1. “GT&CS” or “GENERAL TERMS AND CONDITIONS OF SALE” – terms and conditions of sale and commercial cooperation contained herein.
2. “SELLER” or “ANTICOR” – ANTICOR Sp. z o.o., seated: 32-020 Wieliczka, ul. Wygoda 28.
3. “BUYER” – a natural or legal person being a business entity under Polish law, buying products from the Seller.
4. “PRODUCTS” – products and/or services offered by the Seller. When the context implies that a given provisions of the GT&CS cannot be applied directly to the services offered by the Seller, the provision shall be applied mutatis mutandis.
5. “MOQ” (Minimum Quantity Ordered) – the minimum quantity of products per order.
6. “Contract” – Contract of Sale, Distribution Contract, Commercial Contract or any other contract/agreement (including executory contract) whereunder ANTICOR will, for a fee, provide services or transfer the ownership of or the right to use the Products.
II. INITIAL PROVISIONS
1. These General Terms & Conditions of Sale (GT&CS) define the standard terms under which the Seller manufactures and sells their Products to the Buyer. They apply to all sales offers, unless otherwise agreed in writing. By placing an order, the Buyer or a person authorised by the Buyer is deemed to have accepted the Seller’s GT&CS. Such acceptance is a prerequisite for any commercial transaction with the Seller.
2. Any Buyer’s terms and conditions contradictory to these GT&CS are hereby expressly excluded by the Seller.
3. The Seller permits executing individual commercial contracts based on mutual negotiations between the parties. Any such individually agreed terms and conditions shall have priority over these GT&CS.
4. The GT&CS shall form an integral part of any contract binding between the parties.
III. ACCEPTANCE OF ORDERS, CONCLUSION OF CONTRACTS
1. The conclusion of a contract of sale takes place as prescribed by law. When the Buyer places an order, a purchase contract is deemed concluded upon acknowledgement of the order by ANTICOR.
2. Orders shall be placed using one of the following methods:
a. Via e-mail sent to the e-mail address indicated by ANTICOR.
b. Via EDI system.
c. Via telephone number indicated by ANTICOR.
d. Via fax sent to the fax number indicated by ANTICOR.
e. In any other manner prescribed by ANTICOR.
3. To be valid, every order shall contain the following information:
a. Product name, size and characteristics, e.g.: colour and quantity which must not be smaller than the minimum quantity ordered expressed as the number of full multi-unit packagings or other minimum units specified by ANTICOR.
b. Net unit price as per applicable price list or as per individual arrangements or contract terms.
c. Product/Service delivery deadline, which shall not be less than three business days.
d. When delivery within the deadline specified by the Buyer is not possible, ANTICOR shall specify the nearest possible delivery date in the order acknowledgement. Such delivery date shall be binding upon the parties, unless the Buyer withdraws the order within three business days after receipt of the order acknowledgement from ANTICOR.
e. When, after concluding the delivery contract, ANTICOR is not able to deliver the contract on time for reasons beyond its control, ANTICOR shall notify the Buyer of this fact and specify the nearest possible time of delivery or partial delivery. The date will be binding upon the parties unless the Buyer refuses to accept it within three business days. Should this be the case, unless the parties agree otherwise, the delivery contract shall be terminated with respect to the Products or Services specified therein and neither party shall be entitled to compensation or other claims on account of such termination. The above shall apply mutatis mutandis in the case of further postponement of the delivery date specified by ANTICOR, in compliance with the first sentence.
f. Every order should specify the place of delivery and recipient’s contact details, and contain a legible signature of the person authorised to place orders. In the case of orders placed via e-mail, the e-mail address from which the order was sent shall be deemed to be the Buyer’s contact address.
g. The Buyer shall be liable for any errors in orders.
4. The parties represent that they are not bound by any other oral or written contract/agreement (including those resulting from earlier transactions). Any terms and conditions included in or appended to the correspondence sent by the Buyer to the Seller shall be deemed rejected and, consequently, they shall not apply to the GT&CS and must not be treated as a deviation from these GT&CS operating in favour of the Buyer. These GT&CS shall have priority over common practice or the terms and conditions applied in previous transactions, which must not be invoked for the purpose of interpretation of the present GT&CS. Orders placed without instructions concerning shipment will not be accepted by ANTICOR.
5. Orders placed by the Buyer and acknowledged by ANTICOR must not be withdrawn, unless ANTICOR agrees otherwise in writing. Orders requiring special packaging, including, among other things, special export packaging, and orders for customised products or non-standard products manufactured to order (not included in the basic offer) must not be withdrawn. However, when ANTICOR agrees otherwise, the Buyer shall pay all costs resulting from such withdrawal. The Seller shall reserve the right to cancel a sale transaction hereunder without any liability towards the Buyer (other than refund of the price paid) when the manufacture or sale of the products is or becomes unprofitable or causes excessive technical problems.
1. All orders are shipped by the Seller ex-works. All delivery dates are estimates only. The Seller does not guarantee delivery on the indicated dates.
2. The Seller shall make every effort to ensure timely shipments and reserves the right to make partial shipments. Unless the parties agree otherwise in writing, the Seller may deliver and invoice the ordered quantity ± ten percent (10%).
3. Any claims concerning errors or shortages in or damage to delivered goods shall be made in writing and lodged within five business days of receipt of the products by the Buyer.
4. ANTICOR shall deliver orders provided that no Force Majeure event (such as war operations, flooding, fire, severe weather conditions, labour disputes, inability to perform, delays caused by government orders, delays in delivery of raw materials and services, including actions and omissions by subcontractors, and other circumstances beyond ANTICOR’s control) impeding or preventing proper performance of contractual obligations or any other event and circumstance beyond the Seller’s control occurs. A Force Majeure event within the meaning of the GT&CS shall be also imposition in the EU members states of any regulations restricting import or export of goods and services. ANTICOR shall not be liable for any damage incurred by the Buyer as a result of or in connection with any delay in performance or non-performance of deliveries.
5. If a forwarder or any other shipper postpones the delivery of the products to the Buyer for reasons not attributable to the Seller, the Seller shall not be liable for any such delay and shall not be obliged to organise express shipment of additional products. Unless the parties agree otherwise in writing, the costs of export shipment shall be borne by the Buyer.
6. Quoted prices are inclusive of packaging for standard domestic shipments. The cost of any additional packaging other than the standard mentioned above shall be borne by the Buyer, unless agreed otherwise in writing.
7. All burden and risk of accidental damage or loss of goods shall pass on the Buyer upon receipt of the goods.
V. PRICES, PAYMENTS
1. Unless stated otherwise by the Seller in writing, all prices quoted are net prices and do not include any additional fees or costs of transport. They shall be increased by applicable goods and services tax (VAT) and any other tax imposed in substitution for or in addition to it.
2. The product price shall be determined on the basis of the arrangements in force on the date of order acknowledgement by the Seller.
3. A unit price stated in the applicable order acknowledgement may be increased due to an increase in the costs of manufacture beyond control of the Seller (e.g. prices of raw materials, electricity, taxes, charges, etc.) affecting the costs of manufacture of the product concerned.
4. The prices may be subject to change with every delivery. Unless stated otherwise, orders shall be invoiced based on the prices applicable on the shipment date.
5. ANTICOR shall bear the costs of delivery in Poland, when the total value of the Products delivered in a single shipment exceeds the minimum logistics threshold.
6. Upon mutual written agreement, a price lower than provided in the price list valid as at the date of conclusion of a contract of sale can be applied. In the absence of any such agreement, the prices stated in the price list shall apply.
7. An invoice issued by the Seller shall be due and payable on the payment date stated therein. When the Buyer is granted open account credit by the Seller, the Seller reserves the right to demand repayment or opening of a letter of credit prior to shipment. Outstanding payments shall bear default interest at the maximum rate permitted by law. The Seller shall have the right to demand some form of security for repayment of the open account debt with respect to every product shipped by the Seller, which security will be released upon receipt of the total amount due. The Seller may submit a copy of this document as a proof of establishing the security. The security shall expire upon payment by the Buyer of the total contractual purchase price. Regardless of the location of the Products, they remain the movable property of the Seller who is free to dispose of them in whole or in part. Prior to granting open account credit and shipping the goods, the Seller shall have the right to demand security in the form of a declaration on submission to enforcement procedure, factoring, pledge, registered pledge or any other form of security that the Seller thinks fit. The Seller shall have the right to make the release of goods conditional upon the Buyer providing appropriate security required by the Seller.
8. Any invoice issued by ANTICOR shall be payable not later than on the payment date specified therein.
9. Placing an order by the Buyer shall serve as the Buyer’s declaration of solvency and ability to pay for the ordered goods. When the Buyer is in default with any payment or when a voluntary or compulsory bankruptcy proceeding is pending against the Buyer, or when the Buyer has made assignment to the creditors without the Seller’s consent, the Buyer is deemed to be in breach of the Contract and the Seller may terminate the Contract; however, such termination does not affect the Buyer’s obligation to pay for the products already delivered and currently in production.
10. When the Buyer has not made any purchases within the last two years, the Seller may request a 100% pre-payment.
11. The Seller may request prepayment in the case of orders concerning imported products or non-standard products made to order.
12. ANTICOR shall have the right to suspend the delivery of goods or services under the contract, when the Buyer is in default with any obligation towards ANTICOR, including, in particular, delay in payment of any amount due under any issued invoice.
13. The setting of mutual claims owing between the Seller and the Buyer without prior written consent of the Seller is hereby excluded.
14. When there is a reason to believe that the Buyer will not be able to pay the amounts due to the Seller, the Seller shall have the right to demand – before releasing the Product and regardless of the agreed payment date – the payment of the whole amount due, by cash or bank transfer, or the provision of a guarantee or security for such payment, and may unilaterally change the payment date.
15. Any complaint [Polish “reklamacja”] lodged by the Seller does not suspend the payment deadline.
1. The Buyer may return the products only upon prior written consent of ANTICOR, subject to the following conditions:
a. Customised products made to order (dedicated products) not included in the Seller’s standard offer as well as special or “unique” products may not be returned, regardless of the quantity;
b. All returned goods must be in their original packaging, intact, without any sign of use, in the condition enabling their resale;
c. All costs of transport of returned goods shall be borne by the Buyer. The risk of loss shall pass on the Seller only after the Seller has acknowledged the receipt of the returned goods.
1. The Buyer shall acknowledge the receipt of the Products and Services, and check their quantity and quality immediately upon receipt.
2. When a forwarding company delivers the Products on behalf of ANTICOR, the Buyer shall check the shipment immediately upon receipt. In the case of any apparent damage to the packaging (pallet, cardboard box) the Seller shall check the shipment for any shortage or signs of damage to the Products during transport. When any shortage or damage is discovered, the Buyer shall, in the presence of the carrier, draw up a report describing the damage/shortage discovered and take the photos documenting the damage/shortage, necessary to determine the carrier’s responsibility (if any). The Buyer shall immediately notify ANTICOR of this fact.
3. When lodging a complaint concerning defects, the Buyer shall ensure that the Seller has access to the Product or Service being the object of the complaint.
4. The Buyer shall notify ANTICOR of their quality or quantity complaints via e-mail sent to firstname.lastname@example.org, within five business days of discovery of a quality defect or shortage. ANTICOR shall respond to every Buyer’s complaint within 14 business days of receipt thereof. A complaint should contain:
a. Purchase document date and number;
b. Bill of landing number;
c. Name or catalogue number of the product being the object of complaint;
d. Product batch number (printed on the box or product).
e. When a quality defect is discovered, the complaint concerning the defect must be accompanied by a copy of the report signed and acknowledged by the carrier delivering the Product concerned. When the complaint pertains to a shortage discovered during acceptance of the Product delivery, it must be accompanied by a copy of the bill of landing with annotation concerning shortage, made in the presence of the carrier.
f. When additional quality assessment of Products is required, including tests and examinations, or when the Buyer has failed to provide all information mentioned above, the complaint response time may be extended to account for the time necessary to carry out the assessment or obtain all the required information or documents.
5. Admitting a complaint as justified:
a. In the case on quantity discrepancies, when the quantity of the Products delivered does not match the quantity ordered / stated in a document of sale (shortage), ANTICOR shall immediately ship the missing Products within seven business days or deliver the missing Products with the next order/shipment (if so agreed by the parties) or issue an adjusting invoice for the Products not delivered;
b. In the case of quantity discrepancies, when the quantity of Products delivered is greater than ordered/invoiced, ANTICOR shall collect the excess from the Buyer within 14 business days of admitting the complaint as justified or (if so agreed by the parties) issue a VAT invoice for the additional Products delivered;
c. In the case of quality defects (including wrong type/category/class), ANTICOR may either replace incorrect Products with the correct ones, free of any defects, within seven business days of admitting the complaint as justified, or accept a return of defective goods from the Buyer and offer the possibility to buy the Products free of any defects, or issue an adjusting invoice.
VIII. WARRANTY AND IMPLIED GUARANTEE
1. All products offered by ANTICOR are subject to warranty [Polish “gwarancja”] as products free of defects in material or workmanship, provided that they have been paid for in full and properly installed, used and maintained. The warranty period shall be 12 months, counting from the date of shipment by ANTICOR. ANTICOR extends no warranty with respect to the products of other manufacturers or products inappropriately stored, transported, used or installed, corroded, or modified. Any defects discovered during the warranty period must be reported to ANTICOR in writing. ANTICOR’s liability shall be limited to replacement of a defective product or, if so decided by ANTICOR, to refund of the purchase price for the product not complying with the contract.
2. No ANTICOR’s representative or attorney-in-fact other than the company’s Management Board is authorised to amend the warranty terms and conditions prescribed herein or to extend any additional warranty, whether expressed or implied. Moreover, no ANTICOR’s representative or attorney-in-fact shall be authorised to make any declarations or representations concerning ANTICOR’s products, which are not subject to limitation of liability contained herein. The obligation to replace the product with a product free of any defects or to refund the purchase price shall constitute total liability of ANTICOR under the warranty.
3. Neither party shall bear responsibility, including civil liability, for any consecutive, indirect, accidental or consequential damage, including liability for loss of usability, loss of profit, loss of goods or interruption of operations. ANTICOR’s liability shall not in any case exceed the value of the sale price.
4. Warranty for products of manufacturers other than ANTICOR may be extended, provided that it is so agreed in a separate document signed by authorised representatives of ANTICOR. Should this be the case, the applicable warranty terms and conditions shall be governed in a separate document.
5. With respect to such warranty, the Seller shall not be liable under any implied guarantee (Polish: “rękojmia za wady”).
1. The Buyer shall independently assess the fitness of the products and services for their intended purpose.
2. ANTICOR shall not be liable for any use of the products in breach of the instructions or for erroneous or improper interpretation of technical information and data provided in catalogues, prospectuses or other printed materials or otherwise communicated to the Buyer.
3. ANTICOR reserves the right to stop manufacturing, withdraw from the offer, change or modify the design and/or structure of the products sold hereunder without incurring any liability to the Buyer.
1. The Buyer shall indemnify and hold ANTICOR harmless from and against any loss, damage, expense, claims and liability (including, but not limited to, fines prescribed by law, cost of legal, technical and other specialist services and consultations) resulting from a damage caused by improper use by the Buyer of any product delivered by ANTICOR hereunder.
2. ANTICOR’s liability for non-performance or inadequate performance of a given Contract of Sale or liability for quality of performance under a given Contract of Sale shall be limited to the price paid thereunder.
3. ANTICOR shall not be liable for any indirect or consecutive damage or any lost profit, where such damage has been incurred by the Buyer in connection with non-performance (inadequate performance) of the Contract of Sale by ANTICOR.
XI. GOVERNING LAW AND COMPETENT COURT
1. These GT&CS shall be governed by and construed in line with the laws of Poland. The Parties hereby agree that these GT&CS shall be governed by and interpreted for the purpose of selling goods hereunder exclusively in accordance with the laws of Poland.
2. Any claims and disputes arising herefrom shall be resolved by common courts competent for the seat of ANTICOR.
XII. FORCE MAJEURE AND HARDSHIP CLAUSE
1. Force Majeure Clause 2003 and Hardship Clause 2003 as published by ICC in Paris, shall apply.
ICC FORCE MAJEURE CLAUSE 2003
a. if and to the extent that the contracting party establishes the requirements set out in paragraph 1 of this Clause; and
b. if and to the extent that the contracting party proves that the same requirements apply to the third party.
4. In the absence of proof to the contrary and unless otherwise agreed in the contract between the parties expressly or impliedly, a party invoking this Clause shall be presumed to have established the conditions described in paragraph 1[a] and [b] of this Clause in case of the occurrence of one or more of the following impediments:
a. war (whether declared or not), armed conflict or the serious threat of same (including but not limited to hostile attack, blockade, military embargo), hostilities, invasion, act of a foreign enemy, extensive military mobilisation;
b. civil war, riot rebellion and revolution, military or usurped power, insurrection, civil commotion or disorder, mob violence, act of civil disobedience;
c. act of terrorism, sabotage or piracy;
d. act of authority whether lawful or unlawful, compliance with any law or governmental order, rule, regulation or direction, curfew restriction, expropriation, compulsory acquisition, seizure of works, requisition, nationalisation;
e. act of God, plague, epidemic, natural disaster such as but not limited to violent storm, cyclone, typhoon, hurricane, tornado, blizzard, earthquake, volcanic activity, landslide, tidal wave, tsunami, flood, damage or destruction by lightning, drought;
f. explosion, fire, destruction of machines, equipment, factories and of any kind of installation, prolonged break-down of transport, telecommunication or electric current;
g. general labour disturbance such as but not limited to boycott, strike and lock-out, go-slow, occupation of factories and premises.
5. A party successfully invoking this Clause is, subject to paragraph 6 below, relieved from its duty to perform its obligations under the contract from the time at which the impediment causes the failure to perform if notice thereof is given without delay or, if notice thereof is not given without delay, from the time at which notice thereof reaches the other party.
6. A party successfully invoking this Clause is, subject to paragraph 6 below, relieved from any liability in damages or any other contractual remedy for breach of contract from the time indicated in paragraph 4.
7. Where the effect of the impediment or event invoked is temporary, the consequences set out under paragraphs 4 and 5 above shall apply only insofar, to the extent that and as long as the impediment or the listed event invoked impedes performance by the party invoking this Clause of its contractual duties. Where this paragraph applies, the party invoking this Clause is under an obligation to notify the other party as soon as the impediment or listed event ceases to impede performance of its contractual duties.
8. A party invoking this Clause is under an obligation to take all reasonable means to limit the effect of the impediment or event invoked upon performance of its contractual duties.
9. Where the duration of the impediment invoked under paragraph 1 of this Clause or of the listed event invoked under paragraph 3 of this Clause has the effect of substantially depriving either or both of the contracting parties of what they were reasonably entitled to expect under the contract, either party has the right to terminate the contract by notification within a reasonable period to the other party.
10. Where paragraph 8 above applies and where either contracting party has, by reason of anything done by another contracting party in the performance of the contract, derived a benefit before the termination of the contract, the party deriving such a benefit shall be under a duty to pay to the other party a sum of money equivalent to the value of such benefit.
ICC HARDSHIP CLAUSE 2003
1. A party to a contract is bound to perform its contractual duties even if events have rendered performance more onerous than could reasonably have been anticipated at the time of the conclusion of the contract.
2. Notwithstanding paragraph 1 of this Clause, where a party to a contract proves that:
a. the continued performance of its contractual duties has become excessively onerous due to an event beyond its reasonable control which it could not reasonably have been expected to have taken into account at the time of the conclusion of the contract; and that
b. it could not reasonably have avoided or overcome the event or its consequences; the parties are bound, within a reasonable time of the invocation of this Clause, to negotiate alternative contractual terms which reasonably allow for the consequences of the event.
3. Where paragraph 2 of this Clause applies, but where alternative contractual terms which reasonably allow for the consequences of the event are not agreed by the other party to the contract as provided in that paragraph, the party invoking this Clause is entitled to termination of the contract.
XIII. APPLICATION OF THE GT&CS TO INTERNATIONAL CONTRACTS
1. In the case of international contracts of sale, the application of the UN Convention on Contracts for the International Sale of Goods of 11 April 1980 is hereby excluded.
2. All contracts are concluded in accordance with the laws of Poland. The parties choose the laws of Poland as applicable law, subject to mandatory provisions.
3. In matters not governed in the contracts of the GT&CS, the relevant provisions of Polish law shall apply.
4. When a product is exported, the Buyer shall, by the 15 day of the month in which the export occurred, furnish the Seller with documents confirming intra-community supply or export of goods outside the EU.
5. Otherwise, The Seller shall issue a debit note to the Buyer in respect of a deposit in the amount equalling the VAT amount due on the Products sold on the basis of the relevant acknowledged order, and the Buyer hereby irrevocably authorises the Seller to do so. The deposit shall be paid by the Buyer within seven days of issue of the debit note. The deposit shall be refunded to the Buyer upon submission of the required documents. The parties agree that the deposit may be applied towards subsequent deliveries.
6. Unless otherwise agreed in a contract, all charges and fees, including bank fees, taxes, customs duties and alike, shall be borne by the Buyer, with the reservation that the Seller shall pay any amounts due in relation to the performance of a given contract in the Republic of Poland, which are required by law to be paid in the Seller’s country.
7. All declarations and other documents shall be drawn up in the contract language specified in the written contract or – the absence of the contract language – in Polish or English. In the event of any inconsistency between the language versions, the Polish language version shall prevail.
1. Assignment. Neither party shall have the right to assign their rights and obligations hereunder without prior written consent of the other party, which consent shall not be unreasonably withheld. ANTICOR may assign their rights or obligations hereunder without such consent upon any ANTICOR’s related party or assignee of the major part of the ANTICOR’s assets where the product is manufactured. As stated in the preceding sentence, this contract applies to and is binding in every respect and inures to the benefit of the parties’ respective legal successors and permitted assigns.
2. An assignment of receivables due to ANTICOR from the Buyer shall not require the Buyer’s consent. The above shall also apply to ANTICOR’s right to conclude a factoring agreement with respect any part of or all receivables due from the Buyer.
3. During the contract term, neither party shall disclose to any third party any information received from the other party, concerning the contract or the contract performance, or any other confidential information exchanged between the parties. The above shall not apply when a party is under legal obligation to disclose such information to competent state authorities. In the event of any unlawful disclosure of the information constituting ANTICOR’s business secret, ANTICOR shall be entitled to liquidated damages in the amount of PLN 50,000 per disclosure, which shall not preclude ANTICOR from seeking supplementary compensation subject to generally applicable laws.
4. The Buyer hereby consents to the processing of their personal data by ANTICOR in connection with the sale of products offered by ANTICOR and for marketing purposes related to ANTICOR’s business. The Buyer shall be vested with all rights under the Personal Data Protection Act.
5. Inconsistency. In the event of any inconsistency between any written contract or other documents and these GT&CS, these GT&CS shall prevail.
6. Validity. Should any provision (or part of it) contained herein be found invalid or unenforceable, this shall not affect any other provisions of these GT&CS.