General Terms and Conditions of Sale

GENERAL TERMS AND CONDITIONS OF SALE AND DELIVERY

I. DEFINITIONS

The terms: “GTCSD”, “GTC”, “Terms”, “these Terms” and other expressions used in a similar context mean these General Terms and Conditions of Sale and Delivery.
The term “Seller” means the company AKMEL with its registered office in Wola Mielecka.
The term “Buyer” or “Purchasing Party” means any domestic or foreign entity (legal person or natural person) purchasing commercial goods or using services provided by the Seller.
The term “Party” or “Parties” means the Selling Party and the Purchasing Party jointly.
The term “commercial goods” “goods” means generating sets, UPS systems, water pumps, spare parts and accessories for generating sets and pumps, as well as other electrotechnical accessories being the subject of sales carried out by the Seller.
The term “service”, “service activity” means services performed by the Seller.

II. GENERAL PROVISIONS

The conditions set out below apply to every sales transaction, every delivery of commercial goods and every service performed between the Seller and the Buyer.
These Terms shall apply to the Parties in all subsequent transactions, regardless of their subject matter. Execution of an order always takes place on the basis of these Terms.
Any changes, additional arrangements, suspensions or terminations of the conditions require the Seller’s written consent.
Terms inconsistent with the provisions below shall not bind the Seller, even if they have not been expressly rejected by the Seller. Such terms shall bind the Seller only if the Seller expressly agrees in writing to a different regulation of the mutual rights and obligations of the Parties. In particular, acceptance of any “General Purchase Conditions” of the purchasing party or other conditions or documents of a similar nature by the Seller signing an order confirmation or any other documents referring to such conditions is excluded.

III. CONCLUSION OF THE AGREEMENT

Catalogues, price lists, commercial offers and other information addressed to customers are for information purposes only and do not constitute an offer within the meaning of Art. 66 § 1 of the Civil Code and other applicable legal provisions.
Photographs in commercial materials are for illustrative purposes only and may differ from the actual appearance of the goods.
Sales representatives of the Seller act only within the limits of the powers of attorney granted to them. The Seller shall bear no liability for actions of Sales Representatives exceeding the scope of the power of attorney granted to them.
Placing an order shall be deemed equivalent to acceptance of all terms contained in these General Terms and Conditions of Sale and Delivery.

IV. DELIVERY

Orders shall be deemed validly placed if they have been submitted in a form mutually agreed by both Parties.
The order must specify all non-standard installation conditions as well as the final place of operation of the generating set. Failure to specify non-standard installation conditions and place of operation of the generating set, and the actual occurrence of such conditions for the given set, excludes the warranty and requires re-quotation.
Delivery dates will be specified by the Seller in the order acceptance confirmation or in the Seller’s offer; however, they are approximate and non-binding dates for the Seller. The Seller will make every effort to effect deliveries within the agreed dates, however compliance with delivery dates depends on the Buyer’s timely performance of contractual obligations, including timely acceptance of the offer or placing a valid order and providing necessary information, as well as timely performance by the Seller’s contractors or subcontractors serving the performance of obligations undertaken towards the Buyer. Any changes requested by the Buyer may result in extension of the delivery period. Goods shall be deemed delivered on time if they are handed over to the first carrier or if they are reported as ready for dispatch before the expiry of the agreed delivery date at the Seller’s premises.
The delivery period commences on the date the Buyer receives the order acceptance confirmation or the agreed advance payment or deposit, depending on the detailed arrangements between the Parties. If the Buyer has not indicated the place of delivery, the deadline shall be deemed met if the goods have been prepared for collection on the specified date. Storage costs of the goods from that moment until collection shall be borne by the Buyer.
The Seller shall not be liable for failure to meet the deadline if the reason for the delay was force majeure or other circumstances beyond the Seller’s control.
Until the obstacle to delivery ceases, the Seller may suspend or limit delivery or withdraw from the agreement.
In the event of suspension or limitation of delivery, the delivery period shall be suspended – in whole or in part – until the obstacle ceases.
In none of the above situations shall it be deemed that the Seller has failed to perform or has improperly performed its obligations, and the Buyer shall not be entitled to claim damages or contractual penalties.
Each delivery may be performed by the Seller in parts. The determination of quantity, type and date shall be at the Seller’s discretion.
In the case of a framework supply agreement, each individual delivery shall be treated as a separate sales agreement. The provisions of these Terms concerning conclusion of the agreement shall apply accordingly.
If the Seller is delayed with a particular delivery or if its performance becomes impossible, the Buyer may withdraw from the agreement with respect to the remaining deliveries, but without the right to claim damages for losses suffered due to non-performed deliveries by the Seller.
If delivery is delayed for reasons attributable to the Buyer or if the goods are not collected by the Buyer in due time, the Seller shall be entitled, at its sole discretion and without any liability, to store the goods at the Buyer’s risk, to invoice them on EX WORKS terms and to charge the Buyer with storage costs. If storage takes place in the Seller’s warehouses, storage costs shall be not less than 0.01% of the invoiced value per day of storage starting from the date of notification of readiness for dispatch. The Seller shall have the right to set a new collection date and, after expiry of that date, the right to sell or otherwise dispose of the goods. Such sale or other disposal shall not release the Buyer from the obligation to pay the storage fees charged by the Seller.
In the case of delivery via a forwarder or carrier, the risk of accidental loss or damage to the goods passes to the Buyer at the moment the Seller hands over the goods to the forwarder or carrier, and the Seller shall not be liable for shortages or damage to the goods or packaging occurring after that moment. If the customer collects / wishes to collect the goods personally, collection takes place on EX WORKS terms according to Incoterms 2020. In the case of export sales, the customer is obliged to organise transport independently and bears the risk of transport and loading at the Seller’s premises – EX WORKS according to Incoterms 2020.
If the Buyer fails to specify – no later than 2 working days before the dispatch of the goods by the Seller – the method and type of packaging and means of transport to be used for delivery, the Seller may, at its discretion and with due care, choose the packaging and means of transport and dispatch the subject of the agreement to the Buyer at the Buyer’s expense. Packaging beyond the standard provided by the Seller, as well as its type and method, shall be additionally charged to the Buyer.
If the Parties have agreed on final acceptance, the following provisions shall apply. If the Buyer fails to attend final acceptance twice or does not appear for final acceptance, the Seller shall be entitled to invoice additional costs of employees’ visits and to perform final acceptance unilaterally and sign a unilateral final acceptance protocol, which shall have the same legal effects as a protocol signed by both Parties. Minor defects or faults not affecting functionality or safety of the Equipment shall not constitute grounds for refusal to perform final acceptance and sign the protocol. In the absence of defects or faults significantly affecting functionality or safety of the Equipment, the Buyer and the Seller shall sign a defect-free final acceptance protocol. The date of completion of installation and commissioning shall be deemed the date of notification of completion of these works, provided that final acceptance of the subject of the Agreement is subsequently confirmed by a bilateral protocol.
Unless otherwise agreed by the Parties, in the case of sale of goods intended for stationary use, the Buyer undertakes, at its own expense and responsibility, to:

a) ensure the physical presence of the Buyer’s representative during delivery, installation, commissioning and acceptance of the goods,

b) ensure access and unloading at the delivery location and placement of the goods in appropriate rooms as referred to below or directly at the final installation site,

c) provide secure rooms (protected against third-party access) for storage of component parts, auxiliary materials and tools, ensuring safe and proper storage conditions, as well as protection of the rooms where installation is to be performed,

d) check the quality of the delivered goods for any visible damage and inform the Seller in writing of any detected damage within 24 hours of delivery. Failure to provide such notification shall be deemed lack of reservations.

e) make available to the Seller the utilities necessary for performance of the agreement, including electricity, water and changing rooms with sanitary facilities,

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

g) hand over the installation premises to the Seller in a condition allowing performance of the agreement no later than 3 days before the planned commencement of installation works,

h) prepare the foundation site and existing installation for mounting and commissioning of the goods, including all necessary construction and metalwork as well as preparation of all necessary electrical installations (including the “distribution board” to which the goods will be connected),

i) perform final acceptance of the works.

The Parties may agree that some of the above works will be commissioned to the Seller under a separate order or agreement.

V. SERVICE

Orders for services performed by the Seller shall be deemed validly placed if submitted on the official forms of AKMEL® or in a form mutually agreed by the Parties. Placing an order shall be equivalent to acceptance of the presented price, scope of works and these GTCSD.
The service shall be performed on a date mutually agreed and convenient for both Parties. The Buyer undertakes to provide access to the Product covered by the service, including temporary shutdowns of the device and trial runs.
Requirements concerning entry and movement within the Buyer’s facility must be presented and accepted by the Seller at the order stage. All additional costs generated by unrecorded guidelines shall be borne by the Buyer.
The service is performed in accordance with the order guidelines and its execution is confirmed by signing a handover-acceptance protocol by both Parties.
In the event that additional service activities become necessary, the Buyer shall be informed each time before performing out-of-scope works. Signing of a protocol by both Parties that also includes additional activities shall be equivalent to their acceptance and confirmation of performance by the Seller.
The Buyer undertakes to provide the Seller with access to utilities necessary for performance of the agreement, including electricity, water and changing rooms with sanitary facilities.
On the basis of the order and performed activities listed in the Protocol, a VAT invoice shall be issued.

VI. PRICES

Prices quoted in price lists, offers and confirmations are net prices (excluding VAT). In the event of a change in applicable VAT rates, the gross price shall change accordingly. VAT shall be added to each net price and the Buyer is obliged to pay it together with the net price. Price lists contain prices in PLN or EUR and are net prices. If conversion to another currency is required, the average exchange rate of the National Bank of Poland from the day preceding the order shall apply.
Quoted prices apply to the standard configuration of the device. An additional fee may be charged if additional technical solutions are applied, provided that their application is technically possible and acceptable to the Seller.
The price does not include delivery/transport costs to the Buyer.
In domestic trade, the price may be quoted in Polish zlotys or as the equivalent of an amount expressed in foreign currency. If that currency is devalued after the Seller sends the order confirmation, the delivery price shall increase proportionally to the devaluation.
After placing the order and concluding the agreement, prices may change in the event of changes in prices of semi-finished products (e.g. motors) or related services (e.g. forwarding). In the event of a price change, the Seller shall inform the Buyer in writing.
In the case of stationary generating sets, the agreement and price do not cover the following works/parts: foundation, anchoring, fuel for start-up, cables and cable lugs, projects and arrangements with the power utility, excavation, construction works and foundations, connection installations and additional installations.

VII. PAYMENTS

Invoices issued by the Seller become due and payable on the date stated on the invoice. The date of payment shall be deemed the date of cash payment, confirmed cheque payment or the date the amount is credited to the Seller’s account. Payment shall be deemed made only when effected in full.
At the Buyer’s request, a deferred payment term may be agreed. The condition is insurance of the transaction by KUKE S.A. A request for deferred payment shall be equivalent to the Buyer’s consent to verification of its payment history by KUKE S.A. If insurance is not granted, the Buyer is obliged to pay before receipt of the goods.
If the payment due date falls on a non-working day, payment may be made on the next working day.
The invoice shall simultaneously constitute the first payment demand.
Any advances or prepayments made by the Buyer towards future deliveries shall not constitute a deposit within the meaning of the Civil Code unless the Seller confirms in writing that a specific payment is a deposit.
If agreed payment deadlines are exceeded, legal consequences of delay may be applied without prior notice. The Seller shall have the right to report overdue payment to a credit information bureau (BIG) and to initiate debt collection proceedings through KUKE S.A.
If the Buyer is in delay with payment of one or more amounts due, the Seller may make further deliveries conditional upon payment or provision of security for such amounts. In such case the Seller may also withdraw from the agreement with immediate effect. Upon withdrawal, all obligations of the Buyer towards the Seller shall become immediately due and payable. The Seller shall bear no negative consequences for performing obligations later than agreed if caused by the Buyer’s delayed payments.

In settlements between the Parties, set-off of any mutual claims shall be excluded.

VIII. RETENTION OF TITLE

The goods delivered to the Buyer remain the property of the Seller until the Buyer has paid the full purchase price.
In the event that third parties assert any claims against goods that are the property of the Seller, the Buyer is obliged to immediately notify the Seller and take all actions to protect the Seller’s rights. In case of failure to fulfil this obligation, the Buyer shall be liable for damages to the Seller.
In case of the Buyer’s delay in payment for the goods, the Buyer is obliged, upon the Seller’s request, to immediately and unconditionally return the delivered goods in full.
Demanding and taking back the goods by the Seller does not – unless otherwise agreed – constitute withdrawal from the delivery agreement by the Seller, but only serves as security for performance of the Buyer’s obligations towards the Seller. The Seller may also withdraw from the agreement if, after demanding return of the goods or taking them back, payment has not been received within 14 days from the demand for payment.
Costs of returning the goods to the Seller shall be borne by the Buyer.

IX. LIABILITY OF THE PARTIES

The Buyer is responsible for the accuracy and completeness of data contained in the order or documentation provided to the Seller.
If the Parties have expressly agreed in writing to supply products or materials not complying with Polish Standards or other technical or safety standards, the Seller shall not be liable for damages resulting therefrom.
The Buyer shall be responsible for the possibility of application and 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 product design.
The Seller shall bear liability for the possibility and correctness of application of its goods in specific solutions and final products of the Buyer only if this clearly results from the arrangements between the Parties.
However, the Seller shall bear no such liability if the Buyer has not followed the Seller’s express instructions, recommendations and guidelines.
The Seller shall not be liable to the Buyer for defects in a product or goods manufactured by the Buyer using goods delivered by the Seller.
The Seller shall not be liable for installations and materials performed or used by the Buyer or third parties.
The Seller shall not be liable for installations, materials, machines or other parts with which the goods will be connected or will cooperate. The Seller shall not be liable for improper operation of the goods caused by incorrect connection to the electrical installation or incorrect matching of the goods to the supplied installation. The Seller shall not be liable for improper operation of the goods caused by improper operation of the Buyer’s or third party’s installation with which the Seller’s goods will be connected or will cooperate.
The Seller shall not be liable to the Buyer for any damage, lost profits, loss of profit, loss of use, loss of production, loss of contracts or any other direct, indirect or consequential damages that the Buyer may suffer or has suffered. The Seller’s total liability arising from performance of a specific order is limited to the gross value of that order. The above limitations of liability shall not apply to damages caused intentionally by the Seller.

X. WARRANTY, LIABILITY FOR DEFECTS, COMPLAINTS

The Seller grants a warranty for the sold commercial goods under the terms specified in this agreement and the warranty card issued with the equipment. In case of discrepancy between the warranty card and these Terms, these Terms shall prevail. However, absence of a warranty card means no warranty is granted for the given goods.
The warranty period begins on the date of delivery of the subject of the agreement to the Buyer and ends upon expiry of the period indicated in the warranty card.
The Seller shall perform warranty obligations only upon presentation by the Buyer of the warranty card. Warranty shall not apply if the Buyer fails to present the warranty card when submitting a complaint.
Upon detection of a defect or fault during the warranty period, the Buyer shall immediately notify the Seller. Defects and failures shall be reported to the Seller in writing by email to: [email protected]. The report shall include a description of the defect. Upon the service department’s request, photographs or video footage showing the defect shall be attached.
The Buyer loses warranty rights to the entire goods in case of failure to comply with the warranty conditions specified in detail in the documents attached to the goods, in particular: mandatory technical inspections, operation under proper conditions, operation by authorised persons, use of proper fuel, etc. Conditions specified in the warranty documentation supplement this provision.
The Seller declares that the goods delivered to the Buyer meet the quality standards specified in the current AKMEL® offer.
The Buyer or the carrier is obliged to inspect the goods upon receipt for hidden and apparent defects as well as quantity shortages.
Goods received by the Buyer or carrier without reservations shall be deemed free from defects.
If the goods are delivered in collective packaging, defects or quantity shortages must be reported upon receipt from the carrier.
The Seller grants a warranty valid only within the territory of Poland. Exporting the goods outside Poland results in loss of warranty. Warranty repairs will not be performed outside Poland. All repairs, even during the warranty period, performed outside Poland shall be at the Buyer’s expense in full (parts, labour, travel and other costs). If the Buyer wishes the Seller to perform repair outside Poland, such repair shall be a paid service in every respect. Repair shall be performed after the Buyer has paid an advance covering the estimated repair costs.
The Seller shall perform warranty repair (if the goods are covered by warranty) within a reasonable time taking into account the time needed to organise spare parts and availability of the service team. The Seller shall not be liable for any damages suffered by the Buyer due to failure or malfunction of the goods during or after the warranty period.
The warranty does not cover burnout of the generating set or fire from any cause.
The warranty covers only products used and installed under standard conditions. The warranty is excluded if products are installed under non-standard conditions. Non-standard conditions include installation in permanently enclosed rooms, underground, at heights exceeding 3 metres above ground level, or in locations exposed to adverse climatic or weather conditions. All costs of repairs and transport of the generating set to the service point for sets installed, used or operated under non-standard conditions shall be borne by the Buyer. The Seller does not cover – within the warranty – costs of lifting/lowering generating sets from heights over 3 m, or other costs related to such sets and repairs. The Seller does not cover costs of removing/installing from closed rooms or from underground premises. Risk of installation, use and operation under non-standard conditions, including warranty, lies with the Buyer.
For products installed and used under non-standard conditions, the Seller may grant additional warranty for a fee under a separately signed non-standard warranty agreement.
The warranty does not cover any additional costs not directly related to installation of the generating set, e.g. costs of production downtime of the Buyer or its customer, costs of traffic disruption, etc.
The warranty does not cover: (1) mechanical damage caused by the Buyer, third parties or force majeure, (2) materials, installations or parts supplied by the Buyer, (3) works performed by the Buyer or unauthorised persons. The Seller shall not be liable for defects, faults or malfunctions resulting from failure to follow operating instructions or technical documentation, use contrary to intended purpose or vandalism.
The Buyer loses warranty rights in case of failure to comply with warranty conditions, improper operation, self-repair or entrusting repair or inspection to an unauthorised third party.
Statutory liability for defects (rękojmia) is expressly excluded under these Terms.
If the Buyer reports a defect or fault which he believes is covered by warranty, and inspection by the Seller shows that the goods are not damaged or the defect/fault is not covered by warranty, the Buyer shall pay for the performed inspection/repair and cover transport costs of the item to and from the Seller’s premises (or to another place indicated by the Buyer). If on-site repair was required, the Buyer shall cover travel costs of the service team from the Seller’s premises to the location of the goods, as well as labour, materials and replaced parts according to the Seller’s current price list.
The warranty does not cover use of generating sets in marine conditions. The warranty does not cover generating sets installed on ships, boats or other floating vessels.
Any repair or interference with the goods or any part thereof by an unauthorised entity results in loss of warranty.
A transport company used by the Seller to deliver goods shall not be considered the Seller’s subcontractor.

XI. WITHDRAWAL BY THE BUYER FROM THE AGREEMENT

Apart from cases of withdrawal provided for in the Civil Code, the Parties may terminate the agreement by mutual consent. In case of termination, the Seller shall have no obligation to take back non-defective goods that were the subject of delivery. If, however, the Seller consents to withdrawal by the Buyer and return of the products, the cost of returning the goods to the Seller shall be borne by the Buyer.
In case of cancellation of the purchase of ordered goods by the Buyer, withdrawal by the Buyer from the agreement or withdrawal by the Seller due to the Buyer’s fault, the Buyer shall pay the Seller a contractual penalty equal to 30% of the gross order value. The contractual penalty shall be paid upon the Seller’s first written demand. The penalty may also be deducted by the Seller from any received advance payment.

XII. CONFIDENTIALITY

The Buyer declares that he is aware of criminal and civil liability for acts of unfair competition as defined 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 aforementioned Act; and

- not to induce any entity (natural person, organisational unit with or without legal personality) being a party to an agreement with the Seller to fail to perform or improperly perform obligations towards the Seller.

The Buyer shall not engage in the above actions for a period of 5 years after performance of this agreement.

The Buyer shall not disseminate, disclose or use – during the term of the agreement and after its termination – any information which does not constitute a trade secret but whose dissemination, disclosure or use could in any way harm the reputation of or otherwise damage the Seller.
The Buyer shall make every effort to prevent publication or disclosure of any information constituting a trade secret as defined above. The protection afforded to the Seller under this clause is additional and independent of protection under applicable law. In particular, this article does not prejudice any statutory provisions or contractual obligations providing broader protection.

XIII. FINAL PROVISIONS

The law applicable to these Terms and agreements between the Parties is exclusively Polish law. In matters not regulated by these Terms, the provisions of the Civil Code shall apply accordingly.
If agreements and terms are prepared in Polish and a foreign language, the authentic language of the contract is Polish. In case of discrepancies between the Polish-language version and the foreign-language version, the Polish version shall prevail.
Any changes to these Terms and to agreements between the Parties shall be valid only in writing.
The place of performance of agreements between the Parties is Wola Mielecka.
All disputes arising in connection with these Terms and agreements based thereon shall be resolved by the competent courts in Mielec or Rzeszów, at the claimant’s choice.

XIV. ADDITIONAL NOTES

The Seller reserves the right to make design changes resulting from technical progress in relation to products offered in the current sales offer.
Proprietary rights to all intangible assets protected under industrial property law and copyright law – in particular copyrighted works, inventions patents, utility models, trademarks, trade names, indications of origin, appellations of origin, topography of integrated circuits, rationalisation projects, information on proper application of inventions, other technical knowledge and experience directly applicable in business or scientific activity, organisational information and other information provided to the Buyer by the Seller in connection with performance of this agreement – remain the property of the Seller. Ownership of items on which such intangible assets are fixed also belongs to the Seller. The Buyer has no right to use them for purposes other than use of the purchased goods, nor to copy, reproduce or make them available to third parties. These documents do not transfer ownership or grant any licence. Drawings and other documents remaining the property of the Seller must be returned immediately upon the Seller’s request together with all copies made thereof.
The Buyer undertakes not to use for any other purposes, nor to make available or transfer to other entities any elements, information or technical documentation on the basis of which the ordered devices were manufactured.
All sales references and documents made available to clients shall be returned upon the Seller’s request together with all copies made thereof. If no order has been placed with the Seller, all such materials must be returned immediately even without such a request.
After sale of the equipment, the Seller has the right to include the sold device and client data (device type, sale date, client name and country) in a standard reference list. Signing these GTCSD shall be equivalent to consent to inclusion of such data in the reference list. Any objections may be raised by the client in writing.
The Seller may entrust performance of services such as installation and/or commissioning of goods, rental of goods, performance of warranty obligations, repairs, inspections or service activities to entities authorised by the Seller, including FPH AKMEL Andrzej Kiciński.