT technical acceptance with a positive outcome, with the date of completion of commissioning. In such case, the Seller shall be authorized to unilaterally sign a SAT technical acceptance protocol that is equivalent in effect to a SAT technical-acceptance protocol signed by both Parties.
8. The SAT technical acceptance shall take place for the formats specified in the Contract, in accordance with the following rules:
– is carried out in one 8-hour shift
– the actual output of the Devices (calculated according to the following formula: total number of pieces produced / actual production time) is 90% of the maximum output of the reference device
– the reference device according to which the binding output measurement shall be carried out shall be the filling machine. If this Device is not covered by the scope of the Contract, the reference device shall be the first Seller-supplied Device in the technological line.
– the actual production time shall be equal to the total production time minus interruptions and downtimes
– interruptions shall mean all stoppages due to reasons outside of the Seller’s sphere of responsibility (including, without limitation, malfunctions on the Buyer’s side, downtimes of machines not covered by the Seller’s scope of supply, format changes, product changes, time spent waiting for the execution of tasks by the Buyer or a third party, stoppages due to excessively slow operations by the Buyer’s personnel at the end of the technological line in respect of the takeover of goods manufactured, stoppages due to incorrect handling or maintenance of the Devices by the Buyer’s personnel, stoppages caused by the inadequate quality of consumables or their incompatibility with technical specifications, stoppages caused by a shortage of consumables, shortage of utilities, stoppages arising from the Buyer’s procedures — e.g. sanitary, quality, etc)
– downtimes shall mean stoppages for such reasons as the Seller is responsible (including, without limitation, Seller-side malfunctions, damage to consumables arising from the operation of the Devices, etc.)
– if Seller-supplied Devices constitute one technological line along with Buyer devices that fall outside the Seller’s scope of supply, the Buyer shall ensure the faultless functioning of the machines and infrastructure positioned either upstream or downstream from the Seller’s Goods, with continuous performance that is equal to or greater than Seller-supplied Devices.
Where Buyer machines in the technological line do not operate faultlessly with an output that is equal to or greater than Devices supplied by the Seller, SAT technical acceptance shall be deemed complete if the reference device supplied by the Seller achieves an output no worse than the Buyer device having the lowest efficiency in the technological line.
9. The SAT technical acceptance shall be carried out after:
a) positive verification of the quality of the consumables supplied for start-up
b) acceptance of the qualifications of the operators handling the Devices
10. If, prior to or during the SAT technical acceptance, the Seller should discover ineffective or incorrect operation of the Devices arising from inadequate or incorrect handling by the Buyer’s personnel, the Seller may:
a) require personnel replacement and discontinue the technical acceptance until the Buyer has complied with this condition
b) carry out the technical acceptance excluding the Buyer’s personnel
11. In case of disagreement between the Buyer and the Seller concerning the evaluation of the functioning of the Devices during the start-up and SAT technical acceptance, the Seller shall be entitled to film and photograph the operation of the machines and infrastructure of the Buyer that are positioned upstream and downstream from the Seller’s devices in the technological line in order to evaluate: their operation, their impact on the operation of the Seller’s devices, and any problems of which they may be the cause. The Seller shall have the right, without restriction, to film anything related to the start-up and the SAT technical acceptance. These provisions shall also apply as authorization to process any data (including personal data) and information relating to places where activities have been recorded.
12. Technical acceptance shall be considered faultless when:
a) during the SAT technical acceptance procedure, the Devices do not exhibit any significant faults that would prevent their use for production purposes
b) any such faults are permanently remedied by the Seller
13. If interventions by the Seller fail to remedy the defects or non-compliance of the Devices, thereby preventing the achievement of the contractual production output parameters, the Parties will examine whether the foregoing will cause any significant a significant depreciation in the value of the Devices. If yes, the Buyer shall be entitled to a maximum of 5% reduction of the price of the Devices, with the exclusion of the right to terminate or withdraw from the Contract and the exclusion of any other remedial measures not set forth in the Terms and Conditions or the Contract.
14. If the Seller’s personnel cannot perform activities due to the Buyer’s unpreparedness for start-up and acceptance, the Buyer shall bear the cost of stoppage of work.
15. Any works performed by the Seller outside of the designated timeframes or for causes not attributable to the Seller (including at the Buyer’s request) shall be settled as extra services. The Seller shall not be liable for failure to perform such services unless an estimate of their cost is accepted in writing by the Buyer.
16. Training in the scope of operation of Devices shall be conducted by the Seller’s personnel on the designated timeframes specified in the Contract.
17. Costs of additional training days not included in the Contract, along with accommodation costs, shall be charged to the Buyer.
18. The Seller shall organise on its own the visits of its personnel, charging the Buyer for the costs of air flights, travel, visas, accommodation, alimentation, local transport for the Seller’s personnel, along with such other costs as may prove necessary for the execution of the start-up.
19. The Seller may entrust the execution of start-up or technical acceptance services to entities authorized thereby.
9. WARRANTY, COMPLAINTS, POST-WARRANTY SERVICE
1. The warranty shall cover only and exclusively the Devices that have been installed and used in accordance with the configuration layout. The warranty shall cover faults caused by defective construction, material defects or improper workmanship in the supplied Devices and applies only to those faults that occur during the warranty period.
2. The warranty shall not cover:
a) mechanical damages caused by reasons beyond the Seller’s control
b) the Buyer’s materials, installations or parts
c) consumables
d) failures caused by the lack of consumables or their improper quality
e) fast-wearing parts of the Devices
f) electrical components, drives (these are subject to the manufacturers’ warranties)
g) failures, defects or malfunctions caused by improper operation, maintenance or devastation
h) works performed by the Buyer or persons not authorized by the Seller
i) burning of the Devices or fire due to any cause
j) costs of air flights, travel, visas, accommodation, alimentation, local transport of the Seller’s personnel
k) costs of periodic inspections
3. The Buyer shall forfeit its rights under the warranty granted by the Seller if:
a) the Devices are operated under improper conditions
b) the Devices are operated by unauthorized or untrained personnel
c) such consumables are used that do not comply with the specifications of the Contract
d) spare parts other than the ones delivered by the Seller are used
e) repair or periodic inspection is carried out by the Buyer itself or entrusted to an entity not authorized by Seller.
4. Warranty repairs shall be carried out as soon as possible, taking into account the availability of the Seller’s representatives.
5. Shipment of spare parts (covered by the warranty and after the warranty period) shall be carried out on the following terms: FCA Kowale, PL, INCOTERMS2020, on the date specified by the Seller each time.
6. If the Buyer reports a failure or defect subject, in its opinion, to warranty, and as a result of checking by the Seller it turns out that the Goods are not damaged or the defect or damage are not subject to repair under warranty, the Buyer shall be obliged to cover the all costs of repair.
7. Each visit by the Seller’s personnel shall be completed with a service report prepared by the Seller.
8. A successful notification of a defect shall be deemed shall be deemed effective if it is sent by e-mail to service@tes.com.pl along with a description of the situation and the serial number of the device (including: circumstances of the situation, photographic documentation, picture of the device nameplate). Notifications submitted in any manner other than herein set forth or that do not contain complete information shall not be deemed effective.
9. The Seller may entrust the provision of services under warranty and the performance of repairs, inspections or servicing to entities authorized thereby.
10. The Seller shall provide post-warranty servicing against a fee. The Seller undertakes to maintain the availability of spare parts necessary for the correct operation and/or repairs of the Devices for 10 years from the date of dispatch.
11. The Seller will not give effect to any rights on any grounds other than those set forth in this warranty. This warranty is the Seller’s sole and exclusive obligation in respect of any defective elements. Any other remedial measure under statutory warranty or guarantee, including those provided by applicable law are excluded from the Seller’s liability.
12. The warranty may be extended beyond the contractual period for an additional payment.
10. PRICES
1. Unless the Parties explicitly agree otherwise, prices shall be net prices (without VAT tax) expressed in PLN, USD or EUR. VAT shall be added to each net price, which the Buyer shall be obliged to pay along with the net price. In the event of changes in applicable VAT rates, the gross price will change.
2. The price does not include the costs of unloading and placement of the Devices.
3. The price does not include any administrative fees, customs duties, fees for storage in a customs warehouse, taxes, other public-law liabilities or other charges applicable at the place of delivery or at the Buyer’s registered office, or storage costs, or fees and costs incurred as a result of any delays or other costs which could not have been foreseen at the time the Contract was concluded. Any such costs arise as referred to in the foregoing sentence shall be borne by the Buyer. Any delay or failure by the Buyer to make the additional payments referred to hereinabove and the corresponding delay shall not constitute a delay by the Seller in the performance of the Seller’s obligation.
4. If the price is given as an equivalent of a certain amount expressed in a foreign currency, it shall be converted according to the average exchange rate of the National Bank of Poland preceding the invoice date.
5. The price of the Devices, after concluding the Contract, may increase in the event of a dramatic change in the prices of semi-finished products or accompanying services (e.g. shipping). A dramatic change means a price increase of more than 5%. If the value of the Contract changes, the Seller shall notify the Buyer in writing. In such a case, the Buyer shall be entitled to accept the new price or withdraw from the Contract in accordance with section 15. If the Buyer fails to submit a statement on the exercise of one of its rights within 5 days of being informed of the change in the value of the Contract, it shall mean tacit acceptance of the new price.
11. PAYMENTS
1. Payments shall be deemed to have been made only when made in the full invoiced amount.
2. The Buyer shall have no right to withhold payments or make deductions without the Seller’s written consent.
3. All bank charges relating to payments shall be borne by the Buyer. The Buyer shall account for the value of the foregoing when making the bank transfer. The Seller shall have a right to demand compensation from the Buyer for the difference between the amount received and the price payable if, as a result of the above deductions, the amount received is lower than the price resulting from the Contract.
4. If the Buyer is in delay with payment of the amounts due, the Seller may withhold execution of its contractual obligations (which shall extend the Contract execution date) or make execution dependent on payment or provision of security by the Buyer for such amounts due. The Seller may also withdraw from the Contract with immediate effect if non-payment of amounts due lasts longer than 14 days. In this situation, all of the Buyer’s liabilities in relation to the Seller shall become immediately due and payable as of the date of Seller’s withdrawal from the Contract. The Seller may exercise the right of withdrawal within 12 months after the due date.
5. The Seller shall not bear the consequences of execution of its contractual obligations later than provided in the Contract if it is caused by the Buyer’s delay in payment.
12. RESERVATION OF OWNERSHIP
1. Goods delivered to the Buyer shall remain the Seller’s property until the Buyer has paid the sales price in full. Should the Buyer fail to meet the payment obligation, the Seller shall have the right to temporarily withhold the counter-performance and restrict the Buyer’s right to use the Devices, whereby the Buyer shall not be entitled to claims for damages against the Seller on account of the foregoing.
2. If the Buyer is in arrears with paying all or part of the amount due, it shall be obliged, at the Seller’s request, to immediately and unconditionally return to the Seller the Goods delivered in full.
3. A request for return of the Goods or collection of the Goods by the Seller shall not cause – unless the Parties have agreed otherwise – withdrawal from the Contract by the Seller, but only constitutes a security for fulfilment of the Buyer’s obligations in relation to the Seller.
4. The costs of delivery (return) of the Goods to the Seller shall be borne by the Buyer.
13. RESPONSIBILITIES OF THE PARTIES
1. The Buyer or another entity indicated by the Buyer shall be responsible for the accuracy and completeness of the data contained in the documentation provided to the Seller by the Buyer.
2. If the Parties have agreed in writing on the delivery of Devices or materials that do not comply with Polish Standards or safety standards, the Seller shall not be liable for any resulting damages.
3. The Seller shall not be liable to the Buyer for defects in product made by the Buyer using the Devices delivered by the Seller.
4. The Seller shall not be responsible for installations, materials, machinery or other parts with which the Devices will be connected or will interact.
5. The Seller shall not be liable for incorrect operation of the Devices if it is caused by improper connection to the installation or improper operation of the same.
6. In any event of the Seller’s failure to complete the obligations under the Terms and Conditions and/or the Execution Contract or in any event in which the Seller may be held liable, all remedies not expressly provided for in the Terms and Conditions shall be excluded (including, without limitation, all remedies provided by law). In any case, any possible liability of the Seller for damage related to the lack or limitation of production, loss of opportunities, loss or limitation of revenues and/or profits, loss of contracts, loss of benefits, lack or limitation of use, as well as in general for other direct and/or indirect damage and consequential damage and/or damage to reputation, is also hereby expressly excluded.
7. The Buyer shall forfeit the right to raise claims against the Seller with the expiry of 12 months from the day of completion of start-up and no later than 14 months from the date of confirmation of readiness for loading.
14. FORCE MAJEURE
1. The Seller shall not be liable in the event that the date of the execution of the Contract is delayed or the execution of the Contract becomes impossible in consequence of circumstances caused by force majeure. The Parties deem force majeure to be circumstances beyond rational control, such as disasters, strikes, hostilities, pandemics, raw material shortages or other circumstances unforeseeable to the Parties.
2. In the event of a delay in the performance of the Contract caused by force majeure and lasting for more than 2 months, the Parties will meet to examine the impact of said event on the terms of the execution of the Contract (including, without limitation, the prices of the Devices and timing of dispatch) and will reach an agreement as to the continuation of their obligations.
3. If the Contract is concluded during a pandemic (i.e. Covid-19), its impact on the Parties’ business shall be deemed force majeure, even though it was not unforeseeable at the time of signing the Contract. Any responsibility of the Seller for delays arising in such cases shall be excluded.
4. The Parties are aware that the current global situation related to the development of the SARS-CoV-2 pandemic (COVID-19), hereinafter: coronavirus, may affect the deadline for the execution of the Contract in a manner that cannot be foreseen and which is beyond the control of either Party.
5. The Party shall be obliged to notify the other Party in writing about the occurrence of a coronavirus-related circumstance that temporarily prevents or hinders the undertaking of further activities aimed at the performance of the contractual obligations and to postpone the schedule for the performance of the Contract for the duration of the obstacle. Such postponement requires a written amendment to the Contract, and will not be a basis for contractual penalties or withdrawal from the Contract.
6. Where a delay in the performance of the Contract caused by force majeure (excluding Covid-19) lasts for more than 6 months, the Parties shall have a right to withdraw from the Contract.
7. In the event of withdrawal from the Contract due to the operation of force majeure, the Seller shall refund amounts paid for the performance of the Contract to the bank account specified by the Buyer, but shall retain the right to remuneration for already completed or prepaid parts of the Subject Matter of the Contract. Notice of withdrawal requires the written form and a statement of reasons in order to be valid.
15. WITHDRAWAL FROM THE CONTRACT
1. Should the Buyer resign the purchase or withdraw from the Contract, or should the Seller withdraw from the Contract for reasons related to the Buyer, the Buyer shall pay the Seller a contractual penalty in the amount of 30% of the gross value of the Contract. The Buyer shall pay the contractual penalty upon first written demand by the Seller. The contractual penalty may also be deducted by the Seller from the payment received in respect of execution of the Contract.
2. In case of resignation or withdrawal from the Contract by the Buyer, the Seller shall retain remuneration for the parts already performed. The basis for the determination of remuneration for works already performed will be a unanimous protocol drawn up by the Parties to the Contract confirming the percentage stage of completion of works performed and the corresponding remuneration due. In the event of a lack of collaboration by the Buyer in determining the stage of completion of works performed and the remuneration due on account thereof, the Seller shall assess the value of said works with the assistance of an independent appraiser, whose remuneration shall be paid by the Buyer. The Seller shall be entitled to make any deductions of its receivables from the payment received for the execution of the Contract.
3. Any quantity shortages or non-significant, reparable damage to the Subject Matter of the Contract shall not entitle the Buyer to withdraw from the Contract either in whole or in part.
4. Notice of withdrawal requires the written form in order to be valid.
16. CONFIDENTIALITY
1. Insofar as the Parties become aware of information in connection with or on the occasion of the performance of this Contract, each of the Parties agrees to keep confidential any and all such information concerning the other Party whose disclosure might expose said other Party to harm.
2. Each of the Parties agrees to keep confidential the information referred to in subsection 1 concerning the other Party or the other Party’s customers or contractual counterparties, including, without limitation, any technical, technological, legal, commercial or organizational information as well as information referring to the other Party’s strategy, personnel, financial affairs, future plans, prospects or other information having economic value and constituting a trade secret.
3. Each Party’s confidentiality obligation shall not apply to such information as:
a) is or becomes public or publicly known
b) the relevant Party has provided to the other Party with the option of disclosing further.
4. In the event of any doubt as to whether a given piece of information may be disclosed, the Party in doubt shall consult with the other Party and obtain a written statement of what is deemed confidential.
5. Each of the Parties shall limit access to information to those of its representatives or employees who need to know such information in connection with the execution of the Contract, ensuring that the aforesaid persons are subject to an obligation of confidentiality on the terms set forth in this Contract. Each of the Parties shall be responsible for the conduct of such persons as for their own conduct.
17. ADDITIONAL PROVISIONS
1. The Seller reserves the right to make design changes resulting from technical developments in relation to the proposed solutions.
2. The economic rights to all intangible assets subject to protection under the Industrial Property Law and the Copyright Act, in particular copyrighted works, patents for inventions, utility models, trademarks, trade names, designations of origin, appellations of origin, and others, made available to the Purchaser by the Seller as a result of execution of the Contract to which the provisions of these Terms and Conditions apply, shall be owned by the Seller. The objects (carriers) on which the transferred Goods have been recorded shall be the Seller’s property. The Buyer shall not have the right to use them for any other purpose than the use of the purchased Goods and shall not have the right to copy, duplicate or make them available to third parties. These documents shall not transfer title or imply the granting of any license.
3. The Buyer agrees not to use for any other purpose, nor to make available or transfer to other parties any elements, information and technical documentation on the basis of which the Devices were made.
4. Following dispatch of the Devices, the Seller shall have the right to enter the Devices sold and the Buyer’s data into a standard reference list, including the name and type of the Machine, the date of sale, the name of the Buyer (except for personal data of natural persons) and the name of country.
5. The Seller shall be entitled to, and the Buyer authorizes the Seller to administer, handle and use the acceptance protocols or start-up protocols in any sales procedures to the third parties, including submitting duplicates and copies of such documents to any tender or bid.
6. In case of breach of the provisions of subsection 2 and 3 or the provisions of section 16, the Buyer shall pay the Seller a contractual penalty equal to 100% of the gross value of the Contract. If the value of the damage exceeds the value of the contractual penalty, the Seller shall be entitled to claim damages in the full amount.
7. The contact persons set out by the Seller in the Contract to execute this Contract shall not be authorized to modify the terms of the Contract or to issue declarations of will, notices of withdrawal or any other legally binding statements.
8. Any communications, consents, approvals or other information communicated for the purpose of execution of this Contract will be deemed valid and duly served if such documents are sent by registered letter or email whereby confirmation of receipt must be sent to the e-mail addresses set out in the Contract.
18. FINAL PROVISIONS
1. These Terms and Conditions and the Contracts between the Parties shall be governed exclusively by Polish law. For matters not regulated by these Terms and Conditions, the relevant provisions of the Civil Code shall apply.
2. If Contracts and the Terms and Conditions are drawn up in Polish and a foreign language, the authentic language shall be Polish. In case of differences between the Polish and foreign language versions, the wording of the Polish version shall prevail.
3. The place of execution of Contracts between the Parties shall be the location of the Seller’s registered office.
4. In all cases, the Party claiming a breach of Contract shall have a duty to take any and all rational measures to mitigate the loss or damage and minimize the damage that has occurred or may occur.
5. Any disputes between the Parties shall be resolved amicably within 30 days of the date of either Party’s notification of the dispute to the other Party. If the foregoing should fail to succeed, any contentious issues shall be subject to the jurisdiction of Polish courts and the national court of competent venue for the Seller’s principal place of business.
