§1 Scope of Application and Scope of Application
If no other written agreement has been made, these General Terms and Conditions, hereinafter referred to as GTC for short, shall apply to the terms and conditions of KOSIKOWSKI & KRESKY POLSKA SP. Z O.O.; KOSIKOWSKI & KRESKYSP. Z O.O. was entered into the Register of Entrepreneurs at the Local Court for Wrocław-Fabryczna City Centre in Wrocław IX. The company is registered in the Economic Department of the National Court Register under the number 0000529234 and has its registered office in Wroclaw, tax number NIP: PL613-157-45-61.
Statistical entry number REGON 360546177;
Share capital 51,000.00 PLN;
Address for service: Ul. Gazowa 4, PL-59-800 Luban
E-mail addresses: email@example.com
48 758 890 223 Fax: +48 757 759 224
is represented by:
Mr Thomas Kosikowski, the Chairman of the Supervisory Board the management and Mr. Joe Kresky, the managing director, which is responsible for the sole representation of the company are entitled to, and will hereinafter be referred to as “KOSIKOWSKI & KRESKY” or “SELLER”.
- These General Terms and Conditions shall apply to purchase and delivery contracts.
- these general terms and conditions apply exclusively to entrepreneurs (the customer) within the meaning of the provisions of the Polish Civil Code (k.c.). The provisions of these GTC apply only and exclusively to professional, bilateral trade.
- these general terms and conditions are binding for the customer if they have been delivered to the customer before the conclusion of the contract according to art. 384 § 1 of the Civil Code. These GTC can also be made available by e-mail or fax before the conclusion of the contract in such a way that the customer can keep these GTC and usually reproduce them. This provision is to be equated with the delivery of a sample within the meaning of Art. 384 § 1 of the Polish Civil Code.
- It is assumed that the Customer has accepted the GTC when placing the order. Thus, the customer has given his consent to the inclusion of the contents of these GTC in the contract, in particular he has confirmed the arbitration clause and the choice of Polish law.
- Notwithstanding subsequent amendments to the GTC, the content of the concluded Agreement shall be governed by the GTC in the version valid at the time of delivery to the Customer pursuant to paragraph 4.
- The parties may assign these GTC by means of a written agreement, the validity of which must be in written form. If an additional agreement is concluded between the parties, the corresponding provisions of the GTC shall be excluded and the provisions of the new agreement shall apply in their place.
§2 Offer and Conclusion of Contract
- the information and advertising materials distributed by KOSIKOWSKI & KRESKY to the public or individuals, in particular catalogues, brochures, plans, photographs, drawings, data on the weight and dimensions of the offered articles, templates, diagrams, samples and similar documents, as well as all information of any kind, shall not be considered as an offer within the meaning of the provisions of the Polish Civil Code and shall therefore not be binding. They shall be considered an invitation to submit an offer (invitatio ad oferendum) within the meaning of the Polish Civil Code, unless they are designated as binding in the same document.
- the Customer shall place an order for the goods with KOSIKOWSKI & KRESKY in a form that can usually be kept and reproduced (by letter, fax, e-mail). The order (offer) placed by the Customer is binding on him if it contains essential provisions, in particular the number and type of products ordered and the price (the number of the current price list). For the purposes of these General Terms and Conditions, this order is deemed to be an offer by the customer to conclude a contract.
- The Customer shall be bound by the offer made at the time of placing the order for 14 days from the date of receipt of the order by KOSIKOWSKI & KRESKY, unless the offer made at the time of placing the order specifies otherwise.
- KOSIKOWSKI & KRESKY shall confirm receipt of the order (offer) or inform the Customer that it is not possible to accept the order and state the reasons for this. This confirmation shall not be considered as acceptance of the offer within the meaning of the provisions of the Polish Civil Code.
- KOSIKOWSKI & KRESKY shall accept or reject the order placed by the Customer within 7 days from the date of confirmation of receipt of the order. Acceptance of the offer by KOSIKOWSKI & KRESKY in a form that can usually be kept and reproduced (by letter, fax, e-mail) constitutes the conclusion of the contract.
- KOSIKOWSKI & KRESKY reserves the right to accept the Customer’s offer (order) subject to changes or additions that do not constitute a substantial change of its content according to article 681 of the Polish Civil Code.
- It is assumed that the Customer knows the physical and chemical properties of the ordered goods.
- any additional agreements, insurances or promises made by the sales staff or sales representatives of KOSIKOWSKI & KRESKY, which go beyond these General Terms and Conditions or the written contract, must be confirmed by KOSIKOWSKI & KRESKY in order to be valid.
- with the first order, the new customer is obliged to submit the current Commercial Register extract or Business Register extract in the form that can be usually kept and reproduced (in person, by letter, fax, e-mail). In any case, KOSIKOWSKI & KRESKY is entitled to request from the Customer the submission of the current trade or business register extract.
- KOSIKOWSKI & KRESKY reserves the right to make the conclusion of the contract dependent on the order of a credible security of payment for the ordered goods.
§3 Delivery periods
- The deadlines stated by KOSIKOWSKI & KRESKY are only binding and valid if they have been expressly agreed in writing.
- The delivery period shall be deemed to have been complied with if the goods have left the KOSIKOWSKI & KRESKY plant before its expiry, or if the customer has received information about the readiness of the goods for dispatch, if KOSIKOWSKI & KRESKY or a third party has been commissioned by him with these activities.
- KOSIKOWSKI & KRESKY shall not be liable for the delay in deliveries or services caused by force majeure (vis maior).
- If there is a delay in the delivery of goods for which KOSIKOWSKI & KRESKY is not to blame, the processing period shall be extended by the duration of the hindrance which makes it impossible for KOSIKOWSKI & KRESKY to process the order in due time. In the event of a delay, KOSIKOWSKI & KRESKY shall immediately inform the BUYER of the reasons for the delay and the new expected date of order processing. In this case, the customer shall not be entitled to any claims for damages for the delay.
- in the event of a delay in delivery, the customer may determine a corresponding additional period and, after its ineffective expiry, assign the part of the contract in which it has not yet been fulfilled.
- If the customer has suffered damage as a result of the delay in delivery of the goods by KOSIKOWSKI & KRESKY, the BUYER shall be entitled to set off the contractual penalty amounting to 1.25% of the value of the total or partial delivery for each full calendar week of delay, but not more than 5% of the order value. With the imputation of the contractual penalty, all further claims for damages shall be deemed exhausted.
- KOSIKOWSKI & KRESKY is entitled to partial deliveries and partial services.
§4 Transfer of risk, acceptance
- the risk of accidental loss or damage is transferred to the customer when the goods are issued.
- Unless otherwise stipulated in the contract, the place of issue of WaKOSIKOWSKI & KRESKY shall be the shop/warehouse at the registered office of KOSIKOWSKI & KRESKY or any external warehouse or forwarding warehouse. (EXW KOSIKOWSKI & KRESKY). The risk of accidental loss or damage is transferred to the Customer when the goods are handed over to the Forwarder, Freight Forwarder or Customer.
- If there is a delay in shipment and KOSIKOWSKI & KRESKY is not to blame for this delay, the risk of accidental loss or damage to the goods shall pass to the Customer on the day on which KOSIKOWSKI & KRESKY notifies that the goods are ready for shipment.
- Unless otherwise agreed, the shipped goods will not be insured. KOSIKOWSKI & KRESKY will have the shipped goods insured only at the express request of the customer and at his expense. The goods will be shipped to the best of KOSIKOWSKI & KRESKY’s knowledge, without any guarantee that the chosen route is the cheapest and fastest.
- The costs of transport and unloading shall be borne by the customer, unless the parties have decided otherwise.
- In case of doubt, the INCOTERMS specified in the contract shall apply in their latest version on the day of conclusion of the contract.
- If the contract expressly contains a deviating agreement on the place of performance, this agreement shall apply only to this particular transaction and shall have no influence on the future contracts for which the place specified in Para. 2 of these General Terms and Conditions is decisive.
- in case of delay in acceptance, KOSIKOWSKI & KRESKY shall pay a contractual penalty in the amount of 1.25% of the value of the total or partial order for each full calendar week of delay, but not more than 5% of the order value.
- notwithstanding the provisions of paragraph 8 about the contractual penalty, KOSIKOWSKI & KRESKY can demand compensation for the resulting damage (costs of securing and storing the goods).
§5Prices and Payments
- The prices of the offered goods are determined by KOSIKOWSKI & KRESKY in the information and advertising materials disseminated in accordance with § 2 paragraph 1 of these GTC or in the respective offer. These prices are to be understood as NET prices.
- KOSIKOWSKI & KRESKY reserves the right to correct the prices stated according to § 2 para. 1 of these GTC, the validity and topicality of which can be verified by determining a validity period of the respective price.
- notwithstanding subsequent changes to the price quotations, the purchase contract shall be concluded according to the price valid on the day the order is placed by the customer.
- The price does not include shipping and packaging costs, unless the offer specifies otherwise.
- the goods shall be delivered in customary packaging. KOSIKOWSKI & KRESKY shall not be liable for the costs of packaging recycling incurred by the customer.
- the payment to be made for the price of the goods is due within the period specified in the invoice and is payable in cash or by bank transfer.
- the mutual set-off of the claims is excluded, unless KOSIKOWSKI & KRESKY gives its consent for the set-off, whereby this consent requires the written form for its validity.
- in case of payment of the price, the Customer is obliged to make a deposit of 30% of the price at a sales value of more than 25,000 EUR within 7 days from the day of confirmation of order acceptance by KOSIKOWSKI & KRESKY. The remaining part of the price is payable within 14 days from the day of delivery of the goods, unless the parties determine otherwise.
- if the payment period is exceeded, KOSIKOWSKI & KRESKY shall charge interest at the statutory rate applicable in Poland.
- if the Customer is in arrears with the payment of the price for the delivered part of the goods or if it is doubtful with regard to the Customer’s financial status whether the payment of the price for the part of the goods to be delivered later will be made in due time, KOSIKOWSKI & KRESKY will withhold the delivery of further parts of the ordered goods. If the customer does not provide payment security within 7 days, KOSIKOWSKI & KRESKY may assign the unfulfilled part of the contract.
- if the customer has also ordered the execution of additional work with the sale of the goods, he shall additionally pay for all additional costs borne by KOSIKOWSKI & KRESKY which were necessary for the execution of this work. If the additional works can exceed 7 days, KOSIKOWSKI & KRESKY can make the conclusion of the contract dependent on the partial payment for the purchased goods in the amount of 90% of the price. KOSIKOWSKI & KRESKY will start with the execution of additional works after payment by the customer.
§6 Retention of title
- KOSIKOWSKI & KRESKY reserves the right of ownership of the goods as long as the entire purchase price including additional claims such as interest on arrears, costs of additional work, storage, insurance and transport costs are not paid.
- The customer is obliged to take all actions to maintain the full value of the issued goods until the purchase price has been paid in full, including the ancillary claims mentioned under paragraph 1. The customer must inform KOSIKOWSKI & KRESKY immediately of any damage caused to the goods.
- Until the purchase price has been paid in full, the customer may not sell, rent, pledge or transfer by way of security the issued goods, nor may he undertake any other actions that violate the interests of KOSIKOWSKI & KRESKY.
- In the event of a pledge or other disposal of the issued goods by third parties, the customer is obliged to inform KOSIKOWSKI & KRESKY immediately.
- KOSIKOWSKI & KRESKY is entitled to assign the contract and to demand immediate return of the goods in case of a breach of contract by the customer, in particular if the customer does not pay the price in due time or violates the obligation mentioned under paragraph 2 of this paragraph.
- if the goods are taken back by the customer, KOSIKOWSKI & KRESKY can request a corresponding remuneration for the wear and tear or damage of the goods.
§7 Warranty and Quality Guarantee
- KOSIKOWSKI & KRESKY limits the rights of the customer resulting from the warranty according to the following provisions according to Art. 558 of the Polish Civil Code.
- The liability of KOSIKOWSKI & KRESKY under warranty is limited exclusively to the principles stated in these General Terms and Conditions. Any further liability from warranty is excluded.
- In order to maintain the warranty rights, the Buyer is obliged to check the conformity of the quantity and type of the goods specified in the contract or on the invoice, as well as their proper quality, immediately after acceptance of the contractual goods (at the latest within 2 days from the date of acceptance of the goods). If possible, the inspection described above shall be carried out in the presence of a KOSIKOWSKI & KRESKY representative.
- In the event that any obvious defects in the goods covered by the contract are discovered, the Buyer is obliged to notify KOSIKOWSKI & KRESKY in writing immediately, at the latest within 2 days from the day of their discovery. Any delayed complaints will not be considered. In order to keep the complaint period, the notification must be sent to KOSIKOWSKI & KRESKY by e-mail, fax or registered letter before the expiry of this period.
- Any hidden defects, which may only become apparent during the use/work with the contractual goods, must be reported to KOSIKOWSKI & KRESKY within 10 days of their discovery.
- When reporting any defects in the goods in question, the Buyer shall be obliged to make the goods complained about available to the KOSIKOWSKI & KRESKY representative for inspection (even if they have been used for the performance of certain works) so that the justification of the reported complaint can be determined, including checking whether the goods complained about have been used as intended, in particular in accordance with the information in the safety data sheets.
- After the inspection of the goods complained about by the KOSIKOWSKI & KRESKY representative, the report shall be prepared and sent by e-mail or fax in which the KOSIKOWSKI & KRESKY representative presents his comments, in particular on whether he acknowledges the reported complaint and, if so, to what extent. The Buyer’s representative is entitled to submit any comments regarding the validity of the inspection result in the same way.
- if the complaint proves to be justified, KOSIKOWSKI & KRESKY may, at its discretion:
- reduce the price according to the value of the defect if the delivered goods are fit for use despite the defect,
- exchange the defective goods for goods free of defects at the expense and risk of KOSIKOWSKI & KRESKY,
- Should the replacement not be possible due to the fact that the goods complained about have already been assembled, KOSIKOWSKI & KRESKY is obliged to supply the buyer with defect-free goods in the quantity necessary to carry out any reworking.
- Subject to clause 9 below, the Buyer may not take any action to remedy the defect or damage without the consent of KOSIKOWSKI & KRESKY.
- the buyer is obliged to take all possible measures to reduce any damages related to the use of the defective goods. If no such measures are taken, KOSIKOWSKI & KRESKY shall not be liable for the damage that could have been reduced if the Buyer had taken certain measures.
- KOSIKOWSKI & KRESKY is obliged to deliver defect-free goods to the Buyer within a reasonable period of time depending on the possibilities of KOSIKOWSKI & KRESKY and needs of the Buyer.
- KOSIKOWSKI & KRESKY shall not be liable for defects of the goods or damages caused by non-compliance with the KOSIKOWSKI & KRESKY recommendations regarding the use, storage/transport of the purchased goods by the Buyer.
- KOSIKOWSKI & KRESKY is not liable if the buyer grants his customer further warranty or guarantee rights.
- The customer is entitled to the warranty rights if the customer adheres to all conditions mentioned under points 1-12 above.
- Notwithstanding the warranty rights, KOSIKOWSKI & KRESKY may grant the Buyer a warranty for the goods sold. The warranty period starts on the day of sale. The conditions of any guarantee result from a separate declaration issued by KOSIKOWSKI & KRESKY exclusively in written form.
§8 Limitation of liability
- KOSIKOWSKI & KRESKY is liable for intentional acts and gross negligence.
- KOSIKOWSKI & KRESKY shall not be liable for damages resulting from non-compliance with the operating and usage instructions for the goods and the warnings attached to the goods.
- If the goods are manufactured according to the Customer’s order, KOSIKOWSKI & KRESKY shall be liable exclusively for the execution of the subject matter of the contract according to the order..
- if the goods are produced according to the customer’s order, KOSIKOWSKI & KRESKY is exclusively liable for the execution of the subject matter of the contract according to the order. The risk of placing these goods on the market is borne exclusively by the customer.
- The limitation of liability of KOSIKOWSKI & KRESKY does not apply in the case of culpable damage to life or health and in the case of product liability subject to Art. 4493 of the Polish Civil Code.
§9 Intellectual property
- If the goods are manufactured according to the drawings, models or samples specified by the customer, the customer shall assume full liability for any infringement of the rights of third parties.
- the customer is obliged to inform KOSIKOWSKI & KRESKY about all known violations of the KOSIKOWSKI & KRESKY´s intellectual property.
§10 Final provisions
- in addition to these General Terms and Conditions, Polish law, in particular the Civil Code (k.c.), shall apply to the legal relationship arising from the concluded contract. The UN Convention on Contracts for the International Sale of Goods of 11 April 1980 does not apply.
- In case of doubt, the Polish version of these General Terms and Conditions shall apply.
- all disputes that may arise on the basis of or in connection with the contracts concluded in accordance with these GTC shall be settled before the competent court at the registered office of KOSIKOWSKI & KRESKY.
- these GTC were adopted by resolution of the Management Board of KOSIKOWSKI & KRESKY on 01 September 2019 and shall come into force on 01 September 2019.