Terms and Conditions of Sale and Supply
Controller
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"Ipsum sit mattis nulla quam nulla. Gravida id gravida ac enim mauris id. Non pellentesque congue eget consectetur turpis. Sapien, dictum molestie sem tempor. Diam elit, orci, tincidunt aenean tempus."
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1. Quotations, Contracts, Scope
a) The following Terms and Conditions of Sale and Supply (hereinafter “T&Cs” for short) shall apply exclusively and to all contracts, deliveries, services, and quotations made by us.
b) We hereby object to and opt out from any terms and conditions of purchase that are imposed by a Purchaser and contradict or vary from our T&Cs unless we have given explicit, written approval of their validity. Our T&Cs shall apply exclusively even if we perform delivery unconditionally in knowledge of a Purchaser’s terms and conditions opposing or varying from those in this document.
c) Individual agreements made in specific situations, including collateral/subsidiary agreements, additions, and amendments, shall take priority over these T&Cs. A written contract or our written confirmation shall provide the authoritative content of such agreements.
d) These T&Cs shall apply only to entrepreneurs and legal entities under public law, including ones with access to special public funds pursuant to §§ 14 and 310(1) German Civil Code (“Bürgerliches Gesetzbuch”, BGB).
2. Prices, Price Changes
a) Prices shall be listed ex works unless otherwise explicitly arranged.
b) Our information and agreements pertaining to each price shall be subject to the addition of statutory value added tax. This tax shall be listed separately on the invoice at the rate legally applicable as at the day of invoicing.
c) The price agreements shall apply only to the finalized order and be nonbinding in respect of later orders or replenishment orders.
d) For orders with an agreed delivery time or service period of more than four months, we shall reserve the right to adjust the agreed prices by the change in costs that we experience if costs change after entering into the contract, including in particular from new wage agreements or material price fluctuations. If requested, we shall provide evidence of such changes to the Purchaser.
The above provision shall apply accordingly to any changes to customs duties, countervailing charges, taxes, or other government charges pertaining to the ordered goods where the costs for our services change as a result.
e) The quantities or weight data determined at our delivery center prior to the goods’ departure shall be used to calculate prices.
f) The Purchaser shall consent to us also issuing electronic invoices for the invoices issuable as part of this and all future supply relationships and to us sending such invoices to the Purchaser electronically. The Purchaser shall be willing to meet the technical requirements for receiving and approving electronic invoices and shall immediately share with us the associated contact details. When specially required by the Purchaser the invoicing will be carried out in hard copy.
3. Delivery, Force Majeure
a) Delivery periods and delivery dates shall be agreed individually, with our written confirmation serving as the authoritative basis for them. An agreed delivery period shall begin on the date of our order confirmation, though not before the Purchaser takes the reciprocal actions required of it, including payment of any deposit that may have been agreed, and there exists clarity regarding the order.
b) Agreed delivery periods and times shall be deemed upheld when the goods are dispatched ex works before said periods expire and said times have passed. If dispatch of the goods is delayed for reasons not of our own, the delivery periods and times shall be deemed upheld when we have advertised the goods’ readiness for shipment before said periods expire and said times have passed. Delivery periods shall be extended without prejudice to our rights in cases of Purchaser default by the period of time for which the Purchaser defaults on its obligations to us under this contract. The same shall apply to the postponement of delivery dates.
c) Where the Purchaser does not issue us any instructions, we shall select the mode of shipment according to our best judgment and shall not be required to select the mode of shipment that is lowest in price.
d) In instances of force majeure and other unforeseeable or unavoidable events causing damage for which we are not responsible, including operational malfunctions, labor disputes or disturbances, import/export bans, or material or energy shortages, the delivery period shall be extended or the delivery date postponed by the length of the disruption plus a reasonable grace period, provided the disruption has a considerable influence over the delivery or service. This provision shall also apply if such circumstances occur among our suppliers or other upstream suppliers.
We shall immediately notify the Purchaser of the occurrence of such circumstances and when such circumstances end. Should a disruption endure for longer than two months after expiry of the agreed delivery period or passage of the agreed delivery date, either Party shall be entitled to withdraw from the contract. Withdrawal of a Party shall have effect for the unfulfilled part of the contract unless the partial deliveries and services already rendered cannot be utilized by the Purchaser. In this case, the enforcement of compensation claims against us shall be prohibited.
e) If, after entry into the contract, there develop indicators that satisfaction of our entitlement to payment will be endangered as a result of a Purchaser inability to perform, including due to a deterioration of its assets, default during previous deliveries, suspension of payments, or petition to commence insolvency proceedings, we shall be entitled to deny performance of our service until our payment entitlements have been fulfilled or security has been provided for these entitlements. Any discounts that may have been provided shall be void in this case.
Should the Purchaser’s reciprocal obligation not be discharged or security not have been provided by a reasonable deadline set by us, we shall be entitled to withdraw from the contract and obtain compensation. For contracts for the production or delivery of nonfungible goods (made-to-order goods, production based on Purchaser formulas, or similar), we shall be entitled to withdraw from the contract immediately and without setting a further deadline in the cases described above. Partial deliveries already made shall immediately be due for payment regardless of withdrawal. Additional rights and entitlements provided by law and/or contract shall not be affected thereby. Legal provisions regarding any nonrequirement for the provision of a grace period shall remain unaffected.
f) Our fulfillment of and compliance with our delivery obligations shall require timely and correct deliveries to us from our upstream suppliers. We shall not be held liable for delayed or failed supply (impossibility) caused by the simple negligence of our upstream suppliers, however we undertake to assign to the Purchaser any entitlements to compensation from upstream suppliers that we may enjoy.
g) We shall be entitled to make partial deliveries or render partial services where this is reasonable for the Purchaser. Reasonable situations shall include, but not be limited to, when the partial delivery or service can be utilized by the Purchaser to serve the purpose of the contract, the partial delivery or service is ensured, and the Purchaser does not incur any considerable additional expenses or costs as a result, unless we declare ourselves willing to pay these additional expenses or costs. We may bill reasonable portions of the agreed price.
h) With blanket purchase orders, release orders shall be made by the agreed deadline. When arranging partial deliveries, the release order shall be made in time. Should release orders repeatedly not be made in time or for an unreasonably large volume, or should the Purchaser not collect the goods when they are declared ready for dispatch, we shall be entitled to set the Purchaser a deadline to perform its reciprocal actions; if this deadline passes fruitlessly, we shall be entitled to withdraw from the contract and obtain compensation, in particular for a part of the purchase price equivalent to our service. Our rights and entitlements provided by law and/or contract on account of the Purchaser’s breach of obligation shall not be affected thereby.
i) For intra-Community supply of goods not subject to tax in Germany, the Purchaser shall be required to immediately submit to us confirmation of arrival of the goods, including with it at least the name and address of the Purchaser, the volume of the object delivered, its normal trade description, the place and month of the object’s receipt, the date on which the confirmation was issued, and the signature of the Purchaser or a person tasked by it to accept the goods. Should we not receive such confirmation by a reasonable, set due date – including after we request such confirmation – we shall be entitled to declare in the invoice the statutory value added tax pursuant to section 2(b) of these T&Cs and to collect this tax.
4. Shipment
a) The place of performance for the delivery shall be the delivery center, unless otherwise arranged. The risk of the goods’ accidental loss or deterioration shall pass to the Purchaser as soon as the shipment is transferred to the person or entity carrying the goods further. This shall apply regardless of whether the goods are shipped from the place of performance, who is paying the shipping costs, and whether the goods are shipped using our shipping materials.
b) When loaned packaging (e.g. box pallets, EUR-pallets and similar) is delivered, the Purchaser shall, after emptying it, return corresponding loan packaging to the courier in connection with our next delivery. The Purchaser shall in all cases bear the risk of loss or damage of loaned packaging or carriage and shipment materials prior to the packaging’s return to the courier. The Purchaser shall have no right to retain our carriage and shipment materials.
5. Payments, Penalty Interest
a) The Purchaser shall be liable for discounting costs when paying by bill of exchange. They shall be payable immediately and without deductions. Bills of exchange and checks shall only be accepted after explicit agreement and shall only be deemed conditional payment.
b) Unless otherwise arranged, the net purchase price shall be immediately due for payment on receipt of the invoice and be paid within 10 days of the invoice being sent (invoice date); the Purchaser shall not deduct any early payment discounts. The Purchaser shall be deemed to have defaulted if it does not pay within this period.
c) Should the Purchaser default on payment, we shall be authorized to claim the legal penalty interest allowed by statutory provisions (currently 9 percentage points above the base interest rate) and potentially further rights and entitlements.
d) Should the Purchaser not pay the purchase price when it is due while not defaulting on payment, we shall be authorized to charge interest on maturity at a rate 2 percentage points above the base interest rate, though no less than 5 percent for the year (§§ 352 and 353 German Commercial Code [“Handelsgesetzbuch”, HGB]).
e) We may credit incoming payments to one or more of multiple accounts payable to us at our own discretion unless the Purchaser specifies what the payment is intended for at the time payment is made.
6. Offset of Counterclaims and Right of Retention
The Purchaser shall be entitled to rights to offset counterclaims and retain property only for such Purchaser claims that we have recognized, that are undisputed, or that have been upheld by a legal process. Section 8(e) of these T&Cs shall not be affected thereby.
7. Retention of Title
a) Title to the delivered goods shall remain vested in us until all obligations arising from the order and business relationship with the Purchaser have been discharged (hereinafter “reserved goods”).
b) The Purchaser shall have a revocable entitlement to dispositions of the reserved goods in the ordinary course of business so long as the Purchaser duly fulfills its obligations to us, as arising from the order and business relationship, in a timely manner. The Purchaser shall not be permitted to pledge the reserved goods or provide them as security. The Purchaser hereby assigns to us as security any of its receivables from the resale of reserved goods that may be processed or unprocessed; we hereby accept this assignment. Title to the goods shall remain invested in us until redemption of any bills of exchange or checks that are accepted as payment. The Purchaser shall have revocable authority to collect assigned receivables from the resale of goods in the ordinary course of business. Our authority to collect the receivables ourselves shall not be affected thereby. However, we shall not collect the receivables so long as the Purchaser fulfills its payment obligation from the revenues collected, does not default on payment, does not request insolvency proceedings with regard to its assets, or suspend payment. Should this, however, become the case, we may then force the Purchaser to provide us with details of the assigned receivables and the entities who are debtors for said receivables, all details required for collection thereof, and all necessary documentation and to inform the debtors of the assignment.
c) Any modification or processing of the reserved goods shall be done on our behalf, free of charge for us, and without any obligation for us such that we would be seen as manufacturer under § 950 BGB. Should the Purchaser combine or mix reserved goods with other goods not belonging to us, we shall acquire an interest in the new object at the same ratio of the reserved goods’ invoice value to the value of the other objects combined or mixed as at the time of combination or mixture. Where the combination or mixture is done in such a way that the Purchaser’s object must be considered the main object, the Purchaser shall assign to us proportionate co-ownership. The terms and conditions otherwise applying to the new object created from processing, combination, or mixture shall be the same as those in these T&Cs that apply to reserved goods.
d) In instances of conduct in breach of contract and culpable breach of the Purchaser’s contractual obligations, and especially in the case of default on payment, we shall be entitled to withdraw from the contract and demand the return of reserved goods in accordance with statutory provisions if a reasonable deadline set for the Purchaser passes without success. We shall be deemed to have withdrawn from the contract if we take back reserved goods. We shall not be required to provide a grace period unless statutory provisions require one. The Purchaser shall reimburse us for the costs of collection and exploitation of the reserved goods. The Purchaser shall send to us a detailed list of the reserved goods still present and of the third-party debtors for the receivables assigned to us. Regardless of the above, we shall be entitled at all times to carry out corresponding observations in order to realize our rights, including by entering storage and store spaces and inspecting all necessary documents and books.
e) The Purchaser shall be required to handle reserved goods with care, store them separately from other goods, mark them as our goods, and insure them with customary insurance policies, particularly for fire and theft. The Purchaser shall keep reserved goods safe for us free of charge.
f) The Purchaser shall immediately inform us of third-party legal enforcement measures affecting reserved goods, assigned receivables, and other securities and shall provide us with the documents required for intervention. The Purchaser shall pay the costs for out-of-court efforts for release and return. The same shall apply to costs for justified court intervention if they cannot be recovered from the third party.
g) If requested by the Purchaser, we shall pick from among the securities to which we are entitled and release them so far as the realizable value of our securities exceeds the receivables requiring security by more than 10 percent. If requested by the Purchaser, we shall forgo retention of title if the Purchaser has incontestably discharged all payment obligations from the order and appropriate security has been provided for other amounts payable as a result of the ongoing business relationship.
8. Warranty
a) Damage experienced by goods as a result of natural wear, incorrect, inappropriate, or improper handling, storage, or use; or noncompliance with our advice for processing, usage, and storage shall not be considered a defect.
b) We shall not be required to assess the suitability of the Purchaser’s drawings, specifications, plans, information, etc. for the intended or otherwise contractually required purpose unless we explicitly agree to this obligation. Unless otherwise explicitly arranged, we shall not be required to assess the suitability of our products for the Purchaser’s intended use, processing, and/or mixture with other products; neither shall we be required to warrant our products’ suitability for such actions. The product information provided on our product data sheets shall be the authoritative basis for determining what our products are suitable for.
c) We have not assessed the suitability of our products for special applications offshore, in shipbuilding/watercraft construction technology, or in aerospace technology, for which reason such suitability shall not be made a requirement. We shall rule out any guarantee of the suitability of our products in these areas of application unless otherwise explicitly agreed.
d) The Purchaser shall immediately inspect the goods on receipt and shall immediately report any apparent defects to us in writing or by telex within no more than 10 days of receipt of the goods. Hidden defects shall be reported immediately after they are discovered. Goods shall be deemed approved if defects are not reported in a timely manner.
e) In the event of a complaint about a defect, we shall be entitled, at our own discretion, to request the Purchaser to send the rejected goods to us for inspection or a remedy, to send us at least 1 kg of the rejected goods for inspection, or to make the goods available for inspection. Where complaints are legitimate, we shall be entitled, at our own discretion, to make a replacement delivery, render a replacement service, or improve the defective delivery and service (i.e. provide a “remedy”). We shall consider the type of defect and the legitimate interests of the Purchaser when selecting our form of remedy. We shall be responsible for paying the expenses required for the purposes of the remedy. We shall not be responsible for paying additional expenses incurred by the Purchaser transferring the delivered goods to a different location from the place of performance, unless such transfer corresponds with the intended use of the delivered objects.
f) We shall be entitled to make a remedy dependent on payment of the due purchase price. The Purchaser shall be entitled to retain a reasonable part of the purchase price proportional to the defect until the remedy has been provided.
g) Should a remedy not be provided in a reasonable period of time, the Purchaser may, at its own discretion, withdraw from the contract or demand compensation. Should the Purchaser withdraw from the contract, it shall have no further entitlement to compensation on account of the defect. If only part of a delivery of goods is defective, the Purchaser may only withdraw from the overall contract if it can demonstrate that it has no interest in the remaining part of the delivery. Compensation shall be limited to the difference between the purchase price and the value of the defective goods unless we are responsible for the breach of contract pursuant to section 10 of these T&Cs.
h) Recourse against us through warranty rights from contracts for the purchase of consumer goods (§ 478 BGB) shall be an entitlement of the Purchaser only to the extent that the expenses that it claims are not based on an agreement between the Purchaser and its customer that grants the customer rights and entitlements in excess of statutory warranty rights and entitlements. Entitlements based on supplier regress shall be ruled out if the defective goods have been processed by the Purchaser or another entrepreneur, e.g. by being installed in another product.
i) The Purchaser may only exercise entitlements and rights on account of a defect in the delivered objects or our service within a warranty period of 12 months following delivery of the goods. This shall not apply to compensation claims; neither shall this apply to entitlements or rights for which laws provide a mandatory, longer period, namely § 438(1)(2) BGB for buildings and building materials, § 479(1) BGB for recourse from purchase contracts for consumer goods, and §634a(1)(2) BGB for buildings and planning and monitoring services related to them; this provision shall also not apply to compensation claims arising from injury to life, limb, or health, to breach of obligation through intent or gross negligence for which we are liable, or when a defect is fraudulently concealed.
9. Product Information
a) All information we provide about our products, especially their mixing ratios, suitability, and application, shall be seen as approximate values. This information shall not act as a guarantee of the characteristics of our products unless we have explicitly presented such a guarantee that goes beyond pure communication of the given information. The same shall apply to the results of chemical and physical analyses communicated to the Purchaser and data sheets and brochures provided to the Purchaser. The information we provide is based on our experience and presented to the best of our knowledge, and shall not relieve the Purchaser of its own duty to assess our products and their applicability for the Purchaser’s intended use. The same shall also apply if we have previously delivered samples of goods.
b) The Purchaser shall be responsible for following applicable laws and official regulations when using our products.
9. Product Information
a) All information we provide about our products, especially their mixing ratios, suitability, and application, shall be seen as approximate values. This information shall not act as a guarantee of the characteristics of our products unless we have explicitly presented such a guarantee that goes beyond pure communication of the given information. The same shall apply to the results of chemical and physical analyses communicated to the Purchaser and data sheets and brochures provided to the Purchaser. The information we provide is based on our experience and presented to the best of our knowledge, and shall not relieve the Purchaser of its own duty to assess our products and their applicability for the Purchaser’s intended use. The same shall also apply if we have previously delivered samples of goods.
b) The Purchaser shall be responsible for following applicable laws and official regulations when using our products.
10. Liability
a) In the event of slight negligence causing a breach of core contractual obligations, our liability shall be limited to compensation for the foreseeable loss typical for the nature of the contract. Core contractual obligations, for these purposes, shall be obligations whose violation endangers achievement of the contract’s purpose or whose fulfillment enables the due performance of the contract in the first place and where the Purchaser may ordinarily rely on our compliance. In this case, the amount to which we may be held liable shall be limited to the maximum amount provided by our business liability and pecuniary damage liability insurer, which is €1,000,000.00.
b) We may be held liable in line with statutory provisions in instances of culpable breach of core contractual obligations, quality not being as guaranteed, and injury to life, limb, or health. Our liability under the German Product Liability Act (“Produkthaftungsgesetz”, ProdHaftG) shall not be affected thereby.
c) Our liability for damages caused purely by delay shall be limited to 5 percent of the purchase price, though no less than the lump sum of €40.00 mandated by law for delays.
d) Where our liability is limited or ruled out under the provisions of these T&Cs, such disclaimers shall not apply to cases of intent or gross negligence. We may be held liable for our own culpability and the culpability of our legal representatives and agents in cases of intent and gross negligence in accordance with statutory provisions.
e) Our insurance shall not cover damage arising from and in conjunction with the usage of our products for applications off-shore, in shipbuilding/watercraft construction technology, or in aerospace technology. In this respect, we shall not be held liable for damages arising from these areas of application unless we are liable through intent or through injury to life, limb, or health. Where the Purchaser seeks for us to assume liability for these areas of application, we shall be willing to do so in return for the Purchaser paying the insurance premiums charged for the additional insurance.
f) The above provisions shall not be associated with a reversal of the burden of proof at the Purchaser’s expense.
g) Where our liability is limited or ruled out, this disclaimer shall also apply to the personal liability of our employees, workers, personnel, and other agents.
11. Governing Law
Solely the laws of the Federal Republic of Germany, excluding provisions of the CISG (UN sales law), shall apply.
12. Venue
Exclusive venue with jurisdiction for all local and international matters shall be in Melle in the Federal Republic of Germany. However, we shall also be entitled to pursue legal proceedings against the Purchaser at the venue ordinarily having jurisdiction over it.
Terms and Conditions of Sale and Supply
Controller
Tristique odio senectus nam posuere ornare leo metus, ultricies. Blandit duis ultricies vulputate morbi feugiat cras placerat elit. Aliquam tellus lorem sed ac. Montes, sed mattis pellentesque suscipit accumsan. Cursus viverra aenean magna risus elementum faucibus molestie pellentesque. Arcu ultricies sed mauris vestibulum.
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"Ipsum sit mattis nulla quam nulla. Gravida id gravida ac enim mauris id. Non pellentesque congue eget consectetur turpis. Sapien, dictum molestie sem tempor. Diam elit, orci, tincidunt aenean tempus."
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1. Definitions
a) Seller — Unirubber sp. z o.o. with the registered office in Zielonka. The term "Seller" shall refer to any sales or delivery contracts or any other contracts (including innominate ones) of similar type.
b) Buyer — an entity (a natural person, legal person or organisational unit not having the status of a legal person who pursuant to the act is granted legal capacity) concluding a sales or delivery contract or any other contract (including innominate one) of similar type with the Seller.
c) Order — a written or electronic (e-mail, fax, etc.) statement of the Buyer declaring the will to conclude a contract and setting forth its material provisions.
d) Contract — includes a written or electronic (e-mail, fax, etc.) order of the Buyer accepted by the Seller in the order confirmation.
e) GTCS — these General Terms and Conditions of Sale.
f) Defect — clearly visible or latent inconformity of the contract subject to the Contract.
2. Terms of contractual relationship
a) The GTCS shall apply to contractual relationships between the Buyer and the Seller consisting at least partially in:
- undertaking by the Seller to transfer to the Buyer the property of goods and to release them which corresponds with undertaking of the Buyer to collect the goods and pay the price to the Seller;
- undertaking by the Seller to manufacture the goods of individual grade only and to deliver them in parts or periodically which corresponds with the undertaking of the Buyer to collect the goods and pay the price to the Seller.
b) The contractual relationship between the Parties shall be governed by valid legal regulations, the Contract and the GTCS.
c) Any contractual provisions shall prevail over the GTCS. Any departures from the GTCS shall be valid provided they are executed in writing or electronic (e-mail, fax, etc.).
d) The GTCS shall apply only in contacts with entrepreneurs as well as public or state entities.
e) The Contract shall be considered concluded only following confirmation of the Buyer's order by the Seller in writing or electronic (e-mail, fax, etc.). A reply to the Order subject to modifications or supplementations shall be binding upon the Buyer unless the Buyer has excluded the possibility of modifications or supplementations in writing or electronic (e-mail, fax, etc.) or has immediately objected them.
3. Payment of price
a) Unless otherwise expressly agreed, the price specified in the order confirmation shall apply to "ex works" increased with VAT and shall not include delivery of the goods. It shall not be valid in the case of any extra orders.
b) Should any material change in economic conditions, in particular any material change in prices for raw materials or amounts of remuneration, occur in a period between the conclusion of the Contract and its execution, the Seller shall be entitled within a period of eight weeks from the change in the conditions to modify the terms, adjust the price proportionally to their increased costs compared to the costs as of the date of conclusion of the Contract. Upon request of the Buyer the Seller shall submit a statement of the changes in the aforementioned costs.
c) The aforementioned clause shall apply also to any changes in customs duties, compensation costs, excise duty, taxes and other administrative or public fees regarding the contract subject.
d) The price calculation shall be based on quantity, weight or volume of the contract subject as of the moment of leaving the factory of the Seller.
e) The provision of the Buyer with regard to the payment of the price shall be adjusted following the execution of the Contract by the Seller unless the Buyer is in arrears towards the Seller with the payment of any receivables resulting from any legal relationship.
- In the case of Contracts executed in parts or periodically the obligation to pay the price shall be adjusted following the execution of the Contract within the scope of individual part or batch.
- In the case when the Buyer is in arrears towards the Seller with the payment of any receivables resulting from any legal relationship the Seller shall be entitled to refrain from the execution of the Contract till the Buyer offers the outstanding provision or the payment of the price regarding the current Contract, at the option of the Seller.
f) Unless otherwise agreed, the net price without any reductions (discounts) shall be due within 10 days from delivery of a correctly issued invoice to the Buyer.
g) The Seller shall be entitled to apply the payment of the Buyer towards any debt selected by them unless the Buyer has reserved the payment of a specific financial obligation.
h) The payment by bills of exchange or cheques shall be permitted only by mutual agreement of the Parties and shall be regarded as provision in lieu of fulfilment of the obligation. In the case of payment by bills of exchange the discount costs shall be borne by the Buyer and they shall be payable immediately without a possibility of deduction. Handing over a bill of exchange of the Seller shall not mean accomplishment of the provision which shall occur only following the complete satisfaction of the claim.
i) The reductions (discounts) shall not apply if the Buyer is in arrears towards the Seller with the payment of any receivables resulting from any legal relationship.
j) The Buyer may recognise their receivables against the claim of the Seller for the payment of the price only when they have been recognised by the Seller, are not disputed or have been awarded with a judgement in force.
k) The Buyer shall not be entitled to right of retention on the basis of any disputed claims.
4. Obligation of seller
a) Unless the Parties have specified in the Contract a Party responsible for delivery of the contract subject, the obligation to arrange delivery shall rest with the Buyer. In such a case the Contract shall be considered executed by the Seller on time and at location when and where the contract subject is left at disposal of the Buyer.
- Upon the execution of the Contract by the Seller the benefits and burdens related to the goods as well as risk of accidental loss or damage to the goods shall be transferred to the Buyer.
- The Seller shall be obliged to notify the Buyer about location where the contract subject is left at the disposal of the Buyer unless the Parties have specified it in the Contract.
- The Buyer shall be obliged to collect the goods from the place where the contract subject has been left at the disposal of the Buyer within a time limit specified by the Seller.
- If despite the aforementioned notification the Buyer has not collected the contract subject within the time limit specified by the Seller, the Seller shall be entitled at their own option to: (i) withdraw from the Contract within a period of 30 days from expiry of the time limit set for collection, or (ii) have the contract subject stored at the expense and risk of the Buyer.
b) If pursuant to the Contract the obligation to deliver the contract subject rests with the Seller:
- It shall be assumed that the place of fulfilment of obligation of the Seller shall be the place where the registered office of the Seller is situated.
- Upon release of the contract subject by the Seller to a carrier the benefits and burdens related to the goods as well as risk of accidental loss or damage to the goods shall be transferred to the Buyer.
- Both the time and date of delivery to the place of destination shall be binding on the Seller only following their confirmation in writing or electronic (e-mail, fax, etc.) by the Seller.
- The date of delivery of the contract subject resulting from the Contract shall run from a day following the day of the order confirmation by the Seller; however, it shall be extended by any period of delay of the Buyer in taking any actions resulting from the cooperation obligation, in particular paying any possibly agreed advance or down payment or providing the Seller with any information necessary to determine the possibility of delivering the contract subject on time.
c) If through no fault of the Seller the Contract cannot be executed on time the deadline shall be considered met upon the moment of declaring by the Seller of being ready to execute the Contract. The deadline for the execution of the Contract shall be extended by any periods in which the Seller is entitled to refrain from the execution of the Contract.
d) Any occurrence of force majeure — including also those during time of delay of the Seller — shall entitle the Seller to extend the deadline for the execution of the Contract (including delay in delivery) by the duration of the impediment to the execution of the Contract (or delivery).
e) Should the execution of the Contract (or delivery) be impossible or unprofitable as a result of force majeure, the Seller shall be entitled to withdraw from the Contract in part or in total within a period of 30 days from the occurrence of force majeure unless the impediment has ceased within that period and the Buyer is still interested in the execution of the Contract. In such a case any claims for damages shall be excluded unless the Seller bears the blame for the resultant damage.
f) Force majeure shall include also strike, legal lockout, ban on entries and departures, lack of raw materials and power, fire, significant stoppages in the operation of factory or transport as well as any other circumstances not attributable to the Seller which materially impede or render it impossible to execute the delivery or the Contract, irrespective of whether they occur at the Seller, forwarding agents, sub-suppliers or any of further sub-suppliers.
g) The proper execution of the Contract by the Seller depends on timely receipt of supplies by the Seller. The Seller shall be entitled to divide the provision into parts without being in delay with the other parts if it is not contrary to the reasonable interest of the Buyer, in particular if the execution of only a part of the delivery at a given time does not result in any damage to the Buyer.
h) The sale on demand of the Buyer:
- In the case of conclusion of the Contract executed on demand of the Buyer the demand for execution of the Contract regarding any agreed quantity of the contract subject needs to be made within an agreed time limit.
- If the demand is not made or if it is made after expiry of the agreed time limit or if it regards a different quantity of the contract subject than the agreed one, the Seller shall be entitled to request the Buyer to take any actions necessary to satisfy the demand. The time limit specified by the Seller shall be binding upon the Buyer. The Seller may request repair of the damage resulting from non-execution of the obligation in total. The amounts paid by the Buyer towards the price shall not be refundable.
- If the Buyer has been obliged to take the necessary actions the Seller shall be entitled to withdraw from the Contract within a period of one week following ineffective expiry of the time limit for taking them.
i) The Seller shall be entitled to withdraw from the Contract within a period of 30 days from becoming informed about one of the following circumstances:
- a bankruptcy petition has been filed or any other similar insolvency proceedings have been initiated against the Buyer or any of their partners or any other related entity or against the Buyer's guarantor (if any guarantee has been effected);
- one of the parties specified above has withheld its payments permanently or temporarily or their financial situation has deteriorated to such a degree that the payment of the receivables under the Contract will be at risk;
- the Buyer has not delivered their performance in total nor have they submitted relevant security or they have otherwise violated the provisions of the Contract.
j) Should the Seller withdraw from the Contract pursuant to point (i) above or should the circumstances specified therein occur:
- the Seller shall not be obliged to pay the Buyer any damages or incur any other costs related to withdrawal from the Contract and the claims of the Seller against the Buyer resulting from any legal relationship shall be immediately due and payable;
- the Seller shall be entitled to refrain from performing their own obligations towards the Buyer resulting from any legal relationship till their claims are satisfied or the Buyer submits relevant security;
- any reductions and discounts provided for shall be lost;
- any other rights to which the Seller is entitled shall remain unaffected.
5. Securing of receivables of seller
a) The reservation of ownership of the goods sold:
- The Seller shall reserve the ownership of the contract subject till the moment of payment of the price by the Buyer (Reserved Goods). In the case of acceptance of a bill of exchange or cheque the goods shall remain property of the Seller till the moment of receiving full satisfaction.
- Should the Buyer sell the contract subject to any third person or should the contract subject be lost, damaged or worn out before the price payment, the Buyer shall be obliged to hand over to the Seller everything they have received for the contract subject or as compensation.
- The receivables to which the Buyer shall be entitled as a result of wear, loss or sale of the contract subject due to the insurance policy taken out shall be assigned by the Buyer to the Seller in order to secure the receivables of the Seller related to the price payment or damage repair whereas the Seller shall accept the assignment. The assignment of future receivables of the Buyer shall refer also to a balance recognised by the Buyer's contractor and in the case of bankruptcy of the Buyer's contractor also to a balance of claims to which the Buyer is entitled with regard to the estate in bankruptcy. As soon as the claim arises the Buyer shall be obliged to immediately notify the debtor about the assignment. Upon request of the Seller, the Buyer shall be obliged to disclose all the information about any assigned receivables and persons being debtors as well as any data necessary to enforce the receivables and to release any necessary documents. Should the Reserved Goods be processed, the ownership of the newly created goods shall be transferred to the Seller in order to secure the receivables resulting from the price unpaid.
- Should the Reserved Goods be combined or mixed with other things which are not owned by the Seller and should the Buyer receive the right of property or co-property with regard to the Reserved Goods or any other combined or mixed thing, the Buyer undertakes to transfer the title to the thing to the Seller in order to secure the receivables resulting from the price unpaid (transfer of title by way of security). Upon full payment of the price the title to the goods shall be regained by the Buyer.
- In the case of breach by the Buyer the Seller may demand the Reserved Goods returned. The Buyer undertakes to leave the Reserved Goods at the disposal of the Seller, shall be obliged to cover any expenses related to the collection of the Reserved Goods and its further sale, and to send the Seller a detailed statement of the Reserved Goods in their possession. Irrespective of the foregoing, the Seller shall be entitled at any time to take proper actions aiming at protection of their rights, in particular with regard to entering facilities as well as storage and loading areas of the Buyer and to having access to any necessary documents and books.
- The Buyer shall be obliged on the risk basis to maintain the Reserved Goods in a proper state, to store them in proper conditions, separate from other goods and to insure the Reserved Goods against fire and theft.
- The Buyer shall be obliged to immediately notify the Seller about any initiated or threatened enforcement proceedings with regard to the Reserved Goods, assignment of receivables or any other security of the Seller. Moreover, the Buyer shall be obliged to hand over to the Seller any documents necessary to protect the rights to which the Seller is entitled. The costs of the Seller related to any court or out-of-court endeavours regarding return of the Reserved Goods, assigned receivables or any security or their exemption from enforcement proceedings shall be borne by the Buyer.
- Upon request of the Buyer, the Seller may release at their own discretion the security to which they are entitled, in particular if following the release the real value of the security exceeds the value of the receivables to which they are entitled by 20%.
6. Rights of buyer
a) The Seller shall not be obliged to verify the fitness of the contract subject for purposes intended by the Buyer. The Seller shall be bound only by properties or parameters of the contract subject expressly specified in the Contract (conformity of the goods to the Contract).
- The burden of verifying the fitness of the contract subject for needs and purposes of the Buyer shall be borne by the Buyer. By placing the Order the Buyer represents that the contract subject corresponds to the needs and purposes of the Buyer.
- The Buyer shall be obliged to immediately verify the contract subject as for its conformity to the Contract within a maximum period of 21 days from the execution of the Contract by the Seller.
b) Defect warranty:
- The Parties shall limit the statutory rights of the Buyer due to defect warranty to the rights and rules specified below. These GTCS shall fully and finally govern liability of the Seller due to defect warranty regarding the contract subject.
- Following the receipt of the contract subject the Buyer shall be obliged to verify it as for any clearly visible or latent defects. The Buyer shall be obliged to immediately notify the Seller about any clearly visible defects in writing, by fax or e-mail, within a maximum period of 7 days from receipt of the contract subject or else they shall lose a right to invoke inconformity of the contract subject to the Contract. Any latent defects shall be immediately reported in the manner specified above within a maximum period of 7 days from their detection or possibility of their detection; however, the Buyer shall be obliged to make a test as for the conformity of the contract subject to the Contract within a period of 30 days from the execution of the Contract by the Seller.
- Should the Buyer not take the actions of verifying, notifying or testing on time, the contract subject shall be deemed verified and approved by the Buyer.
- In the case of defect notification the Seller shall be entitled to request from the Buyer to send or hand over at their disposal the questioned goods or at least 1 kg of the questioned contract subject for their verification. In the case of unjustified refusal of the Buyer the Buyer shall lose a right to invoke inconformity of the contract subject to the Contract.
- In the case of any justified defect notification the Seller shall be obliged to deliver the relevant quantity of the contract subject within a period of 30 days from acknowledgment of the complaint. Any related expenses shall be borne by the Seller on their own. The Seller shall not incur any extra costs related with the fact that the Buyer has transported the contract subject to any other place than the place of the contract execution unless the transport has corresponded to its use known upon conclusion of the Contract to both Parties. The Seller shall not be liable for the resultant damage if the contract subject has been used before the verification or tests.
- Should the exchange not be completed within the specified time limit the Buyer may at their own option request a price reduction or withdraw from the Contract. Should the Buyer withdraw from the Contract, they shall be entitled to claim for damages within the limits of negative interest of the Contract. Should only a part of the contract subject be defective, the Buyer may withdraw from the Contract in total only when they prove that they have not justified interest in keeping the remaining part of the contract subject.
- The Buyer shall be entitled to any claims and rights resulting from inconformity of the contract subject to the Contract within a period of 12 months from the execution of the Contract by the Seller.
7. Properties of contract subject
a) Any information regarding the contract subject, in particular any parameters, properties or proportion of mixes shall be of approximate nature whereas the given method of use shall be the recommended one. The data shall not be any basis for vindication of claims resulting from defectiveness of the contract subject. The same refers to any results of chemical and physical analyses submitted to the Buyer.
b) Any product information, including that originating from the experience and knowledge of the Seller, shall not release the Buyer from verification of the product as for its fitness for the purpose intended by the Buyer. It shall refer also to the situation when the Seller has earlier provided any product samples.
c) During the use of the product the Buyer shall be responsible for complying with any valid regulations, rules of safety and personal health as well as for processing the contract subject in accordance with principles of technical and professional competence.
8. Contractual liability
a) In the case of violation by the Seller of any contractual obligations as a result of not maintaining due diligence the liability of the Seller shall be limited to compensation within the limits of negative interest of the Contract, however, to a maximum value of the amount covered by the Seller's civil liability insurance or civil insurance against material damage.
- The liability of the Seller or any persons with assistance of whom the Seller performs the obligation or to whom they entrust the performance of the obligation shall include only results of actions or deliberate omission or gross negligence.
- The Seller shall not be liable for any damages resulting from the use of any materials, components, instructions, recipes, etc., submitted by the Buyer.
b) The Buyer shall release the Seller from liability resulting directly or indirectly from invalidity of any provisions of the Contract and the Seller shall accept the release.
9. Other provisions
a) Confidentiality
- The Buyer shall be obliged to keep in secret from any third persons any data, news, opinions and documents obtained from the Seller or regarding them, in particular technical and economic know-how (confidential information).
- The Seller shall be obliged to keep in secret from any third persons any confidential information obtained from the Buyer or regarding them.
- The Parties undertake not to use the confidential information for purposes other than the execution of the purpose of the Contract known to both Parties.
b) Data protection
- Within the scope necessary for the execution of the Contract the Seller shall be entitled to process and store personal data of the Buyer pursuant to valid regulations regarding personal data protection.
c) Jurisdiction
- The court competent for resolution of any disputes related to the Contract shall be any Polish common court in Wrocław Stare Miasto. The Seller shall be unilaterally entitled to submit the dispute for resolution to a court having jurisdiction over the registered office of the Buyer.
d) Governing law
- The contractual relationship between the Seller and the Buyer shall be governed by the laws of Poland, without regard to the New York Convention on the Limitation Period in the International Sale of Goods.
e) Amendments to contract
- Neither extra oral decisions have been taken nor have any arrangements been made in writing or electronic (e-mail, fax, etc.) except for those specified in the GTCS. Any amendments and supplementations to the Contract shall be made in writing or electronic (e-mail, fax, etc.) or else shall be considered invalid.
f) Severability clause
- Should any of the provisions of these GTCS or the Contract be or appear to be invalid, this shall not affect the application of the other provisions. In such a case the Seller in agreement with the Buyer shall replace the invalid provision with a valid one, the economic sense and purpose of which shall be as close to the previous one as possible.
Terms and Conditions of Sale and Supply
September 15, 2019
1. Quotations, Contracts, Scope
a) The following Terms and Conditions of Sale and Supply (hereinafter “T&Cs” for short) shall apply exclusively and to all contracts, deliveries, services, and quotations made by us.
b) We hereby object to and opt out from any terms and conditions of purchase that are imposed by a Purchaser and contradict or vary from our T&Cs unless we have given explicit, written approval of their validity. Our T&Cs shall apply exclusively even if we perform delivery unconditionally in knowledge of a Purchaser’s terms and conditions opposing or varying from those in this document.
c) Individual agreements made in specific situations, including collateral/subsidiary agreements, additions, and amendments, shall take priority over these T&Cs. A written contract or our written confirmation shall provide the authoritative content of such agreements.
d) These T&Cs shall apply only to entrepreneurs and legal entities under public law, including ones with access to special public funds pursuant to §§ 14 and 310(1) German Civil Code (“Bürgerliches Gesetzbuch”, BGB).
2. Prices, Price Changes
a) Prices shall be listed ex works unless otherwise explicitly arranged.
b) Our information and agreements pertaining to each price shall be subject to the addition of statutory value added tax. This tax shall be listed separately on the invoice at the rate legally applicable as at the day of invoicing.
c) The price agreements shall apply only to the finalized order and be nonbinding in respect of later orders or replenishment orders.
d) For orders with an agreed delivery time or service period of more than four months, we shall reserve the right to adjust the agreed prices by the change in costs that we experience if costs change after entering into the contract, including in particular from new wage agreements or material price fluctuations. If requested, we shall provide evidence of such changes to the Purchaser.
The above provision shall apply accordingly to any changes to customs duties, countervailing charges, taxes, or other government charges pertaining to the ordered goods where the costs for our services change as a result.
e) The quantities or weight data determined at our delivery center prior to the goods’ departure shall be used to calculate prices.
f) The Purchaser shall consent to us also issuing electronic invoices for the invoices issuable as part of this and all future supply relationships and to us sending such invoices to the Purchaser electronically. The Purchaser shall be willing to meet the technical requirements for receiving and approving electronic invoices and shall immediately share with us the associated contact details. When specially required by the Purchaser the invoicing will be carried out in hard copy.
3. Delivery, Force Majeure
a) Delivery periods and delivery dates shall be agreed individually, with our written confirmation serving as the authoritative basis for them. An agreed delivery period shall begin on the date of our order confirmation, though not before the Purchaser takes the reciprocal actions required of it, including payment of any deposit that may have been agreed, and there exists clarity regarding the order.
b) Agreed delivery periods and times shall be deemed upheld when the goods are dispatched ex works before said periods expire and said times have passed. If dispatch of the goods is delayed for reasons not of our own, the delivery periods and times shall be deemed upheld when we have advertised the goods’ readiness for shipment before said periods expire and said times have passed. Delivery periods shall be extended without prejudice to our rights in cases of Purchaser default by the period of time for which the Purchaser defaults on its obligations to us under this contract. The same shall apply to the postponement of delivery dates.
c) Where the Purchaser does not issue us any instructions, we shall select the mode of shipment according to our best judgment and shall not be required to select the mode of shipment that is lowest in price.
d) In instances of force majeure and other unforeseeable or unavoidable events causing damage for which we are not responsible, including operational malfunctions, labor disputes or disturbances, import/export bans, or material or energy shortages, the delivery period shall be extended or the delivery date postponed by the length of the disruption plus a reasonable grace period, provided the disruption has a considerable influence over the delivery or service. This provision shall also apply if such circumstances occur among our suppliers or other upstream suppliers.
We shall immediately notify the Purchaser of the occurrence of such circumstances and when such circumstances end. Should a disruption endure for longer than two months after expiry of the agreed delivery period or passage of the agreed delivery date, either Party shall be entitled to withdraw from the contract. Withdrawal of a Party shall have effect for the unfulfilled part of the contract unless the partial deliveries and services already rendered cannot be utilized by the Purchaser. In this case, the enforcement of compensation claims against us shall be prohibited.
e) If, after entry into the contract, there develop indicators that satisfaction of our entitlement to payment will be endangered as a result of a Purchaser inability to perform, including due to a deterioration of its assets, default during previous deliveries, suspension of payments, or petition to commence insolvency proceedings, we shall be entitled to deny performance of our service until our payment entitlements have been fulfilled or security has been provided for these entitlements. Any discounts that may have been provided shall be void in this case.
Should the Purchaser’s reciprocal obligation not be discharged or security not have been provided by a reasonable deadline set by us, we shall be entitled to withdraw from the contract and obtain compensation. For contracts for the production or delivery of nonfungible goods (made-to-order goods, production based on Purchaser formulas, or similar), we shall be entitled to withdraw from the contract immediately and without setting a further deadline in the cases described above. Partial deliveries already made shall immediately be due for payment regardless of withdrawal. Additional rights and entitlements provided by law and/or contract shall not be affected thereby. Legal provisions regarding any nonrequirement for the provision of a grace period shall remain unaffected.
f) Our fulfillment of and compliance with our delivery obligations shall require timely and correct deliveries to us from our upstream suppliers. We shall not be held liable for delayed or failed supply (impossibility) caused by the simple negligence of our upstream suppliers, however we undertake to assign to the Purchaser any entitlements to compensation from upstream suppliers that we may enjoy.
g) We shall be entitled to make partial deliveries or render partial services where this is reasonable for the Purchaser. Reasonable situations shall include, but not be limited to, when the partial delivery or service can be utilized by the Purchaser to serve the purpose of the contract, the partial delivery or service is ensured, and the Purchaser does not incur any considerable additional expenses or costs as a result, unless we declare ourselves willing to pay these additional expenses or costs. We may bill reasonable portions of the agreed price.
h) With blanket purchase orders, release orders shall be made by the agreed deadline. When arranging partial deliveries, the release order shall be made in time. Should release orders repeatedly not be made in time or for an unreasonably large volume, or should the Purchaser not collect the goods when they are declared ready for dispatch, we shall be entitled to set the Purchaser a deadline to perform its reciprocal actions; if this deadline passes fruitlessly, we shall be entitled to withdraw from the contract and obtain compensation, in particular for a part of the purchase price equivalent to our service. Our rights and entitlements provided by law and/or contract on account of the Purchaser’s breach of obligation shall not be affected thereby.
i) For intra-Community supply of goods not subject to tax in Germany, the Purchaser shall be required to immediately submit to us confirmation of arrival of the goods, including with it at least the name and address of the Purchaser, the volume of the object delivered, its normal trade description, the place and month of the object’s receipt, the date on which the confirmation was issued, and the signature of the Purchaser or a person tasked by it to accept the goods. Should we not receive such confirmation by a reasonable, set due date – including after we request such confirmation – we shall be entitled to declare in the invoice the statutory value added tax pursuant to section 2(b) of these T&Cs and to collect this tax.
4. Shipment
a) The place of performance for the delivery shall be the delivery center, unless otherwise arranged. The risk of the goods’ accidental loss or deterioration shall pass to the Purchaser as soon as the shipment is transferred to the person or entity carrying the goods further. This shall apply regardless of whether the goods are shipped from the place of performance, who is paying the shipping costs, and whether the goods are shipped using our shipping materials.
b) When loaned packaging (e.g. box pallets, EUR-pallets and similar) is delivered, the Purchaser shall, after emptying it, return corresponding loan packaging to the courier in connection with our next delivery. The Purchaser shall in all cases bear the risk of loss or damage of loaned packaging or carriage and shipment materials prior to the packaging’s return to the courier. The Purchaser shall have no right to retain our carriage and shipment materials.
5. Payments, Penalty Interest
a) The Purchaser shall be liable for discounting costs when paying by bill of exchange. They shall be payable immediately and without deductions. Bills of exchange and checks shall only be accepted after explicit agreement and shall only be deemed conditional payment.
b) Unless otherwise arranged, the net purchase price shall be immediately due for payment on receipt of the invoice and be paid within 10 days of the invoice being sent (invoice date); the Purchaser shall not deduct any early payment discounts. The Purchaser shall be deemed to have defaulted if it does not pay within this period.
c) Should the Purchaser default on payment, we shall be authorized to claim the legal penalty interest allowed by statutory provisions (currently 9 percentage points above the base interest rate) and potentially further rights and entitlements.
d) Should the Purchaser not pay the purchase price when it is due while not defaulting on payment, we shall be authorized to charge interest on maturity at a rate 2 percentage points above the base interest rate, though no less than 5 percent for the year (§§ 352 and 353 German Commercial Code [“Handelsgesetzbuch”, HGB]).
e) We may credit incoming payments to one or more of multiple accounts payable to us at our own discretion unless the Purchaser specifies what the payment is intended for at the time payment is made.
6. Offset of Counterclaims and Right of Retention
The Purchaser shall be entitled to rights to offset counterclaims and retain property only for such Purchaser claims that we have recognized, that are undisputed, or that have been upheld by a legal process. Section 8(e) of these T&Cs shall not be affected thereby.
7. Retention of Title
a) Title to the delivered goods shall remain vested in us until all obligations arising from the order and business relationship with the Purchaser have been discharged (hereinafter “reserved goods”).
b) The Purchaser shall have a revocable entitlement to dispositions of the reserved goods in the ordinary course of business so long as the Purchaser duly fulfills its obligations to us, as arising from the order and business relationship, in a timely manner. The Purchaser shall not be permitted to pledge the reserved goods or provide them as security. The Purchaser hereby assigns to us as security any of its receivables from the resale of reserved goods that may be processed or unprocessed; we hereby accept this assignment. Title to the goods shall remain invested in us until redemption of any bills of exchange or checks that are accepted as payment. The Purchaser shall have revocable authority to collect assigned receivables from the resale of goods in the ordinary course of business. Our authority to collect the receivables ourselves shall not be affected thereby. However, we shall not collect the receivables so long as the Purchaser fulfills its payment obligation from the revenues collected, does not default on payment, does not request insolvency proceedings with regard to its assets, or suspend payment. Should this, however, become the case, we may then force the Purchaser to provide us with details of the assigned receivables and the entities who are debtors for said receivables, all details required for collection thereof, and all necessary documentation and to inform the debtors of the assignment.
c) Any modification or processing of the reserved goods shall be done on our behalf, free of charge for us, and without any obligation for us such that we would be seen as manufacturer under § 950 BGB. Should the Purchaser combine or mix reserved goods with other goods not belonging to us, we shall acquire an interest in the new object at the same ratio of the reserved goods’ invoice value to the value of the other objects combined or mixed as at the time of combination or mixture. Where the combination or mixture is done in such a way that the Purchaser’s object must be considered the main object, the Purchaser shall assign to us proportionate co-ownership. The terms and conditions otherwise applying to the new object created from processing, combination, or mixture shall be the same as those in these T&Cs that apply to reserved goods.
d) In instances of conduct in breach of contract and culpable breach of the Purchaser’s contractual obligations, and especially in the case of default on payment, we shall be entitled to withdraw from the contract and demand the return of reserved goods in accordance with statutory provisions if a reasonable deadline set for the Purchaser passes without success. We shall be deemed to have withdrawn from the contract if we take back reserved goods. We shall not be required to provide a grace period unless statutory provisions require one. The Purchaser shall reimburse us for the costs of collection and exploitation of the reserved goods. The Purchaser shall send to us a detailed list of the reserved goods still present and of the third-party debtors for the receivables assigned to us. Regardless of the above, we shall be entitled at all times to carry out corresponding observations in order to realize our rights, including by entering storage and store spaces and inspecting all necessary documents and books.
e) The Purchaser shall be required to handle reserved goods with care, store them separately from other goods, mark them as our goods, and insure them with customary insurance policies, particularly for fire and theft. The Purchaser shall keep reserved goods safe for us free of charge.
f) The Purchaser shall immediately inform us of third-party legal enforcement measures affecting reserved goods, assigned receivables, and other securities and shall provide us with the documents required for intervention. The Purchaser shall pay the costs for out-of-court efforts for release and return. The same shall apply to costs for justified court intervention if they cannot be recovered from the third party.
g) If requested by the Purchaser, we shall pick from among the securities to which we are entitled and release them so far as the realizable value of our securities exceeds the receivables requiring security by more than 10 percent. If requested by the Purchaser, we shall forgo retention of title if the Purchaser has incontestably discharged all payment obligations from the order and appropriate security has been provided for other amounts payable as a result of the ongoing business relationship.
8. Warranty
a) Damage experienced by goods as a result of natural wear, incorrect, inappropriate, or improper handling, storage, or use; or noncompliance with our advice for processing, usage, and storage shall not be considered a defect.
b) We shall not be required to assess the suitability of the Purchaser’s drawings, specifications, plans, information, etc. for the intended or otherwise contractually required purpose unless we explicitly agree to this obligation. Unless otherwise explicitly arranged, we shall not be required to assess the suitability of our products for the Purchaser’s intended use, processing, and/or mixture with other products; neither shall we be required to warrant our products’ suitability for such actions. The product information provided on our product data sheets shall be the authoritative basis for determining what our products are suitable for.
c) We have not assessed the suitability of our products for special applications offshore, in shipbuilding/watercraft construction technology, or in aerospace technology, for which reason such suitability shall not be made a requirement. We shall rule out any guarantee of the suitability of our products in these areas of application unless otherwise explicitly agreed.
d) The Purchaser shall immediately inspect the goods on receipt and shall immediately report any apparent defects to us in writing or by telex within no more than 10 days of receipt of the goods. Hidden defects shall be reported immediately after they are discovered. Goods shall be deemed approved if defects are not reported in a timely manner.
e) In the event of a complaint about a defect, we shall be entitled, at our own discretion, to request the Purchaser to send the rejected goods to us for inspection or a remedy, to send us at least 1 kg of the rejected goods for inspection, or to make the goods available for inspection. Where complaints are legitimate, we shall be entitled, at our own discretion, to make a replacement delivery, render a replacement service, or improve the defective delivery and service (i.e. provide a “remedy”). We shall consider the type of defect and the legitimate interests of the Purchaser when selecting our form of remedy. We shall be responsible for paying the expenses required for the purposes of the remedy. We shall not be responsible for paying additional expenses incurred by the Purchaser transferring the delivered goods to a different location from the place of performance, unless such transfer corresponds with the intended use of the delivered objects.
f) We shall be entitled to make a remedy dependent on payment of the due purchase price. The Purchaser shall be entitled to retain a reasonable part of the purchase price proportional to the defect until the remedy has been provided.
g) Should a remedy not be provided in a reasonable period of time, the Purchaser may, at its own discretion, withdraw from the contract or demand compensation. Should the Purchaser withdraw from the contract, it shall have no further entitlement to compensation on account of the defect. If only part of a delivery of goods is defective, the Purchaser may only withdraw from the overall contract if it can demonstrate that it has no interest in the remaining part of the delivery. Compensation shall be limited to the difference between the purchase price and the value of the defective goods unless we are responsible for the breach of contract pursuant to section 10 of these T&Cs.
h) Recourse against us through warranty rights from contracts for the purchase of consumer goods (§ 478 BGB) shall be an entitlement of the Purchaser only to the extent that the expenses that it claims are not based on an agreement between the Purchaser and its customer that grants the customer rights and entitlements in excess of statutory warranty rights and entitlements. Entitlements based on supplier regress shall be ruled out if the defective goods have been processed by the Purchaser or another entrepreneur, e.g. by being installed in another product.
i) The Purchaser may only exercise entitlements and rights on account of a defect in the delivered objects or our service within a warranty period of 12 months following delivery of the goods. This shall not apply to compensation claims; neither shall this apply to entitlements or rights for which laws provide a mandatory, longer period, namely § 438(1)(2) BGB for buildings and building materials, § 479(1) BGB for recourse from purchase contracts for consumer goods, and §634a(1)(2) BGB for buildings and planning and monitoring services related to them; this provision shall also not apply to compensation claims arising from injury to life, limb, or health, to breach of obligation through intent or gross negligence for which we are liable, or when a defect is fraudulently concealed.
9. Product Information
a) All information we provide about our products, especially their mixing ratios, suitability, and application, shall be seen as approximate values. This information shall not act as a guarantee of the characteristics of our products unless we have explicitly presented such a guarantee that goes beyond pure communication of the given information. The same shall apply to the results of chemical and physical analyses communicated to the Purchaser and data sheets and brochures provided to the Purchaser. The information we provide is based on our experience and presented to the best of our knowledge, and shall not relieve the Purchaser of its own duty to assess our products and their applicability for the Purchaser’s intended use. The same shall also apply if we have previously delivered samples of goods.
b) The Purchaser shall be responsible for following applicable laws and official regulations when using our products.
9. Product Information
a) All information we provide about our products, especially their mixing ratios, suitability, and application, shall be seen as approximate values. This information shall not act as a guarantee of the characteristics of our products unless we have explicitly presented such a guarantee that goes beyond pure communication of the given information. The same shall apply to the results of chemical and physical analyses communicated to the Purchaser and data sheets and brochures provided to the Purchaser. The information we provide is based on our experience and presented to the best of our knowledge, and shall not relieve the Purchaser of its own duty to assess our products and their applicability for the Purchaser’s intended use. The same shall also apply if we have previously delivered samples of goods.
b) The Purchaser shall be responsible for following applicable laws and official regulations when using our products.
10. Liability
a) In the event of slight negligence causing a breach of core contractual obligations, our liability shall be limited to compensation for the foreseeable loss typical for the nature of the contract. Core contractual obligations, for these purposes, shall be obligations whose violation endangers achievement of the contract’s purpose or whose fulfillment enables the due performance of the contract in the first place and where the Purchaser may ordinarily rely on our compliance. In this case, the amount to which we may be held liable shall be limited to the maximum amount provided by our business liability and pecuniary damage liability insurer, which is €1,000,000.00.
b) We may be held liable in line with statutory provisions in instances of culpable breach of core contractual obligations, quality not being as guaranteed, and injury to life, limb, or health. Our liability under the German Product Liability Act (“Produkthaftungsgesetz”, ProdHaftG) shall not be affected thereby.
c) Our liability for damages caused purely by delay shall be limited to 5 percent of the purchase price, though no less than the lump sum of €40.00 mandated by law for delays.
d) Where our liability is limited or ruled out under the provisions of these T&Cs, such disclaimers shall not apply to cases of intent or gross negligence. We may be held liable for our own culpability and the culpability of our legal representatives and agents in cases of intent and gross negligence in accordance with statutory provisions.
e) Our insurance shall not cover damage arising from and in conjunction with the usage of our products for applications off-shore, in shipbuilding/watercraft construction technology, or in aerospace technology. In this respect, we shall not be held liable for damages arising from these areas of application unless we are liable through intent or through injury to life, limb, or health. Where the Purchaser seeks for us to assume liability for these areas of application, we shall be willing to do so in return for the Purchaser paying the insurance premiums charged for the additional insurance.
f) The above provisions shall not be associated with a reversal of the burden of proof at the Purchaser’s expense.
g) Where our liability is limited or ruled out, this disclaimer shall also apply to the personal liability of our employees, workers, personnel, and other agents.
11. Governing Law
Solely the laws of the Federal Republic of Germany, excluding provisions of the CISG (UN sales law), shall apply.
12. Venue
Exclusive venue with jurisdiction for all local and international matters shall be in Melle in the Federal Republic of Germany. However, we shall also be entitled to pursue legal proceedings against the Purchaser at the venue ordinarily having jurisdiction over it.
Terms and Conditions of Sale and Supply
March 18, 2010
1. Definitions
a) Seller — Unirubber sp. z o.o. with the registered office in Zielonka. The term "Seller" shall refer to any sales or delivery contracts or any other contracts (including innominate ones) of similar type.
b) Buyer — an entity (a natural person, legal person or organisational unit not having the status of a legal person who pursuant to the act is granted legal capacity) concluding a sales or delivery contract or any other contract (including innominate one) of similar type with the Seller.
c) Order — a written or electronic (e-mail, fax, etc.) statement of the Buyer declaring the will to conclude a contract and setting forth its material provisions.
d) Contract — includes a written or electronic (e-mail, fax, etc.) order of the Buyer accepted by the Seller in the order confirmation.
e) GTCS — these General Terms and Conditions of Sale.
f) Defect — clearly visible or latent inconformity of the contract subject to the Contract.
2. Terms of contractual relationship
a) The GTCS shall apply to contractual relationships between the Buyer and the Seller consisting at least partially in:
- undertaking by the Seller to transfer to the Buyer the property of goods and to release them which corresponds with undertaking of the Buyer to collect the goods and pay the price to the Seller;
- undertaking by the Seller to manufacture the goods of individual grade only and to deliver them in parts or periodically which corresponds with the undertaking of the Buyer to collect the goods and pay the price to the Seller.
b) The contractual relationship between the Parties shall be governed by valid legal regulations, the Contract and the GTCS.
c) Any contractual provisions shall prevail over the GTCS. Any departures from the GTCS shall be valid provided they are executed in writing or electronic (e-mail, fax, etc.).
d) The GTCS shall apply only in contacts with entrepreneurs as well as public or state entities.
e) The Contract shall be considered concluded only following confirmation of the Buyer's order by the Seller in writing or electronic (e-mail, fax, etc.). A reply to the Order subject to modifications or supplementations shall be binding upon the Buyer unless the Buyer has excluded the possibility of modifications or supplementations in writing or electronic (e-mail, fax, etc.) or has immediately objected them.
3. Payment of price
a) Unless otherwise expressly agreed, the price specified in the order confirmation shall apply to "ex works" increased with VAT and shall not include delivery of the goods. It shall not be valid in the case of any extra orders.
b) Should any material change in economic conditions, in particular any material change in prices for raw materials or amounts of remuneration, occur in a period between the conclusion of the Contract and its execution, the Seller shall be entitled within a period of eight weeks from the change in the conditions to modify the terms, adjust the price proportionally to their increased costs compared to the costs as of the date of conclusion of the Contract. Upon request of the Buyer the Seller shall submit a statement of the changes in the aforementioned costs.
c) The aforementioned clause shall apply also to any changes in customs duties, compensation costs, excise duty, taxes and other administrative or public fees regarding the contract subject.
d) The price calculation shall be based on quantity, weight or volume of the contract subject as of the moment of leaving the factory of the Seller.
e) The provision of the Buyer with regard to the payment of the price shall be adjusted following the execution of the Contract by the Seller unless the Buyer is in arrears towards the Seller with the payment of any receivables resulting from any legal relationship.
- In the case of Contracts executed in parts or periodically the obligation to pay the price shall be adjusted following the execution of the Contract within the scope of individual part or batch.
- In the case when the Buyer is in arrears towards the Seller with the payment of any receivables resulting from any legal relationship the Seller shall be entitled to refrain from the execution of the Contract till the Buyer offers the outstanding provision or the payment of the price regarding the current Contract, at the option of the Seller.
f) Unless otherwise agreed, the net price without any reductions (discounts) shall be due within 10 days from delivery of a correctly issued invoice to the Buyer.
g) The Seller shall be entitled to apply the payment of the Buyer towards any debt selected by them unless the Buyer has reserved the payment of a specific financial obligation.
h) The payment by bills of exchange or cheques shall be permitted only by mutual agreement of the Parties and shall be regarded as provision in lieu of fulfilment of the obligation. In the case of payment by bills of exchange the discount costs shall be borne by the Buyer and they shall be payable immediately without a possibility of deduction. Handing over a bill of exchange of the Seller shall not mean accomplishment of the provision which shall occur only following the complete satisfaction of the claim.
i) The reductions (discounts) shall not apply if the Buyer is in arrears towards the Seller with the payment of any receivables resulting from any legal relationship.
j) The Buyer may recognise their receivables against the claim of the Seller for the payment of the price only when they have been recognised by the Seller, are not disputed or have been awarded with a judgement in force.
k) The Buyer shall not be entitled to right of retention on the basis of any disputed claims.
4. Obligation of seller
a) Unless the Parties have specified in the Contract a Party responsible for delivery of the contract subject, the obligation to arrange delivery shall rest with the Buyer. In such a case the Contract shall be considered executed by the Seller on time and at location when and where the contract subject is left at disposal of the Buyer.
- Upon the execution of the Contract by the Seller the benefits and burdens related to the goods as well as risk of accidental loss or damage to the goods shall be transferred to the Buyer.
- The Seller shall be obliged to notify the Buyer about location where the contract subject is left at the disposal of the Buyer unless the Parties have specified it in the Contract.
- The Buyer shall be obliged to collect the goods from the place where the contract subject has been left at the disposal of the Buyer within a time limit specified by the Seller.
- If despite the aforementioned notification the Buyer has not collected the contract subject within the time limit specified by the Seller, the Seller shall be entitled at their own option to: (i) withdraw from the Contract within a period of 30 days from expiry of the time limit set for collection, or (ii) have the contract subject stored at the expense and risk of the Buyer.
b) If pursuant to the Contract the obligation to deliver the contract subject rests with the Seller:
- It shall be assumed that the place of fulfilment of obligation of the Seller shall be the place where the registered office of the Seller is situated.
- Upon release of the contract subject by the Seller to a carrier the benefits and burdens related to the goods as well as risk of accidental loss or damage to the goods shall be transferred to the Buyer.
- Both the time and date of delivery to the place of destination shall be binding on the Seller only following their confirmation in writing or electronic (e-mail, fax, etc.) by the Seller.
- The date of delivery of the contract subject resulting from the Contract shall run from a day following the day of the order confirmation by the Seller; however, it shall be extended by any period of delay of the Buyer in taking any actions resulting from the cooperation obligation, in particular paying any possibly agreed advance or down payment or providing the Seller with any information necessary to determine the possibility of delivering the contract subject on time.
c) If through no fault of the Seller the Contract cannot be executed on time the deadline shall be considered met upon the moment of declaring by the Seller of being ready to execute the Contract. The deadline for the execution of the Contract shall be extended by any periods in which the Seller is entitled to refrain from the execution of the Contract.
d) Any occurrence of force majeure — including also those during time of delay of the Seller — shall entitle the Seller to extend the deadline for the execution of the Contract (including delay in delivery) by the duration of the impediment to the execution of the Contract (or delivery).
e) Should the execution of the Contract (or delivery) be impossible or unprofitable as a result of force majeure, the Seller shall be entitled to withdraw from the Contract in part or in total within a period of 30 days from the occurrence of force majeure unless the impediment has ceased within that period and the Buyer is still interested in the execution of the Contract. In such a case any claims for damages shall be excluded unless the Seller bears the blame for the resultant damage.
f) Force majeure shall include also strike, legal lockout, ban on entries and departures, lack of raw materials and power, fire, significant stoppages in the operation of factory or transport as well as any other circumstances not attributable to the Seller which materially impede or render it impossible to execute the delivery or the Contract, irrespective of whether they occur at the Seller, forwarding agents, sub-suppliers or any of further sub-suppliers.
g) The proper execution of the Contract by the Seller depends on timely receipt of supplies by the Seller. The Seller shall be entitled to divide the provision into parts without being in delay with the other parts if it is not contrary to the reasonable interest of the Buyer, in particular if the execution of only a part of the delivery at a given time does not result in any damage to the Buyer.
h) The sale on demand of the Buyer:
- In the case of conclusion of the Contract executed on demand of the Buyer the demand for execution of the Contract regarding any agreed quantity of the contract subject needs to be made within an agreed time limit.
- If the demand is not made or if it is made after expiry of the agreed time limit or if it regards a different quantity of the contract subject than the agreed one, the Seller shall be entitled to request the Buyer to take any actions necessary to satisfy the demand. The time limit specified by the Seller shall be binding upon the Buyer. The Seller may request repair of the damage resulting from non-execution of the obligation in total. The amounts paid by the Buyer towards the price shall not be refundable.
- If the Buyer has been obliged to take the necessary actions the Seller shall be entitled to withdraw from the Contract within a period of one week following ineffective expiry of the time limit for taking them.
i) The Seller shall be entitled to withdraw from the Contract within a period of 30 days from becoming informed about one of the following circumstances:
- a bankruptcy petition has been filed or any other similar insolvency proceedings have been initiated against the Buyer or any of their partners or any other related entity or against the Buyer's guarantor (if any guarantee has been effected);
- one of the parties specified above has withheld its payments permanently or temporarily or their financial situation has deteriorated to such a degree that the payment of the receivables under the Contract will be at risk;
- the Buyer has not delivered their performance in total nor have they submitted relevant security or they have otherwise violated the provisions of the Contract.
j) Should the Seller withdraw from the Contract pursuant to point (i) above or should the circumstances specified therein occur:
- the Seller shall not be obliged to pay the Buyer any damages or incur any other costs related to withdrawal from the Contract and the claims of the Seller against the Buyer resulting from any legal relationship shall be immediately due and payable;
- the Seller shall be entitled to refrain from performing their own obligations towards the Buyer resulting from any legal relationship till their claims are satisfied or the Buyer submits relevant security;
- any reductions and discounts provided for shall be lost;
- any other rights to which the Seller is entitled shall remain unaffected.
5. Securing of receivables of seller
a) The reservation of ownership of the goods sold:
- The Seller shall reserve the ownership of the contract subject till the moment of payment of the price by the Buyer (Reserved Goods). In the case of acceptance of a bill of exchange or cheque the goods shall remain property of the Seller till the moment of receiving full satisfaction.
- Should the Buyer sell the contract subject to any third person or should the contract subject be lost, damaged or worn out before the price payment, the Buyer shall be obliged to hand over to the Seller everything they have received for the contract subject or as compensation.
- The receivables to which the Buyer shall be entitled as a result of wear, loss or sale of the contract subject due to the insurance policy taken out shall be assigned by the Buyer to the Seller in order to secure the receivables of the Seller related to the price payment or damage repair whereas the Seller shall accept the assignment. The assignment of future receivables of the Buyer shall refer also to a balance recognised by the Buyer's contractor and in the case of bankruptcy of the Buyer's contractor also to a balance of claims to which the Buyer is entitled with regard to the estate in bankruptcy. As soon as the claim arises the Buyer shall be obliged to immediately notify the debtor about the assignment. Upon request of the Seller, the Buyer shall be obliged to disclose all the information about any assigned receivables and persons being debtors as well as any data necessary to enforce the receivables and to release any necessary documents. Should the Reserved Goods be processed, the ownership of the newly created goods shall be transferred to the Seller in order to secure the receivables resulting from the price unpaid.
- Should the Reserved Goods be combined or mixed with other things which are not owned by the Seller and should the Buyer receive the right of property or co-property with regard to the Reserved Goods or any other combined or mixed thing, the Buyer undertakes to transfer the title to the thing to the Seller in order to secure the receivables resulting from the price unpaid (transfer of title by way of security). Upon full payment of the price the title to the goods shall be regained by the Buyer.
- In the case of breach by the Buyer the Seller may demand the Reserved Goods returned. The Buyer undertakes to leave the Reserved Goods at the disposal of the Seller, shall be obliged to cover any expenses related to the collection of the Reserved Goods and its further sale, and to send the Seller a detailed statement of the Reserved Goods in their possession. Irrespective of the foregoing, the Seller shall be entitled at any time to take proper actions aiming at protection of their rights, in particular with regard to entering facilities as well as storage and loading areas of the Buyer and to having access to any necessary documents and books.
- The Buyer shall be obliged on the risk basis to maintain the Reserved Goods in a proper state, to store them in proper conditions, separate from other goods and to insure the Reserved Goods against fire and theft.
- The Buyer shall be obliged to immediately notify the Seller about any initiated or threatened enforcement proceedings with regard to the Reserved Goods, assignment of receivables or any other security of the Seller. Moreover, the Buyer shall be obliged to hand over to the Seller any documents necessary to protect the rights to which the Seller is entitled. The costs of the Seller related to any court or out-of-court endeavours regarding return of the Reserved Goods, assigned receivables or any security or their exemption from enforcement proceedings shall be borne by the Buyer.
- Upon request of the Buyer, the Seller may release at their own discretion the security to which they are entitled, in particular if following the release the real value of the security exceeds the value of the receivables to which they are entitled by 20%.
6. Rights of buyer
a) The Seller shall not be obliged to verify the fitness of the contract subject for purposes intended by the Buyer. The Seller shall be bound only by properties or parameters of the contract subject expressly specified in the Contract (conformity of the goods to the Contract).
- The burden of verifying the fitness of the contract subject for needs and purposes of the Buyer shall be borne by the Buyer. By placing the Order the Buyer represents that the contract subject corresponds to the needs and purposes of the Buyer.
- The Buyer shall be obliged to immediately verify the contract subject as for its conformity to the Contract within a maximum period of 21 days from the execution of the Contract by the Seller.
b) Defect warranty:
- The Parties shall limit the statutory rights of the Buyer due to defect warranty to the rights and rules specified below. These GTCS shall fully and finally govern liability of the Seller due to defect warranty regarding the contract subject.
- Following the receipt of the contract subject the Buyer shall be obliged to verify it as for any clearly visible or latent defects. The Buyer shall be obliged to immediately notify the Seller about any clearly visible defects in writing, by fax or e-mail, within a maximum period of 7 days from receipt of the contract subject or else they shall lose a right to invoke inconformity of the contract subject to the Contract. Any latent defects shall be immediately reported in the manner specified above within a maximum period of 7 days from their detection or possibility of their detection; however, the Buyer shall be obliged to make a test as for the conformity of the contract subject to the Contract within a period of 30 days from the execution of the Contract by the Seller.
- Should the Buyer not take the actions of verifying, notifying or testing on time, the contract subject shall be deemed verified and approved by the Buyer.
- In the case of defect notification the Seller shall be entitled to request from the Buyer to send or hand over at their disposal the questioned goods or at least 1 kg of the questioned contract subject for their verification. In the case of unjustified refusal of the Buyer the Buyer shall lose a right to invoke inconformity of the contract subject to the Contract.
- In the case of any justified defect notification the Seller shall be obliged to deliver the relevant quantity of the contract subject within a period of 30 days from acknowledgment of the complaint. Any related expenses shall be borne by the Seller on their own. The Seller shall not incur any extra costs related with the fact that the Buyer has transported the contract subject to any other place than the place of the contract execution unless the transport has corresponded to its use known upon conclusion of the Contract to both Parties. The Seller shall not be liable for the resultant damage if the contract subject has been used before the verification or tests.
- Should the exchange not be completed within the specified time limit the Buyer may at their own option request a price reduction or withdraw from the Contract. Should the Buyer withdraw from the Contract, they shall be entitled to claim for damages within the limits of negative interest of the Contract. Should only a part of the contract subject be defective, the Buyer may withdraw from the Contract in total only when they prove that they have not justified interest in keeping the remaining part of the contract subject.
- The Buyer shall be entitled to any claims and rights resulting from inconformity of the contract subject to the Contract within a period of 12 months from the execution of the Contract by the Seller.
7. Properties of contract subject
a) Any information regarding the contract subject, in particular any parameters, properties or proportion of mixes shall be of approximate nature whereas the given method of use shall be the recommended one. The data shall not be any basis for vindication of claims resulting from defectiveness of the contract subject. The same refers to any results of chemical and physical analyses submitted to the Buyer.
b) Any product information, including that originating from the experience and knowledge of the Seller, shall not release the Buyer from verification of the product as for its fitness for the purpose intended by the Buyer. It shall refer also to the situation when the Seller has earlier provided any product samples.
c) During the use of the product the Buyer shall be responsible for complying with any valid regulations, rules of safety and personal health as well as for processing the contract subject in accordance with principles of technical and professional competence.
8. Contractual liability
a) In the case of violation by the Seller of any contractual obligations as a result of not maintaining due diligence the liability of the Seller shall be limited to compensation within the limits of negative interest of the Contract, however, to a maximum value of the amount covered by the Seller's civil liability insurance or civil insurance against material damage.
- The liability of the Seller or any persons with assistance of whom the Seller performs the obligation or to whom they entrust the performance of the obligation shall include only results of actions or deliberate omission or gross negligence.
- The Seller shall not be liable for any damages resulting from the use of any materials, components, instructions, recipes, etc., submitted by the Buyer.
b) The Buyer shall release the Seller from liability resulting directly or indirectly from invalidity of any provisions of the Contract and the Seller shall accept the release.
9. Other provisions
a) Confidentiality
- The Buyer shall be obliged to keep in secret from any third persons any data, news, opinions and documents obtained from the Seller or regarding them, in particular technical and economic know-how (confidential information).
- The Seller shall be obliged to keep in secret from any third persons any confidential information obtained from the Buyer or regarding them.
- The Parties undertake not to use the confidential information for purposes other than the execution of the purpose of the Contract known to both Parties.
b) Data protection
- Within the scope necessary for the execution of the Contract the Seller shall be entitled to process and store personal data of the Buyer pursuant to valid regulations regarding personal data protection.
c) Jurisdiction
- The court competent for resolution of any disputes related to the Contract shall be any Polish common court in Wrocław Stare Miasto. The Seller shall be unilaterally entitled to submit the dispute for resolution to a court having jurisdiction over the registered office of the Buyer.
d) Governing law
- The contractual relationship between the Seller and the Buyer shall be governed by the laws of Poland, without regard to the New York Convention on the Limitation Period in the International Sale of Goods.
e) Amendments to contract
- Neither extra oral decisions have been taken nor have any arrangements been made in writing or electronic (e-mail, fax, etc.) except for those specified in the GTCS. Any amendments and supplementations to the Contract shall be made in writing or electronic (e-mail, fax, etc.) or else shall be considered invalid.
f) Severability clause
- Should any of the provisions of these GTCS or the Contract be or appear to be invalid, this shall not affect the application of the other provisions. In such a case the Seller in agreement with the Buyer shall replace the invalid provision with a valid one, the economic sense and purpose of which shall be as close to the previous one as possible.
