General terms and conditions of sales
1. SCOPE OF APPLICABILITY
1. These provisions specify the principles and conditions of sales of the Products, binding Europa Systems Sp. z o.o. (hereinafter referred to shortly as ES) and the Counterparty, unless a given agreement or order concluded between them provides otherwise, in which case diverging detailed conditions shall take precedence over these Principles and shall be applied to the extent they constitute supplementation of the detailed agreement and are not contradictory to that agreement.
2. Within the meaning of these Principles, Product constitutes a separate internal transport system as a whole (ITS) designed and made on the commission of a given counterparty, as well as designs, technical components, and parts used to build and assemble internal transport systems, offered by ES for sale.
3. These Principles are available in the a generally accessible ES online service, and references to them contained in the ES's commercial offer Other conditions and principles of sales are not binding for ES, unless they have been recognised in writing by ES.
2. ASSUMPTION OF OBLIGATIONS
1. ES's obligations to the Counterparty arise solely on the basis of a written agreement or a written statement of ES of accepting an Order, to the extent specified in this statement.
2. A commercial offer such as request for proposal, catalogue, advertising originating from ES is not an offer within the meaning of Article 66 of the Civil Code and shall not be binding for ES.
1. The price the Counterparty is obliged to pay ES shall be paid by wire transfer to the ES's bank account provided on the ES invoice.
2. Without written consent of ES, the Counterparty may not use withholding and deductions from a price agreed upon before.
3. Unless the Parties agreed otherwise, the prices are prices loco Żabów near Pyrzyce (ES plant) and do not include transport and delivery insurance costs.
4. All costs that ensue during the execution of an order, e.g. repackaging, reloading, insurance, bank charges, and other fees and taxes applicable during the order execution shall be borne by the Counterparty, unless the Parties agreed otherwise.
5. ES has the right to change the Price in the case when the Counterparty has changed the terms and conditions of an order after accepting the obligation referred to in item 2.1 (e.g. changes in specifications, delivery times, place of delivery, etc.).
6.The indicated Price is a net Price in PLN, whereas the Parties may agree upon an EUR price.
1. Unless the Parties agree otherwise, the payment shall be made by wire transfer to the ES's bank account within 14 days as of the invoice issue date.
2. The date on which the amount due resulting from the invoice is credited on the ES's bank account shall be the payment date.
3. In case of delay in payment on the part of the Counterparty, ES reserves the right to withhold deliveries or the provision of services until the obstacle arisen, affecting the settlement of the agreed payment, has been removed.
5. DELIVERY, ASSEMBLY
1. A Product is considered delivered to the Counterparty after rendering it at the disposal of the Counterparty in the agreed place – pursuant to the provisions of the obligation referred to in item 2.1. The basis for the acceptance shall be constituted by the "bill of lading" signed by the Counterparty or the "acceptance protocol" signed by both parties.
2. The Counterparty is obliged to collect the products promptly after being notified about the time frame for delivery, to check them after accepting, and to immediately (within a period of up to 7 days) notify ES, the forwarded, or the carried in writing about any defects or shortages.
3.The risk of loss of or damage to products shall be transferred to the Counterparty as of the moment of delivering the products to the Counterparty. If the Counterparty fails to collect the products in the time frame set for collecting them to the Counterparty. If the Counterparty fails to collect the products in the time frame set for collecting them, the risk of loss or damage shall be transferred to the Counterparty as of the moment in which the Counterparty has had a possibility of disposing of them.
4.Unless the Counterparty specifies in writing otherwise, the products are delivered at the Counterparty's cost by a forwarding company indicated by ES. The delivery shall be effected only after the date and place of delivery have been confirmed by the Counterparty and after the Counterparty has indicated a person authorised by him to confirm the execution of the delivery.
5. The Counterparty is obliged to ensure unloading of the products at the place of deliveries. The costs of unloading and any possible damage to products inflicted during the unloading shall be borne by the Counterparty.
6. The time frames for delivery execution provided for in the obligation referred to in item 2 shall be binding. ES shall not be liable for any delay in delivery time where the Counterparty failed to meet the payment terms or, if this is required, the Counterparty failed to confirm in writing the design plans for the products within 3 working days as of receiving them.
7.Should the products made for ES for a given Counterparty not be collected within 14 days as of the date of ineffective call to receive the products, ES shall issue a relevant VAT invoice, charging the Counterparty with storage costs. After the ineffective lapse of 14 days, ES has the right to disassemble or transform the product in order to sell it (or its components) to another Counterparty. The obligation of the original Counterparty shall be reduced by the obtained sales price, after settling the storage costs. In such a situation the original Counterparty loses the right to question the above settlement
1. ES grants to Counterparties a free-of-charge guarantee for the products. The guarantee period shall last 12 months as of the date of delivery of the products, with the assumption of a 1-shift period of operation, i.e. not more than 2080 hours of operation in a year (whichever occurs first). If the execution of a delivery provides for a necessity to draw up an acceptance protocol, the guarantee period shall be counted as of the date of signing the protocol.
2. If the final commissioning is delayed due to other reasons than on the part of ES, the guarantee period shall commence not later than 50 days as of the delivery of products.
3. The Counterparty shall immediately inform ES, in any case not later than within 3 days as of their occurrence, of any defects or failures (it is admissible to send such a notification via e-mail).
4. ES's obligations resulting from the guarantee provided cover only defects occurring as a result of the correct use of the products. ES is not obliged to provide guarantee in the case of an ordinary wear and tear of consumable parts as well as defects resulting from or arising in connection with alternations made in the products or repairing them without prior written consent of ES. ES is not obliged to repair products or provide other services under guarantee in the case of a defect resulting from: an incorrect assembly and regulation, exceeding technical parameters, using incorrect utilities, inappropriate operation and maintenance.
5. On the basis of Article 558 of the Civil Code, the provisions on the warranty for defects in products shall not apply to the sales of products to the Counterparties.
7. SECURITY FOR THE PERFORMANCE OF LIABILITY
1. If products are ordered and then the Counterparty fails to collect them, withdraws from the order, or ceases to perform the agreement in any other way due to the Counterparty's fault, ES has the right to assess a contractual penalty amounting to 50% of the the gross value of that part of the non-executed order which has not been performed – the penalty shall be paid within 7 days as of the date of a written payment demand. All advance payments made by the Counterparty and concerning that order shall be deducted from the said contractual penalty.
2. ES reserves the right to claim compensation where the actual loss exceeds the contractual penalty calculated in accordance with item 1.
3. The Counterparty becomes the owner of the products as at the moment of settling the compensation in its full amount. Until then, ES may pursue any rights resulting from the ownership as well as claim compensation in the case of damage, wear and tear, or disposing of the products in a manner which was not agreed upon.
8.CONDITIONS OF OPERATION
The Counterparty is obliged to use products in accordance with their intended use, comply with the standards of secure operation, and all provisions and regulations relating to the use of the products.
9. FORCE MAJEURE
Europa Systems does not bear responsibility and liability for breaching the provisions of the order if this has arisen from “force majeure”. The “force majeure” cases which relieve Europa Systems from fulfilment of the contractual obligations for its duration shall be considered as unpredicted events which will occur regardless of the will and guilt of Europa Systems after obtaining the order, completely or partially preventing the fulfilment of the contractual obligations, provided that Europa Systems cannot prevent them with exercise of due diligence. Such cases include in particular: fire, flood, earthquake, strike, epidemic, war, mobilization, terrorist attack, embargo, decisions of state authorities establishing a prohibition or limitation of export or import of the subject of the offer.
10. APPLICABLE LAW, TERRITORIAL JURISDICTION OF COURTS
1. The legal relationships with the Counterparty shall be governed by the Polish law, and in the case of foreign Counterparites, the UN Convention on Contracts for the International Sale of Goods drawn up in Vienna, of 11.04.1980.
2. Two languages, i.e. Polish and German, are applicable as equivalent.
3. In relation to any disputes that can arise, directly, or indirectly, from these principles, the Polish court with territorial and material jurisdiction over the ES's registered office shall settle all such disputes.
11. FINAL PROVISIONS
1. ES hereby declares and the Counterparty acknowledges and undertakes to respect that all technical solutions used for the products, including at the stage of the offer negotiations, constitute intellectual property of ES and are subject to legal protection.
2. The Parties undertake to keep confidential all information related to the sales and functioning of the enterprises of ES and the Counterparty.