1. General provisions
1. This General Terms and Conditions of Sale and Delivery (GTS) refer to all quotation requests, offers or any legal actions of the Seller as well as other agreements under which the Seller is obligated to sell or deliver products and goods. GTS regulate contact between the Seller and the Buyer and forms an integral part of abovementioned RFQs, offers, legal actions and agreements. The above regulations apply equally to provision of services by a Seller and to provision of services.
2. Terms and expressions used in GTS:
- GTS – General Terms of Sale,
- Seller – Andoria Sp. z o.o,
- Buyer – the contracting entity or Seller’s contractor,
- Party – the Seller and the Buyer together,
- Agreement – agreement concluded between the Seller and the Buyer,
- Goods – manufactured products and products sold by a Seller,
- Changes in GTS are valid only if they have been accepted in a written form,
- GTS provide a complete settlement binding the Parties. Other trading conditions or standard contracts used by the Buyer will not apply unless expressly approved by the Seller in a written form.
3. If GTS are subjects to application, they are also used, without any additional statements, for requests for quotations, offers and legal actions taken by the Seller as well as for new agreements. GTS also apply to any RFQs, offers or legal actions of the parties, disregarding the contract not being concluded, the Parties acted in such manner that could indicate that they had the intention to conclude an agreement.
4. GTS are made available for a Buyer on a Seller’s website in a way that it allows for downloading and copying.
2. Conclusion of the Agreement
1. Specifications of goods, price list and supplementary information are not binding for the Seller and do not constitute a conclusion of a contract, but are only a trade information. Liabilities and oral agreements made with employees of the Seller are not binding, unless they have been confirmed in writing by a person authorized to represent the Seller.
2. A contract is concluded at the time when the Seller confirms acceptance of the order. In the event of a discrepancy between the Buyer’s order and the order confirmed by the Seller, the content of the latter predominates.
3. Any adjuncts or appendices to the Agreement must be made in writing in order to be valid.
4. A Seller has the right to withdraw from a contract in the event of a force majeure situation. Force majeure is understood as an exceptional and unpredictable occurrence, independent of the parties, and which parties have not been able to prevent, such as a strike, armed conflict, natural disaster, explosion, fire, etc. The same applies in the event of a legislative act by a state body, which makes the performance of the contract impossible or modifies the content of the provision of the Parties in such a way that the Agreement shall cease the economic significance of one or both of the Parties (fait du prince), in the whole or in a part.
5. Seller is also entitled to terminate the Agreement, without being responsible for the reimbursement of costs or damages to the Buyer, in case of labor disputes, restrictions, customs or foreign exchange, energy problems, delays in deliveries made by Seller’s suppliers or third parties, shortages of raw materials or goods, decision of the authorities hindering the activities of a given type, transport problems and other obstacles to the implementation of the Agreement.
3. Delivery, acceptance of the Goods and Complaints
1. The Buyer is obliged to examine the delivered goods in terms of quantity and quality defects within the scope of not hidden defects, at the time of collection from the carrier or courier. The fact of disconformity in quantity or occurrence of abovementioned not hidden defects must be recorded on the waybill, certified on the waybill and signed by the driver (courier) and the person taking over the goods delivered. In the absence of such entry in the consignment note, quantitative and qualitative complaints based on the claims of disconformity or the occurrence of not hidden defects will not be considered.
2. Notification of any quantitative claims must be made immediately after collection of the goods, but not later than within 1 (one) day from the collection of the goods, otherwise the company shall lose its eligibility in respect of quantitative exceptions.
3. Notification of any quality complaints which is subject to paragraph 1 must take place immediately after collection of the goods, but not later than within 14 (fourteen) days from the date of disclosure of the defects, otherwise the company shall lose its eligibility in respect of quantitative exceptions. The Buyer may submit quality complaints not later than within 1 (one) month from the date of delivery of the goods, enclosing a sample of the product advertised. The claim of validity is assessed by taking into account existing technical standards.
4. If the Buyer fails to notify the Seller about the defects of the products in accordance with the provisions of paragraphs 1, 2 and 3 above, it is considered that the products meet the conditions of the Contract and Orders for Products and that they have been accepted by the Buyer without any reservations.
5. The product in question should be available in an unprocessed form to the Seller throughout the duration of the complaint until its completion, i.e. until sending information by the Seller.
6. Until the final consideration of the complaint, the Buyer is obliged to store the goods advertised in an appropriate manner, preventing possible damage or shortage.
7. The Seller may refuse to take into account the complaint when the goods have been used, processed or stored improperly by the Buyer.
8. If among the delivered and sold goods, only some are defective and can be removed from the defect-free ones, the Buyer’s right to withdraw from the contract or to terminate the contract for execution of the order, is limited only to the defective goods.
9. The Seller shall not be responsible for any damage caused during the unloading of the goods. The Seller’s responsibility continues until the Buyer signs the shipping documents.
10. The Seller has the right to refrain from the Buyer with the implementation of its claims in respect of the complaint, until the Buyer settles the arrear.
11. By accepting this complaint procedure, the Buyer resigns from using the right to deduction of the claims.
12. The condition for accepting the return goods, that have been challenged by the Buyer and accepted by the Seller is that they are intact, unprocessed by the Buyer and identifiable as to the parameters contained in certificates. In the case of pre-packaged goods, they must be in original, unopened packages.
13. Return of goods takes place only after prior written notice to the Seller, and after obtaining the written confirmation. Return delivery must be adequately protected during transport. Packing details will be included in the notification.
14. In case of dispute in relation to the validity of the complaint concerning defective goods, the goods should be examined by an independent examination facility pointed by two Parties. Costs of unfounded complaints, including all costs associated with carrying out the study referred to above are borne by the Buyer.
15. Incomplete documentation attached to the quantity complaint causes the suspension its consideration until complementation of the documents.
16. Not completing the documentation in 14 (fourteen) days from the date of notification of the deficiency results in its rejection.
17. Documentation required for the consideration of the complaint:
a. copy of the bill of lading,
b. Purchase order no / invoice no,
c. The name and product number,
d. Delivery date,
e. The amount of the advertised product,
f. Date of the melt (for spheroidal/ductile iron) or the date of the pouring (for grey cast iron),
g. The exact description of the defect and place of its occurrence or non-compliant parameter,
h. Photographic documentation,
i. Examination or tests reports,
j. The expectations of the Buyer in connection with the complaint (replacement, repair, return, etc.).
18. Agreed date and delivery times are always approximate and may be subject to change due to unforeseen circumstances. If delivery cannot be made on time, the Seller is entitled to make partial deliveries and to extend the deadline for delivery.
19. Postponement of the delivery date does not entitle the Buyer to terminate the agreement or to claim damages, subject to the provisions of article 7. 2.
20. Filling a complaint is not the subject to withhold the payment for delivered goods, including the goods that are subject to complaint.
21. Complaints concerning detection of defects which was not possible within the framework of the checks referred to in paragraph. 3, should be reported to the Seller in writing within 10 (ten) days of discovery, but not later than within one year from delivery, otherwise the possibility of their reporting will be lost. Any legal action must be taken within 1 (one) year of the complaint within the abovementioned period, otherwise the rights from the defect will be lost.
22. Quality requirements or quality standards relating to the goods supplied by the Seller must be clearly defined in the agreement. Slight differences and differences in quality, color, size or scratches – typical in a given sector or technically unavoidable – are not considered to be flaws and may not constitute the reason to terminate the contract or claim damages.
23. Goods delivered by the Seller shall comply with agreed quality standards. Moreover, any liability under the guarantee or warranty, arising explicitly or implicitly from the provisions of law, contract, custom or commercial customarily accepted, is eliminated. In addition, the Seller does not provide warranties or guarantees, as well as it is presumed that the Seller has given assurance or guarantee that the purchased goods are suitable for the purpose which the Buyer wants to use them for, process or wants third parties to use them. Produced samples are only indicative.
24. The Seller’s liability in the event of non-performance or improper performance of obligations under the agreement, as well as for defects of the goods, is in any case limited to the obligation to deliver the goods in place of the defective goods, to repair the defective goods or to the invoiced value of the defective goods referred in order. The choice between the exchange of goods and the performance of the cash benefit is on the Seller’s side.
25. The Seller’s liability and the obligation to repair the defects is also limited to direct losses of the Liability for indirect or consequential loss or damage, regardless of the fact whether it was possible to foresee it or not is expressly excluded.
26. Without prejudice to the foregoing, Seller’s liability shall not exceed in any case the amount of compensation paid by Seller’s insurance.
27. The Buyer loses the right to raise claims against the Seller if:
i. he/she is late with the arrear to the Seller,
ii. The goods have been exposed to abnormal conditions or have been treated improperly or without due care,
iii. loss of goods’ quality was due to too long storage time by the Buyer.
28. The Buyer is obliged to release the Seller from liability for claims of third parties for damages or other claims that may arise directly or indirectly from any obligation related to the delivery, the delivery of the goods, the goods supplied, their use and any work or recommendations. In addition, the Buyer releases the Seller from responsibility for any third party claims for damages or other claims that may arise directly or indirectly from editing (editing) or (electronic) transmission of information supplied by the Seller.
4.Transport
1. All deliveries are made on the basis of collection of the goods by the customer directly from the Seller (Incoterms 2010), unless otherwise agreed.
2. After receiving a notification of readiness for shipping the goods, regardless of the method of delivery, the Buyer is obliged to immediately collect the goods. If the Buyer does not collect the goods, the Seller is entitled to store the goods that were not collected, at the expense and risk of the Buyer, or to terminate the contract.
3. The Buyer is obliged to unload the goods delivered to the agreed place of delivery as soon as possible, at its own expense and risk. In case of delay in unloading the goods, the Seller will unload them at the expense and risk of the Buyer. The Seller shall in no case be obliged to protect the goods after unloading.
4. If the Buyer refuses to accept the goods in his warehouse he is obliged to bear the cost of transportation of the goods back to the Seller, and then to bear the cost of storing the goods in accordance with paragraph 2.
5. In case the transport is provided by the Seller, the Seller is responsible for identifying the mode of transport and choosing means of transport, which does not bear any claims in this respect.
5. Prices and terms of payment
1. The risk of losing or damaging the goods passes onto the Buyer at the moment of release of the goods; In the case of transport by the carrier – at the moment when the goods are given to the carrier.
2. All prices do not include VAT, taxes, administrative fees, customs duties and the costs of testing or verification.
3. In the event of changes in prices of materials used in production, raw materials, implementation of the duty, other compulsory charges, exchange rate changes, even after the conclusion of the Agreement, the Seller shall be entitled to an appropriate increase in prices, and the Buyer is obliged to pay the higher prices.
4. The payment deadline is 30 (thirty) days from the date of issuing an invoice. It is a term impassable due date.
5. The date of payment shall be the date of receiving money by the Seller’s bank account. The Buyer is not entitled to the discount, deductions or deferment of the payment.
6. If the Seller reasonably assumes that the financial situation of the Buyer requires it, the Seller is entitled – according to his or her choice – to demand prepayment, including receivables not yet due, or to provide security deposit. The Buyer however, is obliged to promptly satisfy the request of the Seller. In anticipation of a prepayment or a security deposit the Seller may withhold performance of the Agreement, in whole or in part.
7. In case of a delay in payment, the Buyer is obliged to pay statutory interest for the delay.
8. In case of a delay in payment or partial payment, as well as when the Buyer does not fulfill other obligations incumbent upon him to the Seller, the Seller shall be entitled to refrain from further deliveries of the goods or to subordinate further deliveries to the earlier payment of the corresponding amount.
6. Termination of the Agreement
1. The Seller is entitled to submit a written declaration of an intent to withdraw from the Agreement in whole or in part, without the authorization of the court, and without any obligation to pay compensation for any loss if:
a) The Buyer refuses to make a payment on the first demand for payment in the circumstances referred to in art. 5;
b) The Buyer shall submit a request for a deferral, suspension of payments or a bankruptcy petition or if the third party submits an application for a bankruptcy of the Buyer, or if the Buyer is insolvent;
c) The Buyer does not perform, does not perform in full, inadequately performs or does not perform within any of its obligations to the Seller under the Agreement and, despite a demand of a proper implementation of the commitments the Buyer does not comply with the request content within 7 (seven) days of the demand for payment.
2. The Agreement may be terminated by the Buyer, if, beforehand, he or she will obtain a written consent from the Seller. If the Seller agrees to the termination of the Agreement, the Buyer is obliged to pay a penalty for having terminated the contract in the amount of 25% of the net value of goods that have been ordered but have not yet been delivered.
3. Upon termination of the contract, if the Buyer has received the goods from the Seller, but not paid for them, the Buyer is obliged to deliver immediately the goods back to the Seller’s warehouse at his own expense and risk. The abovementioned sentence shall not apply if the Buyer promptly pays for the goods received.
4. If the Seller cannot carry out his or her obligations for more than three months because of the circumstances described in Article. 2 paragraphs 4 and 5, both the Seller and the Buyer can withdraw from the contract without the authorization of the court, and without obligation to pay any compensation for the loss of the title.
7. Final provisions
1. The Buyer cannot transfer or assign any rights, duties or legal relations resulting from the Agreement without the prior written consent from the Seller.
2. The Seller’s Trade information which the Buyer has received or obtained on behalf of the Seller are strictly confidential. The Buyer is not entitled to use or reveal such information to third parties.
3. Polish law applies to the Agreement and GTS. The provisions and ONZ Convention on the International Sales of Goods (CISG) does not apply, neither any existing or future provisions related to the sale of goods, the use of which may be excluded by both Parties.
4. Any disputes will be resolved by the court of law which is in a jurisdiction of the Seller.
5. In the case of other language versions of GTS, Polish language version prevails.
6. If any provision of GTS or the Agreement is held invalid, ineffective, unsuitable for enforcement or execution, in whole or in part, inconsistent with any piece of legislation or the rules of application of the law, such provision or part thereof shall not constitute part of the GTS or the Agreement. However, this does not affect the validity, effectiveness and the ability to perform or undergo execution of GTS or the Agreement. In such an extent that the law allows, defective provision is replaced by a provision, that (i) is valid, effective and suited to the implementation or execution, and which (ii) scope and effects are as close as possible to the provision, which is subject to replacement.