Each Order with all annexes constitutes a uniform agreement between parties. All references to offers or proposals of the Supplier (Seller), both binding and not binding ones, are not equivalent with the acceptance of any conditions and reservations included in these documents if their acceptance has not been clearly expressed in the Order or if other sale conditions are not determined by another, separate agreement with the Supplier.
The "Buyer" denotes the company GAMBIT LUBAWKA Spółka z o.o., ul. Wojska Polskiego 16, 58-420 Lubawka, NIP 614-15-24-783, euro-NIP PL 6141524783, registered in the District Court for Wrocław-Fabryczna in Wrocław, IX Economic Department of the National Court Register, KRS No: 0000123090.
The "Supplier" denotes the Seller, i.e. a company with which the Buyer has contracted this Order/Agreement.
The "Order / Agreement" denotes an order or agreement that these conditions refer to.
The „Goods" denote the object of the order/agreement (equipment, materials, services and documentation), which shall be delivered /provided by the Supplier according to this order / agreement.
§ 1 DELIVERY CONDITIONS
•1. The Supplier shall immediately notify the Buyer of any situation that could influence the punctual delivery of the Goods. The above information, however, shall not release the Supplier of the obligations determined in the Order / Agreement. The Buyer has the right to conduct inspection at his expense in order to control the progress of the Order / Agreement execution, informing the Supplier of such inspection date five days in advance.
•2. On receipt of the Order, the Supplier should send an arrival note (order confirmation) to the Buyer, in the form of a telecommunications message, constituting confirmation of the Order acceptance for realization. The order confirmation should be sent within:
•a) 2 days in case of Orders with a delivery time longer 7 days after the date of the Order placement.
•b) the same day in case of Orders with a delivery time shorter than 7 days after the date of the Order placement.
•3. The arrival note (order confirmation) should include the following information:
•a) Order / Agreement No,
•b) date and mode of shipment,
•c) shipment specification with the number, weight, dimensions and contents of the packages with all instructions necessary for proper transportation and unloading of the Goods.
•4. The following documents should be supplied with the Goods (independently of the documents necessary for the financial settlement between the Parties, sent by the Supplier by post):
•a) copy of invoice or delivery note document,
•b) material certificates, certificates of analyses, tests and acceptability required by legal regulations binding in the Republic of Poland and the European Union,
•c) certificates of goods quality,
•d) valid product characteristics card - a new one should be sent (updated) at least once a year and each time in case of any modifications,
•e) instructions of correct goods storage,
•f) complete technical documentation necessary for proper assembly at the place of use, start-up, operation and maintenance, including, among others, structural drawings and assembly drawings with necessary details concerning the mechanical, control-measuring and electric part, etc.
•5. A delivery date is understood as a date of physical transfer of the Goods with the required documents to the Buyer at a location determined in the Order / Agreement.
•6. Any changes concerning the Order require a written consent of the Buyer.
•7. The Buyer reserves the right to correct the amount of the Goods ordered and the delivery dates.
•8. Unless otherwise specified in the Order / Agreement, the division of the delivery into parts requires a written consent of the Buyer. In such case, unless otherwise specified in the Order / Agreement, the delivery date is the date of physical transfer of the last part of the delivery to the Buyer to a location determined in the Order / Agreement.
•9. The Goods shall not be considered as delivered if the Buyer does not receive all documents necessary for the order realization with all required documentation and certificates.
•10. The Supplier is responsible for obtaining marketing authorization of the Goods in the Polish customs area in accordance with binding Polish regulations.
•11. In case of delivery of the Goods from the are of the European Union the Supplier is obliged to fulfill all requirements resulting from the EU legal regulations, concerning in particular the VAT tax and INTRASTAT.
•12. The Supplier is responsible for completeness of the delivery contents of the Goods according to shipment specification and invoice attached to the goods. In case of lack of any items, they shall be supplied by the Supplier on the basis of DDP to the Buyer's warehouse, according to INCOTERMS 2000. The Supplier undertakes to incur all costs resulting from the delivery of the above mentioned items.
•13. In case of delivery inconsistent with the order and with technical approval conditions - the Buyer has the right to make a complaint about the Goods within 14 days after the delivery date, and in case of a latent defect - within 14 days after its detection.
•14. In case of return of the goods, the Buyer reserves the right to charge the Supplier with an invoice for the Goods returned if he does not receive a corrective invoice within 14 days after the date of return of the goods.
§ 2 CONTRACTUAL INDEMNITIES OR WITHDRAWAL FROM THE CONTRACT
•1. In case of delayed delivery for reasons other than force majeure, the Supplier shall be obliged to pay contractual indemnity to the Buyer in the amount of 0.3% value of the Goods supplied after the agreed date for each of the first 10 days of delay. The amount of contractual indemnity amounts to 0.5% for each day after that.
•2. The total amount of contractual indemnities for delayed delivery is limited to 50% value of the goods supplied with delay. In case the goods supplied after the agreed date constitute an integral part of the object of the Order / Agreement, the lack of which makes it impossible for the Buyer to use the Goods delivered, a total price value of the Order / Agreement shall constitute a basis for the calculation of contractual indemnities.
•3. The above mentioned contractual indemnities are understood as additional compensation paid apart from other indemnities determined in the Order / Agreement, resulting from a failure to provide the technological parameters guaranteed as well as other damages caused by the Supplier, in compliance with provisions of the Order / Agreement. In case the damage to the Buyer resulting from the Supplier's failure to keep the conditions of the Order / Agreement is higher than the amount of the reserved contractual indemnities, the Buyer has the right to pursue indemnity for such damages according to general rules. In case of application of this clause, the Supplier shall be obliged to issue a corrective invoice reducing the price of the order / agreement by the amount corresponding to the amount of contractual indemnities.
•4. In case of failure to realize or a lack of possibility to realize the Order / Agreement by the Supplier within the agreed period, the Buyer has the right to resign immediately from the Order or withdraw from the Agreement without determining any additional date for the performance of the service by the Supplier and to charge the Supplier with the costs of realization of a substitute Order or Agreement.
§ 3 FORCE MAJEURE
•1. The parties shall not be held responsible for partial or total failure to perform their obligations resulting from this Agreement, caused by force majeure. Force majeure is understood as all events that could not be foreseen at the moment of the Contract conclusion or prevented, and which cannot be influenced by either of the Parties, including in particular: war, internal riots, flood, fire, earthquake and other natural disasters, government limitations or orders, or other acts announce by organs of state authority and administration, general and branch strikes officially recognized by all-Polish trade unions. The Party which is unable to perform its obligations for the reasons of Force majeure is obliged to notify the other Party immediately about the fact, not later than within 7 days after the occurrence of such events, and present reliable evidence testifying to this fact. When the activity of force majeure ceases, the other Party should be informed about the fact immediately. A failure to fulfill the above requirement results in the loss of rights to refer to the occurrence of force majeure.
§ 4 PAYMENTS
•1. Unless otherwise specified in the Order / Agreement, then:
•a) the price of the Order / Agreement is constant.
•b) the due payment shall be realized in the form of a bank transfer, within 30 days after the date of rendering of the service and receipt of the invoice by the Buyer, made to the Supplier's account indicated in the invoice. Invoices with dates of payment other than 30 days constitute an exception if the acceptance of these dates has been clearly expressed in the Order or is included in other sale conditions, determined by a separate, individual agreement with the Supplier.
•c) the due date is understood as the date of charging the Buyer's bank account - if the delivery of the Goods is not completely realized, as provided in § 1, The Buyer shall have the right to suspend the realization of payment and prolong its due date until the moment of complete performance of the Order / Agreement by the Supplier and submission of all necessary documents mentioned in § 1, item 3. This shall not limit the Buyer's right to enforce provisions of the contractual indemnity clause.
•d) Assignment of claim resulting from a failure to realize the order cannot be performed without the debtor's consent.
§ 5 TAX AND VAT INVOICE
•1. A correct VAT invoice should absolutely include information determined by tax regulations and:
•a) order No and No of the Buyer's agreement,
•b) payment conditions and date according to the order / agreement,
•c) The Supplier is obliged to file copies of VAT invoices confirming the transaction for a period required by tax regulations, constituting a basis for reducing the Buyer's due VAT tax by the amount of VAT tax paid at the moment of purchase of the Goods. In case of limited liability companies, the Supplier confirms the consistency of the transaction (article 230 Code of Commercial Companies).
•2. In case of failure to fulfill the above mentioned requirement or in case a copy of a VAT invoice filed by the Supplier is incorrect due to formal, legal or substantial reasons, the Supplier is obliged to compensate damage to the Buyer occurred as a result of determining the tax obligation, with sanctions and interests imposed on the Buyer by the tax organ in the amounts resulting from the tax organ decision.
§ 6 INFRINGEMENT OF PATENT OR OTHER RIGHTS OF THIRD PARTY
•1. The Supplier warrants that there are no valid patents, copyrights, reservations of rights or know-how of third parties, which could be infringed by the Buyer through the purchase and use of the Goods ordered. The Supplier shall cover all costs and damages awarded against the Buyer on the basis of the determined infringement of patent, know-how, copyrights and other rights of a third party through the use of Goods delivered by the Supplier, on condition that the Buyer informs the Supplier immediately about charges of this type and claims resulting thereof, and the Supplier shall have the possibility and right to explain the charges and claims at his expense, and defend himself or control the defense against potential claims of the third party.
§ 7 WARRANTIES
•1. The Supplier warrants that the Goods delivered according to the provisions of this Order / Agreement shall be consistent with the specification, drawings and all other requirements of the Order / Agreement, and that the Goods will be new, unused, of good quality, suitable and fit for its planned application as presented in the Order / Agreement, properly designed, made appropriately and of proper material, free of defects and faults, and shall satisfactorily fulfill process technology requirements determined in the Order / Agreement.
•2. The Supplier warrants that the Goods shall be made according to the legal regulations binding in the Republic of Poland, operational health and safety regulations and fire fighting provisions as well as standards binding in the European Union.
•3. Unless otherwise specified in the Order / Agreement, the warranty shall be valid for the period of 18 moths after the date of start-up / installation, however not longer than 24 months after the date of delivery.
•4. According to the provisions of this paragraph, the Supplier is obliged to repair and/or exchange the Goods or their damaged parts immediately at his own expense, including the cost of disassembly and new assembly as well as the costs of trip and accommodation of the Supplier's specialists. The items that have been exchanged or the items that are to be exchanged by the Supplier shall be left at his disposal Ex Works in the Buyer's warehouse (INCOTERMS 2000). New items are to be delivered on the basis of DDP to the Buyer's plant (INCOTERMS 2000).
•5. The Buyer shall inform the Supplier of all claims based on warranty immediately after finding a defect of the Goods. The Supplier is obliged to inform the Buyer of measures taken or to be taken as well as the time necessary to remove the defect, within 5 days after receiving information of defects.
•6. If inspection is necessary prior to undertaking the action of repair or exchange of the Goods by the Supplier, the Supplier is obliged to conduct it at his own expense in the shortest time possible, however not later than within 5 working days after the date of receiving the claim.
•7. The Buyer also has the right to conduct repair and exchange of parts on his own or with the help of another company, if such repairs are minor or necessary to avoid further damage or have to be conducted immediately for other important reason, after previous notification of the Supplier. The Supplier is obliged to compensate the Buyer all costs of such repair / exchange.
•8. If the Supplier, having been informed of the occurrence of such defect, does not immediately undertake steps to remove it, then the Buyer has the right to undertake all necessary actions in order to remove the damage at the expense and risk of the Supplier. This, however, shall not release the Supplier of his contractual obligations.
•9. The Supplier's warranty for the Goods or part of the Goods that have been repaired or exchanged by the Supplier according to the warranty clause, is prolonged, on conditions prescribed in this article, by further 12 months counted from the date of repair / exchange.
•10. The warranty does not exclude the Buyer's rights resulting from warranty for physical defects of the goods.
§ 8 SERVICES
If the Order / Agreement includes services rendered by the Supplier in the area of the Buyer's plants, and unless the provisions of the Order / Agreement specify otherwise, it is assumed that:
•1. The value of services is included in the price of the Order / Agreement.
•2. All additional costs related to the services rendered by the Supplier, such as the costs of accommodation, journey, insurance of the Supplier's staff, etc. are borne by the Supplier.
•3. The delivery-acceptance act constitutes a confirmation of the performance of service by the Supplier.
•4. The Supplier is obliged to provide properly qualified staff for correct and punctual performance of the service.
•5. In case the realization of the service requires cooperation of the Supplier and the Buyer, the Supplier is responsible for correctness of indications and instructions given by his staff. Key instructions should be relayed by the Supplier's staff in writing.
•6. The Supplier bears full responsibility for damage and loss occurred as a result of activities of the staff rendering services and as a consequence of incorrect instructions and indications relayed by the Supplier's staff.
•7. The Supplier guarantees that the services rendered by him are performed correctly and according to the provisions of the agreement. If any defects are found within 12 months after the date of the performance of the service, the Supplier is obliged to remove them immediately at his own expense. The Supplier is responsible for defects of a service having a character of assignment (which results from the warranty for defects) as a party taking the order.
•8. The Supplier is obliged to insure his employees fully for the period of the performance of the service on the premises of the Buyer's plant. The Supplier accepts risk and all possible consequences and claims related to:
•a) accidents of the Supplier's staff occurred during performance of the service,
•b) damage and loss caused by the Supplier's staff and suffered by third parties,
•c) damage or destruction of tools and other equipment constituting property or remaining at the disposal of the Supplier or his staff,
•d) the Supplier's employees are obliged to observe the rules binding at the Buyer's plant.
§ 9 GENERAL PROVISIONS
•1. The Buyer may request the Supplier to provide civil liability insurance for the product or the economic activity conducted.
With regard to cases not regulated by this agreement, the Civil Code regulations shall be applicable. Any disputes arising from this Order / Agreement related to its infringement, termination and annulment shall be finally settled by the court competent for the Buyer. Any additional conditions, modifications and supplementations of these general conditions of service and goods delivery for Gambit Lubawka Spółka z o.o. shall be valid only after their preparation and confirmation in writing by both Parties under pain of invalidity.