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General terms and conditions of sale/delivery by lnostalex Sp. z o.o. Sp.k. with a seat in Radzionków, ul. Ks. dr. Knosały 115 - valid from 01.01.2015.
1. General Provisions
1.1. These terms and conditions of sale (OWS) apply for all and every contract of sale/delivery of goods and other services concluded by lnostalex Sp. z o.o. Sp.k. and any and all alterations thereof shall be made in a written form only, otherwise null and void.
1.2. Terms used in these general terms and conditions of sale/delivery shall mean the following: • Seller - lnostalex Sp. z o.o. Sp.k. • Buyer - buyer of goods and/or services sold by lnostalex Sp. z o.o. Sp.k. • Parties - Seller and Buyer • Goods - goods acquired by way of contract concluded by and between Seller and Buyer • Service - service delivered by way of contract concluded by and between Seller and Buyer • OWS - general terms and conditions of sale/delivery made by lnostalex Sp. z o.o. Sp.k.
1.3. Neither terms of purchase defined by the Buyer, nor other regulations pertaining to contracts concluded by the Seller shall be applicable, as OWS are the only settlement binding for the Parties. Consequently, any general terms of sale or delivery defined by the Buyer shall be superseded by these General Terms and Conditions of Sale/Delivery. Any settlements and/or additional arrangements different from OWS require written confirmation by the Seller in each and every case. It applies in particular to situation when the Seller includes in order any reference different from OWS accepted by both Parties. In such a case the Parties exclude possibility of implied (silent) conclusion of a contract.
2. Conclusion of a Contract
2.1. In principle, individual contract is concluded by way of reply to offer submitted by the Seller, in a form of order made by the Buyer. An order submitted by the Buyer is tantamount to acceptance of these OWS. Upon request of the Buyer, the Seller shall confirm acceptance of an order within period determined by the Parties.
2.2. Each and every offer submitted by the Seller includes information about OWS binding for the Parties in a form of a link referring the Buyer to the Seller's website, that is www.inostalex.pl.
2.3. In the event of any change in the offer or reservations regarding the offer made in the Buyer's order, the contract is concluded when the Seller confirms acceptance of the order in accordance with its new conditions. The Parties exclude possibility of implied (silent) conclusion of a contract.
2.4. Individual contract can be also concluded without previous offer of the Seller. In such a case written confirmation of the order by the Seller is required for conclusion of a contract. The Parties exclude possibility of implied (silent) conclusion of a contract.
2.5. Proposals of sale submitted by the Seller (in particular referred to as "sale offers") do not constitute a binding sale offer within the meaning of the Civil Code but only a proposal to submit an order by the Buyer. Subject to provisions of section 2, point 2.3., Seller's offer shall be only an estimated offer until the contract is concluded.
2.6. Any oral agreements, representations and warranties made by employees of the Seller in connection with conclusion of a contract of sale/delivery are not binding for the Seller until they are confirmed by the Seller.
2.7. Any declarations (in particular offers, orders, confirmations of orders) made by and between the Parties with the aim of concluding a binding contract should be delivered to the other party in writing, by post, fax or e-mail.
2.8. If the Seller cannot perform the contract in its entirety or part due to reasons not attributable to themselves, the Seller shall be entitled to withdraw from the contract in its entirety or part with exemption from liability for damage resulting thereof. In such a case the Seller shall be also exempt from any liability connected with untimely release of goods.
2.9. In case of unpredictable events beyond influence of any of the Parties which may result in non-performance of the contract in its entirety or part, such events shall be considered as "Force Majeure". For the purposes of performance of transaction, "Force Majeure" shall be understood as event that is not attributable to the Parties and cannot be prevented by them despite observance of due diligence, including but not limited to: wars, states of emergency, natural disasters, epidemics, revolutions, strikes, riots, communication breakdowns and process line breakdowns. Non-performance of a contract in its entirety or part due to occurrence of "Force Majeure" entitles the Parties to withdraw from the contract, yet without the Buyer's right to compensation.
3. Price and Terms of Payment
3.1. The price of goods/services sold shall be determined every single time in the offer itself or in order confirmation and can be denominated in PLN or a foreign currency. Prices determined by the Seller are net prices.
3.2. Payments made in PLN or other, foreign currency by the Buyer are gross prices. If a price is determined in a foreign currency, the Buyer cannot make the payment in PLN unless the Seller agrees for such an option in the offer itself or in order confirmation. In such a case foreign exchange rate shall be calculated in accordance with the sale chart of ING Bank Śląski as of the sale date of the goods/services applicable for such foreign currency. The sale date is date of release of goods from the Seller's warehouse or release of goods to the carrier, also from location other than the Seller's warehouse.
3.3. The Buyer shall pay the price within the period determined by the Seller and the payment is considered to be made when the funds are credited to the Seller's bank account.
3.4. In case of circumstances that justify increase in prices, such as increase in regulatory liabilities, levies, customs duties, reduction in amount of ordered goods in comparison to the Seller's offer, the Seller is entitled to increase the price respectively and shall inform the Buyer of such an increase. In such a case the Buyer shall pay the increased price within the period determined in the contract.
3.5. In case of Buyer's delay in payment of any receivable debt or its part, the Buyer shall pay statutory interest to the Seller without any separate call. Moreover, failure to make payment in part or in entirety within agreed period entitled the Seller to suspend execution of all contracts and deliveries to the Buyer that is in delay with payment, until all the receivable debts are paid along with statutory interest. In such a case the Seller is also entitled to terminate immediately any contracts and agreements previously concluded with the Buyer. The Seller shall bear no liability for damage arising on such grounds.
3.6. If circumstances creating threat of Buyer's failure to make any the payments to the Seller within agreed period (in particular deterioration of financial condition) occur after conclusion of a contract, the Seller shall be vested with entitlements resulting from Art. 458 of the Civil Code. It means that the Seller may demand payment of all the receivables resulting from conclusion of contracts with the Buyer. This entitlement also applies to all non-executed deliveries/services. The Seller shall bear no liability for damage arising on such grounds.
3.7. Buyer's delay in making prepayment/down payment of 7 days, calculated from the date of Buyer's order entitles the Seller to withdraw from the contract in its entirety or part without additional call.
3.8. The Buyer may withdraw from the order made in its entirety or part only upon consent of the Seller.
3.9. The Buyer may set off their debt against Seller's debt only upon consent of the Seller.
4. Reservations of Ownership
4.1. Goods subject to sale based on particular order shall be owned by the Seller until full payment is made. If objects are joined or mixed, the Parties become co-owners of the entirety. Consequently, provisions of Art. 193 § 2 of the Civil Code do not apply.
4.2. The risk of loss or damage to goods devolves from the Seller to the Buyer at the time of release of goods to the Buyer or carrier (or other entity, e.g. freight forwarder), also at location other than the Seller's warehouse, irrespective of the Party liable for costs of transport. The Seller may insure the goods as commissioned by the Buyer and at their cost. The Buyer shall unload the goods at their own cost.
4.3. The Buyer shall inform the Seller immediately of attachment of reserved object or other infringement of our rights by third parties. The Buyer shall cover all the costs incurred to remove infringements of rights to reserved object or return transport of the object, unless such costs are covered by third parties.
4.4. If circumstances creating threat of Buyer's failure to make any the payments to the Seller within agreed period (in particular deterioration of financial condition) occur after conclusion of a contract, the Seller shall be entitled to take the reserved goods back from the Buyer immediately. The principle also applies when the Buyer is in delay with payment of receivables for more than 30 days from their maturity date. These provisions do not infringe regulations of the Bankruptcy and Arrangement Law.
5. Terms and Conditions of Collection/Delivery of Goods
5.1. Goods can be collected from the supplier's/producer's warehouse or from the Seller's warehouse, upon release of goods for collection, that is within the period agreed between the Buyer and the Seller.
5.2. Delivery of goods to location determined in the contract by the Buyer is made by freight forwarding or carrier selected by the Seller, irrespective of the Party covering costs of transport.
5.3. The Buyer shall exercise due diligence in examination of collected/delivered goods, that is to verify the amount, possibly visible defects, their compliance with technical specification as well as parameters and technical properties of goods defined in the contract and attached quality documentation, if applicable. Compliance of the said parameters with the contract is confirmed with the Buyer's signature on the Stock Issue Confirmation (CI).
5.4. If the Buyer refuses to deliver or collect ordered goods, or fails to perform collection of the ordered goods within 7 working days, due to reasons not attributable to the Seller, the Seller is entitled to charge the Buyer with warehousing costs amounting to 0.3% of net value of goods for each and every day of delay (calculated from collection date agreed by the Parties in the contract/order confirmation). In such a case the Seller is entitled to issue invoice for the goods released for collection and not collected within period agreed by the Parties, and to make the receivables immediately payable.
5.5. When delay in collection of ordered goods exceeds 30 days (calculated from collection date agreed by the Parties in the contract/order confirmation), the Seller is also entitled to charge the Buyer with single contractual penalty amounting to 30% of the gross value of ordered and uncollected goods. In such a case the Seller may also withdraw from the contract, which does not exempt the Buyer from their obligation to pay contractual penalty, as referred to in the previous sentence. If actual damage exceeds the amount of contractual penalty, the Seller is entitled to pursue supplementary compensation.
5.6. In case of circumstances described in point 5.4, the Seller is entitled to suspend execution of other Buyer's orders and the Buyer is not entitled to burden the Seller with any penalties for delayed or non-executed deliveries. In such a case the Seller shall be exempt from liability for possible damage resulting thereof.
5.7. If the Buyer's order determines neither minimum, nor maximum amount of goods, the amount of ordered goods may vary by -/+10% due to tolerance limit applied by particular producer/supplier of goods. In such a case the Buyer shall collect the said amount of goods.
5.8. The weight of ordered goods binding for the Buyer is the weight determined by supplier of the Seller, unless the Parties agree for determination of weight of the goods based on theoretical weight conversion factor applicable for trade in steel.
5.9. Incoterms 2010 formulas apply and constitute supplementation of these General Terms and Conditions of Sale/Delivery.
6. Liability for Defects of Sold Goods
6.1. The Buyer shall deliver correct and complete documentation applicable for technical conditions of ordered goods/services to the Seller before conclusion of a contract. Technical parameters determined by the Buyer are confirmed in the Buyer's order, and in case of discrepancies between the offer for sale and the order, in the Seller's order confirmation. Incorrect determination of technical parameters by the Buyer exempts the Seller from liability for defects of goods as well as resultant damage.
6.2. Documentation pertaining to quality, parameters and technical properties of goods/services, in particular proper quality certificates, declarations of conformity, research protocols and other documents required by the law is handed over, if possible, at collection/delivery of goods/services or immediately after such documentation is obtained from producer/supplier of the goods/services. Handing over of documentation referred to in the first sentence, point 6.2 may be subject to a charge.
6.3 The Buyer is obliged to perform actions referred to in section 5, point 5.3. In case of delivery of goods to the Buyer's plant or location specified by them, the Buyer shall notify the Seller in writing of any quantitative defects within 24 hours from delivery date. In such a case the Buyer shall also include such information in shipping documents in attendance of a Carrier. Failure to notify the Seller of the fact in a manner described above results in loss of any and all entitlements connected with quantitative defects. If quantitative defects occur due to reasons attributable to the Seller, the Buyer can demand delivery of missing goods within the period agreed by the Parties and at the cost of the Seller.
6.4. In case of defects which cannot be discovered despite diligent control of collected/delivered goods, performed in line with section 5, point 5.3., the Buyer shall notify the Seller immediately but not later than within 7 days from the day when a defect is discovered and cease possible treatment or processing of the goods. If the goods are processed, liability of the Seller for defects shall expire.
6.5 Notification of defective goods must be drawn up in writing by the Buyer and delivered to the Seller by post, fax or electronic mail with confirmation of receipt. Failure to notify the Seller in a manner defined above shall result in loss of entitlements and claims related to defective goods, including statutory warranty. The Buyer shall lose all the rights related to physical defects of goods which could have been discovered during collection/delivery. Making a complaint does not exempt the Buyer from their obligation to pay for the goods or part thereof.
6.6. The Buyer shall make defective goods available to the Seller or their authorized representatives to perform inspection and examination of the goods upon each and every call of the Seller. Lack of consent for making defective goods available to the Seller shall result in loss of entitlements related to defective goods, including statutory warranty.
6.7. Any liability of the Seller for sale of goods defined as second quality shall be excluded. In such a case liability of the Seller based on guarantee and statutory warranty shall be also excluded.
6.8. The Seller shall reply to the Buyer's complaint in writing within 14 days from the date of complaint. If a reply requires technical expertise, repair of goods and/or arrangements with supplier/producer of goods, consideration of a complaint may last longer and the Seller shall notify the Buyer of such extension of time in writing.
6.9. If a complaint is admitted, the Seller may correct the defect or replace the goods with flawless ones at their own discretion, within the period agreed by the Parties. If replacement of the goods turns out to be impossible or would result in excessive costs for the Seller, the Seller is entitled to refuse to replace the goods but shall refund reasonable price to the Buyer. If the Buyer decides to accept the goods in line with their requirements despite discovery of certain defects, that is the defects are negligible, they shall be entitled only to demand reduction of the price.
6.10. In case of correction of a defect or replacement of goods the Buyer shall loose their entitlements to demand further compensation and/or indemnity.
6.11. The Seller shall bear no liability for non-performance or undue performance of a contract when defective goods result from non-performance or undue performance of a contract by the producer of goods. In such a case liability of the Seller based on statutory warranty is also excluded.
6.12. The Seller shall be also exempt from liability for defective goods, if defects result from improper use or storage, changes/repairs of goods made without consent of the Seller and technological errors or design errors of third parties which related to improper use and/or purpose of goods. The risk of purpose and use of proper material burdens the Buyer.
6.13. The Seller shall be liable for damage incurred by the Buyer due to unintentional non-performance or undue performance of a contract. In such a case the Buyer can demand redress of resultant damage but such demand shall be limited to net price of the contracted goods. The Seller shall bear no liability for damage resulting from non-performance or undue performance of a contract in the scope of profits that could have been made by the Buyer unless the damage occurred.
7. Jurisdiction of the Court, Choice of Law, Final Provisions.
7.1. Nullity of any provisions herein does not result in nullity of the remaining provisions.
7.2. No assignment of rights resulting from a contract concluded with the Seller shall be allowed with regard to third parties without written consent of the Seller.
7.3. Any debt recovery costs incurred in fact by the Seller and resulting from debt recovery performed by the Seller or third parties against the Buyer shall be absolutely transferred to the Buyer.
7.3. The court competent for settlement of disputes which may arise in relation to concluded contracts shall be a common court of law competent for the seat of the Seller.
7.4. The law applicable for settlement of disputes which may arise in relation to any legal relationships between the Seller and the Buyer are provisions of the Polish law, with exclusion of provisions of the United Nations Convention of Contracts for the International Sale of Goods of 11th April 1980 and the United Nations Convention on the Limitation Period in the International Sale of Goods of 14th June 1974.
Rzetelna firma