GENERAL TERMS AND CONDITIONS
FOR DELIVERY OF GOODS AND/OR SERVICES

 

 

These General Terms and Conditions for Delivery of Goods and/or Services (hereinafter the "General Terms"), together with the Purchase Order and all its appendices, constitute a uniform Agreement between the Parties.

The General Terms are divided into editorial units, paragraphs and points, and this division has an organizing character and does not affect the interpretation of these General Terms.

 

 

  1. DEFINITIONS

 

1.1     "Contract" - an agreement concluded between the Seller and the Buyer together with any attachments and the General Terms;

1.2     "Seller" - an entity, including an entrepreneur as defined by Article 431 of the Civil Code, with whom the Buyer has concluded the Contract;

1.3.    "Buyer" - an entity of the Apart capital group including, among others: Mennica Apart Sp. z o.o., with its seat in Suchy Las (62-002) at Stara Droga 3, Apart sp. z o.o. with its seat in Suchy Las at Stara Droga 3, R2 Center sp. z o.o. with its seat in Suchy Las at Akacjowa 1A, E-R2 sp. z o.o. S.K.A., with registered office in Suchy Las at ul. Stara Droga 3, E-R2 sp. o.o. with registered office in Suchy Las at ul. Stara Droga 3, R2 Investment Sp. z o.o. S.K.A. with registered office in Suchy Las at 3 Stara Droga Street, R2 Investment Sp. z o.o. with registered office in Suchy Las at 3 Stara Droga Street, APART Czech Republic s.r.o., Vavre─Źkova 7074, 760 01 Zlín, Czech Republic;

1.4     "Order" - means the Buyer's order for Goods or for Goods and Services to which the General Terms are applicable and which form an integral part thereof. Placing an Order with reference to the provisions of the General Terms results in a Contract;

1.5    "Goods". - tangible goods (including necessary equipment, additional materials, documentation and other), the sale and delivery of which constitute the subject matter of the Contract;

1.6    "Service" - services provided accessory to the sale and delivery of the Goods in connection with their assembly, installation, training in   operation or ongoing maintenance, or preparation for use by the Buyer.

1.7    "Form" - means one of the forms established and prepared by the Buyer through which the Seller provides the Buyer with data and/or information. A form, in order to be effective for the transfer or amendment of data and/or information, requires the signature of persons authorized to make representations contained in the form on behalf of the Seller.

 

 

 

  1. GENERAL PROVISIONS

 

2.1    Any reference to the Seller's offers or proposals, whether binding or non-binding, shall not imply acceptance of any terms and conditions contained therein if their acceptance has not been expressly stated in the Contract. In case of discrepancies between the content of the Order and the General Terms, the Parties shall be bound by the content of the Order.

2.2     The General Terms shall form an integral part of each Order placed by the Buyer.

2.3     Verbal agreements, any deviations from these General Terms, exclusions, additions shall be confirmed by the Buyer in writing under pain of nullity.

2.4     General terms and conditions, rules and regulations, model agreements or other equivalent documents issued by the Seller or another entity in connection with the Contract shall not apply to the relationship between the Buyer and the Seller. The said documents shall not apply even if the Buyer has not expressly objected to their exclusion from the Contract. Acceptance of the Goods or Services by the Buyer without an explicit reservation, or payment by the Buyer for the purchased Goods or Services without a separate objection, shall in no case mean acceptance of the Seller's or any other entity's contractual models.

2.5    The commencement of performance of the Order or confirmation of the Order by the Seller implies acceptance of the General Terms without any reservations.

 

  1. CONCLUSION OF THE CONTRACT

 

3.1    Deliveries of Goods and provision of Services are executed by Sellers on the basis of an Order submitted by the Buyer drawn up in documentary form. The Order shall be delivered to the Seller by electronic mail (e-mail). As a result of placing an Order a Contract is concluded between the Buyer and Seller.

3.2     An Order is a response to the Seller's offer made as a result of an inquiry sent to him by the Buyer. It means that the content of the inquiry, Seller's offer and the Order form a part of the Contract. The terms and conditions of cooperation included in the Order, especially as regards the subject, scope, properties of the Services/Goods as well as price and delivery conditions shall not be subject to any changes without the express prior consent of the Buyer expressed in writing under pain of nullity.

3.3.   If a separate written agreement concerning the subject of the Order has been concluded, the agreement shall constitute the entirety of the arrangements between the Parties with respect to cooperation under the Order and in the event of any discrepancy the provisions of the agreement shall be binding upon the Parties.

3.4.   Orders sent to the electronic address indicated by the Seller or in any other way indicated by the Seller shall be deemed to be a statement delivered to the Seller with all legal consequences thereof. 

3.5     In the case of change of address or contact details, the Seller is obliged to notify the Buyer of the change within 5 days before the planned change. The Seller is obliged to update the data via the Form. The Seller is obliged to submit the Form by e-mail and registered mail, under pain of considering an Order sent to the current address as effectively delivered.

3.6    The Seller declares that the person submitting an offer and/or its subsequent modifications or additions is authorized to act on behalf of the Seller.

 

  1. EXECUTION OF ORDERS

 

4.1.      The Seller, upon commencement of performance of the Order, confirms that it has the knowledge, experience and technical and personnel  resources necessary to properly perform the Order, and the subject matter of the Order falls within the scope of its business activity and the Goods and/or Services supplied by it do not violate in any manner any rights of third parties.

4.2        The Seller shall be obliged to deliver the Goods and/or Services being the subject matter of the Order at its own cost and risk to the Buyer (based on DDP rule "the Buyer's warehouse or other place indicated by the Buyer" in accordance with INCOTERMS 2010), unless other conditions of delivery of the Goods are specified in the Order.

4.3        The date of delivery of the Goods and/or performance of the Service shall be specified in the Order or confirmation of the Order by the Seller, accepted by the Buyer.

4.4        The Seller is obliged to strictly observe the delivery deadline. If the Seller finds that it will not be able to meet the delivery dates specified in the Order, it shall be obliged to immediately notify the Buyer thereof, at the same time stating the reasons for the delay and its anticipated duration. The above notification shall not, however, release the Seller from its obligations specified in the Contract.

4.5       The Goods delivery date shall be deemed met if the ordered Goods in quantity and quality compliant with the Order, together with a set of required documents, are delivered to the Buyer, and the acceptance is confirmed by a person authorized to accept on behalf of the Buyer in a take-over protocol or other internal document issued by the Buyer confirming the actual acceptance of the Goods. Such document shall contain in particular: date of delivery of the Goods to the Buyer, number of the Order, assortment specification of the delivered Goods in a layout compliant with the Order.

4.6        Any change of the delivery date agreed in the Contract shall require a written consent of the Buyer in order to be valid.

4.7         Partial deliveries, unless otherwise specified in the Contract, shall require the Buyer's written consent. In the case of partial deliveries, unless otherwise agreed in the Contract, the date of delivery shall be the date of execution (handing over to the Buyer) of the last partial    delivery.

4.8         The Goods shall not be deemed delivered unless all documents necessary for shipment as well as required documentation and certificates are delivered to the Buyer in the manner agreed in the Purchase Order in such a way that the Buyer may review their contents.

4.9         If the Buyer finds, during or after acceptance of the Goods and/or Services, any shortages, defects, faults or inconsistencies, including those hindering proper operation of the subject of the Order, the Seller shall be obliged to rectify the same within a specified period of 90 days, counting from the date of notification to the Seller of irregularities in delivery of the Goods and/or Services. In such a situation, the acceptance protocol or any other equivalent document confirming acceptance of the Goods shall be signed after such fulfillment of obligations by the Seller.

4.10.      Unless the Order specifies otherwise, in case of delivery of the Goods from the territory of the European Union, the Seller shall be obliged to fulfill all requirements resulting from the provisions of the law of the European Union, in particular with regard to INTRASTAT and VAT and excise tax.

 4.11.    The Buyer shall be entitled to inspect the Goods for quantity and quality upon receipt of delivery.

 4.12.     Risk of loss or damage as well as obligations and benefits related to the Goods shall pass to the Buyer at the moment of receipt of the Order by the Buyer.

 4.13.     The Seller guarantees and warrants that all actions taken to perform the Order shall be in compliance with applicable regulations and shall not infringe rights of third parties. If execution of the Order requires consent of a third party or competent authority, the Seller shall be obliged to obtain such consent at its own cost and risk.

 4.14.     If the Seller performs its obligations through the agency of subcontractors, the Seller shall be fully liable for their actions and omissions to the fullest extent possible as for its own, in particular for the quality and timeliness of performance, damage caused during performance of the entrusted activities.

 4.15.    In case of failure to comply with the deadline for completion of the Order by the Seller, regardless of the reason, regardless of other rights under the General Terms or legal regulations, the Buyer shall be entitled to substitute delivery of the Goods at the expense and risk of the Seller, retaining the right to claim additional compensation corresponding to the value of the damage suffered.

 4.16.    The Seller shall indemnify and hold the Buyer harmless from any claims of any third parties arising in connection with execution, non-execution or improper execution of the Seller's obligations under the Order.

 4.17.    During the performance of the Contract the Seller shall be obliged to comply with the provisions of the generally applicable law. The Seller shall bear full liability for any penalties and damages to persons and property resulting from breach of such regulations and standards.

 4.18.     In case of execution of the Order, for which processing of items being the property of the Buyer is necessary (delivery of Goods from entrusted material/ raw material), the Seller shall not acquire their property in any situation, including their combination.

 

 

  1. PAYMENT

 

  5.1      Unless otherwise stated in the Order, the price in the Order is a lump sum and fixed price determined for the benefit of the Buyer, i.e. it cannot be unilaterally increased by the Seller, however, if the final price calculation results in its decrease, the Seller shall be obliged to decrease it.

   5.2     The price in the Order is the net price for the Goods or Goods and Services. The Seller having its registered office within the territory of the Republic of Poland and/or registered in Poland for VAT purposes shall add the Value Added Tax (VAT) to invoices issued by it, each time, in accordance with applicable regulations. A vendor having its registered office outside the territory of the Republic of Poland, who is not registered in Poland for VAT purposes, shall not charge its national value added tax or any other tax of a similar nature.

   5.3     Payment shall be made by bank transfer, within the period indicated in the Purchase Order counted as the number of days from the date of receipt by the Buyer of a correctly issued invoice, together with a take-over protocol signed by the Buyer or other internal document issued by the Buyer, confirming the delivery of the Goods.

   5.4     Unless otherwise specified, the payment term shall be 30 (thirty) days, but not earlier than the date of delivery of the Goods as specified in the Order.

   5.5     The basis for issuance of the invoice shall be delivery of the Goods in accordance with the Contract. If an invoice has been issued incorrectly, the Seller shall, upon the Buyer's request, issue an appropriate correcting invoice or correcting note. 5.5 The acceptance and collection of early deliveries shall be subject to the payment term resulting from the delivery dates of the Goods specified in the Order.

    5.6     Payment of the agreed purchase price for the Goods shall be made to the Seller's bank account. The name of the bank and the bank account number shall be indicated by the Seller to the Buyer on the Form, irrespective of the bank account number placed on the invoice. The Seller is obliged to inform the Purchaser about any change of the bank or bank account number on the Form immediately, but no later than within 3 working days from the date of the change of the bank account. The Form with the change of bank account number or bank should contain signatures of persons authorized to represent the Seller and information concerning the person authorized to contact. The information mentioned in the preceding sentences shall be provided by the Seller by e-mail and registered letter.

    5.7     Lack of or untimely provision by the Seller of the relevant information on the bank and the Seller's bank account number shall release the Buyer from any liability for incorrectness of the bank transfers made.

    5.8     In the event of improper performance of the Contract by the Seller, the Buyer shall be entitled to withhold payment in full or in an appropriate part thereof until proper performance of the Contract. The payment term specified in the Contract shall be counted from this date.

    5.9    The basis for payment shall be a correct invoice which in addition to the statutory requirements should contain the following details: (a) the quantity of the Goods (type of Service) and the net and gross unit prices of the various items - each item from the Purchase Order shall be specified on the invoice as in the Purchase Order; (b) the name description of the Goods (Goods and Services) or reference to the relevant items in the specification attached to the invoice; (c) the Buyer's Purchase Order number; (d) the terms and date of payment in accordance with the Purchase Order.

    5.10. The invoice must be delivered to the Buyer at the registered address of the Buyer's registered office as a single-sided print, on single-sided paper preferably white, typewritten, without handwriting, unnecessary stamps or soiling.

    5.11. Under a separate agreement the Buyer may receive invoices in electronic form. Signing of the agreement shall be equivalent to the Seller's acceptance to send invoices to the Buyer electronically.

    5.12. The Seller shall not be allowed to transfer (assign) the receivables concerning the remuneration under the subject Contract to any third party without the Buyer's consent expressed in writing under pain of nullity.

 

 

6 WARRANTY

 

     6.1  The Seller warrants that the Goods delivered under the Contract shall be in accordance with the specifications, drawings and any other requirements of the Contract and that they shall be new, unused, of good quality, suitable and fit for its intended use under the Contract, properly designed, made appropriately and of suitable material, free from defects, and that they shall satisfactorily meet the technological requirements specified in the Contract.

      6.2  The Seller guarantees that the Goods shall be made and, if it results from the Contract, shall be installed/plumbed in accordance with legal regulations in force in the Republic of Poland, health and safety and fire regulations, technical supervision regulations and standards in force in the European Union.

      6.3   The Seller shall grant to the Buyer a quality warranty for the Goods and/or Services for the period of 36 (thirty six) months commencing on the date of signing an unqualified acceptance protocol or other internal document issued by the Buyer, unless otherwise stated in the Purchase Order.

      6.4  The guarantee granted by the Seller covers defects existing at the moment of issuance of the Goods and/or Services as well as all other defects arising or disclosed during the guarantee period.

      6.5   If, during the Warranty period, defects of the Goods and/or Services occur, the Buyer shall immediately (no later than within 30 days) notify the Seller of such defects - via email or in writing.

      6.6  The Seller shall immediately confirm in writing or by e-mail the receipt of the complaint. If, within 5 working days from the receipt by the Seller of the complaint notification by the Buyer, the Seller does not confirm its receipt, it shall be deemed that the Seller made such confirmation upon expiry of this period.

      6.7   The Buyer shall be entitled, at his option, to: (a) demand a price reduction, (b) remove the reported defects, replace the items with items free from defects or (c) withdraw from the Contract in whole or in part.

      6.8   The Seller shall remove reported defects within 90 (ninety) working days from the date of their notification by the Buyer, unless the Buyer agrees to a different period for removal of reported defects in writing or by e-mail.

      6.9   If the Seller refuses to remove the defects or fails to remove them within the deadline, the Buyer shall be entitled to remove the defects themselves or to have the defects removed by a third party - at the expense and risk of the Seller, while retaining the rights under the quality warranty and guarantee for defects.

     6.10. The Buyer shall be entitled to send defective Goods to the Seller at the cost and risk of the Seller. In case of unjustified refusal of acceptance of defective Goods by the Seller, defective Goods shall be stored at the expense and risk of the Seller or shall be disposed of, at the choice of the Buyer.

     6.11. If the Seller, being informed of the existence of a defect, does not take immediate steps to remove the defect within the time limit set by the Buyer, the Buyer shall be entitled to take all necessary steps to remove the defect at the expense and risk of the Seller. However, this shall not release the Seller from his contractual obligations.

    6.12. The warranty period shall be extended by the time of defect removal.

    6.13. The Seller's warranty for the Goods or part thereof which have been repaired or replaced shall be extended for a further 24 (twenty four) months from the date of repair or replacement.

    6.14. If, during the warranty period the Merchandise has already been the subject of complaint, it shall be replaced with a new one, free from defects, regardless of the possibility and admissibility of its repair. Provisions of this paragraph do not exclude the possibility of requesting a replacement of the Merchandise for a new one, free from defects at the first complaint.

     6.15. The Buyer may pursue claims under the guarantee also after the expiry of the guarantee periods, if the defects are revealed before the expiry of these periods.

    6.16. The warranty shall not exclude the Buyer's rights under the statutory warranty for physical and legal defects. The Buyer may exercise rights under the warranty independently of the rights under the guarantee.

     6.17. Regardless of other provisions of the Contract, the Seller shall repair any damage caused to the Buyer, its employees, attorneys, representatives, contractors, arising in connection with defects of the Goods delivered, untrue statements or warranties. At the same time the Seller shall relieve and undertake to protect the Buyer, its consignees and subcontractors from liability related to defects of the Goods delivered by the Seller or Services performed by the Seller, in particular through reimbursement or payment of penalties, damages and costs incurred, including costs of court proceedings and administrative proceedings. The Buyer shall immediately notify the Seller of any circumstances known to the Buyer that may give rise to Seller's liability as specified above.

 

  1. CONTRACTUAL PENALTIES AND WITHDRAWAL FROM THE CONTRACT

 

       7.1  In case of delay in delivery of the Goods or performance of the Services for reasons other than Force Majeure, the Buyer shall be entitled to charge the Seller with a contractual penalty in the amount of 0,5% of the net value (price) of the Goods or Services delivered after the agreed date for each day of delay.

       7.2  Unless the Parties have agreed otherwise, the total amount of contractual penalties for untimely delivery shall not exceed 30% of the net  value (price) of the Goods or Services delivered late or performed late.

       7.3  Where the Goods or Service delivered / performed with delay are an integral part of the subject matter of the Contract, the lack of which  prevents the Buyer from using the Goods already delivered, the basis for calculation of contractual penalties shall be the total net value (price) of the Goods or Service.

        7.4 In the event of non-performance of the Contract by the Seller, the Buyer shall be entitled to terminate the Contract with immediate effect, however, no later than within 30 calendar days from the occurrence of the event resulting in non-performance of the Contract and to apply jointly or separately the following legal remedies:

7.4.1. charge a contractual penalty of 30% of the value of the undelivered Goods or unperformed Service,

7.4.2. charging the Seller with the costs of execution of the so called substitute Contract, performed by a third party. The substitute contract will be executed, if the subject of the performance is the purchase of specified goods or the performance of Services, which can be performed by a third party. In such a case, the Buyer, at his complete discretion, shall conclude an appropriate contract with the third party, retaining a claim for payment of contractual penalty and compensation for damage resulting from delay. The Seller hereby undertakes to reimburse the Buyer for the costs of execution of the so-called substitute agreement. The Seller shall be obliged to pay these costs on the basis of a debit note issued by the Buyer. The basis for issuing a debit note by the Buyer shall be an invoice received by the Buyer issued by a third party.

7.5 Moreover, the Buyer may charge the Seller and request the Seller to pay contractual penalties in case of delay in removal by the Seller of defects identified upon acceptance of the Goods/Services or during the guarantee period - in the amount of 0.5% of the net value (price) for each day of delay, counting from the day appointed for removal of defects. The total amount of contractual penalties for delays in the Seller's rectification of defects identified at the acceptance of the Goods/Services cannot exceed the amount of 30% of the value (price) of the net Goods.

7.6 The contractual penalties can be deducted from the price or remuneration due to the Seller. The Seller agrees to deduct the contractual penalties specified from the price or remuneration due to the Seller or any other due debt of the Seller to the Buyer. If the Buyer's damage exceeds the value of the contractual penalty, the Buyer may pursue supplementary damages on general terms - this rule shall apply to all provisions on contractual penalties included in the General Terms. 

7.7 The Buyer reserves the right to terminate the Contract due to the fault of the Seller with immediate effect in particular in the following cases:

7.7.1. the undue performance of the contractual obligations by the Seller,

7.7.2. the Seller shall lose its ability to perform the subject of the Contract,

7.7.3. unjustified delays in performance of the contract subject caused by the Seller,

7.7.4. the Seller shall fail to observe occupational health and safety or fire safety regulations 7.7.4. non-compliance by the Seller with work safety and hygiene regulations or fire safety regulations valid on the premises of the Buyer (applies to the case of execution of the contract subject on the territory of the Buyer's enterprise).

7.8  The rights specified above shall not exclude the Buyer's right to withdraw from the Contract under the principles provided for in the   Civil Code.

7.9   Withdrawal from the Contract in order to be effective shall require a declaration in a documentary form.

7.10. "Force Majeure" shall mean an event beyond the control of the Parties, which could not have been predicted while exercising due diligence required in professional relations, which is external to both or any of the Parties, and which they could not resist while exercising due diligence. Events of Force Majeure within the meaning of the Contract include in particular: strikes (except for strikes of the Parties' employees), earthquake, floods, fires, natural disasters, acts of terrorism, war. In the event of Force Majeure, the Party that cannot perform its obligations due to the Force Majeure shall: (a) promptly notify the other Party (no later than within 7 days of the occurrence of such event), (b) demonstrate its occurrence by credible evidence, and (c) specify its effect on the performance of the Agreement, including an indication of the anticipated date of performance of its obligations. Failure to provide such notice within 7 days after the Force Majeure event occurs shall result in forfeiture of the right to invoke the Force Majeure circumstance. If the period of the Force Majeure exceeds 3 (three) months, both Parties will establish new terms and conditions of cooperation.

 

 

8 INTELLECTUAL PROPERTY

 

 8.1    The Seller as part of the price for the Goods delivered or consideration for Services rendered shall grant the Buyer a non-exclusive, without territorial restrictions, license to use the trademark affixed to the Goods to the extent necessary for proper performance of the Order and use of the Goods delivered in accordance with their economic purpose.

 8.2.    The Seller transfers onto the Buyer all proprietary copyrights to the documentation, if such documentation is prepared within the framework of fulfillment of the Order and meets the characteristics of a work, within the meaning of regulations on copyrights and related rights, in the following fields of exploitation: recording, recording and multiplication by mechanical, electronic, magnetic and digital techniques, public presentation and dissemination, including performance, exhibition, display, reproduction, dissemination by electronic mail, introduction to IT networks, making available in such a way that anyone can have access to the documentation at any time and place.

 8.3   The Seller agrees to exercise the dependent rights with respect to the above documentation, as well as to make any changes thereto. The Seller shall also transfer onto the Buyer the ownership of the media on which the documentation is recorded.

 8.4   The Seller assures and warrants to the Buyer that as a result of performance of the Contract no rights to trademarks, industrial designs, patent rights and other protected intellectual property rights of third parties shall be infringed.

 8.5   The Seller shall be liable for any legal defects of trademarks or works referred to in this section of the General Terms, in respect of which a license has been granted to the Buyer or copyrights have been transferred to the Buyer. The Seller shall also be liable for legal defects of the Goods delivered or Services performed.

  8.6   In the event that a third party submits claims against the Buyer for infringement of its protected rights to intellectual property, the Buyer shall immediately notify the Seller and request the Seller to prove that the claims made against the third party are groundless. In addition, in the event of a court dispute, the Seller shall immediately join the case in the place of the Buyer or intervene on the Buyer's side as an outside intervener. In the event of a valid adjudication of claims against the Buyer due to claims of third parties referred to in this Chapter of the General Terms, the Seller shall reimburse the Buyer for all expenses related to court proceedings, including in particular the payment of any amounts awarded against the Buyer and reimbursement of expenses incurred for the payment of legal representation and court costs.

 

9 CONFIDENTIAL INFORMATION

 

       9.1 The Seller undertakes to maintain in secrecy confidential information provided directly or indirectly by the Buyer (in any form, i.e. in particular oral, written, electronic), as well as information obtained by the Seller in another way during mutual cooperation, including in connection with the conclusion and performance of the Contract, which information relates directly or indirectly to the Buyer, companies from the Buyer's capital group or their contractors, including the content of the Contract. The Parties agree that "confidential information" shall mean any technical, technological, organizational or other information of economic value, not disclosed to the public, provided by or on behalf of the Buyer or otherwise obtained by the Seller in the course of negotiating, concluding and performing this Contract, which shall be treated as a business secret, in particular: information about the Goods ordered, the Buyer's buying habits and preferences, product sourcing policy and strategy, commercial and marketing plans and strategies, financial terms and conditions of cooperation, information concerning other contractors, know-how, whether or not specifically marked by the Buyer as confidential, unless at the time of transfer, the transferor specifies in writing or in electronic form a different nature of such information from that specified above.

       9.2 The obligation to keep confidential the Confidential Information shall be binding during the term of the Contract and also for a period of 10 (ten) years after its termination, expiration or annulment or nullification. If, despite the expiry of the period of protection of business secrets specified in the preceding sentence, such information continues to be protected on the basis of internal regulations or decisions of the Buyer or on the basis of specific provisions of law, the Buyer shall notify the Seller in writing of the extension of the period of protection for an additional period specified by the Buyer (but not longer than 10 years), to which the Seller hereby consents. The notification referred to in the above sentence shall be made before the expiry of the 10-year term of protection referred to in the first sentence of this paragraph, but not later than 10 working days before the end of the above obligation. The parties agree that the obligation described in this paragraph shall apply irrespective of the termination, expiration or cancellation or nullification of the legal effect of this agreement.

       9.3 The obligation to keep confidential information referred to above shall also extend to employees of the Seller and other persons, including in particular auditors, advisors and subcontractors, to whom the Seller shall make such information available. The Seller shall be obliged to oblige the aforesaid persons in writing to protect the confidentiality of the Buyer's business on terms at least as set forth in the General Terms. The Seller shall bear full liability for acts or omissions of persons who have gained access to business secrets, including financial liability as referred to below.

       9.4 The Seller shall, upon each request of the Buyer, within no more than 5 working days, send to the Buyer a list of persons and entities which    through the Seller have gained access to confidential information. Failure to comply with the obligation referred to in this paragraph shall be treated as unauthorized disclosure of business secrets resulting in financial liability as referred to below.

       9.5 Not later than within 5 business days after the expiry of the period for protection of confidential information referred to above, the Seller and any persons to whom the Seller has provided the confidential information shall return to the Buyer or destroy any materials containing such information.

       9.6 In the event of unauthorized use, transfer or disclosure of confidential information by the Seller, the Buyer shall be entitled to hold the Seller financially liable and to request the Seller to pay a contractual penalty in the amount of 10% of the net value of the Contract for each case of unauthorized use, transfer or disclosure of the said information. Payment of the contractual penalty specified above does not limit the Buyer's right to claim from the Seller compensation on general terms, if the amount of the damage suffered exceeds the amount of the contractual penalty reserved herein. The above shall in no way exclude other sanctions and rights of the Buyer set out in law, including provisions on the fight against unfair competition.

       9.7 The Seller shall be obliged to obtain prior written consent of the Buyer to place the company's name, trademark or logo of the Buyer on its website, list of contractors, in brochures, advertising and any other advertising and marketing materials. In such case, the Seller undertakes to submit to the Buyer, together with the request for consent, a draft of the materials in which such data would be placed.

        9.8 The Seller also undertakes to obtain prior written consent of the Buyer to provide mass media such as press, radio, TV, Internet with any information concerning the Order. In such case the Seller undertakes to submit to the Buyer, together with the application for consent, the content of the information to be used in the mass media.

        9.9 In the event of non-performance or improper performance of the obligations set out in paragraph 9.7. or 9.8. of the General Terms, the Buyer shall be entitled to a contractual penalty in the amount of EUR 25,000 (twenty-five thousand euros) for each case of breach. Payment of the contractual penalty referred to above does not limit the Buyer's right to seek damages on general terms in the event that the amount of damage suffered exceeds the reserved amount of the contractual penalty.

 

 

  1. THE SERVICES

 

10.1  To the extent not covered by this section, the provisions of these General Terms relating to the supply of Goods shall apply mutatis   mutandis to Services.

10.2  The Contract for delivery of Goods may also include the obligation to perform Services, which in particular are provided by the Seller on the Buyer's premises.

10.3  Unless otherwise stated in the Order, it is understood that:

10.3.1  The value (price) of the Services shall be included in the price of the Goods resulting from the Order;

       10.3.2. All additional costs related to the Services provided by the Seller, such as costs of accommodation, travel, Seller's personnel insurance, etc., shall be borne by the Seller.

10.4  In the case of foreign Sellers, Buyer shall have the right to deduct the amount of Polish income tax (hereinafter: "withholding tax") from the payment for the Services paid to Seller, if it is required to do so under Polish law. In order to apply an exemption or a reduced withholding tax rate provided for in a respective and binding double tax treaty concluded between Poland and the country of the Seller's registered office (tax residency), the Seller shall, together with the first invoice and no later than 5 working days before the due date for payment of the first amount due, provide the Buyer with the original or a notarized copy of his valid certificate of residence (i.e. a certificate concerning the place of the Seller's registered office for income tax purposes, issued by a competent tax administration authority). Failure by the Seller to provide the certificate of residence within the time limit specified in the preceding sentence shall entitle the Buyer to deduct from the amount of payment made to the Seller the amount of withholding tax in the amount specified in Polish tax law.

10.5   The Seller shall ensure personnel with qualifications suitable for proper and timely performance of the Service.

 

10.6   The Seller's performance of a Service shall be confirmed by an acceptance protocol or other internal document issued by the Buyer.

10.7   The Seller shall obtain a written consent of the Buyer for commissioning a subcontractor to perform any Services. The Seller's breach     of this obligation and entrusting the performance of Services to a subcontractor to whom the Buyer has not consented shall constitute a serious breach of the Contract and shall entitle the Buyer to terminate the Contract due to Seller's fault. This right may be exercised until the expiry of the delivery date indicated in the Purchase Order.

10.8   Where performance of a Service requires interaction between Seller's and Buyer's personnel, the Seller shall be responsible for the correctness of directions and instructions given by its personnel. More important instructions concerning assembly/services shall be given by Seller's personnel in writing.

10.9   Unless the Parties agree otherwise in the content of the Order, the Seller shall be fully liable for damages and losses resulting from actions of personnel providing the Services as well as those resulting from improper instructions and guidelines provided by the Seller's personnel.

10.10. The Seller assures that the Services provided by it are performed properly and in accordance with the Contract. If any defects are  found within 36 months of the performance of the Services, the Seller shall promptly remedy them at its own cost and risk. The Seller shall be liable under the warranty for defects of the Service, which is to result in a specific result, as a person taking an order in a contract for work.

10.11. The Seller shall be obliged and responsible for completing all formalities, notifying relevant administrative authorities, obtaining all necessary permits and paying all tax and social security charges related to the employment of the Seller's personnel to perform Services at the Buyer's premises.

10.12. The Seller's personnel shall be obliged to comply with the regulations in force on the Buyer's premises.

10.13. The Seller shall fully insure its employees or associates for the duration of the performance of the Services on the Buyer's premises.   The Seller shall also assume the risk, all possible consequences and claims related to: accidents of the Seller's personnel occurring during performance of the Service, damages and losses caused by the Seller's personnel to third parties, damage to or destruction of tools and other equipment owned or held by the Seller or its personnel.

 

  1. PERSONAL DATA PROTECTION

 

11.1   The Buyer is the administrator of personal data provided in connection with the conclusion and implementation of the Agreement / Order.

11.2   To contact the Administrator of personal data protection serves the following email address: iod@apart.pl.

11.3   The Seller's personal data are processed for the following purposes: (a) taking action in order to conclude and perform the agreement to which the Seller is a party, (b) service, investigation and defense in case of occurrence of mutual claims.

11.4   The legal basis for the processing of the Seller's personal data by the Buyer for the purpose indicated in item 11.3 above is:

11.4.1. taking action in order to conclude and perform the agreement (pursuant to Article 6.1.b RODO) to which the Seller is a party;

11.4.2. fulfilling legal obligations (pursuant to Article 6(1)(c) of the RODO) related to the payment of taxes, including keeping and storing  tax books and documents related to the keeping of tax books and storing accounting evidence. The legal basis for data processing are legal obligations arising from tax regulations (Tax Ordinance, Value Added Tax Act, Corporate Income Tax Act) and accounting regulations (Accounting Act);

11.4.3. the Buyer's legally justified interest (in accordance with Article 6.1.f RODO) - in order to service, assert and defend in the event of the occurrence of mutual claims;

11.5   Personal data of the Seller may be disclosed by the Buyer to entities cooperating with him (recipients) on the basis of contracts concluded by the Buyer, in accordance with the law on personal data protection, in particular to entities providing services of invoicing, debt settlement, delivery of correspondence and shipments, legal, debt collection, archiving as well as companies belonging to the Buyer's capital group, and also to entities authorized to receive data on the basis of law.

11.6   The Seller's personal data shall be processed for the duration of the contract, as well as until the expiration of mutual claims under the contract.

11.7   Providing personal data was and is voluntary, but it is necessary to conclude and perform the contract.

11.8   The Seller shall have the rights related to the processing of personal data: the right to access their data, the right to rectify and delete them, the right to limit processing of personal data, the right to data portability, the right to object.

11.9   The Seller shall have the right to lodge a complaint to the President of the Office for Personal Data Protection.

 

  1. FINAL PROVISIONS

 

12.1  The General Terms bind the Parties upon their acceptance, signature or acceptance, confirmation by the Seller of the Order or commencement of performance of the Order.

12.2   The Seller shall not be authorized to assign all or part of the rights or obligations under the Order to any third party without the prior consent of the Buyer expressed in writing under pain of nullity.

12.3   If at any time any provision of the General Terms is held by a court of competent jurisdiction to be illegal, invalid or     unenforceable, this shall not affect or impair the legality, validity or enforceability of the remaining provisions of the General Terms.

12.4   The laws of the Republic of Poland shall apply to all Contracts to which these General Terms apply. No conflict of law rules under which any other law might apply shall apply. In Contracts with entrepreneurs having their seats outside the territory of Poland, in the territory of countries that are signatories of the United Nations Convention on Contracts for the International Sale of Goods concluded in Vienna on April 11, 1980 - to the extent not excluded by the provisions of the Contract, the provisions of this Convention shall apply additionally.

12.5  Any disputes between the Parties arising in connection with the Contract shall be settled by a Polish common court with jurisdiction over the Buyer's registered office. This shall be without prejudice to the Buyer's right to bring the matter before the court in the jurisdiction where the Seller has its registered office, principal place of business, undertaking or assets or where the Buyer's interests have been damaged or prejudiced.

12.6  The General Terms shall apply as of April 1, 2022 to Orders placed after that date, unless the Parties unanimously and expressly agree otherwise.

 

 

Status: 01.04.2022.