GENERAL TERMS AND CONDITIONS OF TRADE (GTC)
§ 1
General provisions and definitions
1. These General Terms and Conditions of Trade, referred to below as the “GTC”, govern the conclusion and performance of agreements concerning the sale of goods offered by WOJMAR AUTOMATYKA PRZEMYSŁOWA spółka z ograniczoną odpowiedzialnością, a limited liability company with its registered office in Żory at ul. Boczna 8, 44-240 Żory, entered in the register of entrepreneurs of the National Court Register under KRS number 0000583280, NIP 6511718813 and REGON 362866791, with a share capital of PLN 50,000.00, referred to below as the “Seller”.
2. The terms used in the GTC have the following meanings:
a. “Buyer” means an entrepreneur entering into an Agreement with the Seller;
b. “Goods” means movable items offered or sold by the Seller, in particular components, equipment, spare parts and other industrial automation products, together with documentation or software if included within the scope of the Agreement;
c. “Offer” means a statement by the Seller addressed to the Buyer setting out the terms for concluding an Agreement;
d. “Order” means a statement by the Buyer aimed at concluding an Agreement, specifying at least the type and quantity of the Goods ordered;
e. “Order Confirmation” means a statement by the Seller confirming acceptance of an Order for fulfilment and setting out the final terms of the Agreement;
f. “Delivery” means handing over the Goods and, where provided for in the Order Confirmation, transporting them to the agreed place, on the terms set out in § 6 of the GTC;
g. “Agreement” means an agreement for the sale of Goods concluded between the Seller and the Buyer, including additional services relating to the Goods if expressly specified in the Offer or Order Confirmation;
h. “Business Day” means a day from Monday to Friday, excluding public holidays in the Republic of Poland;
i. “Parties” means the Seller and the Buyer collectively;
j. “Civil Code” or “cc” means the Act of 23 April 1964 – the Civil Code.
3. The GTC form an integral part of the Agreement if, before the Agreement is concluded, they have been delivered to the Buyer in writing or made available to the Buyer electronically in a manner that enables the Buyer to store and reproduce them in the ordinary course of business. In particular, the GTC may be made available by attaching them as a PDF file to an Offer sent to the Buyer or by making the PDF file available in the Seller’s B2B system for download before the Buyer places an Order. The version of the GTC identified by its version number and effective date and made available to the Buyer before the Agreement is concluded applies to that Agreement.
4. Individually agreed terms between the Parties prevail over the GTC to the extent of any inconsistency. In the event of any inconsistency between the documents forming the Agreement, they take precedence in the following order: an agreement concluded by the Parties as a separate document, followed by the Order Confirmation, the Offer, the Order and the GTC.
5. The GTC apply only to Agreements concluded with Buyers who are entrepreneurs within the meaning of Article 431 of the Civil Code, excluding natural persons carrying on a business where the Agreement is not of a professional nature for them. The GTC do not apply to agreements concluded with consumers.
6. The Buyer’s general terms and conditions of purchase, rules, standard contract terms and any other terms unilaterally established by the Buyer do not form part of the Agreement unless the Seller expressly accepts their application in writing, failing which such acceptance is invalid. The Seller’s acceptance of an Order, commencement of its fulfilment, delivery of the Goods or failure to object does not constitute acceptance of such terms.
§ 2
Offers, Orders and conclusion of the Agreement
1. Announcements, catalogues, price lists, advertisements and other general commercial information provided by the Seller do not constitute an offer within the meaning of Article 66 of the Civil Code, but an invitation to conclude an Agreement.
2. An Order constitutes the Buyer’s offer to conclude an Agreement on the terms set out in the Order, the GTC and the Seller’s Offer, if one has been issued.
3. An Order may be placed in writing or in documentary form, in particular by email or through the B2B system used by the Seller. An Order should specify at least the type and quantity of the Goods ordered and contain the information necessary for its fulfilment, in particular the Buyer’s details, the place of Delivery and the details required to issue an invoice.
4. No later than when placing its first Order, the Buyer shall identify the persons, email addresses or accounts in the B2B system authorised to place Orders and shall promptly inform the Seller of any changes in this regard. The Seller may presume that an Order placed in this manner originates from a person authorised to act on the Buyer’s behalf, unless the Seller knew that the person lacked authority or that their authority had expired. The Seller may make acceptance of an Order placed by other means conditional on its confirmation by the Buyer.
5. The Parties may conclude, as a separate document, a framework agreement governing their ongoing cooperation or an Agreement for the sale of specific Goods. Conclusion of a framework agreement does not mean that the Seller has accepted individual Orders, unless the framework agreement expressly provides otherwise. If an Agreement for the sale of specific Goods has not been concluded as a separate document and the Offer clearly states that it constitutes an offer within the meaning of Article 66 of the Civil Code and may be accepted without a subsequent Order Confirmation, the Agreement is concluded when the Buyer’s statement accepting the Offer without reservations is delivered to the Seller. In all other cases, the Agreement is concluded when the Order Confirmation is delivered to the Buyer in writing or in documentary form, in particular by email or through the B2B system.
6. An automatic acknowledgement that the Seller has received an Order does not constitute an Order Confirmation or acceptance of the Order for fulfilment. The Seller may accept an Order in whole or in part. If the Order Confirmation covers only some of the Goods ordered, the Agreement is concluded only in respect of the Goods specified in the Order Confirmation.
7. An Order Confirmation containing changes or additions that do not materially alter the terms of the Order constitutes acceptance of the Order incorporating the changes or additions specified in the Order Confirmation. In that case, the Agreement is concluded when the Order Confirmation is delivered to the Buyer, on the terms set out in it.
8. If an Order Confirmation contains changes or additions that materially alter the terms of the Order, it constitutes a new offer by the Seller.
9. If the Buyer and the Seller are in ongoing business relations, the Buyer’s failure to respond promptly to the Seller’s new offer referred to in paragraph 8 is deemed to constitute its acceptance in accordance with Article 682 of the Civil Code. For the purposes of the GTC, a response is deemed prompt if it is delivered to the Seller no later than 24 hours after the new offer is delivered to the Buyer. If that period would end on a day that is not a Business Day, it expires at the end of the next Business Day.
10. If the Buyer and the Seller are not in ongoing business relations, an Agreement on the terms set out in the new offer referred to in paragraph 8 is concluded only if the Buyer expressly accepts that offer in writing or in documentary form.
11. The Seller’s failure to respond or its silence does not constitute acceptance of an Order or any other offer made by the Buyer, even where the Parties are in ongoing business relations. Article 682 of the Civil Code does not apply to offers made by the Buyer to the Seller.
§ 3
Amendment and cancellation of Orders and return of Goods
1. Once the Agreement has been concluded, the Buyer is not entitled to amend or cancel an Order unilaterally or to withdraw from the Agreement, except in cases expressly provided for in the GTC, the Agreement or mandatory provisions of law.
2. An Order may be amended or cancelled only with the Seller’s prior consent given in writing or in documentary form, failing which the consent is invalid. The Seller may make its consent conditional on the fulfilment of specified requirements, in particular the Buyer’s payment of costs incurred by the Seller in connection with fulfilment, amendment or cancellation of the Order.
3. The Buyer should request an amendment or cancellation of an Order promptly after becoming aware of circumstances justifying the request. Submitting a request does not suspend performance of the Agreement or release the Buyer from its obligation to take delivery of the Goods and pay the price unless and until the Seller confirms acceptance of the request.
4. An Order for Goods already in transit from the manufacturer or supplier to the Seller or directly to the Buyer may not be cancelled. An exception applies if the manufacturer or supplier has agreed in advance, in writing or in documentary form, to take back the Goods without charging the Seller any costs, and the Seller has accepted the cancellation of the Order. In all other cases, the Buyer is obliged to take delivery of the Goods and pay the full price.
5. Orders for Goods sourced, ordered or manufactured specifically for the Buyer, Goods made or modified to the Buyer’s requirements, and Goods that the manufacturer or supplier will not take back may not be cancelled or amended unless the Seller expressly agrees otherwise.
6. The Buyer has no right to return Goods that are free from defects. The Seller may, at its discretion, consent to such a return after obtaining the manufacturer’s or supplier’s prior consent, if required. Consent to a return must be given in writing or in documentary form, failing which it is invalid, and may specify, in particular, the time, place, method and conditions of the return.
7. Consent to send Goods to the Seller, manufacturer or supplier does not constitute final acceptance of their return or acknowledgement of an obligation to refund the price. The Goods will be inspected after they have been delivered to the place specified by the Seller.
8. Goods being returned should be complete, unused and undamaged and, where possible, in their original, undamaged packaging, together with all documentation and equipment supplied to the Buyer. The Buyer bears the costs and risks associated with returning the Goods, including the costs of transport, insurance, inspection, repackaging and processing the return, unless the Seller expressly agrees otherwise.
9. The Seller may refuse to accept Goods returned without its prior consent or Goods that do not meet the conditions for return. In that case, the Seller may send the Goods back to the Buyer or store them at the Buyer’s cost and risk.
10. A correction invoice will be issued only after the Seller has finally accepted the return and, where the return is being processed under the manufacturer’s or supplier’s procedure, after confirmation has been received that the manufacturer or supplier has accepted it. The Seller is entitled to deduct from the amount refunded to the Buyer the costs referred to in paragraphs 2 and 8 and any reduction in the value of the Goods resulting from their condition.
11. The provisions of this section concerning the return of Goods that are free from defects do not apply to Goods subject to the complaints procedure, the rules for which are set out in § 9 of the GTC.
§ 4
Goods, documentation and technical information
1. Only the characteristics, parameters and specifications of the Goods expressly stated in the Offer or Order Confirmation are binding. Catalogue materials, photographs, drawings, descriptions and other information provided by the manufacturer or the Seller are for information purposes only unless expressly incorporated into the Agreement.
2. Minor differences in the appearance, packaging or manufacture of the Goods resulting from changes made by the manufacturer or falling within accepted standards do not constitute a defect, provided that they do not materially affect the agreed parameters, functionality or ability to use the Goods for the purpose specified in the Agreement.
3. The Buyer is responsible for selecting Goods suitable for their intended use and for ensuring their compatibility with the equipment, installations and systems in which they are to be used, unless the Seller has expressly undertaken in the Offer or Order Confirmation to select the Goods. Technical information and guidance provided by the Seller are based on information supplied by the Buyer.
4. If the manufacturer changes the design, specification or designation of the Goods, the Seller may supply the current version or a successor product, provided that this does not materially reduce the agreed parameters or functionality. Supplying a substitute that does not meet these conditions requires the Buyer’s consent.
5. Technical documentation, instructions and software are supplied to the extent and in the form made available by the manufacturer. Software supplied with the Goods may be used on the terms of the licence granted by the manufacturer or another entitled party.
§ 5
Prices and payment terms
1. All prices quoted by the Seller are net prices and will be increased by VAT at the applicable rate. Prices do not include customs duties, taxes, public charges or the costs of transport and packaging, unless the Offer or Order Confirmation provides otherwise.
2. Prices are expressed in PLN, EUR or USD, as specified in the Offer or Order Confirmation. The Buyer bears the bank charges associated with making payment.
3. If, between the date of the Order Confirmation and the planned Delivery date, the Seller’s total cost of acquiring the Goods increases, in particular as a result of a change in the manufacturer’s or supplier’s price, the introduction or increase of a raw material surcharge, an increase in customs duties or the cost of transporting the Goods to the Seller, or a change in the exchange rate between the currency in which the Seller acquires the Goods and the currency of the price specified in the Agreement, the Seller is entitled to increase the net price of the Goods concerned by the same percentage as the increase in its total acquisition cost. The increase in cost is determined by comparing the acquisition cost assumed on the date of the Order Confirmation with the acquisition cost applicable on the date on which the Buyer is notified of the price increase. If determining the increase in cost requires currency conversion, the currencies shall be converted via the Polish złoty using their respective average exchange rates published by the National Bank of Poland in Table A on the last day for which a rate was published before, respectively, the date of the Order Confirmation and the date on which the Buyer is notified of the price increase. The Seller shall notify the Buyer of the price increase in writing or in documentary form, stating the reason for the increase, the previous and new prices, and how the new price was calculated. The Buyer is obliged to pay the difference between the previous and increased prices within 5 Business Days of receiving the Seller’s notice. Until the Seller’s bank account is credited with that difference, the Seller is entitled to suspend Delivery, and such suspension does not constitute a delay by the Seller. The planned Delivery date is extended by the period of the Buyer’s delay in payment and by the time objectively necessary to resume Delivery. A price increase made in accordance with this paragraph does not entitle the Buyer to amend or cancel the Order or to withdraw from the Agreement.
4. A Buyer commencing cooperation with the Seller is obliged to pay 100% of the price in advance on the basis of a pro forma invoice for its first three Orders, unless the Seller agrees to other payment terms. Fulfilment of an Order begins once the Seller’s bank account has been credited with the full advance payment.
5. After the first three Orders have been duly fulfilled and paid for on time, the Parties may agree to grant the Buyer a trade credit limit and a deferred payment term. The Buyer has no right to demand either of them.
6. The grant of a trade credit limit or a deferred payment term requires confirmation by the Seller in writing or in documentary form, failing which it is invalid. The Seller specifies the amount of the limit and the period for which it remains available.
7. To grant or maintain a trade credit limit, the Seller may assess the Buyer’s financial position and creditworthiness and require current registration and financial documents, in particular certificates confirming that the Buyer has no outstanding public-law liabilities, a balance sheet and a profit and loss account. The Seller may also make the grant or maintenance of the limit conditional on the provision of appropriate security, in particular a bank guarantee, suretyship or a blank promissory note.
8. If the GTC do not specify a separate payment deadline for a particular amount due, the deadline is specified in the Order Confirmation or, if it is not specified there, in the invoice issued by the Seller. Payment is deemed made on the day on which the Seller’s bank account is credited with the full amount due.
9. The Seller may apply a payment received first towards the costs of recovering amounts due and ancillary amounts, then towards interest, and finally towards the outstanding principal debt that fell due earliest.
10. In the event of late payment, the Seller is entitled to statutory interest for late payment in commercial transactions, compensation for debt recovery costs and reimbursement of further costs of recovering amounts due, in accordance with applicable law.
11. In the event of late payment, the trade credit limit being exceeded or reasonable doubts concerning the Buyer’s financial position or solvency, the Seller may, with immediate effect, reduce or withdraw the trade credit limit or deferred payment term, make further performance of Agreements conditional on advance payment or the provision of security, and suspend fulfilment of unfulfilled Orders until the arrears are paid or security is provided.
12. Suspension of the fulfilment of Orders for the reasons specified in paragraph 11 does not constitute a delay by the Seller and results in a corresponding postponement of the agreed Delivery dates. The Buyer is not entitled to claim damages or make any other claims against the Seller on that account.
13. If the Buyer fails to make a required advance payment, fails to pay the difference between the previous and increased prices within the deadline specified in paragraph 3, or fails to provide the security requested, the Seller may give the Buyer an additional period to fulfil that obligation. If the additional period expires without the obligation being fulfilled, the Seller may withdraw from the unperformed part of the Agreement within 30 days after its expiry. If, after the Agreement is concluded, circumstances emerge that give serious grounds for concern that the Buyer will not fulfil its payment obligation, the Seller may require the Buyer to make an advance payment or provide security within an additional period specified by the Seller. If that period expires without the obligation being fulfilled, the Seller may withdraw from the unperformed part of the Agreement within 30 days after its expiry.
14. Submitting a complaint does not suspend the obligation to pay undisputed amounts that are due. In particular, a complaint concerning some of the Goods does not entitle the Buyer to withhold payment for Goods that have been duly delivered and are not covered by the complaint. This provision does not require the Buyer to pay for Goods that have not been delivered or for a quantity of Goods exceeding the quantity actually delivered.
15. The Buyer may set off a claim it holds against a claim held by the Seller only if the Buyer’s claim has been acknowledged by the Seller in writing, failing which the acknowledgement is invalid, or established by a final and binding court ruling. This restriction does not apply where excluding or restricting set-off is prohibited by mandatory provisions of law.
§ 6
Delivery terms, transport and packaging
1. The method, place and planned date of Delivery are specified in the Order Confirmation. Delivery may be arranged by either the Seller or the Buyer.
2. If the Seller arranges transport, the Goods are dispatched through a carrier or courier selected by the Seller. The Buyer bears the costs of transport and of insurance, if taken out, unless the Parties agree otherwise. The risk of accidental loss of or damage to the Goods passes to the Buyer when the Goods are handed over to the first carrier for delivery to the Buyer, including where they are dispatched directly from the manufacturer’s or supplier’s warehouse.
3. If the Buyer arranges transport, the Goods are collected by the Buyer or a carrier designated by the Buyer on EXW terms – the warehouse specified in the Order Confirmation, Incoterms® 2020. The risk of accidental loss of or damage to the Goods passes to the Buyer when the Goods are placed at the Buyer’s disposal at the agreed place and time. The Buyer bears the costs of transport, insurance and loading. The Seller may assist the Buyer in loading the Goods onto the means of transport provided by the Buyer, without thereby assuming an obligation to provide such assistance in the future. Such assistance does not alter the agreed EXW terms or the time at which the risk of accidental loss of or damage to the Goods passes to the Buyer.
4. The Seller may make Delivery in instalments and issue a separate invoice for each part of the Goods delivered, unless the Parties expressly agree otherwise.
5. Arrangements, programmes or promotions providing for free transport of standard consignments do not cover oversized or non-standard Goods, unless expressly agreed otherwise. The transport costs for such Goods are determined individually and borne by the Buyer.
6. Oversized and non-standard Goods include, in particular:
a. cable trays, cable ladders, busbar trunking systems, mounting profiles and protective conduits in lengths of 2m, 3m or more that require transport as long loads or on a non-standard pallet and cannot be sent as standard parcels;
b. free-standing control cabinets, prefabricated distribution boards, large transformers, capacitor banks and other heavy structures or Goods of substantial size;
c. cable drums weighing more than 30 kg, full reels and large-cross-section cables requiring pallet transport;
d. mounting plates, large polyester enclosures, bundles of slotted wiring ducts, enclosed panels and other items susceptible to damage that require special packaging or transport charged by dimensional weight.
7. The Buyer is obliged to ensure that oversized or heavy Goods can be unloaded safely at the place of Delivery, in particular by providing a suitable loading dock, forklift or other necessary equipment. The Seller should be informed before the Order Confirmation is issued if a vehicle fitted with a tail lift is required. The Buyer bears the costs of repeat Delivery, vehicle waiting time, transhipment or storage resulting from the lack of suitable unloading facilities.
8. The Buyer bears the costs of returning returnable packaging, in particular cable drums, reels, EUR pallets and non-standard pallets, to the Seller, manufacturer or supplier. The Buyer is obliged to return the packaging by the deadline stated on the invoice or delivery document, in a condition no worse than when supplied, allowing for proper use. If the packaging is not returned by that deadline, the Seller may charge the Buyer its full value.
9. Delivery dates are estimates unless the Order Confirmation expressly states that a particular date is binding. The Delivery period begins no earlier than when the Seller has received all information necessary to fulfil the Order and the required advance payment has been made or security provided.
10. The Seller is not liable for delays resulting from the actions of a carrier selected by the Buyer, delays by the manufacturer or supplier, customs clearance, transport restrictions or actions of public authorities. In such a case, the Delivery date is extended accordingly. This provision applies whether or not the circumstance meets the criteria for force majeure set out in § 11 of the GTC.
11. If the Buyer fails to collect the Goods by the agreed deadline, the Seller may place them in storage at the Buyer’s cost and risk or store them in its own warehouse for an appropriate fee. The Buyer also bears the costs of repeat transport. The Seller may give the Buyer an appropriate additional period to collect the Goods, with notice that, if the Buyer fails to do so within that period, the Seller will be entitled to withdraw from the Agreement in respect of the uncollected Goods. If the additional period expires without the Goods being collected, the Seller may exercise its right to withdraw within 30 days after its expiry. Independently of that right, the Seller may sell the Goods for the Buyer’s account in accordance with applicable law.
§ 7
Receipt and inspection of Goods and transport damage
1. On receipt of a consignment, the Buyer is obliged to check without delay the number of consignments, the condition of the packaging, protective measures and markings, and, to the extent ascertainable without detailed examination, the condition of the Goods and whether their quantity corresponds to the Delivery documents.
2. If, on receipt, the Buyer discovers a visible shortage of or damage to the consignment, damage to the packaging or a quantity shortfall, the Buyer is obliged, before accepting the consignment without reservations, to record reservations on the consignment note or another Delivery document, request that the carrier jointly inspect the condition of the consignment and prepare a damage report or another document required for the carriage in question, and take photographs of the consignment, packaging, markings and Goods. The reservations should state at least the general nature of the shortage or damage and, where possible, its extent.
3. The Buyer is obliged to notify the Seller of the circumstances referred to in paragraph 2 without delay and no later than 3 Business Days after receiving the consignment. The notice must be accompanied by the transport document containing the reservations, the damage report or another document prepared with the carrier’s participation, photographic evidence and a description of the shortages or damage found. If the carrier refuses to prepare a report or accept the reservations, the Buyer should document the refusal and inform the Seller.
4. If a shortage of or damage to a consignment carried domestically could not be observed externally on receipt, the Buyer is obliged, without delay after discovering it and no later than 7 days after receiving the consignment, to request that the carrier formally record the condition of the consignment and to notify the Seller. The Buyer should preserve evidence capable of showing that the shortage or damage occurred between the carrier’s acceptance of the consignment for carriage and its delivery.
5. In the case of carriage governed by the CMR Convention, reservations concerning a shortage or damage visible on receipt should be made to the carrier no later than the time of Delivery, unless the Buyer and the carrier have jointly checked the condition of the Goods. Reservations concerning a shortage or damage not visible on receipt should be made to the carrier in writing within 7 days after Delivery, excluding the day of Delivery, Sundays and public holidays. A reservation concerning delay in Delivery should be made to the carrier in writing within 21 days after the Goods were placed at the Buyer’s disposal, excluding that day. The Buyer is obliged to notify the Seller at the same time.
6. The Buyer is obliged to protect the Goods, packaging and other parts of the consignment against further damage or deterioration and to store them in conditions appropriate for the type of Goods until an inspection has been carried out, further instructions have been received or the carrier’s procedure has ended. The Buyer should retain the packaging and transport protection and make no alterations to them beyond those necessary to unpack the Goods and establish the nature and extent of the damage.
7. If the Seller arranged transport, the Buyer is obliged to cooperate with the Seller and any other person entitled under the law applicable to the carriage in pursuing claims against the carrier. In particular, the Buyer shall provide the required documents and information, give explanations, permit an inspection and take any steps that only it can take as the recipient of the consignment. If the Buyer arranged transport, the Buyer is responsible for pursuing claims against its chosen carrier at its own cost and risk.
8. The Buyer’s failure to fulfil the obligations set out in this section has the consequences in relation to the carrier prescribed by the law applicable to the carriage. In domestic carriage, acceptance of a consignment without reservations extinguishes claims against the carrier for shortage of or damage to the consignment, subject to the exceptions provided for in the Polish Transport Law Act. In carriage governed by the CMR Convention, failure to make the required reservations concerning shortage or damage gives rise to a presumption that the Goods were delivered in the condition described in the consignment note, while failure to make a written reservation concerning delay within the period specified in paragraph 5 precludes a claim for compensation against the carrier on that account. If, because the Buyer fails to fulfil the obligations set out in this section, the Seller loses the ability to pursue claims against the carrier or that ability is restricted, the Buyer is liable to the Seller for the resulting loss.
9. The rules for reporting defects in the Goods that do not constitute transport damage are set out in § 9 of the GTC.
§ 8
Retention of title to the Goods
1. The Seller retains title to the Goods sold until the Buyer has paid the full price. Retention of title does not affect the passing to the Buyer of the risk of accidental loss of or damage to the Goods under § 6 of the GTC.
2. Until the full price has been paid, the Buyer is obliged to store the Goods in a manner that allows them to be identified and distinguished from other items and to protect them adequately against loss, damage or seizure. Where possible, the Goods should be marked as the Seller’s property.
3. Before paying the full price, the Buyer may not sell, encumber, make available for use by a third party, process or combine the Goods with another item in a manner that makes their separation or identification difficult, without the Seller’s prior written consent, failing which the consent is invalid.
4. If the Goods are seized in enforcement or interim relief proceedings, or a third party asserts a claim to them, the Buyer is obliged to inform that person promptly of the Seller’s ownership and notify the Seller of the situation, providing the documents necessary to protect the Seller’s rights.
5. If the Buyer is late in paying the price for Goods handed over before the full price has been paid, the Seller may give the Buyer an appropriate additional period for payment, with notice that, if the Buyer fails to pay within that period, the Seller will be entitled to withdraw from the Agreement in respect of the unpaid Goods. If the additional period expires without payment, the Seller may exercise its right to withdraw within 30 days after its expiry and demand the prompt return of the Goods. The Buyer bears the costs of return and is obliged to enable the Seller to collect the Goods at an agreed time.
6. Withdrawal from the Agreement and recovery of the Goods do not deprive the Seller of the right to claim compensation from the Buyer for loss resulting from non-performance of the Agreement, in particular the costs of collecting, transporting and storing the Goods, restoring them to a condition in which they can be resold, and any reduction in their value. The value of the recovered Goods and the price obtained from their subsequent sale shall be taken into account when determining the amount of the loss.
7. The Buyer is liable for any reduction in the value of the Goods and for loss suffered by the Seller as a result of the Buyer’s breach of the obligations set out in this section.
8. If the Goods are to be handed over before the full price has been paid, the Seller may make their handover conditional on the Buyer first confirming the retention of title in a separate document executed in the form required to make the retention effective, including against the Buyer’s creditors, in particular a document bearing a certified date.
§ 9
Statutory warranty for defects, manufacturer’s guarantee and claims procedure
1. The Seller’s liability under the statutory warranty for physical and legal defects in the Goods is excluded pursuant to Article 558 § 1 cc. This exclusion is ineffective if the Seller fraudulently concealed a defect from the Buyer.
2. The Goods may be covered by a quality guarantee provided by the manufacturer or another entity. The existence, scope and duration of the guarantee, and the rights available under it, are determined by the guarantor’s guarantee statement. The Seller is not a guarantor unless it has expressly provided its own guarantee.
3. If, under the guarantee statement, a guarantee provided by the manufacturer or another guarantor is administered through the Seller, the Seller receives the notification and forwards it to the guarantor. The guarantor decides whether the notification is justified, how it is to be dealt with and what performance the Buyer is entitled to receive, in accordance with the guarantee statement. Acting as an intermediary in administering the guarantee does not mean that the Seller assumes the guarantor’s obligations or provides its own guarantee. This provision does not concern the Seller’s liability for non-performance or improper performance of its own obligations under the Agreement.
4. Notifications made to the Seller are subject to the following rules:
a. if the Buyer exercises rights under a guarantee provided by the manufacturer or another guarantor, the deadlines, form, required documents and effects of the notification are governed by the guarantee statement and mandatory provisions of law. A notification submitted to the Seller is deemed to have been submitted to the guarantor only if the guarantee statement provides for administration of the guarantee through the Seller or the guarantor has authorised the Seller to receive such notifications. The deadlines specified in point (b) below neither shorten nor extend the deadlines under the guarantee;
b. if the notification concerns the Seller’s non-performance or improper performance of its obligations under the Agreement on grounds other than the statutory warranty for defects, in particular the handover of Goods different from those ordered, incomplete Goods, Goods damaged before the risk passed to the Buyer, or improperly packaged Goods, the Buyer is obliged to report irregularities detectable on receipt in writing or in documentary form within 3 Business Days of Delivery. Irregularities that could not be detected on receipt must be reported in the same form within 7 days of their discovery. Failure to meet the applicable deadline results in the loss of claims against the Seller relating to the irregularity concerned. These deadlines do not apply to transport damage, which is governed by § 7 of the GTC. The loss of claims does not extend to claims that cannot be excluded under mandatory provisions of law.
5. A notification made to the Seller should contain at least the Buyer’s details, the Order or invoice number, identification of the Goods, including their serial number if one has been assigned, a description of the irregularity found and the circumstances in which it was discovered, and documentation enabling the notification to be assessed, in particular photographs, recordings, measurement results or error messages. At the Seller’s request, the Buyer shall supplement the notification or provide additional information necessary for an inspection or diagnostic assessment. Where a notification is made under a guarantee provided by the manufacturer or another guarantor, the requirements specified in the guarantee statement take precedence.
6. The Buyer is obliged to protect the Goods covered by a notification against further damage or deterioration and to store them in conditions appropriate for the type of Goods until an inspection has been carried out, further instructions have been received or the claims procedure has ended.
7. Physically dispatching or returning Goods to the Seller requires prior agreement with the Seller on the method and destination of dispatch and compliance with the instructions provided. If the Buyer exercises rights under a guarantee directly against the manufacturer or another guarantor, the method and place of delivery of the Goods, and the costs and risks of their transport, are governed by the guarantee statement and mandatory provisions of law. The Seller’s acceptance of Goods for inspection or diagnostic assessment, or their transfer to the guarantor, does not mean that the notification has been accepted as justified.
8. Despite the exclusion of the Seller’s liability under the statutory warranty for defects, if a notification concerns the Seller’s non-performance or improper performance of its own obligations under the Agreement, the Seller deals with it independently of the guarantee procedure of the manufacturer or another guarantor, in accordance with the Agreement, including §§ 7 and 10 of the GTC. The Seller may entrust inspection or diagnostic assessment of the Goods to the manufacturer or another entity, but that entity’s findings do not, in themselves, determine the Seller’s liability.
9. If a notification has been accepted under a guarantee provided by the manufacturer or another guarantor, the manner in which it is dealt with and settled is determined by the guarantee statement and the guarantor’s decision. The Seller will issue a correction invoice only if settlement under the guarantee reduces the price payable to the Seller or requires the Seller to refund all or part of the price. If the Seller accepts a notification concerning its own liability, it will issue a correction invoice where the agreed method of settlement requires a reduction in the price or a refund of all or part of it. The Seller may make the issue of a correction invoice conditional on the prior return of the Goods if their return is necessary for the settlement.
10. If inspection or diagnostic assessment does not confirm the reported defect or other irregularity, or shows that the damage arose for reasons attributable to the Buyer, in particular improper installation, use or storage, or interference with the Goods, the Buyer shall reimburse the Seller for the reasonable and documented costs of expert assessment, diagnostic assessment, transport and other steps necessary to verify the notification.
§ 10
Seller’s liability
1. The Seller’s liability in damages, regardless of its legal basis, covers only actual loss suffered by the Buyer as a result of the Seller’s non-performance or improper performance of the Agreement.
2. The Seller’s aggregate liability arising from a particular Agreement, regardless of the number, nature or legal basis of the claims, may not exceed the net price of the Goods covered by that Agreement to which the event giving rise to liability relates. Claims arising from the same event or from a series of events resulting from the same or related causes shall be aggregated for the purposes of the limit specified in the preceding sentence.
3. The Seller is not liable for loss of profits or indirect or consequential loss, in particular loss of production, revenue, orders, contracts or data, production downtime, disruption of business, the costs of dismantling or reinstallation, or claims made by third parties against the Buyer.
4. The Seller is not liable for loss to the extent that it results from an act or omission of the Buyer or of a third party for whom the Seller is not responsible, in particular improper selection, installation, use, storage or modification of the Goods. This does not apply to the selection of Goods by the Seller where the Seller expressly undertook to select them.
5. The Buyer is obliged to take appropriate steps to prevent loss and limit its extent. The Seller’s liability shall be reduced accordingly to the extent that an act or omission of the Buyer contributed to the occurrence or increase of the loss.
6. The exclusions and limitations of the Seller’s liability provided for in the GTC or the Agreement do not apply to loss caused intentionally by the Seller, loss arising from death or personal injury, or liability that cannot be excluded or limited under mandatory provisions of law, in particular liability for damage caused by a dangerous product.
§ 11
Force majeure
1. A Party is not liable for non-performance or improper performance of the Agreement to the extent that it results from force majeure.
2. Force majeure means an external event beyond a Party’s control that could not reasonably have been foreseen when the Agreement was concluded and that could not have been avoided, or whose effects could not have been overcome, despite the exercise of due care. Such events may include, in particular, war, riots, a terrorist act, a natural disaster, fire, an epidemic, an embargo, sanctions, import or export restrictions, a general strike, an interruption to energy supply or transport operations, action by public authorities, or a shortage of raw materials, semiconductors or other components or a disruption to the supply chain, provided that the event meets the conditions set out in the preceding sentence.
3. A Party affected by force majeure is obliged to notify the other Party promptly, in writing or in documentary form, of the event, its effect on performance of the Agreement and the expected duration of the impediment, and subsequently to inform the other Party when the impediment ends. A delay in giving notice gives rise to liability for loss that could have been avoided had notice been given on time.
4. Performance of the obligations affected by force majeure is suspended for the duration of the impediment, and the related deadlines are extended accordingly. The affected Party is obliged to take reasonable steps to limit the effects of force majeure.
5. Force majeure does not release the Buyer from its obligation to pay for Goods delivered before the impediment arose or from performing other obligations unaffected by the event.
6. If force majeure prevents performance of a substantial part of the Agreement for more than 90 days, either Party may, within 30 days after that period expires, withdraw from the unperformed part of the Agreement, provided that the impediment still exists when the notice of withdrawal is given. The notice of withdrawal must be given in writing or in documentary form. Neither Party is entitled to compensation on that account, subject to the obligation to settle performance rendered before withdrawal.
§ 12
Confidentiality
1. “Confidential Information” means all information that has not been made public and that the Seller provides to the Buyer in connection with the preparation, conclusion or performance of the Agreement, regardless of how it is provided. It includes, in particular, offers, quotations, unit prices, discounts, commercial terms and technical, organisational and commercial information concerning the Seller, its suppliers or manufacturers.
2. The Buyer may use Confidential Information only to assess the Offer and to conclude and perform the Agreement. The Buyer is obliged to protect it against unauthorised disclosure or use, exercising at least the same degree of care as it applies to its own confidential information.
3. The Buyer may disclose Confidential Information to its employees, collaborators, advisers, auditors, insurers or financing entities only to the extent necessary to conclude or perform the Agreement, provided that they are bound by an obligation of confidentiality. The Buyer is liable for a breach of confidentiality by any of them as for its own act or omission.
4. The confidentiality obligation does not apply to information that:
a. is publicly available without a breach of the GTC;
b. was lawfully known to the Buyer before the Buyer received it from the Seller;
c. was lawfully obtained from a third party who was not bound by an obligation of confidentiality;
d. was independently developed by the Buyer without using the Seller’s Confidential Information.
5. If disclosure of Confidential Information is required by law, a final court ruling or a request from a competent authority, the Buyer may disclose it only to the extent necessary. Where permitted by law, the Buyer should inform the Seller of the disclosure requirement in advance.
6. The confidentiality obligation applies throughout the Parties’ cooperation and for 5 years from the completion or termination of the last Agreement concluded between them. For information constituting a trade secret, the obligation continues for as long as the information retains that status.
7. At the Seller’s request, the Buyer shall return or delete documents and storage media containing Confidential Information, except for copies whose retention is required by law.
§ 13
Intellectual property rights and documentation
1. Conclusion of the Agreement does not transfer to the Buyer any intellectual property rights held by the Seller, the manufacturer or another entitled entity, in particular rights to technical documentation, drawings, designs, commercial materials or trade marks.
2. The Buyer may use documentation and materials supplied with the Goods only to the extent necessary for their installation, commissioning, use and maintenance. Modifying or making those materials available to others, or using them for another purpose, requires the prior written consent of the rights holder, failing which the consent is invalid, unless the activity is permitted by mandatory provisions of law.
3. The Buyer may not remove or alter manufacturer’s markings, trade marks, serial numbers, copyright notices or other identifying markings appearing on the Goods, packaging or documentation.
4. The Buyer may use the manufacturer’s or the Seller’s trade marks only to the extent necessary for the lawful identification, use or further resale of the original Goods. The Buyer may not use them in a manner suggesting that it is authorised to act for, represents or has another relationship with the Seller or manufacturer if no such relationship exists.
§ 14
Compliance with law and restrictions on trade in Goods
1. The Parties are obliged to perform the Agreement in accordance with the laws applicable to trade in the Goods, in particular those concerning economic sanctions, export and import controls, and restrictions relating to specified countries, entities, end users or uses of the Goods.
2. The Buyer may not sell, supply, export, re-export or otherwise make the Goods available in breach of the laws referred to in paragraph 1, in particular to prohibited entities or countries or for a restricted purpose.
3. At the Seller’s request, the Buyer shall provide true and complete information concerning the destination of the Goods, their end user and intended use, together with the documents required to assess whether the transaction is permissible. The Buyer is responsible for obtaining any authorisations required in connection with its further resale, export or use of the Goods.
4. The Seller may refuse to accept an Order or suspend performance of the Agreement if performing it could breach applicable restrictions or if the Buyer fails to provide the information or documents necessary to verify whether the transaction is permissible. If performance of the Agreement could breach applicable restrictions, the Seller may withdraw from its unperformed part within 30 days of becoming aware of the circumstance justifying withdrawal, but no later than the date on which the Agreement is performed. If the Buyer fails to provide the required information or documents within an additional period specified by the Seller, the Seller may withdraw from the unperformed part of the Agreement within 30 days after that period expires, but no later than the date on which the Agreement is performed. The Seller’s exercise of the rights set out in this paragraph does not constitute non-performance or improper performance of the Agreement.
5. If the Buyer modifies the Goods, incorporates them into another product, places them on the market under its own designation or resells them in another market, the Buyer is responsible for fulfilling the regulatory obligations arising from that activity. This provision does not exclude obligations imposed on the Seller by mandatory provisions of law.
6. The Buyer is liable for loss suffered by the Seller as a result of the Buyer providing false or incomplete information or breaching the obligations set out in this section.
§ 15
Final provisions
1. Statements and notices relating to the conclusion or performance of the Agreement may be made in writing or in documentary form, in particular by email, unless the GTC, the Agreement or mandatory provisions of law require another form.
2. Statements and notices shall be sent to the registered office address, address for service or email address specified in the Order or Order Confirmation, or used by the Parties in the course of their cooperation. Each Party is obliged to inform the other Party promptly of any change to its contact details and bears the consequences of failing to do so.
3. The version of the GTC in effect on the date the Agreement is concluded applies to that Agreement. Amendments to the GTC apply to Agreements concluded after the amendments have been made available to the Buyer, unless the Parties expressly agree otherwise.
4. If any provision of the GTC proves invalid, ineffective or unenforceable, this does not affect the validity or effectiveness of the remaining provisions. The Parties shall replace that provision with a lawful one that reflects its commercial purpose as closely as possible.
5. The Seller’s failure or delay in exercising a right does not constitute a waiver of that right or prevent the Seller from exercising it in the future.
6. If the GTC are also prepared in another language, the Polish version prevails in the event of any discrepancy.
7. The GTC, the Agreements and the legal relationships arising from them are governed by Polish law.
8. The application of the United Nations Convention on Contracts for the International Sale of Goods, done at Vienna on 11 April 1980 (CISG), is excluded.