GTC - GENERAL TERMS AND CONDITIONS
DL Sp. z o. o.
§ 1 SCOPE OF APPLICATION
Deliveries of our products and services are exclusively subject to the following General Terms and Conditions of Sale. These General Terms and Conditions of Sale shall apply to all future deliveries, even if this has not been explicitly pointed out again in individual cases. Any general terms and conditions of sale of the Purchaser which deviate from these and whose validity we hereby expressly exclude shall not apply, even if we have not objected to them in individual cases. The same shall apply if we have made delivery to the Purchaser without reservation in the knowledge of the Purchaser's deviating terms of sale. General terms and conditions of sale of the Purchaser shall also not be binding on us if they deviate from the statutory provisions, irrespective of the content of these General Terms and Conditions of Sale. These General Terms and Conditions of Sale shall apply until they are replaced by new conditions.
§ 2 OFFER AND CONCLUSION OF CONTRACT
1. Information, price lists and other advertising and business materials addressed to an unspecified recipient do not constitute an offer, but merely an invitation to negotiations.
2. A letter addressed to an individually designated recipient, in which the quantity of goods that can be delivered by us under a specific contract, the delivery period and place of delivery are indicated, constitutes an offer and expresses our will to conclude the contract with the recipient of the offer. The offer binding period is determined by the content of the offer. The offer can only be accepted without reservation. Subject to further provisions of these General Terms and Conditions of Sale, a contract shall be concluded if the order is received by us before expiry of the offer validity period. If no order is received by us within the above mentioned period, the offer becomes invalid. Only agreements made in written form shall be deemed to constitute the content of the contract. Verification of the conformity of the service provided by DL with the contract may only be carried out on the basis of the written agreements between the parties.
3. Any reservations or modifications to our offer made by the Purchaser shall be deemed to be a new offer (order). In such a case, the contract shall be deemed to have been concluded if we expressly confirm acceptance of the Purchaser's order in writing, by fax or by e-mail within a period of 10 (ten) working days. Should this not be the case, the offer of the Purchaser shall cease to be valid upon expiry of the above-mentioned 10-day (ten-day) period.
4. Should we have received an order outside the above-mentioned "offer procedure", a contract shall be deemed to have been concluded if we send the Purchaser an explicit written confirmation of the order by fax or e-mail within a period of 10 (ten) working days (calculated from receipt of the order). If we do not send an order confirmation in the above mentioned manner, the order received shall be invalid for us.
5. Regardless of how the contract was concluded, we reserve the right to withdraw from any contract concluded by us within 3 working days of its conclusion without giving reasons. The withdrawal is especially justified in the case if we were not able to fulfill the contract because within a short period of time several of our offers (which were binding for us for a long time) were accepted by several Purchasers. In case of exercising the right of withdrawal, the Purchaser has no justified claims against us - in particular no claim for damages.
6. We reserve the right of ownership, copyright as well as patent and utility model rights to illustrations, drawings, calculations, technical calculations and expert opinions and other documents which we supply or make available to the Purchaser in the course of contract negotiations. They are only intended for the purposes of our respective offer and may not be reproduced or made accessible to third parties, either in whole or in part, without our prior explicit written consent.
7. Our employees, sales representatives and other sales persons are not authorized to waive the request for written order confirmation by us, or to agree on provisions differing in content or to give guarantees regarding the nature of the products.
§ 3 PRICES AND PAYMENT
1. All our prices are net prices, to which the value added tax (VAT) is to be added. Unless it is otherwise stated in our offer, our supply contract or our order confirmation, they are valid including transport to the place specified by the Purchaser (CPT according to INCOTERMS 2000). Furthermore, we reserve the right to increase our prices accordingly if, after conclusion of the contract, there are cost increases of more than 5% due to an increase in materials and the period from conclusion of the contract to delivery date is at least 3 months.
2. The price is payable without deductions (bank charges etc.) within a period of 30 days from the date of invoicing (we will send the invoice by fax for your information), unless a different payment period is specified in our offer, delivery contract or order confirmation. The payment deadlines - also with regard to the fulfilment of the conditions for granting discounts - always run from the date of invoicing and not from the date of delivery of the invoice. Should the payment not be made within this period, the Purchaser shall be in default from this date. We will charge interest on arrears at the legally stipulated rate from the time of default.
3. If the Purchaser is in default with a certain payment, all our other contractual claims against him become due immediately.
4. The Purchaser shall only be entitled to set-off rights against us within the scope of his possible claims which have been legally established by a court and only if we have expressly agreed to the set-off in writing. However, the Purchaser shall not be entitled to set off any claims acquired by assignment. Furthermore, the Purchaser shall not be entitled to delay payments - in particular in the event of a delay in delivery due to the non-delivery of the documents and information by the Purchaser in accordance with § 5.1.
5. Despite any instructions from the Purchaser, payments shall first be credited to the earliest due claims. If additional costs and interest have arisen from the overdue claim, we are always entitled to charge the payment first to the costs, then to the interest and finally to the main claim.
6. If we become aware of circumstances which could indicate a worsening in the solvency and/or creditworthiness of the Purchaser, in particular if it is impossible to honour a cheque or bill of exchange issued by the Purchaser, if the credit insurer refuses to continue the insurance coverage or has reduced the credit limit, if the Purchaser is in default of payment or if an application for the opening of insolvency proceedings or for the suspension of payments has been filed against him. we have the right to suspend the execution of orders which have been received but not yet executed or to make their execution dependent on immediate securities provided within a period determined by us and in a form and with a content determined by us (e.g. bank guarantee from a Polish bank) or on advance payment. If we fail to comply with our request, we are entitled to withdraw from all or some of the contracts in whole or in part without any additional notice period. For this reason the Purchaser has no justified claims against us. In the event of withdrawal, the Purchaser shall reimburse us for the documented expenses incurred by us. We shall be entitled to assert any further claims. Furthermore, we are entitled to prohibit the Purchaser from reselling our products and to take back products not yet paid for at the Purchaser's expense.
§ 4 NATURE OF THE PRODUCTS
1. Information regarding the nature of the products is contained in the product data sheets valid at the date of conclusion of the contract, which can be viewed and/or retrieved at any time at our premises or sent to the Purchaser on request at any time. We neither warrant nor guarantee that all information stated in product data sheets refers to the products delivered by us.
2. The nature and suitability of our products can change/develop negatively in case of improper handling or improper installation. Our installation instructions, which are handed over to the Purchaser if agreed, must therefore be followed in any case.
3. Customary in trade deviations of the product from illustrations, drawings, dimensions, weights and other technical data are permitted. Excess or incomplete deliveries of up to 10 % shall be deemed to be in accordance with the contract.
4. The products manufactured by us are only suitable for so-called normal use; in particular, they are not suitable for use under unusual, dangerous, health and safety endangering circumstances and under circumstances in which they are used excessively, unless we have explicitely declared with reference to a specific order that the products manufactured by us for this purpose have additional (special) properties. We shall not be liable if the ordered products are not suitable for a business purpose assumed by the Purchaser (type of business, conditions of use, etc.) and we assume that the Purchaser has correctly assessed the conditions of use and has also correctly planned the construction, diameter and course of the ventilation/air conditioning system. Therefore, we do not evaluate the design documents submitted by the Purchaser, on the basis of which we manufacture the products, neither with regard to possible defects, especially not with regard to optimization of the air flow, diameter, wall thickness, installation method, etc.
§ 5 DELIVERY AND PERFORMANCE PERIOD
The delivery period specified in our offer, our delivery contract or our order confirmation shall only commence at the point in time at which all documents and information required for the proper processing of the order, in particular necessary technical data of the products, the exact place of delivery and the delivery date, are handed over by the Purchaser, the times at which the deliveries can be made, the name of the person authorized to receive the goods, the telephone number at which the forwarder could inform about unforeseen obstacles in the course of the transport which affect the delivery time, etc. and if agreed down payments have been paid by the Purchaser. The place of delivery is a place specified by the Purchaser (CPT according to INCOTERMS 2000). If delivery terms (regarding place of delivery, transport costs) which differ from CPT (according to INCOTERMS 2000) are agreed in the offer, the supply contract, the order confirmation or the contract, the terms mentioned first (i.e. in the offer, supply contract, order confirmation) shall take precedence.
2. In the event of force majeure or other unforeseeable, extraordinary and non-culpable circumstances, e.g. non-delivery by the upstream supplier, operational disruptions due to fire, water and other circumstances, failure of production facilities and machines, strike and lockout, lack of material, energy, transportation possibilities, official intervention (even if the above-mentioned circumstances occur at our suppliers), we reserve the right - insofar as we are not able to fulfil our obligations on time due to the above-mentioned circumstances without our fault - to postpone the delivery or service for the duration of the hindrance plus a reasonable start-up time. However, the Purchaser shall in any case be entitled to set us a reasonable extension of at least 2 (two) weeks in writing if we exceed the agreed delivery date by at least 3 (three) weeks. After the unsuccessful expiry of the grace period, the Purchaser shall be entitled to withdraw from the contract. The Purchaser shall not be entitled to withdraw from the contract if he himself is delayed/delayed in accepting the goods.
3. If an agreed delivery period is not met due to our fault, the Purchaser shall be entitled to withdraw from the contract and to claim damages after the unsuccessful expiry of the grace period specified in § 5.2. The above also applies to the cases mentioned in § 5.2. The compensation for damages shall only cover typical and at the time of the conclusion of the contract foreseeable damages and for each completed week the delay shall amount to a maximum of 1% of the product price, but from all possible titles not more than 5% of the product price. The Purchaser is not entitled to withdraw from the contract if he himself is late or in default with the acceptance of the goods.
4. Partial deliveries are permitted. If the order was partially realized by us, the Purchaser is entitled to the above-mentioned right (in particular the right of withdrawal) exclusively with regard to the parts that were not realized.
5. The Purchaser is obliged to accept the ordered products in due time. If the Purchaser does not fulfill his obligation to accept the ordered products in due time, we are entitled to: (1) after prior notification of the Purchaser and unsuccessful expiration of the grace period for acceptance of the goods, to sell the delivered goods by private contract and to set off the proceeds against our claim for payment for the products not accepted; (2) to charge the Purchaser with storage costs amounting to 3% of the net value of the goods for each day of delay in relation to the agreed date; (3) to demand payment before delivery of the products and to issue a VAT invoice for this purpose as for domestic delivery. This shall not exclude the assertion of far-reaching claims against the Purchaser, including the possible difference.
§ 6 TRANSFER OF RISK
1. Unless it has been explicitly agreed that our products are to be delivered at our expense and risk to the place designated by the Purchaser, the risk shall pass to the Purchaser as soon as the product has been handed over to the person responsible for transport or has left one of our production sites/warehouses for the purpose of shipment. This shall apply regardless of whether we carry out the transport with our own vehicles or whether we use external carriers and regardless of whether we bear the shipping costs. The loading of the products is the duty of the Purchaser. Clauses such as "free delivery ..." or clauses of a similar nature only result in a different regulation of the transport costs, but do not change the above rule of transfer of risk.
2. If the shipment is delayed for reasons for which the Purchaser is responsible, the risk shall pass to the Purchaser on the day of readiness for shipment.
3. On an explicit written request of the Purchaser we undertake to take out transport insurance, whereby the insurance costs shall be borne by the Purchaser. The Purchaser is obliged to organize immediate acceptance and unloading of the products, as well as to confirm the acceptance in writing to the carrier. Possible lack of confirmation (especially in the absence of a representative of the Purchaser or his willingness to confirm) does not entitle the Purchaser to object to the fact of delivery.
§ 7 LIABILITY FOR DEFECTS
1. The warranty rights of the Purchaser presuppose that the Purchaser has properly fulfilled his obligations to examine and give notice of defects in accordance with the applicable regulations and/or these General Terms and Conditions of Sale. The Buyer shall give written notice of obvious and recognizable defects within 8 (eight) days after delivery of the products. The Purchaser is obliged to provide us with a detailed written description of the defects he has complained about. Defects that are not obvious and not recognizable during proper inspection must be reported in writing by the Purchaser within 8 (eight) days of their discovery. Failure to comply with the period or form of notification shall result in forfeiture of the warranty for the defects affected by such notification. By examining the defects notified or by taking measures to remedy the defects, we do not waive the objection of delayed or incomplete notification of defects.
2. We shall not be liable in any way for defects and malfunctions resulting from natural wear and tear, improper use, failure to comply with specified technical requirements/regulations, unauthorized modifications to the delivered, attached and/or used products, improper installation by the Purchaser or third parties, improper loading and/or storage or modifications to the conditions of use by the Purchaser (including exposure of the products to the effects of weather conditions or chemicals).
3. Our warranty liability shall expire after 6 (six) months from the date of acceptance of the goods by the Purchaser. In the event of a defect, we shall be obliged, at our discretion, to either remove the defect or deliver a defect-free item. If the removal of the defect or delivery of a defect-free item should fail twice, the Purchaser may demand a proportional price reduction or withdraw from the contract, whereby the Purchaser shall be entitled to any further claims exclusively within the scope of the provision of § 8.
4. Insofar as the Purchaser is obliged to set us a reasonable period of time to assert warranty claims, the period of time shall only be deemed reasonable if it is not shorter than 30 working days. We are entitled to refuse to remedy the defect or to deliver a defect-free item if this would involve disproportionately high costs. Disproportionately high costs are in particular if they exceed 30% of the market value of the products sold.
5. We shall bear the expenses necessary for the purpose of removing the defect or delivering a defect-free item, in particular transport, labour and material costs, provided that these are not increased by the fact that the products have been taken to a place other than the place of performance. The replaced products become our property.
6. If the defect is not detected, the Purchaser shall bear the costs of the inspection.
7. Warranty claims against us may only be asserted directly by the Purchaser; these claims may not be assigned to third parties.
8. The Purchaser shall not have the right to withdraw from the contract or to refuse acceptance of the goods. The claim to price reduction is limited to 10% of the price (net).
9. If the period for the removal of defects or delivery of a defect-free item has expired without success, we shall request the Purchaser to assert any further warranty rights against us within a period of one month. After this period has expired without success, any warranty rights shall expire.
10. In the case if we grant a product warranty, the warranty conditions will be specified in a separate warranty certificate. In matters not covered by the warranty certificate, the provisions of these General Sales Conditions shall apply.
§ 8 CLAIMS FOR DAMAGES
1. Unless it was otherwise provided in these General Terms and Conditions of Sale, we shall be liable exclusively for breach of material, contractual, non-contractual and statutory obligations and only in the event of our intent or gross negligence. This also applies to breaches of duty by our authorized representatives, commercial agents and vicarious agents. In the event of liability, we shall only be liable for proven damage only to the extent that it was foreseeable for us at the time of conclusion of the contract with regard to the occurrence of damage and the amount of damage - as a typical consequence of the breach of duty - and could not be preventable for the Purchaser.
2. We shall not be liable for damage which has not occurred to the delivery item; in particular, we shall not be liable for loss of profit or other financial losses of the buyer and his business partners or for culpa in contrahendo. Excluded from the above limitations of liability is liability for death, bodily injury and damage to health within the limits set by mandatory provisions. Liability for any other than personal injury shall be limited to 10% of the amount of remuneration (net) to which DL sp. z o.o. is entitled for the performance of the order - irrespective of the legal basis of the claim for damages.
3. The Purchaser shall bear the burden of proof that the defect was already present before the passing of risk or that it is attributable to a cause already existing in the goods.
4. Any liability for damage other than that based on the principle of culpability shall be excluded on our part to the extent that this is legally permissible.
§ 9 RESERVATION OF OWNERSHIP
1. All our deliveries and services are subject to retention of ownership. Ownership shall not pass to the Purchaser until all our claims arising from the business relationship with him and with the entrepreneurs from his capital group, as well as ancillary costs associated with the delivery item, have been settled. This includes all claims, regardless of their legal basis, including conditional or future claims. This shall also apply if payments are made for claims specifically designated by the Purchaser. In the case of current account settlement, the reserved property shall be deemed to be security for our balance claim.
2. The Purchaser is obliged to treat the delivered products with care; in particular, he is obliged to insure them at his own expense against fire, water, theft and the like to the amount of their purchase price.
3. The Purchaser may neither pledge the delivery item to which we have reserved ownership nor assign it as security. In the event of seizure of a product or other dispositions by third parties, he must inform us immediately in writing of such events. In such a case, the Purchaser shall provide us with the assistance necessary for the exercise of our rights. The
costs associated with the above measures shall be borne by the Purchaser. In the event of suspension of payment, the orderer must also notify us of the quantity of our products which he owns and the place where they are stored.
4. If the Purchaser is in default of payment, we shall be entitled - without prejudice to the validity of the contract concluded with him and the possibility of asserting further claims - to demand immediate return of the products and the Purchaser shall be obliged to surrender the products. If we assert this claim, this shall only be deemed to be withdrawal from the contract if we explicitly declare this in writing.
5. The processing or alteration of the reserved goods by the Purchaser is always carried out for us. Processing, alteration of the reserved goods or mixing, the reserved ownership of the processed or mixed products shall continue. If the reserved goods are combined or mixed with other items not belonging to us, we shall acquire ownership of a new item in the ratio of the value of the reserved goods to the value of the products at the time of combination or mixing. For the purposes of these General Terms and Conditions of Sale, reserved goods are deemed to be the share of the co-ownership created in this way. If our products are combined or mixed with other movable objects so that they form part of the main object belonging to the Purchaser, we shall acquire the co-ownership rights to this object in a corresponding proportion. In the cases described above, the Purchaser hereby assigns to us the co-ownership rights to the processed, connected or mixed products and undertakes to keep them in safe custody. The safekeeping by the Purchaser of processed, connected or mixed objects replaces the handover of the object. The provisions relating to the goods subject to retention of ownership shall also apply to the object resulting from the processing and mixing.
6. The Purchaser is entitled to process and sell the reserved goods, but only in the ordinary course of business and under conditions which do not deviate from market conditions, unless he is in default of payment to us, has suspended payment or insolvency proceedings have been applied for or he has himself applied for the opening of composition proceedings. In the event of resale, the Purchaser hereby assigns to us in full, for the purpose of securing our claims, the claims arising from the resale, together with all rights, and we accept this assignment. If goods subject to retention of ownership are sold by the ordering party - after processing/combination - together with products not belonging to the ordering party, the ordering party hereby assigns to us, for the purpose of securing our claims, the claims arising from the resale in the amount of the value of the reserved goods with all ancillary rights and we hereby accept this assignment. Despite the assignment of claims according to the above principles, the Purchaser is authorized and obliged to collect these claims. Our right to collect the claims ourselves remains unaffected by this - however, we undertake not to collect the claims as long as the orderer duly fulfils his payment and other obligations to us and no application for the opening of insolvency or composition proceedings has been made, no suspension of payments has occurred or there are no justified doubts about the orderer's solvency and creditworthiness. Under no circumstances shall the Purchaser be entitled to assign to third parties the claims to which he is entitled against us.
7. The Purchaser is obliged, at our request, to disclose to us all claims assigned to us and their debtors, to provide all information necessary for the collection of the claims, to hand over the relevant documents and to inform the debtors of the assignment. The Purchaser undertakes to transfer to us the rights resulting from bills of exchange issued by third-party purchasers.
8. If the value of the securities to which we are entitled exceeds the total claim against the Purchaser by more than 20%, we shall be obliged to release the securities at the Purchaser's request, whereby we shall be entitled to choose the security to be released.
9. If we, by mutual agreement, settle the balance of the Purchaser's debt from the purchased products by returning the products purchased by us, the settlement shall be made in accordance with the market value of the purchased products determined by us on the day of return.
10. All possible administrative charges (especially the tax of civil law transactions), connected with the assignment of the debt, shall be borne by the Purchaser.
§ 10 APPLICABLE LAW, PLACE OF JURISDICTION, PLACE OF PERFORMANCE
The contractual relationship is subject to the law of the Republic of Poland, excluding the UN Convention on Contracts for the International Sale of Goods. The place of jurisdiction is exclusively Poznan (Poland). However, we are entitled to sue the Purchaser at his place of business.
§ 11 INDUSTRIAL PROPERTY RIGHTS
1. If we have to deliver according to drawings, models, samples or using parts delivered by the Purchaser, the Purchaser shall be responsible for ensuring that the industrial property rights of third parties within the territory of the European Union are not infringed thereby (copyrights, rights arising from an invention, etc.) We shall inform the Purchaser of all rights known to us to which third parties are entitled and/or which have been applied for by third parties. The orderer shall indemnify us against any claims of third parties and shall pay compensation for any damage incurred. If a third party asserts the rights associated with the products to be manufactured or delivered, we shall be entitled to suspend work until the legal situation between the Purchaser and the third party has been clarified. If, due to the delay, we can no longer reasonably be expected to continue the order, we shall be entitled to withdraw from the contract. In such a case, the Purchaser is not entitled to any claims against us. In such a case we are again entitled to demand compensation from the Purchaser.
2. If the contract is not concluded, the drawings and samples provided to us will be returned to the Purchaser on request; otherwise they will be destroyed by us. This obligation shall apply to the Purchaser accordingly.
3. We are entitled to the copyrights and other industrial property rights, in particular all rights of use and unrestricted exploitation rights to the models, moulds, drafts, devices, drawings and the delivery item designed by us or by a third party on our behalf.
§ 12 WRITTEN FORM
Where reference is made in these General Terms and Conditions of Sale to the written form, this shall also be understood to include fax and e-mail.
§ 13 SEVERABILITY CLAUSE
In the event of invalidity of provisions of these General Terms and Conditions of Sale, the validity of all other provisions or agreements shall not be affected.
The invalid provisions shall be replaced by valid provisions which come closest to the economic purpose of the invalid provisions.