General sales conditions concerning clients in poland and outside poland

GENERAL SALES CONDITIONS CONCERNING CLIENTS IN POLAND AND OUTSIDE POLAND (hereinafter referred to as: the „GSC”)

1. GENERAL PROVISIONS

1. The following sales conditions apply to all sales agreements concluded by company Fortador K.A. Traczyńscy Spółka jawna z siedzibą w Sękocinie Starym (address: Al. Krakowska 108, 05-090 Sękocin Stary), entered into the register of entrepreneurs of the National Court Register maintained by the District Court in Warsaw, XIV Commercial Division KRS, under KRS No.: 0000405994, NIP No.: 5222993464, REGON No.: 145946377 (hereinafter referred to as: the „Seller”).

2. The GSC shall constitute an integral part of each sales agreement. The GSC shall constitute the only source of the claims of either party. The sales agreement may contain additional or different provisions from those specified in the GSC. Any changes and corrections to these GSC require consent of the Seller in writing or by email under the pain of nullity. If additional or different provisions are introduced to the sales agreement, the GSC shall apply in so far as the provisions introduced to the contract provide otherwise, in particular in the case of discrepancies or differences between these GSC and the specific conditions provided in other Seller’s documents addressed to the Buyer (Order Confirmation and Invoice), the GSC shall prevail.

3. Placing an order by the Buyer – in the manner as provided for herein these GSC – shall also constitute a statement of the Buyer that he has read these GSC and accepts them. The Buyer is obliged to comply with the GSC when concluding transaction with the Seller, unless the Buyer provides written refusal to the Seller before concluding the transaction. In such case, the Seller reserves the right to refuse conclusion of the transaction, if the Buyer does not accept the terms of the GCS.

4. References to these GSC shall be indicated on each invoice issued by the Seller, in particular the Seller indicates the applicable GSC in the invoice which applies to the sales agreement to which the invoice relates.

5. The provisions of these GSC shall not apply if the Buyer is a natural person who purchases goods for a purpose not related to his business or professional activity.

6. GSC are published by the Seller to the Buyer on the website: www.fortador.com. If the Buyer remains in permanent commercial relations with the Seller, acceptance of GSC thereby for one order shall be deemed as their acceptance for all other orders or sales agreements.

7. Any offers, advertisements and other announcements regarding goods offered by the Seller are there for convenience only.

2. PLACING AND CONFIRMING ORDERS

1. Orders shall be placed in writing or via
e-mail sent to the Seller's address: "info@fortador.com" and they are registered in the Seller’s computer system.

2. The order placed by the Buyer shall contain:

full name of the Buyer and NIP No. (in the case of an entity from outside Poland having its registered office in another EU country: EU VAT No. – VIES), address of the Buyer – details required for the VAT invoice, the subject of the order (name and catalogue No. of the product), the number of pieces of the product with individual catalogue No., net and gross price, place of delivery, deadline for completion of the order, payment terms, potential additional comments and the signature of the person authorized to place the order, as well as the Seller's offer No., if the Buyer has received such an offer. The Buyer shall also indicate the e-mail address for correspondence. All notifications made to the Buyer's correspondence address (e-mail) shall be effective.

3. Similarly, the requirements for technical and quality parameters, attestations and certificates shall be specified by the Buyer in the request for proposal or the order, if it is placed.

4. If the data in the Order do not correspond with the current offer of the Seller, price list, terms of delivery of goods, delivery deadlines, etc. – the Seller send in writing or by e-mail "Order Confirmation" containing modified accordingly the order details. After accepting such modifications of the Order by the Buyer, the new Order shall become the basis for delivery of the goods specified in it.

5. The Order shall become binding only after confirmation by the Seller, sent in writing or by e-mail (Order Confirmation); by agreement of the parties, a message received via electronic mail is considered as evidence of a commercial transaction between the entrepreneurs. Article 66¹ § 1 of the Act of 23 April 1964 – (Polish) Civil Code shall not apply to sales agreement concluded under these GSC.

6. The lack of acceptance and confirmation by the Seller of the order shall not constitute the implied consent of the Seller to the conclusion of the agreement and shall not constitute a breach of the provisions of other sales agreements concluded between the Seller and the Buyer.

7. All information other than included in the offer addressed to the Buyer or in the Order Confirmation, in particular prices, availability of the assortment and delivery deadlines, are there for convenience only and shall not constitute an offer within the meaning of the Act of 23 April 1964 – (Polish) Civil Code.

8. If the Seller makes an offer to the Buyer to sell the goods, it shall be accepted by the Buyer within the time specified in the offer to be binding on the Seller.

9. The orders shall be placed by the persons authorized to do so (indicated in the relevant register or having the relevant power of attorney / authorization).

10. By placing an order, the Buyer agrees each time to the acceptance of the GSC.

11. In the case of clients from outside of Poland or orders for special types of goods, the Seller may request payment of a specific amount of money equal to percentage of the order, which shall be paid by the Buyer prior to the execution of the order. This amount shall constitute a down-payment within the meaning of the Article 394 of the Act of 23 April 1964 – (Polish) Civil Code. In the case of the performance of the agreement, the down-payment shall go towards due remuneration for completed order by the Seller. In the case of the Buyer's resignation from the Order or the Buyer's failure to perform the agreement, the Seller may keep the down-payment. The right of the Seller to demand a double amount of down-payment, in the case of non-performance by the Seller, is excluded.

12. In the event of an obstacle difficult to remove due to the Force Majeure after making the Order Confirmation, the Seller may, without liability, partially or completely cancel or suspend the performance of his obligation. Force Majeure shall mean any event which could not have been foreseen despite exercising due diligence.

13. The Seller reserves the right to make changes to its goods without notice to the Buyer, including the goods being the subject of the order, in particular the Seller reserves the right to make changes in the design of manufactured goods (devices, machines, elements and components), as well as other justified changes, in particular justified by technological progress, which not reduce the quality of the goods ordered by the Buyer.

14. In the case of the Buyer’s request for quality examination of the goods, the examination shall take place only at the Seller's headquarters before the goods are released. Examination’s costs shall be borne by the Buyer. If the quality of the goods is questioned by the Buyer as a result of examination, an expert shall be appointed. Expert’s costs shall be borne by the party whose claims will not be upheld by the expert. The expert is indicated by the Seller.

15. In the case of the Buyer’s request for a quality examination that goes beyond the data contained in the standard certificate, the examination shall take place only at the Seller's headquarters at the expense of the Buyer.

3. DELIVERY AND TRANSPORT

1. The Seller delivers the indicated goods on its own, through carriers or the Buyer receives the goods directly from the Seller – as agreed individually by the Parties.

2. In the case of international transaction, the method of delivery, including the time when the risk passes to the Buyer, shall be specified in the Order Confirmation, in the electronic correspondence or in the agreement concluded between the parties, on the terms of Incoterms 2010.

3. Both in the case of deliveries within and outside Poland, each time the costs of delivery are added to the final price and specified in the Order Confirmation and invoice. The Buyer shall bear all costs related to transport, delivery and its organization.

4. In the case of domestic transactions, upon delivery of the goods to the carrier or to the Buyer, all risks related to the goods, including those resulting from Force Majeure, shall pass to the Buyer.

5. If the Buyer collects the goods with his own means of transport, the transfer to the Buyer of the benefits and burdens associated with the goods and the risk of accidental loss or damage of the goods shall occur upon the release of the goods from the Seller's warehouse.

6. Upon receipt of the goods, the Buyer is obligated to check and confirm by signing that the goods comply with the order in terms of quantity and quality in the presence of the driver. Any discrepancies shall be recorded. Upon receipt of the goods, the Buyer is obliged to check the quality, quantity, condition and weight of the goods, as well as their compliance with the transport documents, raise any objections and lodge a complaint to the carrier, and if necessary to take appropriate legal actions against the carrier within the period prescribed by the law. In addition, the Buyer shall immediately notify the Seller of any such claims and discrepancies.

7. The person collecting the goods on behalf of the Buyer is supposed to be adequately authorized to perform this activity. The Buyer is obliged each time to authorize its representative collecting the goods both to collect the goods and to raise any objections in this respect.

8. Receipt of the goods without objections shall be deemed as correct delivery by the Seller and the carrier.

9. Time limits for delivery is counted from the date of the Order Confirmation. Delivery deadlines of the ordered goods are specified in the Order Confirmation or Invoice.

10. Delivery deadline shall be deemed satisfied by the Seller if the goods left the warehouse before the expiry of the deadline agreed by the parties or the Buyer has been notified that the goods are ready for collection before the agreed delivery deadline. If the shipment or collection has been delayed for reasons attributable to the Buyer, then sending the notification that the goods are ready for dispatch or collect, made before the expiry of the deadline agreed by the parties, is considered as meeting delivery deadline.

11. The Seller shall not be liable for non-delivery of the goods on the date indicated in the Order Confirmation, if there is not as a result of gross negligence of the Seller or Force Majeure –considered as circumstances beyond the Seller's control, i.e. particularly in the case of: a strike, obstacles in transport (e.g. border stoppages, problems at airport terminals), delayed, defective or incomplete supplies of materials ordered from suppliers or contractors liable for the goods, interruptions in the supply of electricity or similar difficulties at the Seller’s or suppliers’ / contractors’ side and the like.

12. Delay in delivery no longer than 21 days shall not be considered as violation of delivery deadline entitling to withdraw from the agreement or claim for damages.

13. If the delivery deadline is exceeded by more than 60 days, both parties to the transaction have the right to withdraw from the agreement. The Buyer exercising the right of withdrawal shall have no right to claim for any damages, if the reason for the delay was one of the circumstances specified in § 3 of the GSC. If the agreement provided for the release of the goods in parts, any withdrawal from the agreement shall apply only to the delayed part of the performance, and not to the part hereof provided at a later date.

14. Regardless of the above, the Seller is not liable for contractual penalties payable to the Buyer’s contractors or for other claims raised by Buyer’s contractors against him due to the delay in delivery of the goods by the Seller.

4. PRICES AND TERMS OF PAYMENT

1. The price for ordered goods and payment deadlines are specified in the Order Confirmation or in the agreement concluded between the Seller and the Buyer.

2. All prices are shown net exclusive VAT which shall be calculated at the binding rate.

3. In the case of international deliveries (ICS and Export) all prices shall be considered as net prices, that do not include any amounts and taxes due by the Buyer in the country of destination.

4. The Buyer having registered office in Member State of the EU declares that it is a VAT payer and hereby authorizes the Seller to issue Vat invoice without the Buyer’s signature.

5. The Buyer having registered office in Member State of the EU without an EU VAT identification number shall receive a VAT invoice with input VAT in the amount at the currently applicable VAT rate in the supplier's country, i.e. in Poland.

6. If no VAT is charged for the supply of the Buyer in a Member State of the European Union, the Buyer shall immediately, upon the Seller's request, provide relevant documents that are required by the Seller in accordance with national laws or regulations of the European Union, in particular regarding VAT, to provide the tax authorities with a certificate on tax exemption. This provision shall apply, in particular to documents confirming the introduction of goods into another Member State of the European Union, tax identification No. or personal tax exemption of the Buyer.

7. The prices indicated in the Seller's general offer of goods and services are non-binding and they are subject to changes. The prices may or do not reflect current changes in the prices of goods that arise because of change in the prices of basic commodities and raw materials, as well as currency fluctuations, unless the parties agree otherwise. For the purposes of calculating the final purchase price, only the data contained in the documents issued by the Seller, in particular the Offer submitted by the Seller, the Order Confirmation and the invoice issued by the Seller, are authoritative. In the case of any discrepancies, the price indicated in the invoice issued by the Seller shall be binding.

8. The price does not include additional costs related to the sale or delivery of the goods, including costs resulting from the Buyer's special wishes as to the mode of transport (e.g. express shipment, airmail, etc.). The Buyer is obliged to organize the receipt of goods, including unpacking, preparation appropriate equipment (cranes in the case of the largest goods i.e. machinery) and competent human resources necessary to enable the Buyer to assemble the goods. These costs shall be borne in full by the Buyer, unless the parties agree otherwise in writing.

9. The payment deadline shall be indicated in the invoice issued by the Seller.

10. Payment shall be made by bank transfer into the following bank account of the Seller PL52 1020 1013 0000 0102 0359 3928 (EUR) or PL34 1020 1013 0000 0602 0359 3910 (USD). The date of payment shall be the date on which the Seller’s bank account has been credited.

11. The Seller reserves the right to have from the Buyer any payment guarantees as it deems appropriate, and the Buyer is obliged to provide the Seller with such guarantees under the pain of not completing the transaction.

12. There are no discounts without the prior consent of the Seller in writing or electronically.

13. The Buyer is not entitled to offset their mutual debts, unless these debts have been awarded by final and legally valid court decision.

14. The Seller shall have the right to refrain from performance of the agreement or withdraw from the contract after being informed about:

a) bad financial situation of the Buyer;

b) accession by the Buyer to wind-up its company or a substantial part thereof;

c) threat of the Buyer’s insolvency;

d) lodging an application for bankruptcy or restructuring proceeding;

e) establishing a compulsory management of the Buyer's company;

f) submitting an application for removal from the relevant register of business entities or in the case of organizational units and partnerships: adopting a resolution on dissolution of the entity.

15. The parties may agree other terms of payment and delivery of goods than those arising from these GSC.

16. In the absence of specific instructions, invoices for the goods shall be issued to the Buyer. All costs incurred by the Seller as a result of this, including loss of profit, may be reinvoiced to the Buyer.

17. The Buyer may transfer its receivables against the Seller to the other entities subject to obtaining written consent of the Seller under the pain of nullity.

5. NO PAYMENT

1. In the case of payment for the goods before delivery the Seller shall be entitled to refrain from the execution of the contract until the settlement of the amounts due by the Purchaser. In such a case, the Seller's failure to perform its obligations shall not constitute a failure by the Seller to perform the agreement, in particular, it shall not result in any liability for damages incurred by the Seller, nor shall it entitles the Buyer to withdraw from the contract. Until the date of the Buyer’s settlement of the amounts due to the Seller, the deadlines for the performance of the agreement on the Seller’s side are suspended.

2. Until the payment of the price indicated in the order or the invoice, the Seller reserves (in the invoice, offer or Order Confirmation) that the goods remain the property of the Seller –  ownership title reservation.  Similarly, in the case of a sale with deferred payment, the Seller reserves that the goods remain the property of the Seller until the date of the Buyer’s settlement of all amounts due to the Seller, including incidental dues. In this case, the benefits and burdens associated with the goods and the danger of accidental loss or damage of the goods shall be borne by the Buyer from the moment resulting from the method of delivery, i.e. in accordance with § 3 of the GSC.

3. Until the ownership of the goods was not transferred to the Buyer, it may not dispose of the subject of sale agreement (goods) and allow any third parties to use it under any agreement. Without the written consent of the Seller is not allowed to establish the pledge on the goods or any agreements on the transfer of ownership thereof for security.

4. Until ownership of the goods was not transferred to the Purchaser, the Purchaser is obliged to keep goods in good condition and in the case of defect (failure) immediately make service requests in order to make the necessary repairs.

5. If the law of the country in which the subject of sale is located does not provide reservation of ownership, but provides to exercise other rights by the Seller in relation to the subject of sale, the Seller may exercise them. The Buyer is obliged to undertake at its own expense all necessary actions to maintain or accomplish of reservation of ownership or other rights mentioned above.

6. If the Buyer is in arrears with the payment of any debts arising out of other agreements between the Seller and the Buyer, until the date of the Buyer’s settlement of all amounts due to the Seller, the Seller may refrain from performing part or all of the agreement, without falling into delay or default.

7. In the case of delay or non-payment by the Buyer, the Seller may claim – among other rights provided by law and these GSC – payment of statutory interest for default on each payment or other additional costs related to the performance of the order.

6. UNCOLLECTED DELIVERIES

1. The Buyer is not authorized to refuse to accept of the goods due to minor, insignificant defects. A defect which prevents the use of the product for its intended purpose is deemed as significant defect.

2. If the Buyer fails to collect the goods or refuses to accept them within the specified period of time, the Seller shall have the right to place the goods in the warehouse at the Buyer's expense and risk and to demand reimbursement for transportation costs from the Buyer.

3. In the case of placing the goods in the Seller's warehouse due to the absence of the receipt of goods or refusal thereof within specified period of time, the Buyer is obliged to pay the Seller a remuneration (fee for storing goods) in the amount of PLN 200.00 (in words: two hundred 00/100) net for each day of storage.

4. If the delay in collecting the goods from the Seller's warehouse exceeds the period of 14 (in words: fourteen) days from the date the goods have been placed at the Buyer's disposal (readiness for collection / delivery) or if the Buyer refuses to accept the goods of the Seller, the Seller shall have the right to withdraw from the agreement or sell the goods at the expense and risk of the Buyer.

5. The Seller, in the cases provided for in this section (paragraph), shall have the right to retain in full the down payment towards fulfillment of an order.

7. RETURN OF THE GOODS

1. The Buyer is not entitled to withdraw from the contract, including the return of goods, except as provided in these GSC. The Buyer may return the purchased goods upon explicit written consent of the Seller and according to individual agreements of the Buyer and the Seller, whereby all costs and risk of returning the goods shall be borne by the Buyer.

2. In the case described above, the goods may be accepted by the Seller by way of return procedure, if the following conditions are cumulatively met:

a) the goods shall be delivered by the Buyer at the Buyer's expense and risk not later than 14 (in words: fourteen) days from the documented date of its delivery;

b) the returned goods have not been used by the Buyer or a Third Party and shall be delivered to the Seller by the Buyer in the state in which the goods were originally released / collected or delivered to the Buyer with all elements delivered to it;

c) all elements with which the goods have been delivered shall not have any signs of usage or damage;

d) the returned goods shall be accompanied by the original documents with which the goods have been delivered to the Buyer;

e) the goods or its components have not been the subject of the Buyer's special order (unusual order).

8. WARRANTIES AGAINST DEFECTS

1. The Seller grants a warranty on the goods sold, on the terms set out in detail in the Warranty Card.

2. The Seller's liability under the statutory warranty for physical and legal defects of the sold goods is completely excluded. Thus, rights and time limits arising from the statutory warranty, in particular right to withdraw from the contract and request replacement of the goods with a new one are excluded.

3. The Buyer is entitled only to claims arising from the Warranty Card.

4. Any liability of the Seller other than that expressly provided for in the Agreement, GSC and warranty card is excluded, in particular the Seller shall not be liable for any damages or losses of the Buyer caused or related to the purchased goods. Thus, the Seller is not liable for the missed benefits and profits of the Buyer related to the goods, its defect or any other service of the Seller.

5. The rules for submitting and considering claims under the warranty are set out in the "Warranty Card”, available on the Seller's website.

9. FINAL PROVISIONS

1. Orders placed with the Seller shall be governed by the Polish law (in particular, the provisions of Act of 23 April 1964 – (Polish) Civil Code) and shall be interpreted in accordance with these provisions, unless GSC provides otherwise; the United Nations Convention of 11 April 1980 on Contracts for the International Sale of Goods shall not apply to the GSC and orders placed with the Seller.

2. The Seller hereby reserves the right to amend these GSC at any time, whereby to agreements already concluded the previous GSC provisions shall apply.

3. In accordance with Article 13 of Regulation (EU) No 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation) the Seller informs that:

1) Fortador K.A. Traczyńscy Spółka jawna z siedzibą w Sękocinie Starym (address: Al. Krakowska 108, Sękocin Stary 05‑090) is controler of personal data;

2) contact details to Data Protection Officer: info@fortador.com.

3) your personal data is processed in order to perform agreement with the Buyer – according to Article 6(1)(b) of the General Data Protection Regulation of 27 April 2016;

4) recipients of your personal data shall be entities and persons participating in the preparation for performance as well as the performance and settlement of the agreement;

5) your personal data shall be kept for a period of 6 years after the end of cooperation;

6) you have the right to request from the Controller access to and rectification or restriction of processing concerning the personal data;

7) after the entry into force General Data Protection Regulation of 27 April 2016 you have the right to lodge a complaint with a supervisory authority, i.e. Personal Data Protection Office;

8) provision of personal data is voluntary, however, refusal to provide data may result in a refusal to conclude an agreement with the Buyer (i.e. providing data is a condition of concluding an agreement with the Buyer).

4. The Seller exercise due diligence to proceed all personal data with the purpose for which they have been collected and used in accordance with the scope of consents granted and processing areas allowed by law.

5. The parties shall endeavour to amicably settle any potential disputes arising from or related to the sale and/or interpretation of these GSC.

6. If any provision of GSC is recognized as invalid or ineffective only and exclusively by final and legally valid court decision or as a result of future legislative or administrative actions of Polish authorities, the other provisions of GSC shall remain valid and effective.

7. Unless otherwise agreed by the parties, the place of performance of the agreement shall be the registered office of the Seller.

8. Any disputes arising from these GSC or by agreement shall be within the exclusive jurisdiction of Polish courts. If no amicable resolution of a given dispute is reached, any disputes shall be settled by the court competent for the Buyer.

9. If the Buyer is an entity from outside Poland, in the case of doubts as to the interpretation, the Polish version of GSC shall prevail.

10. These GCS shall apply to sales agreements concluded from 16.10.2019.