GENERAL TERMS AND CONDITIONS OF SALE AND DELIVERY
TRICORR spółka z ograniczoną odpowiedzialnością with its registered office in Warsaw
- These General Terms and Conditions of Sale and Delivery (hereinafter referred to as “Terms and Conditions”) are the standard terms and conditions of sale and delivery performed by TRICORR spółka z ograniczoną odpowiedzialnością with its registered office in Warsaw (hereinafter referred to as “Seller”).
- The Seller shall conduct sales and deliveries exclusively on the terms and conditions set forth in the Terms and Conditions below.
- These Terms and Conditions apply to business relations with customers who are entrepreneurs (hereinafter referred to as “Recipients”).
- These Terms and Conditions shall become a component part of all contracts of sale or delivery (hereinafter referred to as the “Contract”) and shall also apply to all future business relations between the Seller and the Recipient.
- Any deviation from the Terms and Conditions or additional changes and arrangements may only result from agreements between the Seller and the Recipient under pain of nullity in writing or from mandatory provisions of law.
- Any of the Recipient’s terms and conditions of business, including the Recipient’s general terms and conditions of purchase, are valid in relations with the Seller only if they are accepted by the Seller each time in written form under pain of nullity, even if they became known and were accepted by the Seller in connection with previous transactions.
- Catalogs, price lists, and other advertising materials concerning the goods offered by the Seller, are for information purposes only and do not constitute an offer within the meaning of the Polish Civil Code, but only an invitation to negotiate. The information contained therein is indicative and may not constitute the basis for claims by the Recipient.
ORDERS. SCOPE OF DELIVERY
- Sales are made on the basis of an order and confirmation of its acceptance by the Seller (“confirmation of acceptance”).
- The Recipient’s order constitutes an offer within the meaning of the Civil Code. The Seller’s confirmation of receipt of the order, if any, does not in any case mean confirmation of its acceptance. Placing of an order by the Recipient means acceptance of these Terms and Conditions.
- Orders shall be placed on the basis of price lists contained in the current offer of the Seller. Technical data, dimensions, weight of the goods are given in price lists and catalogs only for directional purposesand cannot be treated as binding in detail. The Seller reserves deviations within normally accepted tolerances, as well as deviations resulting from normal commercial or technical conditions. The Seller shall deliver the goods in accordance with the parameters specified in the order acceptance.
- The Contract of Sale is concluded when the Recipient receives the Seller’s confirmation of acceptance of the order, but no later than the execution of the sale.
- The scope of delivery is specified in the written confirmation of order acceptance. Any changes to the terms and conditions of sale contained in the order acceptance confirmation require confirmation by the Seller in writing under pain of nullity.
- If the Seller’s confirmation of order acceptance differs from the content of the order placed by the Recipient, the Contract shall be concluded on the terms specified in the Seller’s confirmation of order acceptance, if the Recipient does not object within two days.
- Failure to promptly respond to the order of the Recipient with whom the Seller has a permanent business relationship shall not be deemed acceptance of the order. Implicit acceptance of the order by the Seller is excluded.
- Any negotiations to change the content of the order shall extend the order completion date accordingly. If the order is changed, the order completion period runs anew from the date of confirmation of the order acceptance by the Seller.
- In the event of non-acceptance of the order by the Seller, drawings, documents and any other materials provided must be returned to the Seller upon request.
- The Seller reserves the right of ownership and copyrights with respect to cost estimates, drawings and other documents. They may be made available to third parties only with the written consent of the Seller.
- In the event that the Recipient withdraws from the execution of the order accepted by the Seller, the Seller shall be entitled to claim from the Recipient all costs related to the actions taken to execute the order.
PRICES AND TERMS OF PAYMENT
- The prices quoted in the price lists and catalogs are valid – unless otherwise agreed – loco, excluding the cost of shipping, packaging, transportation, insurance in transit, unloading, installation and VAT, which will be charged separately.
- Where prices are quoted in EUR, they will be converted to PLN according to the average exchange rate of the National Bank of Poland of the day of invoice issuance.
- VAT shall be charged at the rate in effect at the time of issuance of the VAT invoice.
- Payments shall be made no later than 30 days from the date of the invoice, unless other payment terms agreed in writing by the Seller are specified.
- The date of payment shall be the date on which the amount is credited to the Seller’s bank account.
- In the event that exchange rate differences that arise between the date of the invoice and the date of payment amount to more than 3%, the Seller shall be entitled to issue a corrective invoice up to the amount of the exchange rate difference.
- Bills of exchange shall be honored upon prior agreement. They will be treated as payment for goods only after their execution.
- If payment is not made on time, the Recipient shall fall into default. From the date of falling into delay, the Seller shall be entitled to charge statutory interest.
- Regardless of the Recipient’s indications, the Seller shall be entitled to credit payments made by the Recipient on account of any matured receivables due to the Recipient.
- In the event that the Recipient falls into default in payment or in the situation of deterioration of the Recipient’s financial situation, which could threaten the Seller’s claims, the Seller shall be entitled, on the basis of a written statement, to change the status of all receivables due to the Seller to payable immediately and to pursue their payment. In addition, the Seller shall be entitled to withhold acceptance of new orders of the Recipient and to refrain from processing orders that have been placed and not yet processed, and to make their processing conditional on the payment of all arrears. In the event of non-payment within the additional period set by the Recipient by the Seller, the Seller shall have the right to withdraw from the Contract.
- In the event of withdrawal referred to above, the Recipient shall not be entitled to any claims against the Seller. If the Seller exercises its right of withdrawal, the Recipient shall reimburse the expenses incurred by the Seller. This is without prejudice to the right of the Seller to claim damages on general terms.
- The prices confirmed by the Seller correspond to the situation related to all costs as of the date of order confirmation. They are valid on the assumption that the execution of the order proceeds smoothly and that labor and material costs do not change. If costs change by the date of delivery, the Seller reserves the right, to apply the prices in effect on the date of delivery.
RETENTION OF TITLE
- The subject of delivery (goods subject to retention of title) shall remain the property of the Seller until the moment of payment by the Recipient of the price, incidental and additional charges, as well as any other receivables arising from other mutual commercial relations, regardless of their legal basis, including contingent receivables or future possible incidental receivables.
- The retention of title shall also include goods resulting from combination, processing or mixing with other things. If the Recipient combines, processes or mixes the goods subject to retention of title with other goods not owned by the Seller, then the Seller shall acquire the right of co-ownership of the new item in a share determined in proportion to the price of the goods under the concluded contract to the value of the new item at the time of combination. The conclusion of a sales contract with respect to the retained goods between the Seller and the Recipient is tantamount to an agreement on the transfer of the right to ownership. The transfer of the right to co-ownership may be replaced by the Seller’s taking over the new item in escrow. The new item created as a result of the linkage shall serve as security for the Seller up to the contract price of the delivered retained goods. The new item is the retained goods within the meaning of these arrangements.
- While the retention of title is in effect, the Recipient shall not be entitled to any right of pledge or assignment by way of security with respect to these goods. Goods with respect to which title has been reserved may be disposed of by the Recipient only in the course of its business and provided that the Recipient has received payment from its customer or has made a reservation that ownership passes to the customer only if the customer meets its payment obligations.
- The Recipient shall be entitled to resell the retained goods only in the ordinary course of business and only under the following conditions.
- a) If the resale is not made for immediate cash payment, then the Recipient shall be obligated to transfer the retention of title to its customer in such a way that it retains title to the customer until the full price for the goods is paid.
- b) Upon entering into a resale contract relating to the retained goods with its customer, the Recipient, assigns the claims from the resale of the retained goods to its customer to the Seller, regardless of whether the retained goods are sold further without connection or in connection with other items, whether they are sold to one or more customers, whether they are sold as a whole or together with other goods not belonging to the Seller. For individual cases of further sale of retained goods, a separate statement regarding the assignment of the said receivables is not required. The assignment of receivables serves as security for the Seller’s receivables arising from the sale of the retained goods.
- c) The Recipient shall have the right to collect the receivables arising from the further sale despite the assignment of receivables. The Seller shall not collect these receivables on its own until the Recipient identifies to the Seller the debtors of the receivables in question together with the amount of the receivables and informs the debtor of the assignment of receivables.
- Further resale of the goods to the territory of the United States of America and Canada requires each time the Recipient to obtain the prior written consent of the Seller under pain of nullity.
- It is forbidden for the Recipient to further resell the goods to the territory of countries covered by embargo and other economic sanctions imposed by the Republic of Poland, the European Union and international organizations, of which the Republic of Poland is a member.
- In case of violation by the Recipient of paragraph 5 (resale without the consent of the Seller) or paragraph 6 (resale despite the prohibition), the Seller shall be entitled to demand from the Recipient payment of a contractual penalty in the amount of 50% of the gross price of the resold goods. The Seller shall be entitled to claim compensation on general terms to the extent that the damage suffered exceeds the amount of the contractual penalty. The right to demand payment of the contractual penalty is without prejudice to the Seller’s other claims under these Terms and Conditions, in particular the claim for payment of the entire price of the goods subject to retention of title.
- Retention of title according to the above shall also apply if the claims against the Recipient are included in the current invoice and the balance is derived and accepted.
- The retention of title is conditioned in such a way that when the Recipient has paid the Seller all receivables arising from the mutual business relationship, the title to the retained goods shall pass completely to the Recipient, and the receivables subject to assignment shall vest in full in the Recipient.
- If the value of all collateral to which the Seller is entitled exceeds the amount of all secured claims by more than 20%, the Seller, at the request of the Recipient, may release the corresponding portion of the collateral. The choice of the collateral to be released is at the Seller’s discretion.
- The Recipient shall immediately notify the Seller of any action (lien, seizure, etc.) by third parties as to the goods subject to retention of title. The Recipient shall immediately provide the Seller with all information required to assert rights against the customer and provide the Seller with all required documents.
- In case of seizure of goods subject to retention of title in the course of enforcement or security proceedings, the following provisions shall apply:
- a) The Recipient shall be obliged to inform the authority seizing the goods of the retention of title and to immediately inform the Seller of the seizure by sending a report of the seizure, stating that the seized goods are the same as the delivered goods subject to retention of title, and to take at its own expense the necessary steps to release the seizure of the goods subject to retention of title.
- b) If the seizure of the goods occurs at the customer of the Recipient, then the Recipient is obliged to take the necessary steps to release the seizure of the retained goods at its own expense.
- If there is an inability to pay or excessive debt on the part of the Recipient, the Recipient is obliged to immediately inform the Seller, to release the delivered retained goods still in its warehouse and to send the Seller an accurate statement of the retained goods and the ceded receivables – with their amount and documentation on the debtors.
- If the Recipient defaults on his obligations, in particular if he falls into default of payment, the Seller may demand immediate release of the retained goods, and the Recipient shall be obliged to release the retained goods. For this purpose, the Recipient grants the Seller irrevocable permission to enter its premises or its commercial and storage facilities and to take the retained goods. The Recipient shall bear all costs associated with the return of the Retained goods. Demand for surrender of the goods subject to retention of title does not imply withdrawal from the contract, unless the Seller expressly states so.
- The date of delivery shall be calculated from the date of confirmation of acceptance of the order by the Seller, but not earlier than the date of transfer of all documents, required permits, acceptance, timely agreement and approval of any plans by the Recipient to the Seller, fulfillment by the Recipient of all payment obligations to the Seller and performance by the Recipient of other obligations necessary for the execution of the order. If the agreed obligations are not fulfilled on time, the delivery dates will be extended accordingly.
- The delivery date is considered to have been met if the shipment is forwarded for shipment or picked up on the agreed date. If the delivery is delayed for reasons attributable to the Recipient, the deadline will be considered met if notification of the readiness of the goods for shipment has been made within the agreed deadline.
- If the failure to meet delivery deadlines is due to one of the following reasons:
- a) force majeure, such as mobilization, war, terrorist acts, riots or other events (e.g., strike, blockades),
- b) viruses and interference by third parties in the operation of the Seller’s IT systems, despite appropriate protective measures taken by the Seller,
- c) obstacles related to foreign laws,
- d) roadblocks, shortages of raw materials and electricity,
- e) transport and customs delays, untimely or improper sub-supplies realized for the Supplier,
the deadlines will be extended accordingly by the duration of these causes.
- In the situation of failure to meet the deadline for reasons other than those mentioned above, the Recipient shall be entitled to compensation for each commenced week of delay in the amount of 0.5%, but a maximum of 5% of the price of the part of the deliveries in respect of which the Recipient, due to the delay, could not start the proper operation of the items comprising the delivery in question, if he proves that due to the delay he suffered damage.
- In cases of delay in delivery, even after the expiration of the additional delivery period set for the Seller, the Recipient’s ability to claim damages beyond the limits set forth in the paragraph above is excluded. This does not apply when the delay is the result of actions intended by the Seller or resulting from the Seller’s gross negligence. The Purchaser retains the right to withdraw from the contract if the delivery does not take place within the additional period of time set for the Seller.
- The Recipient is obliged to accept partial delivery. In this case, the Seller is entitled to invoice each part of the delivery separately.
- As a rule, the invoice is issued together with the delivery. The payment period begins on the date on which the invoice is issued. If the Seller reports the performance of the service and the service is not received by the Recipient for reasons not attributable to the Seller, then the invoice shall be issued as of the date on which the report of performance was made.
- In the event of a delay in receipt of the goods for reasons attributable to the Recipient, the transfer of the risk of accidental loss of or damage to the goods shall pass to the Recipient at the time of the Seller’s notification that the goods are ready for shipment. In such case, the Recipient shall be obliged to cover the costs of storage, insurance, security, forwarding of unclaimed goods.
TRANSFER OF RISK
- The risk of accidental loss of or damage to the goods shall pass to the Recipient at the time of handing over the shipment for delivery or at the time of collection of the shipment by the Recipient, also in a situation when it has been agreed that the costs of shipment shall be borne by the Seller. The Seller, at its discretion, will choose the optimal shipping method. Upon request and at the expense of the Recipient, the shipment may be insured against breakage, transportation damage or fire losses.
- Before shipment, the completeness and correctness of the material is checked. The transfer of the risk of accidental loss or damage to the goods takes place at the time of their release to the forwarder, carrier or other entity performing transport. Any claims for damaged or lost goods must be reported to the transport performer in each case, as the Seller’s liability ends when the goods are handed over to the transport performer.
- If the shipment is delayed for reasons attributable to the Recipient, the risk incurred during the delay passes to the Recipient. At the request and expense of the Recipient, the Seller is obliged to insure the goods as requested by the Recipient.
- The Seller accepts the return of the shipment only if it has given prior written consent and the terms of return have been agreed.
- The Seller reserves the right not to accept the return of special shipments. In a situation where special orders still in the production phase are canceled, the Seller will charge the Recipient with the cost of material and labor incurred up to the moment of cancellation of the order.
LIABILITY FOR PHYSICAL DEFECTS
- The Seller shall be liable for physical defects, which include the lack of features of the goods, which the Seller assured in the order, on the following terms.
- The Seller shall be obliged to repair or deliver free of charge those parts which, within 6 months counting from the date of the transfer of risk, have become unusable or their usefulness has been significantly reduced as a result of circumstances arising before the transfer of risk, in particular as a result of defective construction, bad material or improper workmanship. The fact of discovery of such defects must be reported to the Seller immediately upon discovery in writing.
- The Recipient is obliged to provide the Seller with adequate time and opportunity to remove the defects. If the Recipient does not agree to the repair period proposed by the Seller, then the Seller is released from liability.
- The Recipient’s right to assert claims arising from defects is subject to the statute of limitations within the time limits prescribed by law.
- The claim for defects of goods is not applicable in the case of insignificant discrepancies from the agreed quality, insignificant reduction in functionality, natural wear and tear or damage that arose after the transfer of risk due to improper use, excessive use, use of improper means of operation, due to improper execution of installation work by the Recipient, inadequate preparation of the building ground and as a result of mechanical or other factors that were not provided for in the contract.
- The Seller shall not be liable for defects resulting from improper alterations or repairs performed by the Recipient or third parties.
- All claims of the Recipient for expenditures for the performance of repairs, in particular the costs of transportation, travel, labor and materials, are excluded, insofar as these expenditures are increased in connection with the transfer of the subject of delivery to a place other than the Recipient’s premises, unless it is justified by operational reasons.
- Further claims of the Recipient against the Seller and entities to which the Seller has entrusted the performance of obligations beyond those regulated in this paragraph are excluded. In particular, further claims for damages by the Recipient for physical defects of the object of sale are excluded. This does not apply to situations in which the damage resulted from intentional acts, gross negligence or lack of features of the object of sale, which the Seller assured.
- The above provisions shall apply mutatis mutandis to claims for repairs, delivery of spare parts or compensation, which arose as a result of proposals or suggestions made before or after the signing of the contract or by failure to fulfill additional contractual obligations.
- Obvious defects, in particular those relating to incorrect quantity of goods, must be reported to the Seller within 7 days of receipt of the goods at the latest. In other cases, defects should be reported immediately, but no later than within 48 hours of the discovery of the defect.
INABILITY TO PERFORM THE CONTRACT. MODIFICATION OF THE CONTRACT.
- If the impossibility of delivery is the result of circumstances attributable to the Seller, the Recipient shall be entitled to compensation. The Recipient’s claim for compensation may not exceed 10% of the value of that part of the delivery due to the lack of which it became impossible to start the system that the delivery was intended to serve. This does not affect the Recipient’s right to withdraw from the contract.
- If unforeseen events (as defined in § 5 (3)) significantly affect the economic value or content of the delivery or service, will have a significant impact on the work of the Seller, the contract will be modified accordingly. If this is not economically possible, the Seller will have the right to withdraw from the contract within 30 days from the date of the event. If the Seller exercises its right to withdraw from the contract, it will notify the Recipient immediately after determining the magnitude of the event, including if an extension of the delivery date was previously agreed.
- The Seller’s liability is always based on the principle of fault and is limited only to cases of intentional fault and gross negligence. This liability is limited to damages that are a normal, foreseeable and direct consequence of the Seller’s act or omission. Further liability of the Seller for non-performance or improper performance of the Contract than provided for in the Terms, subject to mandatory provisions of law, is excluded. In particular, it does not include indirect damages, damages in the form of lost profits and production losses.
- The provision of paragraph 1 shall apply mutatis mutandis to claims for damages other than for non-performance or improper performance of the Contract, in particular to claims for tort.
- The Seller’s liability is excluded if the non-performance occurred due to force majeure circumstances.
- To the extent that the Seller’s liability is excluded or limited, this exclusion or limitation shall apply to the personal liability of the Seller’s legal representatives, employees and associates and persons to whom the Seller entrusted the performance of an obligation.
If the order is not received within the inspection period set by the Recipient or within the period confirmed by the Seller, the obligation to pay the remuneration falls on the Recipient. In such a situation, the Seller is entitled to issue an invoice for the goods.
In the interest of continuous technical development, the Seller reserves the right, without the need for separate notification, to introduce, carry out or cancel at any time changes to the offered goods (e.g. dimensions, weight, appearance, etc.), which may result in deviations from the text or from the illustrations of catalogs and Seller’s offers.
APPLICABLE LAW. COMPETENT COURT.
- The proper court for any disputes that may arise from Contracts concluded on the basis of these Terms and Conditions shall be the common court of competent subject matter jurisdiction for the city of Krakow.
- These Terms and Conditions and the Contracts concluded on their basis shall be governed by Polish law.
- The application of the United Nations Convention on Contracts for the International Sale of Goods (CISG) is excluded.
- If any provision of these Terms and Conditions is or becomes invalid, ineffective or pointless, the remaining provisions shall remain in force. In this case, the Parties shall make acceptable arrangements to amend the invalid provisions, which, on the one hand, shall correspond to the statutory provisions and, on the other hand, shall be as close as possible to the originally desired purpose.
- Payment by the Recipient of any amounts due to the Seller by way of deduction, assignment by the Recipient of any receivables due to the Seller and assignment of the Recipient’s rights arising out of cooperation with the Seller to a third party shall each time require the prior express written consent of the Seller for its validity.
- The Seller and the Recipient undertake to keep confidential the technical and financial details of cooperation.