General Terms of Purchase (hereinafter referred to as “GTP”)
General Terms of Purchase (hereinafter referred to as “GTP”)
Międzybórz, 19 July 2021
in force at Wajnert Meble sp. z o.o. [limited liability company] (hereinafter referred to as “Company”) based in Międzybórz, ul. Kolejowa 67, entered into the Register of Entrepreneurs of the National Court Register under number KRS: 0000429627, whose files are kept in the District Court in Wrocław, IX Commercial Department of the National Court Register, REGON: 021935154, NIP (Tax ID): 9112006047, share capital PLN 5 348 400.00.
These GTP constitute the general terms and conditions of agreements within the meaning of art. 384 of the Civil Code. The GTP constitute an integral part of the agreements concerning the purchase by the Company of Goods, Services or Work regardless of the form in which these agreements have been concluded, and are binding on both Parties unless they expressly agree otherwise in writing under pain of invalidity.
§ 1 DEFINITIONS
- Supplier – an entrepreneur who supplies Products to the Company under an agreement concluded between the parties.
- Products – a collective term for Goods, Services and Works / Project services.
- Goods – the following purchase items are understood as Goods in the GTP document:
a) equipment, which includes tools, storage and warehousing systems, furnishings, office equipment, devices, means of transport, industrial goods.
b) components for the production of upholstered or box furniture,
c) finished products, semi-finished products, construction materials or other elements.
- Services – performed in respect of real estate, means of transport, installations – fixed assets, equipment maintenance and repair services, transport services of stocks and equipment, installation maintenance and repair services, as well as business travel services
- Work / [alternatively called: Project services] – project services, the subject of which is not the provision of services, but a single performance of a specific work, e.g. drawing up a financial or tax analysis of the Company or drawing up a legal opinion.
- Order – a written agreement with the Supplier to deliver one or more batches of Products in accordance with the agreed terms of delivery and payment.
- Agreement – contract within the meaning of Polish civil law. For the purposes of these GTP, the terms: Agreement and Order may be used interchangeably. Annexes, if any, are an integral part of the Agreement and the Order, and the Company has been informed about them and has not objected to them.
§ 2 SCOPE OF APPLICATION. AMENDMENTS TO THE AGREEMENT
- The GTP shall apply if no other provisions excluding or limiting the GTP are agreed between the Company and the Supplier in writing under pain of nullity, however, unless it is explicitly stated that the GTP shall not apply in full, the GTP shall apply to the extent not covered by specific written arrangements between the Company and the Supplier.
- The GTP constitute an integral part of the Product purchase agreement concluded between the Supplier and the Company. Confirmation of acceptance of an Order (which in the content of the GTP is also understood as the Agreement) is tantamount to conclusion of an agreement and acceptance of these GTP.
- Acceptance of an Order should be confirmed by the Supplier in writing or at the indicated e-mail address, not later than within 2 working days from the day of its submission by a representative of the Company.
- The Product purchase Agreement shall be concluded on the basis of a submitted Order and GTP.
- Unless the Supplier confirms an Order in whole or in part in the manner specified in point 3 above, the Company may at its discretion:
a) state that the Order has been accepted for execution on the terms specified in the Order, or
b) cancel the Order in whole or in part if the deadline for confirming the Order by the Supplier has expired without the need to obtain the Supplier’s consent. An order may only be cancelled in writing.
- By confirming an Order, the Supplier declares that it has familiarized itself with the contents of the Order and its appendices, including these GTP, accepting them in their entirety, as well as that the Order and its appendices are accurate, understandable and sufficient to deliver the ordered Products, in accordance with the above-mentioned documents, especially in terms of quantity, quality and within the indicated time limits.
- Each Order placed should contain the following data:
a) Company’s data,
b) name of the Product,
d) desired Order completion date,
e) place of delivery,
f) telephone number and e-mail address of the person conducting the Order.
- If an Order has been accepted by the Supplier subject to changes or supplements, in the absence of immediate confirmation of such changes or supplements by the Company, the Order shall be deemed not accepted.
- If a supply Agreement has been concluded as a result of the Supplier’s acceptance of the Order and if the confirmation of acceptance of the Order has been made in accordance with the GTP and the contents of the Order, the Agreement shall be deemed concluded on the day of placing the Order.
- Amendments to the Agreement shall be made in writing, otherwise being null and void, with the consent of both parties, it is permissible, however, with the same effect, to exchange clearly unambiguous and uniform confirmations of the content of the agreed amendment to the Order, using e-mail addresses between representatives of the parties entitled to place/accept the Order, respectively.
- The GTP may form part of the Parties’ written Agreement concluded in a procedure other than the Supplier’s acceptance of the Order, in particular an agreement concluded by signing by the interested Parties. In such a case, the GTP shall apply to the extent not covered by the content of such an agreement, with precedence for the provisions of the Agreement.
§ 3 EXECUTION OF THE SUBJECT OF THE AGREEMENT. DELIVERIES AND DELIVERY TIMES.
- Movable items (i.e. Goods), Services or Works, purchased by the Company and being the subject of the Agreement (hereinafter referred to as “Subject of the Agreement”) shall be delivered and performed in accordance with the contents of the Order. Unless expressly agreed otherwise in the contents of the Order, the obligation and cost of transport to the place of Order completion, loading, unloading, insurance, packaging and other similar costs relating to the Subject of the Agreement shall be borne by the Supplier and the remuneration payable to the Supplier shall include all costs necessary for proper performance of the Order.
- The Supplier declares that the Goods/Services/Works ordered and delivered to the Company will be free from physical and legal defects, and will be in accordance with applicable technical and technological standards, as well as product safety standards. If the subject of the Order are goods manufactured on the basis of documentation, designs, etc. agreed upon or provided to the Supplier, the Supplier also undertakes to deliver the Goods/ Services/ Works made in accordance with the documentation or designs provided.
- By accepting these GTP, the Supplier declares that the Subject of the Agreement will meet the requirements indicated in the Order in all aspects, as well as any further requirements of the GTP, as well as the requirements specified in the generally applicable provisions of Polish law and European Union law, necessary for the Subject of the Agreement to be allowed to trade or used for its intended purpose, or to be deemed properly performed in Poland and in the territory of each Member State of the European Union.
- The Supplier undertakes that in the performance of the Order, it will act in accordance with the applicable laws, its actions will not violate the rights of third parties, including in particular copyright and industrial property rights. In the event that legal regulations require the permissions/decisions of a competent state authority or the consent of third parties, the Supplier undertakes to obtain them by its own efforts and at its own expense.
- The Supplier undertakes to provide the Company with all information, as well as decisions, consents, certificates and attestations required by legal regulations, especially those proving that the Goods meet the technical and technological standards applicable to the ordered goods, immediately but not later than within 7 days from the day of receiving a request from the Company, but in any case not later than on the day of delivery. The above mentioned documents shall be provided in originals or certified copies.
- The Company shall be entitled (but not forced) to carry out an audit (inspection) at the Supplier’s premises to the extent necessary to determine the course, execution, compliance of the Order execution by the Supplier, as well as to inspect the delivered Products.
- Either non-performance or performance of the rights specified in the previous item by the Company shall not limit or exclude the rights vested in the Company under the Civil Code or the provisions of this GTP related to defects of the goods delivered.
- Together with the delivery of the Products, the Supplier undertakes to provide the Company with the following documents: (i) proof of release of the Goods (delivery note), (ii) shipping specifications, (iii) any other required or needed documents.
- The Goods shall be packed in a way that guarantees their safe and proper delivery to the Company.
- Delivery of the Goods must be consistent with the contents of the Order, especially in terms of quantity, quality and the documentation, designs or specifications provided, if such are provided for and required.
- The delivery shall be deemed to have been completed on the date when the Supplier delivered the Goods to the Company in accordance with the Order, meeting the quantity and quality requirements, and when the Goods were accepted by the Company.
- Delivery of the Goods covered by the Order must take place on the date (on the specific day) and in the quantities specified in the Order or its appendices. Delivery of the Goods by the Supplier before the date specified in the Order or in quantities inconsistent with those specified in the Order may take place only upon prior express consent of MW. If the Goods are delivered before the date specified in the Order or its appendices or in quantities other than those specified in the Order or its appendices, without the Company’s prior consent, the Company is entitled to refuse acceptance of the Goods and to demand a new delivery within the deadline or in quantities specified in the Order.
- A proof of the Supplier’s completion of delivery shall be a written proof of delivery of the Goods (e.g. waybill, delivery note, acceptance protocol) not containing any reservations or comments.
- Quantitative acceptance of the Goods shall be carried out at delivery, however, if quantitative acceptance of the Goods at such time is not possible or is excessively difficult, in particular due to the specification of the Goods or the manner of their packing, quantitative acceptance shall be carried out by the Companywithin 5 daysfrom the delivery date. The Goods shall be delivered to the Company to the place indicated in the Order. The Goods shall be delivered in parts if the Parties so agree or the Order so provides.
- The risk of accidental loss or damage to the Goods shall be transferred to the Company at the moment of confirming their acceptance. The Company has the right to refuse to accept the whole or part of the Goods, if during the acceptance made at the time of delivery the Company finds quality defects or quantity inconsistency with the parameters specified in the Agreement, or other breach of the Agreement, including in particular breach of packaging.
- If a quality defect and/or quantitative shortage of the Goods is found during the acceptance activities, the Supplier shall be obliged to deliver the Goods free of defects and/or supplement the quantity of the Goods within 5 working days. If acceptance is made after delivery, the Supplier shall be obliged to collect the defective Goods within 5 working days from the date of notification. In case of failure to collect the Goods – the Company shall be entitled, at the sole expense and risk of the Supplier, at their own discretion, to send back the defective Goods to the Supplier or to deal with them in any other way, depending on the circumstances (e.g. – in whole or in part – sell, dispose of, deposit, refuse to accept, withdraw from the Order).
- If the quantity of the delivered Goods is higher than specified in the Agreement and the quantitative acceptance took place after the delivery, the Supplier shall be obliged to collect the surplus within 10 working days from the date of notification, otherwise the provisions described in the above point shall apply.
SERVICES / WORK
- The Service or Work Supplier shall notify the Company of its readiness to proceed with the delivery and acceptance activities in writing (or to the e-mail address of the Company’s representative indicated in the Order). The Company’s representative shall be obliged to start the delivery and acceptance activities of the completed Service within 5 working days from the notification, unless the Company indicates another date.
- Confirmation of the performance of the Service/Work shall be made in the delivery and acceptance protocol unless parties agreed otherwise. The Service/Work shall be deemed to have been performed in accordance with the Agreement upon signing the delivery and acceptance protocol by a representative of the Company with the clause “no reservations”. The clause does not exempt the Supplier from liability for defects and/or faults which become apparent after acceptance. If it is necessary for the Supplier to prepare documentation for the performance of the Service/Work, the Supplier shall be obliged to provide the documentation at the latest upon signing the delivery and acceptance protocol.
- The delivery and acceptance protocol signed by both parties with the “no reservations” clause is the basis for the Supplier to issue a VAT invoice including remuneration.
- The basis for signing the delivery and acceptance protocol is an inspection at the place of performance of the Service/Work, if the nature of the Service/Work allows it. If, due to the nature of the Service/Work, the inspection cannot be carried out – the basis for signing the delivery and acceptance protocol is a report prepared by the Supplier together with a documentation on the performance of the Service/Work, if such a documentation is prepared. The inspection shall be carried out on the day of signing the delivery and acceptance report, unless the parties agree to carry it out at another time.
- If during the inspection or analysis of the Supplier’s report or documentation defects and/or faults are found, the Company shall set the Supplier a specific time for their removal. After the ineffective expiry of this period, the Company shall be able, at their own discretion, at the Supplier’s expense and risk, to: (i) refuse to accept the Service/Work if the defects are material and withdraw from the Agreement for reasons relating to the Supplier, or (ii) accept the Service/Work in which the defect has not been removed and relatively reduce the remuneration, or (iii) demand reperformance of the Agreement.
§ 4 PRICE SETTLEMENTS
- Unless otherwise expressly and unambiguously specified in the contents of the Order, the price(s) specified in the Order are NET prices and include all costs related to the performance of the Order, including packaging, transport, customs, taxes (excluding VAT), insurance of goods (for the time of transport) and may not be increased.
- The prices covered by the Order are fixed (lump sum) and may not be increased. The Supplier undertakes to execute the order at the prices specified therein.
- The payment deadline of the invoice for delivered Goods/Services/Work shall be counted from the date of effective delivery of the invoice to the Company (properly issued in legal, tax and formal terms).
- The invoice shall be sent by registered letter with confirmation of receipt to the address of the Company unless a statement of consent to the sending of invoices in electronic form has been signed.
§ 5 CONTRACTUAL PENALTIES
- If the delivery of the Products is delayed in relation to the dates specified in the Order, the Company shall be entitled to calculate and charge the Supplier with a contractual penalty in the amount of 2% of the net price value (i.e. the price for all Products comprising the subject of the Order) indicated in the content of the Order, for each commenced day of delay.
- Settlement of penalties for non-performance or improper performance of the Order shall be made on the basis of a debit note. The company is entitled to make deductions (set-off).
- Irrespective of the rights vested in the Company under relevant provisions of law or the Order, in case of delay in delivery of the Goods/Services/Work covered by the Order by more than 5 working days in relation to delivery date, the Company is entitled to withdraw from the Order in whole or in part. The Company may exercise the right to withdraw from the agreement within 7 days from the day the delay arises.
- The Supplier shall pay MW a contractual penalty in the amount of 20% of the Order value (total net price for all Goods/Services/Work ordered), if the Company withdraws from the Agreement due to circumstances attributable to the Supplier.
- The above Company’s rights, shall not deprive the Company of the right to claim damages transferring the amount of the reserved penalties.
§ 6 POST-SALES PROCEDURE. DAMAGES AND COMPLAINTS.
- The Supplier shall grant the Company a quality guarantee for the Goods delivered to it for the period of 24 months from the day of their receipt by the Company. Granting the guarantee does not exclude the Supplier’s liability by virtue of the warranty specified in the Civil Code, GTP or in the Order/Agreement. The Company at its own discretion, may assert its rights under warranty or guarantee on the principles set out in the Agreement or in the GTP or on the principles resulting from the Civil Code.
- The guarantee shall cover all defects and faults that appear during the guarantee period in the Products delivered to the Company.
- Guarantee (complaint) claims shall be submitted to the e-mail address of the Supplier’s representative indicated in the Order. Complaints may also be submitted in electronic form to e-mail addresses used by the Supplier in its business activity.
- Using the warranty, the Company may, at its discretion, either withdraw from the Agreement in whole or in part (if the defect concerns a part of the Subject of the Agreement) or demand that the Supplier reduces the price proportionally to the extent the defect limits the usefulness or usability of the Subject of the Agreement for the Company, in particular taking into account the purpose of concluding the agreement by the Company.
- Each complaint submitted during the warranty period extends the warranty periods by the time counted from the date of notification to the date of removal of the reported defect/fault. When the Subject of the Agreement has been replaced, the guarantee and warranty in this respect runs from the beginning from the date of its replacement.
- The Supplier shall be obliged to cover for the benefit of the Company all damages and losses from any claim arising from the production, sale or use due to improper or improperly delivered Products.
- The Supplier shall be liable for any damage, both to person and property, caused by Products supplied to the Company or to a third party, caused, i.e., by errors in documentation, design or improper manufacturing method, as well as defects in the material used to manufacture the goods, in accordance with the law and jurisdiction of the country where the damage occurred.
- The supplier shall be obliged to provide the Company with legal protection by providing all necessary documents, evidence and to indemnify the Company against any costs resulting from such claims.
- The Supplier shall react to the Company’s complaint within 3 working days counted from the day of its delivery to the Supplier. Lack of a written position of the Supplier within such a period of time shall be tantamount to recognition of the submitted complaint in its entirety.
- Under the guarantee, the Supplier undertakes, within 7 days of receipt of the complaint and at the Company’s choice, to: (i) remove the defects found, (ii) deliver defect-free items or (iii) if it is not possible to deliver defect-free items, to reduce the price.
- In case of failure to perform the guarantee obligations within the time limit specified in the preceding item, the Company shall be entitled to demand payment of a contractual penalty in the amount of 2% of the net price value (for all Products specified in the Order) for each day of delay in performance of those obligations. The Company may claim supplementary compensation on general terms.
§ 7 WITHDRAWAL
- Regardless of other cases specified in the Agreement, the GTP and legal regulations, the Company may withdraw from the Agreement also in case at least one of the following circumstances occurs: (i) The Supplier is in delay with the delivery of whole or part of the Subject of the agreement or Order by at least 5 days, (ii) The Subject of the agreement is defective or otherwise not in accordance with the Agreement, (iii) The Supplier has not considered the complaint in the manner or within the period indicated in these GTP. In such a case, MW may, at its own discretion, submit a declaration of withdrawal from the Agreement in its entirety or a declaration of withdrawal from the Agreement in part in connection with the defective Subject of the Agreement.
- The declaration of withdrawal from the Agreement must be made in writing under pain of nullity. For such a declaration to be effective, it is not necessary to address any other declarations or calls to the Supplier in advance.
- Withdrawal from the Agreement shall not limit or nullify any rights of the Company related to non-performance or improper performance of the Agreement by the Supplier both before and after the day of withdrawal, and in particular the withdrawal from the Agreement shall not constitute circumstances or grounds justifying the Supplier’s evasion of the compensation liability towards the Company which in particular shall also concern the right to contractual penalties referred to in the Agreement and the GTP.
§8 INTELLECTUAL PROPERTY RIGHTS
- Any drawings, documentation, guidelines or any other technical information provided to the Supplier in order to carry out deliveries or execute the Order shall remain the property of the Company and may be used only for the purpose of executing the Order by the Supplier.
- The Supplier shall ensure supervision over the provided documents in such a way as to control the distribution of documents and their return on demand of the Company.
- The Supplier undertakes not to use them for the benefit of third parties.
- The Supplier shall be liable for its employees or other persons with whom it cooperates in the performance of the Subject of the Agreement as for its own actions or omissions.
§9 FORCE MAJEURE
- The Company shall not be liable for non-fulfilment of obligations under the Agreement if it results in whole or in part as a result of “Force Majeure”. Force Majeure is considered to be any extraordinary events beyond the control of the Company, which hinder or prevent the timely performance of the Agreement, and which could not have been foreseen and prevented, including in particular: war, riots, fire, flood, pandemic, earthquake and other natural disasters, state and industry restrictions and orders, general strikes, etc. The Company will be excused as long as there is a delay or obstacles in the timely performance of the obligation. As a result of Force Majeure, the performance of the Subject of the Agreement may be delayed only for the duration of Force Majeure.
- In the event of Force Majeure, each of the parties to the Agreement shall have the right to cancel the Order in whole or in part, with respect to deliveries that will take place during the period in question. Each party is obliged to immediately notify the other party of the occurrence of force majeure circumstances.
- All information: (i) received by the Supplier due to the conclusion of the Agreement with the Company or developed by the Supplier for the Company under the Agreement, as well as indicated in the Agreement, (ii) concerning the Company, the Company’s operations, as well as third parties remaining with the Company in any legal or factual relationships, acquired by the Supplier during the term of the Agreement or in connection with its performance or performance, (iii) relating to the Company, defined in accordance with generally applicable law as a trade secret, even if the Company has not taken any action towards the Supplier to keep them confidentiality, (iv) defined in accordance with the provisions of the GTP and the relevant provisions of the law indicated therein as Confidential Information, shall be treated by the Parties as “Confidential Information”.
- The Supplier undertakes to properly secure all information received from the Company, in particular carriers containing Confidential Information, not to disclose Confidential Information to third parties and bears full responsibility in the event of its disclosure, on the terms described in the Agreement, the GTP and the law.
- The Supplier undertakes not to use the information provided by the Company, in particular the Confidential Information, for any purpose other than performance of the Agreement, unless the Company expresses its prior consent in writing, under pain of nullity, to their wider use (to the extent that the Company is able to effectively give such consent).
- Materials and information received by the Supplier or generated in any way by the Supplier during the performance of the Agreement or in connection with its performance, including in particular any media containing Confidential Information, will be returned to the Company after the completion of the performance of the Agreement, unless that the Parties in writing, under pain of nullity, will agree on a different method of handling such information.
- The above provisions shall apply directly to the subcontractor employed by the Supplier in accordance with the Agreement, even if the subcontractor was employed with the consent of the Company. The Supplier is also responsible for the fulfillment of these obligations by the subcontractor towards the Company.
- In the event of non-performance or improper performance of any of the obligations set out in this paragraph, the Company may demand from the Supplier payment of a contractual penalty in the amount of PLN 50,000.00 for each case of violation. Contractual penalties are added up. The payment of contractual penalties does not deprive the Company of the right to claim damages exceeding the amount of the reserved penalty.
§ 11 FINAL PROVISIONS
- The written form for the purposes of the GTP is considered to be maintained also when using e-mail communication.
- The Order/Agreement is governed by the law of the Republic of Poland.
- Any disputes that may arise in connection with the execution of the delivery, including in particular liability for the Products, liability for non-performance or improper performance of the Order, defects in the goods, contractual penalties, etc., shall be considered by a Polish common court of general jurisdiction for the seat of the Company.
- The GTP constitute an integral part of the Order.
- In the event of discrepancies between the content of the Order and its appendices (including the GTP), the provisions (conditions) of the Order shall prevail.
- In the event of non-performance or improper performance by the Supplier of the Order (of any of the obligations arising from the GTP or the Order), the Company, without prejudice to its other rights arising from the GTP or the Order or the law, may entrust the performance of the Subject of the Agreement in whole or in part by itself or to any third party of your choice at the Supplier’s cost and risk, without the need to obtain a court authorization.
- In matters not covered by these GTP, the relevant provisions of law, including the provisions of the Civil Code, shall apply.
- The provisions of the GTP come into force on the day of their publication on the Company’s website.