§1 GENERAL PROVISIONS
1. The General Terms and Conditions of the Agreement is a standard agreement regulating the rights and obligations of the Parties in relation to the agreement to be executed between the Supplier and the Ordering Party, as regards the Supplier’s obligation to manufacture and supply the Ordering Party with a specific type of POS products.
It shall apply to the agreements if prior to the execution thereof the General Terms and Conditions of the Agreement have been delivered to the Ordering Party and as far as the individual agreement so provides.
2. The provisions of Section 1 shall not exclude the Parties’ right to formulate different contents of agreements as regards the subject matter specified in the General Terms and Conditions of the Agreement.
3. In the case of any discrepancies between the provisions of individual agreements executed between the Parties and the General Terms and Conditions of the Agreement, the provisions of individual agreements shall prevail.
4. The Parties undertake mutually to cooperate in good faith in the execution and performance of each agreement with the use of the General Terms and Conditions of the Agreement, in a manner fully respecting the legitimate rights and interests of the other Party.
In particular, the Parties undertake to respect the principles of loyalty, including by immediately informing each other about any difficulties in the performance of concluded agreements.
§2 DEFINITIONS
The expressions used in the General Terms and Conditions of the Agreement shall have the following meanings :
1. Supplier - EXACTO HOLDING spółka z ograniczoną odpowiedzialnością with its registered office in Warsaw, ul. Jasnodworska 3B/271, 01-745 Warsaw, entered in the Register of Entrepreneurs of the National Court Register at the District Court for the Capital City of Warsaw in Warsaw, 12th Commercial Division of the National Court Register under number KRS 0000623940, NIP 5222980786, having the share capital of PLN 250,000.00,
2. Business Day - each day excluding Saturdays and public holidays in the meaning of the Act of 18 January 1951 on Public Holidays (i.e. Journal of Laws 2015, item 90, as amended),
3. Offer - a document named “Order” prepared by the Supplier and delivered to the Ordering Party, which constitutes an offer in the meaning of Article 66 § 1 of the Act of 23 April 1964 - Civil Code (i.e. Journal of Laws 2019, item 1145, as amended),
4. GTCA - the General Terms and Conditions of the Agreement, that is this document,
5. Products - specialized POS (point of sale materials) for the automotive industry supporting the Ordering Party’s sales, as indicated in the Offer,
6. Parties - the Ordering Party and the Supplier jointly,
7. Ordering Party - an entity named in the Offer as the Purchaser/Receiver,
8. Order - an individual agreement concluded between the Ordering Party and the Supplier, under which the Supplier will manufacture and supply the Ordering Party with the Products, within the time-limit and at the price indicated in the Offer, and the Ordering Party will collect the Products and pay the agreed price to the Supplier.
§3 OFFER. ORDER
1. The basis for the execution of the Order shall be the Offer.
2. The content of the Offer shall include essential provisions of the Order, in particular a list and specification of the ordered Products, the amount and price thereof, and the information whether the Products are ordered to be collected personally by the Ordering Party, or whether they should be delivered to the Ordering Party to the delivery address indicated in the Offer.
3. At least a document-like form is required for the execution of the Order (e.g.: e-mail or through DMS internal system). Execution of many Orders between the Parties shall be allowed.
4. The Offers may be placed in particular by e-mail sent to the Ordering Party’s e-mail address. The acceptance of the Offer shall take place in the same manner in which it was placed, by sending an e -mail to the address from which the Offer was sent, or through DMS internal system.
5. The Offer shall remain valid for 14 (fourteen) days following its delivery to the Ordering Party. Within the term of the Offer’s validity the Supplier shall await the Ordering Party’s answer notifying about acceptance or rejection of the Offer.
6. Subject to the provisions of Section 8, the Order shall be executed at the moment when the Offer is accepted by the Ordering Party without any reservations . A tacit acceptance of the Offer shall not be allowed. Immediately after the conclusion of the Order, the Supplier shall issue a pro forma invoice for the Ordering Party, which shall be the basis for payment of the advance referred to in §5 Section 1.
7. In the case of any Ordering Party’s reservations regarding the received Offer, the conclusion of the Order shall take place upon acceptance and confirmation by the Parties of all terms and conditions of the Offer. The provisions of the last sentence of Section 6 shall apply mutatis mutandis.
8. In the case of:
(i) lack of payment of the advance referred to in §5 Section 1 within the time-limit indicated therein, and if the Offer stipulates supply of personalised Products, also in the case of:
(ii) lack of Ordering Party’s acceptance for the graphic design of the Products in accordance with Section 10, the Order shall be terminated with no need for either Party to take any additional actions, including no need to make a declaration of will (conditions subsequent).
9. In the case of occurrence of any of the conditions set out in Section 8, the Order shall expire without Supplier’s obligation to call upon the Ordering Party to perform its obligations within additionally indicated time-limit. If the Order expires as a result of meeting the condition of lack of the Ordering Party’s acceptance of the graphic design of the Products (Section 8 (ii)), the Supplier shall be obliged to immediately return the received advance payment to the Ordering Party, less EUR 150 (one houndred and fifty) net as flat-rate costs incurred in connection with the commencement of the performance of the Order. The above provision shall not exclude the Supplier’s right to seek compensation under general rules when the loss suffered exceeds the amount of the retained flat-rate costs incurred in connection with the commencement of the performance of the Order.
The expiry of the Order in the manner specified in the first sentence shall exhaust all claims and rights of the Ordering Party under the Order.
10. When the Offers provides for supply of personalised Products, within 5 (five) Business Days of Supplier’s receipt of the advance payment referred to in §5 Section 1, the Supplier shall be obliged to present the graphic design of the Product for the Ordering Party’s approval.
The Ordering Party shall notify the Supplier within 7 (seven) days following the date of delivery of the graphic design of the Products, about the following:
(i) acceptance of the design of the Products, or
(ii) non-acceptance of the design of the Products, or
(iii) about making the acceptance of the design of the Products dependent on the performance of indicated corrections. In the lack of the notification referred to in (i) or (iii) above within the time-limit indicated therein, or in the case of notifying the Supplier about non-acceptance of the design of the Products (ii), the Supplier shall have the right to withdraw from the Order, in whole or in part, within the next month.
The provisions of Sections 4 and 9 shall apply mutatis mutandis.
11. In the case of the Ordering Party’s reservations regarding the received graphic design of the Products (Section 10 (iii)), the Parties shall take joint actions in order to unanimously agree upon a graphic design of the Products. If within 14 (fourteen) days of the expiry of the time-limit specified in the second sentence of Section 10 the Ordering Party does not accept the graphic design of the Products, the Supplier shall have the right to withdraw from the Order in question, in whole or in part, within the next month. The provisions of Sections 4 and 9 shall apply mutatis mutandis.
12. The Ordering Party acknowledges that the graphic designs of the Products presented to the Ordering Party in accordance with Section 10 are only a computer simulation and are of an indicative nature, especially in relation to the shades of colours used. The products prepared based on such designs may demonstrate differences resulting also from materials used. It may happen that designs displayed on the screen will not truly depict the Products because of the characteristics of the screen and the bitmap. Therefore, there may be some differences between the presented graphic design of the Product and the Product, which will not be a basis for formulation of any claims based on the provisions regulating Supplier’s liability for warranty for defects of a thing.
13. After acceptance of the Offer, the Ordering Party will not be entitled to withdraw from the Order, even if the Supplier exercises the rights referred to in Section 10 or Section 11.
If the Supplier exercises such rights, the Parties shall remain bound by the Order in the remaining part.
§4 TIME-LIMIT FOR COMPLETION AND SUPPLY OF ORDERS
1. The time-limit for completion of the Order shall be:
a) in the case where the Offer applies to personalised Products - one month from the date of the Ordering Party ’s acceptance of the graphic designs of the Products,
b) in the case where the Offer does not apply to personalised Products - one month from the date of payment of the advance referred to in §5 Section 1.
2. Within the time-limit for completion of the Order as indicated therein, the Supplier shall be obliged to:
a) when the Offer stipulates that the Order is to be personally collected - manufacture the Products and make them available for collection by the Ordering Party at the Supplier’s registered office, or in any other place of supply indicated in the Offer,
b) when the Order is to be delivered to the Ordering Party to the delivery address indicated in the Offer - manufacture and post a shipment containing the Order to the delivery address indicated in the Offer. The shipment may be delivered to the Ordering Party within up to 5 (five) Business Days of its posting.
3. The Supplier is obliged to complete the Order based on Incoterms 2020 DAP, and if the Offer stipulates that the Ordering Party will personally collect the Order
- based on Incoterms 2020 EXW.
4. The cost of the Order’s supply shall be specified in the Offer.
5. When the Order is to be supplied to the Ordering Party to the delivery address indicated in the Offer, the Order shall be supplied in one shipment, unless the Supplier decides otherwise. The Supplier may supply the Products before the time of their supply, in which case no separate notification is required. In such case the Ordering Party shall be obliged to collect them at the moment of supply of the Products.
Regardless of the manner of supply resulting from the Offer, when the Order contains Products with different supply times, the supply time of the Product with the latest supply time shall be appropriate for the indication of the supply time for the entire Order.
6. In cases of Force Majeure beyond the Supplier’s control, such as restrictions related to the epidemic situation, border blockades, road blockades, floods, hurricanes, snowstorms, etc., the supply time for the Order may be extended accordingly, with no negative consequences related to Supplier ’s failure to complete the Order within a due time-limit.
7. The risk of loss or damage of the Products passes on the Ordering Party as of the moment of receipt of the Order.
8. The Ordering Party is obliged to collect the Products.
9. In the case when the Order is to be supplied to the Ordering Party to the delivery address indicated in the Offer and when the Ordering Party does not collect the Order from such place, the Order shall be returned to the sender’s address at the Ordering Party’s cost and risk.
If the Order is returned to the Supplier for the reasons indicated above, the Ordering Party shall pay the Supplier the liquidated damages due to flat -rate costs of the Order’s storage, in the amount of EUR 1 (one) net per each kilogram of the Order’s mass per each commenced day of storage, which shall not exclude the Supplier’s right to seek compensation exceeding the amount of the reserved liquidated damages under general rules.
The Supplier enables re-supply of the returned Order, if the Ordering Party has paid the liquidated damages referred to in this Section, and has paid in advance the costs of the Order’s re-supply to the address indicated by the Ordering Party.
10. The provisions of the second and the third sentence of Section 9 shall apply mutatis mutandis when the Ordering Party does not collect the Order on a due date, if the Offer stipulates that the Order should be personally collected.
§5 PAYMENTS
1. The Ordering Party shall be obliged to pay the Supplier within 14 (fourteen) days following the Order execution date, an advance for remuneration due to Order’s completion, in the amount of 100% (one hundred per cent) of the Order’s gross value along with the costs of delivery, on the basis of a pro forma invoice.
2. Supplier’s remuneration shall be paid by bank transfer to the Supplier’s bank account indicated in the invoice. The day on which the amount is credited to the Ordering Party’s bank account shall be the remuneration payment date.
3. Invoices related to the Orders shall be issued in electronic form and sent to the Ordering Party to the e-mail address indicated in the Order, provided that the Ordering Party has declared that it accepts the indicated manner of sending invoices and adjustments thereof by electronic means, in the form of PDF files
§6 COMPLAINTS
1. The Ordering Party shall verify the compliance of the Products supplied by the Supplier with the Order, including assessment of their technical condition, within 3 (three) Business Days following the Order’s supply date.
Lack of reservations regarding the object of the Order lodged within the above-indicated time-limit means correct completion of the Order by the Supplier.
Reservations related to the compliance of the Products with the Order, or the technical condition of the Product should be sent to the following e-mail address: csp@cspautomotive.com
2. The provisions of Section 1 shall not exclude the Ordering Party’s obligation to check the package containing the Order in the presence of the supplying entity (courier) and drawn up a shipping damage report if the shipment arrives to the Ordering Party with visible damage, or if, after unpacking, it turns out that the Products are damaged.
3. The Ordering Party must provide all defects of the Proudct along with their description and clear photographs, to the Supplier’s e-mail address: csp@cspautomotive.com within 7 (seven) days after the date of disclosure thereof, with the provision that the Supplier is liable for defects of the Products disclosed during a year after supply thereof.
In the case of a non-complete complaint notification, the Supplier shall have the right to request the Ordering Party to provide additional information , explanations and photographs of defects found in the Products, otherwise the claims will be rejected.
4. The notification shall be examined by the Supplier within 14 (fourteen) days of its receipt, provided that if the need arises to deliver damaged Products to the Supplier in order to analyze them in detail, the time-limit for Supplier’s examination of the complaint will start on the day of supply of the damaged Products to the Supplier.
The cost of supply of damaged Products to the Supplier shall be borne by the Ordering Party notifying the complaint.
5. If the reservations are recognized by the Supplier, the Supplier shall be obliged to remove the disclosed defects of the Products, with the provision that if bringing the Products into conformity with the Order is impossible or would require excessive costs or could be problematic for both Parties, the Supplier may replace the damaged Products with new ones.
The manner of bringing the Products into conformity with the Order shall be specified by the Supplier, taking into consideration in the first place the best interest and advantages of the Ordering Party making the notification.
6. The time-limit for removal of the disclosed defects of the Products or replacement thereof into new ones is one month from the recognition of the notified reservations, unless, due to the nature of defects found, more time is required for removal of defects or replacement of the Products with new ones. In such case the Supplier shall, within up to 14 (fourteen) days following the recognition of notified reservations, indicate in consensus with the Ordering Party a new, appropriately extended time-limit to satisfy the Supplier’s obligations.
If re-shipment of the Products to the place of Orders’s supply is needed in order to remove defects of the Products or to replace the Products with new ones, the date of posting a parcel containing repaired or new Products shall be regarded as the date of performance of the Supplier ’s obligations within the time-limit specified in the first sentence.
7. The entire cost of supply of the Products delivered to the Ordering Party within the scope of the complaints approved by the Supplier shall be borne by the Supplier. In such case, the Supplier shall reimburse the Ordering Party for the costs of supply incurred by the Ordering Party, as referred to in the last sentence of Section 4.
8. The Ordering Party reporting defects may not request the Supplier to reduce the price of the Order, or withdraw from the Order, for reasons resulting from the reported defects.
9. The provisions of Sections 1 - 8 exhaust in whole the Ordering Party’s claims for warranty for defects of the Products covered by the Order under general rules.
10. In the case of non-recognition of the complaint, is the faulty Products had been supplied to the Supplier, the Ordering Party shall be obliged to collect them within 14 (fourteen) days following the day of notice about non-recognition of the complaint.
After the expiry of such time-limit, the Products will be stored by the Supplier for remuneration in the amount of EUR 1 (one) net per each kilogram of the Order’s mass per each commenced day of storage. In such case, the Products will be released after the payment of remuneration due to the Supplier for the storage thereof.
If the Products are not collected from storage within 6 (six) months, such Products shall be treated as things abandoned by the Ordering Party with the intention to dispose of the ownership thereof.
§7 GUARANTEE
1. The Supplier grants guarantee for the Products covered by the Orders and undertakes to remove their manufacturing defects, if such defects are discovered within the term of the guarantee granted.
2. The term of the guarantee is 12 (twelve) months following the Product supply date.
3. As part of the guarantee, the Supplier undertakes to accept from the Ordering Party, its employees or associates the information about manufacturing defects of the Products, and to remove such defects free of charge.
4. The Ordering Party shall sent the notification of disclosed defects with a description and clear photographs of the disclosed defects of the Products to the Supplier’s e-mail address: csp@cspautomotive.com within 7 (seven) days of their disclosure.
In the case of a non-complete notification, the Supplier shall have the right to request the Ordering Party to provide additional information, explanations and photographs of defects found in the Products, otherwise the claims under guarantee will be rejected.
The Ordering Party’s failture to comply with the time-limit for performance of the guarantee notification will result in the loss of rights to which it is entitled under the Supplier’s guarantee liability for defects of the Products.
5. The guarantee notification shall be examined by the Supplier within 14 (fourteen) days following its receipt, provided that if the need arises to supply damaged
Products to the Supplier in order to analyze them in detail, the time-limit for Supplier’s examination of the guarantee notification will start on the day of supply of the damaged Products to the Supplier.
The costs of supply of defective Products to the Supplier shall be borne by the Ordering Party.
6. Subject to the second sentence of Section 5, the costs of performance of guarantee (removal of defects or delivery of a new Product by the Supplier), shall be borne by the Supplier, provided that the Supplier shall decide on the manner in which the guarantee will be performed, taking care of good relationships between the Parties and the best interests of both Parties.
7. If the guarantee notification is recognized by the Supplier, the Supplier undertakes to proceed with removal of defects within 14 (fourteen) days following the date of recognition of the complaint, provided that the final time-limit for removal thereof may not exceed one month, unless, due to the nature of defects found, more time is required for removal of defects or replacement of the Products with new ones.
In such case the Supplier shall, within up to 14 (fourteen) days following the recognition of the guarantee notification, indicate in consensus with the Ordering Party a new, appropriately extended time-limit to perform the Supplier’s guarantee obligations.
If re-shipment of the Products to the place of Orders’s supply is needed in order to remove defects of the Products or to replace the Products with new ones, the date of posting a parcel containing repaired or new Products shall be regarded as the date of performance of the Supplier’s obligations.
The entire cost of supply of the Products delivered to the Ordering Party within the scope of the complaints approved by the Supplier shall be borne by the Supplier.
8. The provisions of §6 Sections 8 - 10 shall apply mutatis mutandis.
9. In the case of any discrepancies between the provisions of Sections 1 - 8 and the Offer, the provisions of the Offer shall prevail
§8 MARKETING CONSENT
The Ordering Party declares that for the purposes related to the Supplier’s promotion and advertising, or its products, the Supplier is entitled to use the image of the Products and to inform the public that it is the supplier of the Products for the Ordering Party.
To this extent, the Supplier may use data identifying the Ordering Party, including its logo placed on the Products, photographs of the Products, and place such materials and information on the Supplier’s websites, in social media and in any promotional and advertising materials, irrespective of the form, contents and print-run thereof.
§9 FINAL PROVISIONS
1. GTCA has been adopted by Resolution No. 2/09/2020 of the Supplier’s Management Board dated 01.09.2020 and shall apply to the Orders executed from 01.09.2020.
2. The Supplier shall not be responsible for direct and indirect losses and damages suffered by the Ordering Party due to defects of the Products and failure to complete the Orders on a due date, and in particular losses or damage of other property of the Ordering Party and loss of income or profits. The Supplier ’s liability for damages due to non-performance or improper performance of the Order may not exceed the net value of such Order.
3. The Ordering Party declares that it has been informed that:
a) the Products, including graphic designs of the Products, may constitute a work in the meaning of the provisions of Article 1 (1) of the Act of 4 February 1994 on Copyright and Related Rights (i.e. Journal of Laws 2019, item 1231, as amended),
b) obtaining the Products or their graphic designs, the Ordering Party shall not acquire any rights to such works, may not copy or use them for its own needs,
c) in accordance with Article 79 (1) (3) (b) of the Act referred to in (a) above, the Authorised Person whose author’s economic rights were infringed, may request from a person who infringed such rights to redress the damaged caused, by payment of a sum of money in the amount equal to twice, and is the infringement is fault-based - three times the amount of respective remuneration which on the date of seeking it would be due for the consent granted by the authorised person for the use of the work,
d) in accordance with Article 117 of the Act referred to in (a) above, any person who without authorisation, for the purpose of dissemination, records or reproduces somebody else’s work in the original version or in the form of compilation, shall be subject to a fine, the penalty of restriction of liberty or deprivation of liberty of up to 2 years,
e) the information contained in the Offer regarding the price of the Products and other trade conditions constitute the Supplier ’s business secret in the meaning of Article 11 (2) of the Act of 16 April 1993 on Counteracting Unfair Competition (i.e. Journal of Laws 2019, item 1010, as amended), and unauthorised disclosure of such secret may result in liability, both civil law and criminal liability stipulated by the said Act.
4. The Parties hereby agree that in all disputable matters arising or which may arise out of the provisions of GTCA and of the Orders completed thereunder, the Polish common court competent for the Supplier’s registered office shall have exclusive jurisdiction.
5. The Parties agree that, taking into consideration the Incoterms rules applied to specify the Parties’ rights and obligations related to the supply of the Products , the provisions of GTCA and of the Orders completed thereunder shall be governed by Polish law .
6. GTCA has been drawn up in Polish and English language versions.
7. In the case of any discrepances between both language versions, the Polish language version shall prevail.