Ogólne Warunki Sprzedaży

GENERAL TERMS AND CONDITIONS OF SALE AND DELIVERY

   I.  DEFINITIONS

1.   Terms: “GTCSD”, “GTCS”, “Terms”, “these Terms” and others used in a similar context mean these General Terms and Conditions of Sale and Delivery.
2.   The term “Seller” means AKMEL based in Wola Mielecka.
3.   The term “Buyer” or “Buying Party” means any domestic or foreign entity (legal or natural person) purchasing commercial goods or using services provided by the Seller.
4.   The term “Party" or "Parties" means the Seller and the Buyer jointly.
5.   The term “Commercial Goods” or “Goods” means power generators, UPS, water pumps, spare parts and accessories for generators and pumps, as well as other electrical and technical accessories sold by the Seller.
6.   The term “Service” or “Maintenance Service” means the services provided by the Seller.

  II.  GENERAL PROVISIONS

1.   The terms and conditions set out below apply to each sale transaction, each delivery of commercial goods and each service between the Seller and the Buyer.
2.   These terms and conditions apply to the Parties in all subsequent transactions, regardless of their subject matter. An order is always carried out on the basis of these Terms and Conditions.
3.   Any changes, additional arrangements, suspension or termination of the terms and conditions require a written consent of the Seller.
4.   The terms and conditions inconsistent with the following provisions are not binding on the Seller, even if they are not expressly negated by the Seller. Such terms and conditions are binding on the Seller, provided that they agree in writing to different governing of mutual rights and obligations of the Parties. In particular, it is excluded to accept any "General Terms and Conditions of Purchase” by the Buying Party or other conditions or documents of a similar nature by the Seller signing the order confirmation or any other documents referring to these terms and conditions.

   III.   CONCLUSION OF CONTRACT

1.   Catalogues, price lists, commercial offers and other information addressed to customers are for informative purposes and do not constitute a commercial offer within the meaning of Article 66 par. 1 of the Civil Code and other relevant legal regulations.
2.   Photos in commercial materials are for illustrative purposes only and may differ from the actual appearance of the goods.
3.   Sales representatives of the Seller act only within the limits of powers of attorney granted to them. The Seller shall not be liable for any actions of Sales Representatives exceeding the scope of the power of attorney granted to them.
4.   Placing an order is tantamount to accepting all the conditions included in these GTCSD.

  IV.   DELIVERY

1.   Orders are considered properly placed if they have been submitted in a form agreed by both Parties.
2.   All non-standard installation conditions and the target location of generator operation should be specified in the order. Failure to provide non-standard installation conditions and the location of generator operation and the actual occurrence of such conditions for a given generator voids the warranty and requires another quotation.
3.   Delivery dates will be specified by the Seller in the Buyer's confirmation of order or in the Seller's offer, but they are estimated dates that are not binding on the Seller. The Seller will make every effort to make deliveries on the agreed deadlines, however, meeting the delivery dates will depend on timely fulfilment of contractual obligations by the Buyer, including the date of accepting the offer or placing a valid order and providing necessary information and timely performance of the obligations of the Seller's contractors or sub-suppliers to fulfil contractual obligations undertaken to the Buyer by the Seller. Any changes required by the Buyer may result in an extension of the delivery date. Products are deemed delivered in a timely manner if they are transferred to the first carrier or if they are reported as ready for shipment before the agreed delivery date on the Seller’s premises.
4.   The delivery date starts from the date of delivery to the Buyer of the confirmation of accepting the order for execution or the agreed advance payment or deposit, depending on the detailed provisions of the Parties. If the Buyer has not indicated the place of delivery, the delivery date is deemed to have been met if the Goods were prepared for delivery on the specified date. The costs of storing the goods from that moment to the time of delivery is borne by the Buyer.
5.   The Seller is not liable for failure to meet the date if the reason for failure to meet the date was force majeure or other circumstances beyond the Seller’s control.
6.   Until the obstacle to delivery ceases to exist, the Seller may suspend or limit the delivery or withdraw from the contract.
7.   In the event of suspension or limitation of delivery, the delivery date is suspended with respect to all or part of the delivery covered by the suspension, until the obstacle to delivery ceases to exist.
8.   In none of the above-mentioned situations the Seller is deemed to have failed to perform or improperly performed the obligation, and the Buyer is not granted the right to claim damages or contractual penalties.
9.   Each delivery may be carried out by the Seller partially. The Seller will determine the quantity, type and date.
10.       In the case of a cooperation agreement for permanent deliveries, each single delivery is treated as a separate sales agreement. The provisions of these terms and conditions on the conclusion of the contract apply accordingly.
11.       If the Seller delays the completion of a particular delivery or if its completion becomes impossible, the Buyer may withdraw from the contract with regard to the remaining deliveries, but without the right to claim compensation for damage suffered by the Seller due to deliveries not being made.
12.       If the delivery is delayed for reasons attributable to the Buyer or if it is not collected by the Buyer in due time, the Seller, at its sole discretion and without any liability, has the right to store the Goods at the Buyer's risk, invoice them on EX WORKS terms and charge the Buyer for storage costs. If storage is done in the Seller's warehouses, the storage costs are not less than 0.01% of the invoiced amount for each day of storage, starting from the date of notifying about readiness for shipment. The Seller has the right to set another collection date, and after the expiry of this date they have the right to sell or dispose of the Goods. The sale or other disposal of Goods does not release the Buyer from the obligation to pay the amount charged to the Buyer by the Seller for storage.
13.      In the case of delivery via a freight forwarder or carrier, the risk of accidental loss or destruction of the Goods is transferred to the Buyer when the Seller hands the Goods to the freight forwarder or carrier, and the Seller is not liable for losses and deficiencies occurring in the Goods and in their packing after that moment. If the customer wants to collect/collects the Goods on their own, the collection takes place based on EX WORKS according to Incoterms 2020. In the case of sales abroad, the customer is obliged to arrange transport on their own and bears the risk of transport and loading at the Seller’ premises EX WORKS according to Incoterms 2020.
14.      If the Buyer does not specify the method and type of packaging and means of transport used for the delivery in due time, but not later than 2 business days before the shipment of Goods by the Seller, the Seller may freely, with due diligence, choose the packaging and means of transport, and send the subject of the contract to the Buyer at their expense. The packaging, its method and type – in addition to that provided by the Seller - is additionally paid by the Buyer.
15.      If the Parties have decided to carry out final acceptance, the following provisions shall apply. If the Buyer fails to take part in the final acceptance twice or does not appear for the final acceptance, the Seller will have the right to invoice the costs of additional arrivals of AKMEL employees and to carry out final acceptance on their own and sign a unilateral final acceptance report, which will be equivalent in effect to the final acceptance report signed by both Parties. Minor faults or defects that do not affect the functionality or safety of the Equipment do not constitute the basis for refusal to carry out the final acceptance and sign the final acceptance report. In the absence of revealed faults or defects that have a major impact on the functionality or safety of the Equipment, the Buyer and the Seller are obliged to sign a fault-free final acceptance report. The date of completion of installation and commissioning will be the date of notification of the completion of these works, provided that the final acceptance of the subject of the Contract is carried out and confirmed by a mutually signed final acceptance report.
16.      Unless otherwise agreed by the Parties, in the case of the sale of Goods intended for stationary use, the Buyer undertakes to the following on their own and at their own expense:

a)  physical presence of the Buyer's representative during the delivery, installation, commissioning and acceptance of the Goods,

b)  ensure access and unloading at the place of delivery, and leave the Goods in appropriate rooms referred to below or directly at the place of final installation,

c)  provide rooms secured against access by third parties to store components of Goods, auxiliary materials and tools ensuring their storage in safe conditions and ensuring proper storage conditions, as well as to provide protection of rooms in which the installation is to be carried out,

d)  check the quality of the delivered Goods for any visible damage to the Goods and inform the Seller in writing about the detected damage within 24 hours of the delivery. Lack of such notification is tantamount to lack of any reservations,

e)  provide the Seller with utilities necessary for the performance of the contract, including electricity, water and locker room with access to sanitary facilities,

f)   make arrangements with the energy company and obtain the required permits,

g)  provide the Seller with rooms for installation, in a condition allowing for the performance of the contract, not later than 3 days before the planned commencement of installation works,

h)  prepare the place of foundation of the Goods and the existing facilities for their installation and commissioning, including the performance of all necessary construction and fitting works and preparation of all necessary electrical systems (including the "box" to which the Goods will be connected),

i)   carry out final acceptance of works.

The Parties may agree that some of the works indicated above will be outsourced to the Seller on the basis of a separate order or contract.

   V.   SERVICE

1.   Orders for services provided by the Seller are considered properly placed if they have been submitted on official forms of AKMEL® or in a form agreed by both Parties. The order is tantamount to acceptance of the presented price, the scope of performed activities and these GTCSD.
2.   The Service will be provided on a mutually agreed date convenient for both Parties. The Buyer undertakes to provide access to the Product covered by the Service, including temporary shutdowns of the equipment and test runs.
3.   The requirements for entering and moving around the Buyer's facility must be presented and accepted by the Seller at the order stage. All additional costs generated by unwritten guidelines will be charged to the Buyer.
4.   The Service is performed in accordance with the guidelines in the order, and its performance is confirmed by an acceptance report signed by both Parties.
5.   If it is necessary to perform other service activities, the Buyer is informed each time before such additional services are preformed. If both Parties sign the Report, which also takes into account additional activities, this means they accept and confirm the performance of such activities by the Seller.
6.   The Buyer undertakes to provide the Seller with utilities necessary for the performance of the contract, including electricity, water and locker room with access to sanitary facilities.
7.   A VAT invoice is issued on the basis of the order and the performed activities included in the Report.

  VI.   PRICES

1.   The prices given in the price lists, offers and confirmations are net prices (without VAT). In the event of a change in the applicable VAT rates, the gross price will change. VAT will be added to each net price, which the Buyer is obliged to pay along with the net price. Price lists include prices expressed in PLN or EUR, and are net prices. If it is required to convert prices to another currency, the exchange rate is applied according to the average rate of the National Bank of Poland as of the day preceding the order.
2.   The given prices of the Goods are specified for the standard design of the equipment. An additional fee may be charged if additional technical solutions are used, provided that their application is possible from a technical point of view and the Seller is able and willing to apply them.
3.   The price does not include the costs of delivery/transport to the Buyer.
4.   In domestic trade, the price may be given in Polish zlotys (PLN) or as the equivalent of a specific amount given in a foreign currency. If this currency is devalued after the Seller sends the order confirmation, the delivery price increases proportionally to the devaluation.
5.   Prices after placing the order and concluding the contract may change in the event of a change in the prices of semi-finished products of the subject of sale, e.g. engines or accompanying services, e.g. forwarding. In the event of a change in the price, the Seller informs the Buyer in writing about this fact.
6.   In the case of stationary generators, the contract does not cover and the price does not include the costs of the following works/parts: foundation, anchoring, starting fuel, cables and cable terminals, designs and arrangements with the energy company, forging, digging, construction works and foundations, connection and additional installations.
7.   PAYMENTS
8.   Invoices issued by the Seller become due and payable on the date specified in the invoice. The date of payment is considered to be the date of payment made in cash, certified check or the date of receiving the payment amount on the Seller's account. Payments are deemed to have been completed only if they have been made in the full amount.
9.   At the Buyer's request, a deferred payment date may be agreed. The condition for this is the insurance of the transaction by KUKE S.A. A request for deferred payment date is tantamount to the Buyer's acceptance of verification of their payment history by KUKE S.A. If the insurance is not granted, the Buyer is obliged to make a payment before receiving the Goods.
10.   If the payment date falls on a non-working day, the payment may be made on the next working day.
11.   The invoice is at the same time the first request for payment.
12.   Any advances or prepayments made by the Buyer for future deliveries will not constitute a deposit within the meaning of the Civil Code, unless the Seller confirms in writing a specific payment as a deposit.
13.   If the agreed payment dates are exceeded, the legal consequences of the delay (non-payment) may apply without notice. The Seller has the right to place information about the overdue payment in the BIG credit information bureau and start the debt collection procedure at KUKE S.A.
14.   If the Buyer delays the payment of one or more amounts, the Seller may make further deliveries conditional on the payment being made or the Buyer securing the payment of such amounts. In this case, the Seller may also withdraw from the contract with immediate effect. In this situation, all obligations of the Buyer towards the Seller become immediately payable on the date the Seller withdraws from the contract. The Seller does not bear any negative consequences of the performance of contractual obligations at a date later than provided for in the contract, if this is due to the Buyer's delay of payments.
15.   Any mutual deductions are excluded in settlements between the Parties.
16.    RESERVATION OF OWNERSHIP
17.   The Goods delivered to the Buyer remain the property of the Seller until the Buyer fully pays the entire sale price.
18.   If third parties submit to the Buyer any claims in relation to the Goods owned by the Seller, the Buyer is obliged to immediately notify the Seller of this fact and take all measures to protect the Seller's rights. If the said obligation is neglected, the Buyer will be liable for damages to the Seller.
19.   If the Buyer is in arrears with payment for the Goods, the Buyer is obliged, at the Seller's request, to immediately and unconditionally return all the delivered Goods to the Seller.
20.   Unless the Parties have agreed otherwise, the Seller's request and collection of the Goods does not cause the Seller to withdraw from the delivery contract, but only constitutes a security for the Buyer's fulfilment of their obligations towards the Seller. The Seller may also withdraw from the contract if it requested the return of the Goods or collected the Goods and did not receive payment from the Buyer within 14 days from the Buyer's request for payment.
21.   The costs of delivery (return) of Goods to the Seller are borne by the Buyer.

  IX.   RESPONSIBILITIES OF THE PARTIES

1.   The Buyer is responsible for the correctness and completeness of the data in the order or in the documentation provided to the Seller.
2.   If the Parties have agreed in writing to deliver products or materials that do not meet Polish Standards or other technical or safety standards, the Seller is not be liable for any resulting damage.
3.   The Buyer is liable for the possible use and the consequences of using the Goods delivered by the Seller in specific design solutions of the Buyer, even if the Seller was involved as an advisor or consultant in the preparation of the final structure of the Buyer's final product.
4.   The Seller is liable for the possibility and correctness of using its Goods in specific solutions and final products of the Buyer, only if this results expressly from arrangements between the Parties.
5.   However, the Seller does not bear the above liability if the Buyer has failed to comply with the Seller's express guidelines, recommendations and instructions.
6.   The Seller is not liable to the Buyer for defects in the product or goods made by the Buyer with the use of Goods delivered by the Seller.
7.   The Seller is not liable for the systems made by the Buyer or third parties and materials used for making such systems.
8.   The Seller is not liable for the systems, materials, machines or other parts with which the Goods will be connected or will work. The Seller is not liable for incorrect operation of the Goods if it is caused by improper connection to the electrical system or if the Goods are incorrectly matched to the supplied system. The Seller is not liable for incorrect operation of the Goods if it is caused by incorrect operation of the system, the Buyer or a third party with whom the Seller's Goods will be connected or will work.
9.   The Seller is not liable to the Buyer for any damage, lost benefits, loss of profit, loss of use, loss of production, loss of contracts or for any other direct, indirect or consequential damage that may be suffered or has been suffered by the Buyer. The total liability of the Seller for the performance of a specific order is limited to the gross value of a given order. The above limitations of liability do not apply to damage caused by the Seller intentionally.

  X.  WARRANTY, STATUTORY WARRANTY, COMPLAINTS

1.   The Seller grants a warranty for the Commercial Goods sold on the terms specified in this contract and the warranty card issued together with the equipment, whereas in the event of non-compliance between the warranty card and the provisions of this contract, these terms and conditions shall prevail. However, the lack of a warranty card means no warranty for a given product.
2.   The warranty period begins on the date of handing over the subject of the contract to the Buyer and ends with the expiry of the time indicated in the warranty card.
3.   The Seller will perform the warranty obligations only after the Buyer has presented a warranty card. The warranty is not due to the Buyer if they does not present a warranty card when making a complaint.
4.   The Buyer will immediately notify the Seller of the discovery of a defect or fault during the warranty period. Defects and failures will be reported to the Seller in the form of a written notification sent by e-mail to the following address: [email protected]. A description of the defect will be attached to the notification. At the request of the Seller's service, photos or video showing the defect will be attached.
5.   The Buyer loses the rights to the warranty provided by the Seller for the entirety of the Goods in the event of non-compliance with the terms of warranty specified in detail in the documents attached to the Goods, in particular such as: mandatory technical inspections, operation of equipment in appropriate conditions, operation of equipment by authorised persons, use of appropriate fuel, etc. The conditions listed in the warranty documentation supplement this provision.
6.   The Seller declares that the Goods delivered to the Buyer meet the quality standards specified in the current offer of AKMEL®
7.   The Buyer or the carrier is required to examine the Goods at the time of their delivery for hidden and overt defects, and deficiencies in quantity.
8.   Goods received by the Buyer or the carrier without reservations are considered to be Goods without defects.
9.   If the Goods have been delivered in bulk packaging, defects in the Goods or deficiencies in quantity should be reported upon receipt of the Goods from the carrier.
10.       The Seller grants a warranty that is valid only in Poland. Taking the Goods abroad results in the loss of the warranty. Warranty repairs will not be carried out outside Poland. All repairs carried out outside Poland, even during the warranty period, are charged to the Buyer. If the Buyer wants the Seller to perform repairs outside Poland, such repair will be done for a fee paid in every respect, including for parts, labour, travel and others. The repair will be carried out after the Buyer has paid an advance towards the future repair in the amount of estimated repair costs.
11.       The Seller will make a warranty repair (if the Goods are covered by the warranty) in due time, taking into account the time for arranging spare parts and the time to organise a service team. The Seller is not liable for any damage suffered by the Buyer as a result of failure or malfunction of the Goods during and after the warranty period.
12.       The warranty does not cover the burning down of the generator or a fire for any reason.
13.       The warranty covers only products used and installed under standard conditions. The warranty is disabled if the products are installed in non-standard conditions. Non-standard conditions are considered to be installation of the generator in permanently built-up rooms, underground, at heights greater than 3 meters above the ground or in places exposed to adverse climate or weather conditions. The costs of any repairs and deliveries of the generator to the service or repair point for the generator installed, used or operated under non-standard conditions are borne by the Buyer. Under the warranty, the Seller does not cover the costs of lifting and lowering generators to/from the height of more than 3 m above the ground and other costs related to such a generator and repairs of such generators. The Seller does not pay for the costs of removal from and installation in closed rooms, and removal from and placement in rooms located underground. The risk of installation, use and operation of the generator in non-standard conditions is borne the Buyer, including the extent of the warranty, which in excluded in such conditions.
14.       The Seller may grant an additional warranty for products installed and used in non-standard conditions for a fee and on the basis of a separately signed contract for warranty in non-standard conditions.
15.       The warranty does not cover any additional costs not directly related to the installation of the generator, e.g. costs of production suspension/downtime of the Buyer or its Buyer, costs of stopping traffic, etc.
16.       The warranty does not cover: (1) mechanical damage caused by reasons attributable to the Buyer, third parties or force majeure (2) materials, systems or parts of the Buyer, (3) works performed by the Buyer or persons not authorised by the Seller. The Seller is not liable for defects, faults or failures in the operation of the equipment resulting from non-compliance with the operating manual or operation and maintenance documentation, misuse or devastation.
17.       The Buyer loses the right to warranty in the event of non-compliance with the terms of warranty, incorrect operation of the Goods, doing repairs on their own or outsourcing the repair or service inspection to a third party not authorised by the Seller.
18.       The statutory warranty is excluded by virtue of these terms/contract.
19.       If the Buyer reports a fault or defect which, in their opinion, is subject to the warranty, and as a result of a check by the Seller it turns out that the Goods are not damaged or the defect or damage cannot be repaired under the warranty rights, the Buyer is required to pay for the repair and cover the costs of transporting the item subject to the warranty to the Seller's premises and from these premises to the Buyer's premises or to another place indicated by the Buyer or cover the costs of transport both ways in the case the repair was not made for any reason. If it was not possible to transport the Goods and the repair should be carried out in the place where the equipment is located, the Buyer will cover the cost of travel of the service staff from the Seller’s premises to the place where the Goods are located. The Buyer will also cover the cost of service work, used materials and listed parts according to the Seller's current price list.
20.       The warranty does not cover the use of generators in marine conditions. The warranty does not cover generators installed on ships, boats and other vessels.
21.       Repair of or tampering with any kind in the Goods or their part by an unauthorised entity makes the warranty void.
22.       The transport company used by the Seller to deliver the Goods is not considered to be the Seller's subcontractor.

  XI.   WITHDRAWAL FROM THE CONTRACT BY THE BUYER

1.   Apart from cases of withdrawal from the contract provided for by the Civil Code, the Parties may terminate the contract by mutual agreement. In the event of termination of the contract, the Seller is not obliged to take back the non-defective Goods being the subject of delivery. However, if the Seller agrees to the Buyer's withdrawal from the contract and taking back the products being the subject of the orders, the cost of delivery of the Goods to be taken back by the Seller is borne by the Buyer.
2.   If the Buyer resigns from purchasing the ordered Goods, withdraws from the contract, or the Seller withdraws from the contract for reasons attributable to the Buyer, the Buyer will pay the Seller a contractual penalty in the amount of 30% of the gross order. The Buyer will pay the contractual penalty after the first written request by the Seller. The contractual penalty may also be deducted by the Seller from the advance payment received.

    XII.     

1.   The Buyer represents that they are aware of criminal and civil liability for acts of unfair competition specified in the Act of 16 April 1993 on Combating Unfair Competition, in particular the following obligations:

-    not to disseminate, disclose or use information constituting the Seller's trade secret within the meaning of Art. 11.4 of the above-mentioned Act; and

-    not to induce any entity (natural person, organisational unit with or without legal personality) being a party to the contract with the Seller to non-performance or improper performance of obligations towards the Seller.

The Buyer will not take the actions referred to above within 5 years after the performance of this contract.

5.   During the term of the contract and after its termination, the Buyer will not disseminate, disclose or use information that is not the Seller’s trade secret, but whose dissemination, disclosure or use could in any way harm the reputation or otherwise cause damage to the Contracting Party.
6.   The Buyer will make every effort to prevent publication or disclosure of any information constituting a trade secret specified above. The Seller's protection specified in this point is granted to the Contracting Party additionally and regardless of the protection resulting from the applicable provisions of law. In particular, the provisions of this Article do not prejudice the provisions of law or any contractual obligations that confer more extensive protection.

    XIII.    

1.   The law applicable to these terms and agreements between the Parties is only Polish law. The provisions of the Civil Code shall apply accordingly in matters not governed by the provisions of these terms and conditions.
2.   In the case of drawing up contracts and terms of purchase in Polish and a foreign language, the Polish version will be effective. In the case of differences between the Polish version of the contract and the foreign one, the wording of the Polish version shall prevail.
3.   Any amendments to these Terms and Conditions and amendments to contracts between the Parties must be made in writing to be valid.
4.   The place of performance of contracts between the Parties is Wola Mielecka.
5.   Any disputes arising from these terms and conditions and contracts based on them will be settled by competent courts in Mielec or Rzeszów at the discretion of the plaintiff.
6.    ADDITIONAL NOTES
7.   The Seller reserves the right to make design changes resulting from the development of technical achievements in relation to those proposed in the current sales offer.
8.   Property rights to all intangible assets covered by the Industrial Property Law and the Act on Copyright, in particular works protected by copyright, patents for inventions, utility models, trademarks, trade names, designations of origin, designations of origin, topographies of integrated circuits, improvement designs, information on the proper use of inventions, other technical messages and experience directly suitable for use in business and scientific activity, organisational information and other information provided to the Buyer by the Seller as a result of the fulfilment of the obligations of this contract are owned by the Seller, The Seller owns the objects on which the transferred Good has been recorded, and the Buyer has no right to copy, reproduce, make them available to third parties or use them for purposes other than the use of purchased Goods. These documents do not transfer ownership or imply any license. Drawings and other documents owned by the Seller are to be immediately returned at the Seller's request together with any copies thereof.
9.   The Buyer undertakes not to use for any other purposes, and not to share or transfer to other entities any elements, information and technical documentation which were the basis for making the equipment ordered by the Buyer.
10.   All sales references and prepared documents available to customers are to be returned at the Seller's request together with any copies thereof. If the order has not been placed with the Seller, all of them must be returned immediately without such a request.
11.   After selling the equipment, the Seller has the right to enter the sold equipment and customer data on a standard reference list, including the name and type of the device, date of sale, customer name and country. Signing these GTCSD is tantamount to agreeing to include these data in the reference list. Any reservations may be made by the customer in writing.
12.   The Seller may outsource the provision of services such as installation and/or commissioning of Goods, rental of Goods, performance of warranty obligations and performance of repairs, inspections or services to entities authorised by the Seller, including FPH AKMEL Andrzej Kiciński.