Section 1. [The Scope of Application]
- International sale and delivery of goods offered by the Company named “POLMOSTRÓW” SP. Z O.O., the National Court Register [KRS] no. 0000001592, (the “Company”) shall be only subject to these Conditions of International Sale (the “Conditions”) and shall constitute an integral part of contracts concluded by the Company. The Conditions shall also apply to any contracts in the future, even if they were not mentioned or expressly referred to at the time such contracts were concluded. Any and all changes introduced hereto by the other party (the “Buyer”) with the purpose of amending or departing from the Conditions, shall have no binding effect, unless expressly accepted by the Seller in writing.
- The Conditions apply to any sale of goods regardless of whether the goods have been manufactured by the Company or by a third party. The term “sale” used by the Company in these Condition of Sale, as well as in the Company’s offers, documents, emails, and other communications, refers to both of those instances indiscriminately. The Conditions also apply where goods have been manufactured according to the Buyer’s instructions, including but not limited to designs, blueprints and technologies provided by the Buyer.
- The Conditions shall not apply to contracts concluded with the Company by a natural person for a purpose which can be regarded as being outside a trade or profession of such a person (i.e. the consumer).
Section 2. [Conclusion of the Contract]
- All specifications or specimens provided by the Company shall be viewed as referring only to an average characteristic of the goods. Discrepancies in respect of form, colour, weight , size and quantity shall be admissible and considered to conform with the contract, unless the Buyer party proves (a) that the discrepancies are unacceptable due to significantly depriving
- the Buyer of what the Buyer could have expected under the contract and (b) that the Company could have foreseen such situation.
- Orders placed by the Buyer with the Company, as well any other communications conveyed to the Buyer with the purpose of concluding a contract, shall be deemed to constitute irrevocable offers that the Company shall be entitled to accept within two weeks. The acceptance of the offer by the Company may be made either expressly, in writing (including acceptance by email), or implicitly, by dispatching the goods to the Buyer. This shall also apply to orders and other similar communications conveyed by the Buyer to the Company’s staff members normally responsible for fulfilling orders, such as employees of the Company’s Sale Department, with the exception that said staff members shall be in no manner entitled to act on behalf of the Company.
- In the event the orders have been sent by email, the Company shall confirm a receipt thereof. Such confirmation, however, shall not be regarded as the acceptance of the offer (order) made by the Buyer, unless the Company chooses to jointly confirm the receipt of the order and accept the Buyer’s offer.
- The provisions of sections 1-3 hereinabove governing conclusion of the contract shall also apply to any communications made by the parties with the purpose of revising, amending or otherwise changing the contract that has been already concluded.
Section 3. [Pricing]
- Prices quoted by the Company remain valid for the period of 30 days as of the day the Buyer was first notified thereof, unless the Company has indicated otherwise. In case of doubt, the applicable prices shall be those quoted or accepted by the Company in the order confirmation or – in the absence of so quoted or accepted prices – the prices quoted in the Company’s Price List (available on the Company’s website). Where none of the aforementioned criteria can be taken into account to determine the price, the Buyer and the Seller shall be considered to have impliedly made reference to the price that has been normally charged for such goods in the course of their mutual business before, or in the absence of any other indications, the price generally charged at the time of the conclusion of the contract for such goods sold under comparable circumstances in the trade concerned.
- Unless expressly agreed upon otherwise, all prices quoted by the Company shall be regarded as the net prices, without any discounts, and shall be deemed to have been calculated for the taking of the delivery at the Company’s facility in Wysocko Wielkie, Poland. The prices shall not include, inter alia, any packaging, handling, freight, duties, quality inspection costs, statutory VAT rates and other costs. Unless expressly agreed otherwise in writing, any and all such costs shall be paid for by the Buyer.
- If the Buyer requests so, the Company may also arrange and pay for carriage of goods. In such cases, however, the place of delivery shall always be considered to be the place where the goods have been handed over to the first carrier in Poland (in most cases, the Company’s facility in Wysocko Wielkie, Poland). In any other case, including, but not limited to the case where other arrangements as to carriage of goods have been made or where the goods have been handed over to the first carrier in a country other than Poland, the Company’s Registered Office shall still be deemed to have been also the place of delivery. Furthermore, the place of delivery defined herein shall be viewed as constituting the place where the delivery has been taken by the Buyer.
- In the event of essential change of factors that have bearing on the pricing, such as personnel costs or costs of raw materials, sale conditions etc., where such change occurs subsequent to the conclusion of the contract and prior to the indicated or actual date of delivery, the Company shall be entitled to request that the prices be revised so as to fit the changed conditions, and should the parties fail to reach agreement in this regard within 14 days, the Company may declare the contract avoided.
- When making the payment to the Company, the Buyer may deduct its claims by means of a set-off or an equivalent method only if such claims have been expressly conceded to by the Company or have been confirmed in a final court ruling.
- Unless expressly agreed upon otherwise, goods shall be delivered Ex Works (EXW, Incoterms 2010) the Company’s facility in Wysocko Wielkie, Poland.
Section 4 [Delivery, Time of Delivery]
- Any delay of delivery caused by force majeur or other events that foil the delivery or render the delivery significantly difficult, such as strikes, interdictions and ordinances of public authorities, natural disasters, disturbances of regular business operations, a disruption of electricity supplies etc., including events pertaining to the Company’s subcontractors, shall not be deemed to constitute a breach of the contract, even if the date of the delivery has been effectively fixed. In such case, the Company shall be entitled to defer its delivery or performance for as long as the delivery remains difficult or impossible. If the delivery or performance have become impossible or may result in excessive hardships due to reasons beyond the Company’s scope of liability, the Company may declare the contract avoided, whilst the Buyer shall not be entitled to claim any damages.
- The Company is entitled to make deliveries or other performances in parts. The Buyer shall be obliged to take such partial deliveries. Should the Buyer be in default in taking the delivery, it shall be obliged to redress any resulting damages, including reimbursing additional costs and expenses incurred by the Company.
- If the delivery has been delayed at the Buyer’s request or due to the circumstances within the Buyer’s scope of liability, the goods can be stored at its expense and peril. In such case the delivery shall be deemed to have been made at the time the Company notified the Buyer of the Company’s readiness to perform the delivery. It is hereby agreed that the daily reimbursement for storage expenses shall amount to PLN 150 per sqm.
Section 5 [Packaging]
- Costs of disposable packaging shall be calculated by the Company according to its own actual costs, and no return of such packaging shall be accepted.
- Reusable packaging, unless it has been expressly included in the price, shall remain the Company’s property. If so, the Buyer shall send the packaging back, at its own expense and in a proper condition, to the Company within 30 days. Where it has been agreed that the Company would collect the packaging from the Buyer, the latter shall be obliged to store it free of charge and prepare it in due time to be collected by the Company in a proper condition.
- Europallets, containers and similar receptacles used for freight purposes shall be exchanged in accordance with the accepted trade custom and practice. If at the time of the delivery the receptacles have not been handed over to be exchanged for receptacles of the same quality and quantity, the Company shall be entitled to separately include costs of the receptacles that have not been handed over into the price.
Section 6 [Passing of Risk]
- Once the goods have been handed over to the Buyer, the risk of accidental loss, deterioration or damage thereto rests with the Buyer. However, where the delivery should involve the carriage of the goods, the risk shall pass when the goods have been handed over to a freight forwarder, an entity operating as a carrier or other entity engaged in the carriage of goods. This provision applies regardless of whether it is the Seller or the Buyer bearing the costs of the carriage.
- The Buyer’s default in taking the delivery shall have the legal effect of taking the delivery.
- Insurance in respect of carriage shall only be arranged for by the Company at the Buyer’s explicit request and at the Buyer’s expense.
Section 7 [Warranty for Defects]
- If the goods are defective and the defects are within the scope of the Company’s liability, the Company shall be obligated to deliver substitute goods. However, if such delivery has not been made in due time or if it has proved to be otherwise ineffective, the Buyer may, at its discretion, either declare the contract avoided, or request that the price of the goods be
- reduced. The substitute delivery shall be regarded as ineffective only if the Company has been provided with sufficient ability to make the delivery and (i) the delivery has proven to be impossible or (ii) the Company has refused to perform the delivery or (iv) the delivery should cause excessive hardships to the Company. The Buyer shall not be entitled to declare the contract avoided in accordance with this paragraph, unless the defects are substantial.
- The Buyer should examine the goods in respect of their conformity to the contract immediately upon receipt of the delivery and notify the Company in writing, within the time limits set out hereinbelow, of any nonconformity of the goods, under the pain of losing the right to rely on a lack of conformity. Any visible defects must be notified to the Company forthwith, no later than 24 hours as of a receipt of the delivery, whilst other defects must be notified without undue delay, no later than within 5 business days as of a receipt of the delivery. The burden of proof with regard to the aforementioned notifications, existence of the defects, and the actual date of finding the goods defective, rests with the Buyer.
- If, after the substitute delivery has not been performed, the Buyer decides to declare the contract avoided due to a lack of conformity, the Buyer shall not have the right to claim any damages, and shall return the delivered goods to the Company. If however, after the substitute delivery has not been performed, the Buyer decides to claim damages, the Buyer may retain the possession of the goods, whilst the damages shall amount to the difference between the contract price and the actual value of the defective goods. The aforementioned provision does not apply, if a breach of the contract has been caused intentionally.
Section 8 [Limitation of Liability]
- To the extent legally admissible, the Company and the persons or entities to whom the Company has delegated performance of the contract, shall be exempted from any liability for a breach thereof, resulting from unintentional guilt. The Company’s liability shall only comprise typical and foreseeable damages resulting from a breach of the contract. The Buyer shall be entitled to remedies for delivery of nonconforming goods, insofar as such remedies are provided for in this and the preceding Section. As for other remedies, the Buyer shall be entitled thereto, if the remedies have been expressly accepted by the Company in writing.
- The Company shall bear no liability for late deliveries or deliveries of non conforming goods made to the Company by third parties, unless the Company can be held guilty for a lack of the third party’s delivery, for instance, in the event a lack of the delivery results from the Company’s failure to conclude a contract with such a third party for the delivery of goods ordered by the Buyer. In such case the Company shall notify the Buyer in due course that the goods are unavailable, and shall return in due course the performance that has been thus not reciprocated.
- The Buyer shall be obligated to adhere to relevant intellectual property regulations, and in the event of their infringement, shall relieve the Company of any resulting liability towards third parties.
Section 9 [Reservation of ownership]
- Ownership of the goods should not pass to the Buyer prior to full satisfaction of all existing and future claims of the Company towards the Buyer.
- Provided that the Buyer is not in default, the Buyer has the right to modify the goods subject to the reservation of ownership, insofar as any such modifications do not go beyond due care and diligence of a prudent businessman, and even to dispose of the goods in accordance with the accepted business custom and practice. However, the Buyer shall not be entitled to impose any encumbrances upon the goods, to pledge them or to transfer the ownership thereof to a third party as security for a debt. Any claims of the Buyer arising from the reselling of the goods subject to the reservation of ownership or from other particular third party’s rights (e.g. insurance, torts, corrections of accounts), are hereby assigned to the Company up to the amount of the Company’s claims. The Buyer shall notify the debtor of the thus effected assignment.
- The Buyer shall be obligated to store, free of charge, the goods subject to the reservation of ownership, and to insure the stored goods as customarily accepted. In the event a third party, in particular a court bailiff (or a similar person), should claim any sort of authority or
- possession over the goods, the Buyer shall immediately make it known to such third party that the goods are owned by the Company and forthwith notify the Company thereof.
- Whenever the Buyer fails to perform its obligations under the contract, in particular the obligation to make required payments, the Company may claim back the goods and/or declare the contract avoided. In such case the Buyer shall be obligated to hand over the goods back to the Company. The Company’s declaration claiming back the goods shall not imply the Company’s intention to avoid the contract, unless such intention has been expressly communicated by the Company.
Section 10 [Personal data protection]
- The Buyer grants its consent for the processing and collecting personal data of the Buyer for the purpose of the performance of the agreement.
- The Administrator of the Buyer’s personal data is Polmostrów Sp. z o.o., ul. Południowa 3, Wysocko Wielkie, hereinafter referred to as the Administrator; the Administrator processes the Buyer’s personal data.
- Personal data of the Buyer will be processed for the purpose of the performance of the agreement concluded with the Administrator. Personal data of the Buyer can be disclosed to entities authorised thereto on the basis of the provisions of law;
- Provision of personal data is voluntary, it is, however, indispensable for the performance of the agreement concluded with the Administrator.
- The Buyer shall enjoy the right to: demand that the Administrator should grant the Buyer access to its personal data, rectify its data, remove it or limit the scope of its processing; file an objection against such data processing or file a complaint with a supervisory authority.
- Personal data of the Buyer is not subject to any automated decision making processes, including profiling,
- Personal data of the Buyer shall be stored for the duration of the agreement and period specified in the provisions pertaining to storage period of accounting documents.
Section 11 [Other Provisions]
- Any disputes arising out of or in connection with the contract concluded within the scope of the Conditions, including legal effectiveness of the contract or its part, shall be disputed and decided by the Polish court competent in the area where the Company’s Registered Office is located at the time of instituting a lawsuit.
- The jurisdiction of Polish courts is exclusive.
- The Conditions may only be amended or supplemented in writing under the pain of nullity. An exchange of emails by the parties shall be deemed to be same as writing.
- Should any of the provisions found in the contract or the Conditions be ineffective, this shall not affect validity of other provisions.
- All contracts entered into between the Company and the Buyer shall only be governed by laws of Poland. The United Nations Convention on Contracts for the International Sale of
- Goods shall not apply, unless the parties have expressly agreed otherwise. However, where such express agreement has been made, the Conditions shall take precedence over the provisions of the Convention.
Published on 09.08.2018