General Terms and Conditions of Kosikowski & Kresky (limited liability company)
§1 Scope of application and applicability
Unless otherwise agreed in writing, these General Terms and Conditions, hereinafter referred to as GTC for short, shall apply to the contracts concluded by KOSIKOWSKI & KRESKY SP. Z O.O.; KOSIKOWSKI & KRESKY SP. Z O.O. was entered in the Register of Entrepreneurs at the District Court for Wrocław-Fabryczna City Centre in Wrocław IX. Economic Section of the National Court Register under KRS No. 0000529234, has its registered office in Wroclaw, tax number NIP: PL613-157-45-61.
Statistical registration number REGON 360546177;
Share capital PLN 51,000.00;
Address for service: Ul. Gazowa 4, PL-59-800 Luban
E-mail address: email@example.com
Tel. : +48 758 890 223 Fax: +48 757 759 224
Kosikowski & Kresky is represented by the Managing Directors
Mr Thomas Kosikowski and Mr Joe Kresky,
who are authorised to represent the Company individually, and shall hereinafter be referred to as "KOSIKOWSKI & KRESKY" or "SELLER.
- These GTC apply to purchase or delivery contracts.
- These GTC refer exclusively to entrepreneurs (the customer) within the meaning of the provisions of the Polish Civil Code (k.c.). The provisions of these GTC refer only and exclusively to professional, bilateral commercial transactions.
- These GTC are binding for the customer, if they are presented to the customer before the conclusion of the contract in accordance with Art. 384 § 1 of the Civil Code. These GTC may also be provided by e-mail or fax before the conclusion of the contract in such a way that the Client can keep and usually reproduce these GTC. This provision is equivalent to sample delivery within the meaning of Art. 384 § 1 of the Polish Civil Code.
- It is assumed that the customer accepted the GTC when placing the order. Thus, the Customer has given its consent to the incorporation of the contents of these GTC into the contract, in particular it has confirmed the arbitration clause and the choice of Polish law.
- Notwithstanding any subsequent amendments to the GTC, the GTC in the version in force at the time of delivery to the customer pursuant to para. 4 shall govern the content of the concluded contract.
- The parties may assign from these GTC by way of a written agreement, which agreement must be in writing in order to be valid. If a supplementary agreement is concluded between the parties, corresponding GTC provisions shall be excluded and the provisions of the new agreement shall apply in their place.
§2 Offer and conclusion of contract
- Information and advertising materials distributed by KOSIKOWSKI & KRESKY and intended for the public or individuals, in particular catalogues, brochures, plans, photographs, drawings, information on the weight and dimensions of the offered items, templates, diagrams, samples and similar documents, as well as all information of any kind, shall not be considered an offer within the meaning of the provisions of the Polish Civil Code and shall therefore not be binding. They are considered as 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 the order for goods with KOSIKOWSKI & KRESKY in a form that can be usually stored and reproduced (by letter, fax, e-mail). The order placed by the customer (the offer) is binding on him if it contains essential provisions, in particular the number and type of products ordered as well as the price (the number of the applicable price list). For the purposes of these GTC, this order shall be deemed to be the submission of an offer to conclude a contract by the customer.
- The customer is bound by the offer made when placing the order for 14 days from the date of receipt of the order by KOSIKOWSKI & KRESKY, unless the offer made when placing the order stipulates 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. The acceptance of the offer by KOSIKOWSKI & KRESKY in a form that can be usually stored and reproduced (by letter, fax, e-mail) brings the contract into effect.
- KOSIKOWSKI & KRESKY reserves the right to modify or amend the Customer's offer (order), which does not constitute a material change to its content pursuant to Art. 681 of the Polish Civil Code,
- It is assumed that the customer knows the physical and chemical properties of the ordered goods.
- Any additional ancillary agreements concluded by KOSIKOWSKI & KRESKY's sales staff or commercial agents, or any assurances and undertakings given, which go beyond these GTC or the written contract, must be confirmed by KOSIKOWSKI & KRESKY in order to be valid.
- When placing an order for the first time, the new client is requested to submit the current excerpt from the Commercial Register or the Trade Register in the form that can usually be kept and reproduced (in person, by letter, fax, e-mail). KOSIKOWSKI & KRESKY shall in any case be entitled to request the customer to submit the current extract from the commercial register or trade register.
- KOSIKOWSKI & KRESKY reserves the right to make the conclusion of the contract dependent on the provision 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 met if the goods have left the KOSIKOWSKI & KRESKY premises by the time it expires, or if the customer has received information that the goods are ready for dispatch if KOSIKOWSKI & KRESKY or a third party has been commissioned by the customer to carry out these activities.
- KOSIKOWSKI & KRESKY shall not be liable for any 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 responsible, the processing period shall be extended by the duration of the hindrance which makes it impossible for KOSIKOWSKI & KRESKY to process the order on 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 specify a corresponding additional period and, after its ineffective expiry, withdraw from the contract in the part in which it has not yet been fulfilled.
- If the customer has suffered damage as a result of the delay in the delivery of goods by KOSIKOWSKI & KRESKY, the BUYER shall be entitled to offset the contractual penalty in the amount of 1.25% of the value of the total or partial delivery for each full calendar week of the delay, but not more than 5% of the order value. With the crediting of the contractual penalty, all further claims for damages shall be deemed exhausted.
- KOSIKOWSKI & KRESKY shall be entitled to make partial deliveries and render partial services.
§4 Transfer of risk, acceptance
- The risk of accidental loss or damage shall pass to the customer when the goods are issued.
- Unless otherwise stipulated in the contract, the place of business shall be the registered office of Kosikowski & Kresky . (EXW KOSIKOWSKI & KRESKY). The risk of accidental loss or damage shall pass to the customer when the goods are handed over to the forwarding agent, freight company or customer.
- If there is a delay in dispatch and if this delay is not the fault of KOSIKOWSKI & KRESKY, the risk of accidental loss or damage to the goods shall pass to the Customer on the day on which KOSIKOWSKI & KRESKY has notified the Customer that the goods are ready for dispatch.
- Unless otherwise agreed, the shipped goods shall not be insured. KOSIKOWSKI & KRESKY shall have the shipped goods insured only at the express request of the customer and at the customer's expense. Shipment is carried out to the best of our knowledge, without guarantee that the chosen route is the cheapest and fastest.
- Transport and unloading costs shall be borne by the customer, unless the parties have decided otherwise.
- In cases of doubt, the INCOTERMS referred to in the contract shall apply in their latest version on the date of conclusion of the contract.
- If the contract expressly contains a deviating agreement on the place of performance, this agreement only relates to this particular transaction and remains without influence on future contracts for which the place stated under para. 2 of these GTC is decisive.
- In the event of a delay in acceptance, KOSIKOWSKI & KRESKY shall charge a contractual penalty 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 para. 8 on the contractual penalty, KOSIKOWSKI & KRESKY may request compensation for the resulting damage (costs of securing and storing the goods).
§5 Prices and payments
- The prices of the goods offered are set by KOSIKOWSKI & KRESKY in the information and advertising materials distributed pursuant to § 2 para. 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 in accordance with § 2 para. 1 of these GTC, the validity and timeliness of which can be verified by specifying a validity period for the respective price.
- Notwithstanding subsequent changes to the price information, the purchase contract shall be concluded in accordance with the price applicable on the day the customer places the order.
- The price does not include shipping and packaging costs, unless otherwise specified in the offer.
- 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 of the price of the goods shall be due within the period specified in the settlement note and shall be payable in cash or by bank transfer.
- The mutual offsetting of claims is excluded unless KOSIKOWSKI & KRESKY gives its consent to the offsetting, whereby this consent must be in writing in order to be valid.
- When paying the price, the Customer is obliged to pay a deposit in the amount of 30% of the price within 7 days from the day of confirmation of the order acceptance by KOSIKOWSKI & KRESKY in case of the sale value exceeding EUR 25,000. The remaining part of the price shall be payable within 14 days from the day of delivery of the goods, unless otherwise agreed by the parties.
- If the payment deadline is exceeded, KOSIKOWSKI & KRESKY shall charge interest at the statutory rate applicable in Poland.
- If the client is in arrears with payment for the delivered part of the goods or due to his financial situation it is doubtful whether the payment for the part of the goods to be delivered later will be made on time, KOSIKOWSKI & KRESKY will withhold the delivery of further parts of the ordered goods. If the Client fails to provide security of payment within 7 days, KOSIKOWSKI & KRESKY may withdraw from the unfulfilled part of the contract.
- If the Customer has ordered the performance of additional works together with the sale of the goods, the Customer shall additionally pay for all additional costs borne by KOSIKOWSKI & KRESKY that were necessary for the performance of these works. If the additional work may take longer than 7 days, KOSIKOWSKI & KRESKY may make the conclusion of the contract conditional on partial payment for the purchased goods in the amount of 90% of the price. KOSIKOWSKI & KRESKY shall start the execution of additional works after the payment by the Customers.
§6 Retention of title
- KOSIKOWSKI & KRESKY reserves the right of ownership of the goods as long as the entire purchase price including ancillary claims such as interest on arrears, costs of additional work, storage, insurance and transport costs have not been paid.
- Until full payment, taking into account the additional claims referred to in paragraph 1, the customer is obliged to take all measures to maintain the full value of the goods issued. The customer is obliged to immediately inform KOSIKOWSKI & KRESKY of any damage to the goods.
- Until the purchase price has been paid in full, the customer may not sell, rent, pledge or assign by way of security the issued goods, nor may he take any other action that would harm the interests of KOSIKOWSKI & KRESKY.
- In the event of a pledge or other disposition of the issued goods by third parties, the customer is obliged to inform KOSIKOWSKI & KRESKY of this without delay.
- KOSIKOWSKI & KRESKY shall be entitled to rescind the contract and demand immediate return of the goods in the event of an act by the Customer in breach of the contract, in particular if the Customer fails to pay the price on time or breaches the obligation referred to in subsection 2 of this section.
- Wird die Ware vom Kunden zurückgenommen, so kann KOSIKOWSKI & KRESKY eine entsprechende Vergütung für die Abnutzung bzw. Beschädigung der Ware anfordern.
§7 Warranty and quality guarantee
- Pursuant to Art. 558 of the Polish Civil Code, KOSIKOWSKI & KRESKY limits the Customer's rights arising from the warranty in accordance with the following provisions.
- The liability of KOSIKOWSKI & KRESKY under warranty is limited exclusively to the principles stated in these GTC. Any further liability under 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 taking delivery of the goods subject to the contract (at the latest within 2 days from the day of taking delivery of the goods). If possible, the above check shall be carried out in the presence of a KOSIKOWSKI & KRESKY representative.
- Should any outstanding defects in the goods covered by the contract be discovered, the Buyer is obliged to notify KOSIKOWSKI & KRESKY of these in writing without delay, at the latest within 2 days of the day of their discovery. Any late complaints shall not be considered. In order to preserve the time limit for complaints, the notification must be sent to KOSIKOWSKI & KRESKY by e-mail, fax or registered letter before the expiry of this time limit.
- KOSIKOWSKI & KRESKY shall be notified of any hidden defects that may only become apparent during the use/work with the contractual goods within 10 days of their discovery.
- When reporting any defects in the goods in question, the Buyer is obliged to make the rejected goods available to the KOSIKOWSKI & KRESKY representative for inspection (even if they have been used to perform certain work), so that the merits of the reported complaint can be determined, checking, among other things, whether the rejected goods have been used as intended, in particular in accordance with the information from the safety data sheets.
- After the inspection of the rejected goods by the KOSIKOWSKI & KRESKY representative, a report shall be prepared and sent by e-mail or fax, in which the KOSIKOWSKI & KRESKY representative shall state his comments, in particular, whether he accepts the reported complaint and, if so, to what extent. The buyer's representative shall be entitled to submit any comments regarding the justification of the inspection result in the same way.
- If the complaint proves to be justified, KOSIKOWSKI & KRESKY may, at its option:
- reduce the price in accordance with the value of the detected defect if the delivered goods are fit for use despite the defect,
- replace the defective goods with goods free of defects at the expense and risk of KOSIKOWSKI & KRESKY,
- If the replacement is not possible due to the fact that the rejected goods have already been assembled, KOSIKOWSKI & KRESKY shall be obliged to deliver to the Buyer goods free of defects in the quantity necessary to carry out any reworking.
- Subject to point 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 mitigate any damage 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 mitigated 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 in the goods or damage caused as a result of the Buyer's failure to comply with KOSIKOWSKI & KRESKY's recommendations regarding the use, storage/transport of the purchased goods.
- KOSIKOWSKI & KRESKY shall not be liable if the buyer grants his customer further warranty or guarantee rights.
- The customer is entitled to the warranty rights if the customer complies with all the conditions mentioned in points 1-13 above.
- Notwithstanding the warranty rights, KOSIKOWSKI & KRESKY may grant the Buyer a warranty for the goods sold. The warranty period shall commence on the day of sale. The terms and conditions of any warranty shall be set out in a separate declaration issued by KOSIKOWSKI & KRESKY exclusively in writing.
§8 Limitations of liability
- KOSIKOWSKI & KRESKY shall be liable for intentional acts and for gross negligence.
- KOSIKOWSKI & KRESKY shall not be liable for damage caused as a result of non-compliance with the operating and usage instructions for the goods and the warnings attached to the goods.
- If the goods are produced or manufactured in accordance with the customer's order, KOSIKOWSKI & KRESKY shall be liable exclusively for the execution of the subject matter of the contract in accordance with the order. The risk of placing these goods on the market shall be 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 provided by the customer, the customer shall assume full liability for any infringement of third party rights.
- The Customer is obliged to inform KOSIKOWSKI & KRESKY of all infringements of KOSIKOWSKI & KRESKY's intellectual property of which he is aware.
§11 Final provisions
- The legal relationship arising from the concluded contract shall be governed by Polish law, in particular the Civil Code (k.c.), in addition to these GTC. The UN Convention on Contracts for the International Sale of Goods of 11 April 1980 shall not apply.
- In case of doubt, the Polish version of these GTC shall apply.
- All disputes which may arise on the basis of or in connection with the contracts concluded in consideration of these GTC shall be settled before the court having jurisdiction at the registered office of KOSIKOWSKI & KRESKY.
These GTC were adopted by resolution of the management of KOSIKOWSKI & KRESKY on 01 September 2019 and shall enter into force on 01 September 2019.