- “These Terms and Conditions”, “herein”, hereunder”, “hereof” and other similar terms mean these General Sales and Delivery Terms and Conditions”.
- “Goods” means pellet burners, sets of burners, controllers, thermostats, sensors, feeders, tanks, spare parts and accessories, as well as other electrical and technical accessories sold hereunder by the Seller.
- “Seller” means PELLASX Sp. z o.o. Spółka Komandytowa in Piła.
- “Buyer” means any Polish or foreign (legal or private) person buying goods from the Seller.
- “Party” or “Parties” means the Seller and/or the Buyer respectively.
II. GENERAL PROVISIONS
- These Terms and Conditions apply to each sales transaction and each delivery of goods between the Seller and the Buyer.
- These Terms and Conditions apply to the Parties in the case of all further transactions, whatever the purpose thereof.
- All amendments, additions, suspensions or terminations of these Terms and Conditions require the Seller’s written approval.
- Any regulations that are contrary to these Terms and Conditions shall be binding on the Seller, even if they have not been explicitly negated by the Seller. Such regulations shall apply to the Seller provided that the Seller approves such different regulations on mutual rights and obligations of the Parties in writing. Errors and obvious mistakes shall not be binding on the Parties. In particular, the Seller shall not be deemed to have accepted any General Procurement Terms and Conditions of the Buyer or any other terms and conditions or similar documents if the Seller have signed an order confirmation or any other documents referring to such regulations.
III. EXECUTION OF THE AGREEMENT
- Catalogues, pricelists and other information addressed to customers shall not constitute an offer.
- The Seller’s sales representatives shall act solely within the limits of their authorisations. The Seller shall not be liable for actions taken by its sales representatives to the extent exceeding their authorisations.
- Orders shall be deemed to be validly made if they have been sent by e-mail to the Seller’s official e-mail addresses and confirmed by the Seller as accepted by e-mail. In exceptional circumstances, orders shall be deemed to be validly made if they are made by phone to the official telephone numbers of employees of the trade department and confirmed by the Seller as accepted by e-mail.
- The order shall specify all non-standard terms and conditions of installation. Otherwise, if such terms and conditions exist, warranty for specific goods shall be excluded.
- Delivery dates shall be defined by the Seller in the order confirmation or in its offer, however they are only estimated dates and are not binding on the Seller. The Seller shall use all efforts to meet the delivery dates, however this shall be dependent on the timely fulfilment of contractual obligations by the Buyer, including the acceptance of an offer or the submission of a valid order and necessary information, as well as the timely fulfilment of obligations by the Seller’s business partners and suppliers hired to meet the Seller’s contractual obligations towards the Buyer. All changes required by the Buyer may extend the delivery dates. Products/goods shall be deemed to be delivered on time if they are submitted to the first carrier or reported as ready for shipment before the agreed delivery date in the Seller’s plant.
- The delivery date shall be counted as of the day the confirmation order to the Buyer is submitted to the Buyer or the Seller’s bank account is credited with the agreed down payment or earnest money, depending on detailed arrangements between the Parties, provided that the delivery date may only be counted from the payment of overdue amounts, if any, by the Buyer to the Seller. If the Buyer has not specified a delivery place, the delivery date shall be deemed to be met if the goods are prepared for pick-up on the defined date. The cost of the storage of goods from such a date shall be payable by the Buyer.
- The Seller shall not be liable for the failure to meet the deadline if this is caused by Force Majeure or any other circumstances being beyond the Seller’s control.
- Until the obstacle ceases, the Seller may suspend or limit the delivery or withdraw from the agreement.
- In the event the delivery is suspended or limited, the delivery date shall be also suspended for the whole or a part of the suspended delivery till the end of the impediment.
- In none of the above circumstances, the Seller shall be deemed to have failed to perform or to have inadequately performed its obligations and the Buyer shall not have the right to claim any compensation or contractual penalties.
- Each delivery may be partially completed by the Seller. The quantity, type and delivery date shall be defined by the Seller.
- In the case of a cooperation agreement concerning permanent deliveries, each single delivery shall be considered as a separate sales agreement. These regulations on executing the agreement shall apply accordingly.
- If the Seller is late with a particular delivery or a delivery is not possible, the Buyer may withdraw from the agreement to the extent of other deliveries, however without right to claim compensation for damages incurred as a result of the Seller’s failure to deliver the goods.
- If the delivery is late for reasons the Buyer is to be blamed for or is not collected by the Buyer in due time, the Seller, at its own discretion and without liability, shall have the right to warehouse the goods at the Buyer’s risk, invoice the goods on an EX WORKS basis and charge the Buyer for storage costs. If the goods are stored in the Seller’s warehouses, the storage cost shall constitute at least 0.01% of daily storage fee starting from the day the goods have been reported as ready for shipment. The Seller shall have the right to define another pick-up date and, if such a deadline is exceeded, to sell or dispose of the goods at its own discretion. Despite of the sale or other disposal of the goods, the Buyer shall not be exempted from the obligation to pay for such goods. Despite of the sale or other disposal of the goods, the Buyer shall not be exempted from the obligation to pay the storage fee calculated by the Seller.
- In the case of delivery via a freight forwarder or carrier, the risk of accidental loss or damage of goods passes to the Buyer the moment the goods are released by the Seller to the freight forwarder or carrier. Thereafter, the Seller shall not be liable for any defects or shortages in the goods or packaging. If the Buyer want to collect/collects the goods on its own, the goods shall be collected on an EX WORKS basis in accordance with INCOTERMS 2000. If, within reasonable time, however not longer than 2 business days before the shipment, the Buyer fails to specify the method and type of packaging and means of transport to be used to deliver the goods, the Seller shall have the right to choose the packaging and means of transport on its own with due diligence and send the goods to the Buyer at the Buyer’s cost. Any method and type of packaging exceeding the regular packaging offered by the Seller shall be subject to extra payment.
- Prices specified in pricelists, offers, price confirmations are given net (without VAT). If VAT rates change, the gross price shall change, as well. Each net price shall be increased by VAT, which the Buyer shall pay together with the net price. For transactions in Poland, pricelists specify net prices in PLN. Sales transactions are made in PLN. For foreign transactions, pricelists specify net prices in EUR and sales transactions are made in EUR. In exceptional circumstances, foreign transactions may be made in PLN, subject to prior arrangement with the Seller.
- The prices of goods cover a standard construction of equipment. If additional technical solutions have been used, provided that it is technically feasible and possible given the Seller’s capacity and will, an extra payment may be charged.
- If the value of goods exceeds PLN 1000 net, the price includes the cost of the delivery of goods in Poland for the next business day after the shipment date on a CIP basis in accordance with Incoterms 2000. The price does not include unloading and carrying the goods to the indoor premises. The price does not include vertical transport in the premises.
- After the order is placed or the agreement is entered into, the prices may change if semi-finished products used to manufacture the goods, e.g. engines or accompanying services, like shipment, change. In the event of the price change, the Seller shall notify the Buyer in writing.
- The Seller’s invoices shall become payable on the date specified therein. The payment date shall be deemed to be the date of actual payment made by cash or confirmed cheque or the day the Seller’s bank account is credited with the payment. The payment shall be deemed to be made solely if it is made fully.
- If the payment due date is a non-business day, the payment may be made on the following business day.
- The invoice shall be deemed to constitute the first request for payment.
- Any down payments or pre-payments made by the Buyer on account of future deliveries shall not constitute earnest money within the meaning of the Civil Code, unless the Seller confirms such a payment as earnest money in writing.
- If the agreement payment due dates are exceeded, legal consequences of payment default may be enforced without notice.
- If the Buyer is late with the payment of one or several amounts due, the Seller may make any further delivery dependant on the payment of such amounts by the Buyer or on the Buyer securing such amounts due. The Seller may withdraw from the agreement with immediate effect. In such an event, the Buyer shall fulfil all its obligations towards the Seller immediately as of the Seller’s withdrawal from the agreement.
- No set-offs shall be used in settlements between the Parties.
VIII. PROPERTY RIGHTS
- The goods delivered to the Buyer shall remain the Seller’s property until the Buyer pays the whole sale price.
- In the event any third parties make any claims to the Buyer in relation with the goods owned by the Seller, the Buyer shall immediately notify the Seller and take all actions to protect the Seller’s rights. Otherwise, the Buyer shall be liable for damages incurred by the Seller.
- In the event the Buyer is late with any payment for the goods, it shall, at the Seller’s request, return all such goods to the Seller immediately and unconditionally.
- Unless the Parties agreed otherwise, in the event the Seller requests and picks the goods up, it shall not be deemed to have withdrawn from the delivery agreement. The goods are requested solely to secure the Buyer’s obligations towards the Seller.
- The cost of the goods delivery (return) to the Seller shall be payable by the Buyer.
IX. LIABILITY OF THE PARTIES
- The Buyer shall be liable for the correctness and completeness of data given in the order or documentation submitted to the Seller.
- If the Parties agreed in writing on the delivery of products or materials that do not meet Polish standards or other technical or security standards, the Seller shall not be liable for any damages arising therefrom.
- The Buyer shall be liable for the application and consequences of the application of goods delivered by the Seller in the defined construction solutions even if the Seller took part in the preparation of such constructions and the Buyer’s final product as an advisor or consultant.
- The Seller shall be liable for the possibility and correctness of use of such goods in the defined solutions and the Buyer’s final products exclusively if this has been explicitly agreed by the Parties. The Seller shall not be, however, liable if the Buyer has failed to meet the Seller’s explicit guidelines, recommendations and instructions.
- The Seller shall not be liable towards the Buyer’s for defects in the product or goods manufactured by the Buyer by the use of the goods delivered by the Seller.
- Neither Party shall be liable towards the other Party for lost benefits or any other damage incurred by the other Party as a result of non-performance or inadequate performance of the agreement/these Terms and Conditions.
X. GUARANTEE, STATUTORY WARRANTY FOR DEFECTS, COMPLAINTS
- The Seller shall grant a guarantee for the goods sold hereunder and a guarantee certificate delivered with the equipment, provided that in the case of inconsistency between the certificate and these Terms and Conditions, these Terms and Conditions shall prevail. Without the guarantee certificate, the guarantee for the goods shall not be valid.
- The guarantee period shall commence of the first start-up of the goods delivered hereunder by the Seller’s servicemen and terminate as of the end of the period specified in the guarantee certificate or, in the case of sets of burners, as of the end of 36 months, provided that the goods delivered hereunder is subject to a yearly paid guarantee inspection by the Seller’s servicemen. The Seller shall fulfil its guarantee obligations solely if the Buyer presents the guarantee certificate. The Buyer shall not be entitled to the guarantee if it fails to present the guarantee certificate when a complaint is made.
- The Buyer shall lose its guarantee rights granted by the Seller for all goods if the Buyer fails to obey guarantee conditions specified in detail in the documents attached to the goods, including in particular such obligations like: obligatory technical inspections, the operation of the equipment in adequate conditions and by authorised persons, the use of adequate fuel, etc. Terms and conditions set out in the guarantee documentation shall supplement these regulations. The Seller represents that the goods delivered to the Buyer meet quality standards defined in the valid offer of PELLASX Sp. z o.o. Spółka komandytowa in Piła.
- The Buyer or carrier shall inspect the goods the moment they are released in terms of hidden and visible defects and shortages in quantity.
- The goods collected by the Buyer or carrier without reservation shall be deemed not to have any defects.
- If the goods are released in packaging, defects in the goods or shortages shall be reported the moment the goods are collected from the carrier.
- The Seller shall grant guarantee to Polish entities and such a guarantee shall be valid solely in Poland, unless the Parties agree otherwise. If the goods bought by the Polish entity are exported abroad, the guarantee shall be lost. Guarantee repairs shall not be made outside Poland. All repairs, even those during the guarantee period, made outside Poland shall be payable by the Buyer, unless the Parties agree otherwise. If the Buyer wants the Seller to make a repair outside Poland, such a repair, including parts, workmanship, travel, etc., shall be always payable. The repair shall be made provided that the Buyer pays the down payment equal to estimated repair costs on account of the future repair in advance.
- The Seller shall make a guarantee repair (if the goods are subject to the guarantee) during the relevant time, including time required to arrange for spare parts and the availability of a service team. The Seller shall not be liable for any damages incurred by the Buyer as a result of failures or faultiness of the goods during the guarantee period and thereafter.
- The guarantee shall not cover any burning of engines or controllers or fire for whatever reason.
- The guarantee shall cover solely and exclusively products used and installed in the standard conditions. The guarantee shall be excluded if the products are installed in non-standard conditions. Non-standard conditions shall exist if burners, feeders or controllers are installed in the places exposed to corrosion or unfavourable climate or weather conditions. Costs of all types of repairs and delivery of equipment used or operated in non-standard conditions to the service section shall be payable by the Buyer. Under the guarantee the Seller shall not pay the cost of lifting and lowering the equipment to or down from 3 m over the ground level or any other costs connected with such equipment and payable in connection with the repair of such equipment. The Seller shall not pay the cost of pulling and installing the equipment from and in the closed premises or underground. The Buyer shall bear the risk of installation, use and operation of the equipment in non-standard conditions, where the guarantee is excluded.
- The Seller may grant an additional guarantee for products mounted and used in non-standard conditions against payment and on the basis of a separate agreement concerning guarantee in non-standard conditions.
- The guarantee shall not cover any additional costs that are not directly connected with the installation of the equipment, e.g. costs of suspending/stoppage of production of the Buyer or the Buyer’s customer, costs of stopping traffic, etc.
- Statutory warranty for defects is excluded from these Terms and Conditions.
- In the event the Buyer reports a defect or fault that, in its opinion, is subject to the guarantee and the Seller verifies that the Goods are not damage or that the defect or fault is not subject to repair under the guarantee, the Buyer shall pay for the repair, as well as the cost of transporting the goods subject to the guarantee to the Seller’s premises and from the Seller’s premises to the Buyer’s premises or to any other place indicated by the Buyer or the cost of transport in both directions if the repair has not been made for any reason. If it is not possible to transport the goods and the repair must be made on site where the equipment is located, the Buyer shall pay the cost of the arrival of servicemen from the Seller’s premises at the place where the equipment is located. The Buyer shall also pay the cost of work of servicemen, as well as materials used and parts replaced in accordance with the Seller’s pricelist.
- The guarantor shall pay the cost of guarantee repairs solely and exclusively in the case of equipment used and installed in Poland. The guarantee shall not be valid outside Poland, unless the Parties agree otherwise.
XI. ODSTĄPIENIE PRZEZ KUPUJĄCEGO OD UMOWY
- Apart from withdrawal from the agreement under the Civil Code, the Parties may terminate the agreement on the basis of their mutual arrangement. In the event the agreement is terminated, the Seller shall not be obliged to accept returned non-defective goods that it has delivered. If, however, the Seller agrees to the Buyer withdrawing from the agreement and to receive the products ordered back, the cost of the delivery of the goods that are to be accepted by the Seller shall be payable by the Buyer.
- In the event the Buyer resigns from the purchase of the goods ordered, withdraws from the agreement or the Seller withdraws from the agreement through the Buyer’s fault, the Buyer shall pay the Seller a contractual penalty of 30% of the gross order. The Buyer shall pay the contractual penalty subject to the Seller’s first written request.
- The Buyer represents that it is aware of its penal and civil liability for acts of unfair competition as set out by the Act on Counteracting Unfair Competition of 16 April 1993, including in particular the following obligations:
- not to spread, disclose or use any information that constitutes the Seller’s trade secret within the meaning of Art. 11.4 of the Act, and
- not to talk any entity (natural person, unincorporated business unit or legal person) being a party to the agreement with the Seller into non-performing or inadequately performing its obligations towards the Seller.
- The Buyer shall not take up such actions for 5 years from the completion of the agreement.
- During the term of the agreement and thereafter, the Buyer shall not spread, disclose or use any information that does not constitute the Seller’s trade secrets, but whose spreading, disclosing or using could be to the detriment of the Seller’s reputation or could cause any damage to the Seller, either.
- The Buyer shall use all efforts to prevent the publication or disclosure of any of the trade secrets. The Seller shall be entitled to the protection set out above notwithstanding the protection arising from applicable legal regulations. This article shall be in particular without prejudice to legal regulations or any contractual obligations providing for a wider protection.
- These Terms and Conditions and agreements between the Parties shall be governed by Polish law. All matters that are not set out herein, the Civil Code shall apply.
- In the event the agreement and terms of purchase are prepared in Polish and in a foreign language, the Polish version shall prevail. In the case of differences between the Polish and foreign version of the agreement, the Polish version shall prevail.
- All amendments to these Terms and Conditions and the agreement shall be made in writing.
- The agreement shall be deemed to be performed by the Parties in Piła.
- All disputes arising herefrom or from the agreements entered into hereunder shall be solved by competent court having jurisdiction over the Seller.
XIV. ADDITIONAL NOTES
- The Seller reserves the right to change its present sales offer in order to incorporate construction changes resulting from the development technical achievements.
- Property rights to all intangibles subject to the Industrial Property Rights Act and the Copyrights Act, including in particular pieces of work subject to copyrights, invention patents, utility models, trademarks, trade names, origin marking, origin names, topographies of integrated circuits, improvement designs, information about the proper use of inventions, other technical communications and experience that can be directly used in business and scientific activity, organisational and other information provided to the Buyer by the Seller as a result of the performance of obligations under the agreement shall remain with the Seller. The Seller shall be an owner of objects on which the work has been recorded. The Buyer shall have the right neither to use them nor to copy, duplicate or make them available to third parties for any other purposes than the use of the goods bought. These documents shall not transfer property rights or imply any licence. Drawings and other documents owned by the Seller shall be, at the Seller’s request, immediately returned with all copies thereof. 3. The Buyer shall not use or make available or deliver any elements, information or technical documentation based on which the equipment ordered by the Buyer has been manufactured to any other entities for any other purposes.
- All sales references and documents made available to customers shall be returned at the Seller’s request with all copies thereof. If the order has not been submitted to the Seller’s premises, they shall be immediately returned without request.
- Upon the sale of the equipment, the Seller shall have the right to enter the equipment sold and the Buyer’s data into the Seller’s standard reference list, including the name and type of the equipment, selling date, the customer’s name and country. If the Buyer fails to object to this Clause XIV.4, it shall be deemed to have agreed to such data being published in the reference list. The Buyer shall make all reservations in writing.
- In the event any of the regulations of this Clause are violated, the Buyer shall pay the Seller a contractual penalty of 100% of the gross value of the agreement. In the event the value of the damage exceeds the contractual penalty, the Seller shall have the right to claim full compensation.
- These Terms and Conditions shall apply solely to business entities. They shall not apply to consumers (natural persons).