KAN-therm: General terms of sale



General terms of sale

General Terms and Conditions of Sale of KAN Sp. z o.o.


ARTICLE 1.
GENERAL PROVISIONS, DEFINITIONS.

1.1 These General Terms and Conditions of Sale of KAN Sp. z o.o based on Article 384 of Civil Code have been accepted by the Parties, are binding on them and constitute the content of the Sale Contract, unless otherwise agreed.

1.2 Unless otherwise agreed, the terms used herein shall have the following meaning:
a) GTCS - these General Terms and Conditions of Sale,

b) the Sale Contract - an agreement whose object is the sale of the Products, concluded between the Seller and the Buyer based on a Purchase Order placed by the Buyer and accepted by the Seller in accordance with the GTCS hereof, including the Cooperation Agreement,

c) the Seller - KAN Sp. z o.o. having its registered office in Kleosin, address: ul. Zdrojowa 51, 16-001 Kleosin,

d) the Buyer - an entity placing a Purchase Order being a Party to a Sale Contract,

e) Products - are understood as products and goods sold by the Seller, f) Purchase Order - means an order for the sale of the Products placed by the Buyer with the Seller in accordance with these GTCS,

g) Product Documentation - documentation containing a detailed description of all essential parameters and features of the Products, in particular a technical, technological, qualitative description of the Products including technical specifications, patterns, samples, components and Intellectual Property Rights,

h) Intellectual Property Rights - these are any forms of intellectual property concerning the Products or the Seller, protected on the territory of Poland and abroad, including copyrights, trademarks, patents, registered designs, industrial designs, know-how related to the Products and the Product manufacturing process, including Products manufactured or delivered by other companies of the Seller’s group of companies,

i) Pricelist - list of Product prices binding on the Parties,

j) Parties – parties to the Sale Contract (Buyer and Seller).

1.3 These GTCS apply to any Sale Contracts as well as to any offers submitted to the Seller by the Buyer, as well as to any invitations to submit bids and Orders concerning the Products.

1.4 The GTCS may be modified, amended by the Seller or certain provisions thereof may be excluded from application. Amendments to the GTCS are binding on the Buyer from the date of delivery thereof to the Buyer in the same form and the same way in which these GTCS have been delivered to the Buyer.

1.5 In case of any discrepancies between the content of the GTCS and the content of a Sale Contract or detailed appendices to a Sale Contract, the contents of the Sale Contract and then the detailed appendices prevail over the GTCS.

1.6 Any references to the Buyer’s general terms and conditions are hereby expressly excluded.

1.7 If the INCOTERMS rules are stipulated in a Sale Contract, the provisions of the GTCS differing form the stipulated INCOTERMS rules shall prevail, unless the Parties agree otherwise in the Sale Contract.

1.8 The contents of these GCTS have been published on the Seller’s website at: www.kan-therm.com

1.9 The GTCS are not applicable to the sale of Products if the Buyer is a natural person who purchases things for a purpose unrelated to their business or professional activity (a consumer).

2.0 The information included on the Seller’s website does not constitute an offer in terms of the Civil Code but only an invitation to place orders.


ARTICLE 2.
PRODUCT CHARACTERICTICS.

The Product characteristics are specified in the Product Documentation..

 

ARTICLE 3.
PURCHASE ORDERS.

3.1 The sale of the Products takes place exclusively on the basis of Purchase Orders placed with the Seller by the Buyer in the way defined in Articles 3.2 and 3.3 below.

3.2 Purchase Orders are placed by the Buyer by e-mail, by letter or by fax.

3.3 Purchase Orders will be executed provided that the Seller confirms the acceptance of a Purchase Order within 5 working days from the receipt thereof in accordance with the requirements defined in Article 3.2. If the Seller is not able to execute a Purchase Order due to the shortage of the ordered Product range or for other reasons the Seller shall notify the Buyer thereof to make an adjustment to the Purchase Order. The provisions of Articles 3.2. and 3.3. are applicable to the Purchase Order adjustment.

3.4 Product are delivered in single or partial deliveries according to the schedule specified in the Purchase Order. The date of a single delivery of the Products is the date specified in the Purchase Order and confirmed by the Seller. In case of partial deliveries the date of Product delivery is the date specified in the schedule included in the Purchase Order confirmed by the Seller.

3.5 If a Product delivery cannot be made on time in whole or in part the Seller shall immediately notify the Buyer thereof and agree a new date of delivery with the Buyer. A withdrawal (cancellation) of a purchase order always requires a written consent of the Seller.

 

ARTICLE 4.
MINIMUM DELIVERY AND SECURITY REQUIREMENTS

4.1 The Seller may at any time introduce minimum logistic requirements for the value or quantity of Products that must be met by the Buyer in terms of value or quantity.

 

ARTICLE 5.
RECEIPT OF THE PRODUCTS.

5.1 The ordered Products will be handed over to and received by the Buyer at a place indicated in the Purchase Order, and if it has not been indicated - at the Seller’s warehouse in Białystok.

5.2. If the Buyer does not receive the Products within the set deadline, the Seller has the right to charge the Buyer with all costs related to the storage and delivery of Products.

5.3 The date of Product delivery is the date of signing of the delivery note and/or the bill of lading and the delivery note or the product specification attached to the bill of lading. Any risks and costs related to the Products will pass at the moment of receipt of the Products, including by the carrier, regardless of who bears the transport costs.

5.4 The ownership of the Products will pass to the Buyer at the moment of payment to the Seller of the full price for the Products and any amounts due in relation to the execution of the Purchase Order. Regardless of the passing of the title to ownership, the Buyer bears the full risk of accidental loss or destruction of the goods being in its possession or under its supervision.

 

ARTICLE 6.
TERMS OF TRADE.

Detailed terms of trade will be stipulated in the respective Sale Contract.

 

ARTICLE 7.
PRICE.

7.1 Unless the Parties agree otherwise in writing the Products will be sold to the Buyer, in the Polish market, at prices specified in the Pricelist applicable at the day of sale, available on the website or in an individual commercial offer presented in writing or via email. In markets other than Poland, the Products will be sold to the Buyer at prices specified in the Price List dedicated to a given market or in an individual commercial offer presented in writing or via email.

7.2 The Seller reserves the right to change the Product selling prices specified in the Pricelist at any time. The above does not require changing the Sale Contract, but only informing the Buyer. The change in prices does not apply to Orders placed before the prices have been changed and accepted by the Seller.

7.3 VAT in the amount applicable at the date of Product delivery is added to the Product prices specified in the Pricelist.

7.4 The price does not include the cost of insurance and transport or any other charges on any account, in particular taxes, customs duties, or other public and local dues which can be charged in connection with the delivery, unless the Sale Contract provides otherwise.

7.5 Unless the Parties agree otherwise in writing, the payment for delivered Products is made before the receipt of the Products.

7.6 The Buyer has the right to set off any claims against the Seller against the claims of the Seller against the Buyer arising from the Sale Contract only if the Buyer’s claims against the Seller are based on the Sale Contract and have been established by a final judgement of a court or other body having the power to resolve disputes regarding the claim, or have been acknowledged in writing by the Seller.

 

ARTICLE 8.
ACCOUNTING DOCUMENTS.

8.1 The accounting document is an invoice issued in accordance with the facts and the generally applicable tax regulations.

8.2 Any payments are made by a transfer into the Seller’s bank account indicated in the invoice. The date of receipt of the money on the Seller’s bank account is regarded as the date of payment.

 

ARTICLE 9.
WARRANTY.

9.1 The Seller warrants that the Products sold comply with the Product Documentation.

9.2 The data included in the information about the products or in other brochures, advertising materials, specifications etc. is based on the current state of knowledge and on the experience of the Seller. Thus any information is to be regarded only as approximate information, and not as the information regarding the quality and properties of the goods. It does not provide any guarantee of quality, properties or durability. The suitability of the Seller’s Products for the intended use is to be checked by the Buyer.

9.3 The quality of Products delivered to the Buyer shall meet the requirements included in the generally applicable regulations of the Polish law.

9.4 The given warranty is the only and exclusive liability of the Seller for the defects of delivered Products, regardless of whether such liability arises from a contract or a tort, and whether the liability concerns any damage or loss related to the defects of things or caused by the defects of things. The Seller is not liable in any other scope even if the extended liability arises from terms and conditions, declarations, guarantees of the Buyer applied to the sale or any action or declaration of such kind causing the extension of liability whether based on the law or any other legal basis.

9.5 The Parties hereby completely exclude the statutory warranty for defects of the Products defined in the regulations of the Civil Code, including article 609 of the Civil Code.

 

ARTICLE 10.
REKLAMACJE.

10.1 The Buyer has the right to register complaints concerning the quantity or quality of delivered Products not later than within the following periods:

a) in case of complaints concerning the quantity of Products differing form the accepted Purchase Order - within 5 working days from the date of receipt of the Products,

b) in case of complaints concerning the Product quality contrary to Article 9 - within 60 working days from the date of receipt of the Products,

c) the complaint report is to be send by the Buyer to the Seller by post, fax or e-mail within the abovementioned period for registering complaints. The Seller will examine the complaint registered by the Buyer within 14 days from the date of receipt of the complaint report and notify the Buyer of the result by post, fax or e-mail.

10.2 If the complaint is accepted the Seller will complement the missing quantity, repair or replace the Product with quality defects with a defect-free Product by delivering to the Buyer an additional quantity of the Products resulting from the accepted complaint in the course of execution of the next Purchase Order.

10.3 The initiation of a complaint procedure shall not release the Buyer from the obligation to pay the price for the Products covered by such procedure.

 

ARTICLE 11. 
RETURNS.

11.1 Returns of Product are accepted only in particularly justified cases.

11.2 Only Products of full value, available in the current Catalogue of the Buyer, are subject to return.

11.3 Products in intact and complete original packaging are subject to return.

11.4 These Products are not subject to return:

a) untypical Product or Product brought for special order of the Buyer

b) Product purchased earlier that 12 months back from the date of purchase invoice

11.5 Returned Product should be packed with a clear division into articles.

11.6 The Buyer is obliged to secure the returned Product during transport. The Seller is not responsible for the damage of Product during transport to the Seller’s warehouse as a result of inadequate security of Product by the Buyer.

11.7 The returned Product that does not meet above requirements shall be returned to the Buyer at his expense.

11.8 The person responsible for Product’s return is obliged to indicate sales documents (numbers of invoices) on the basis of which returned goods were purchased.

11.9 Settlement of the return is made in the form of correction invoice issued to initial purchase invoice.

11.10 In case of the need to repackage returned Products in the Seller’s warehouse, the Buyer shall be charged with amount of 10% of the whole registered return.

 

ARTICLE 12.
LIABILITY FOR THE PERFORMANCE OF THE SALE CONTRACT.

12.1 The Seller is not liable under any circumstances, whether under a contract or due to a tort (including negligence or a violation of a statutory duty), regardless of the cause of such liability, for: any loss of profit, benefits from a business undertaking, benefits from the conclusion of a contract, loss of income or expected savings or any other indirect damage.

12.2 The Seller is not liable under any circumstances, whether under a contract, due to a tort (including negligence or a violation of a statutory duty) if its failure to perform the contractual obligations is caused by circumstances related to the performance of contracts which it was obliged to conclude or to perform on its own account in view of a requirement or an instruction of the Buyer regardless of the kind of such circumstances.

12.3 The liability of the Seller to the Buyer arising whether from a Sale Contract or from any tort (including negligence or a violation of a statutory duty), regardless of the cause of such liability, is limited to the amount of value of the Product on which the claim for compensation is based, and if the amount of claimed compensation is smaller than such amount the Seller is liable up to the amount of the damage.

12.4 The limitations of liability of the Seller do not constitute any exclusion or limitation of liability for death or personal injury caused by negligence of the Seller or the persons for whom the Seller is liable.

 

ARTICLE 13.
CONFIDENTIALITY CLAUSE.

The Buyer shall treat any information provided by or on behalf of the Seller under or in relation to the Sale Contact as confidential. The Buyer shall keep secret any confidential information and not disclose such information without a prior written consent of the Seller, except when it is required by the law or the competent authority, and use confidential information exclusively for the purposes related to the performance of the Sale Contract. Any confidential information shall remain in the Seller’s ownership and, on first request, the Buyer has to return to the Seller any such information prepared in writing and must not retain any copy thereof.

 

ARTICLE 14.

FORCE MAJEURE.

14.1 None of the Parties is liable for any delay and other violations in the performance of the Contract arising from such delay if such delay is caused by reasons being beyond its control. In such case the Party is entitled to a respective extension of time for the performance of the obligations. In case of the action of Force Majeure (as specified below) the Party that is in delay or has sustained damage as a result shall give notice to the other Party as soon as possible, but in any case within seven (7) days from the occurrence of such Force Majeure, specifying the nature of the Force Majeure as well as the approximate duration thereof. If the action of Force Majeure lasts longer than 14 days or it is expected that it will last longer than 21 days then the Seller has the right to terminate the Sale Contract with effect at the date on which such notice of termination is given to the Buyer.

14.2 The term of Force Majeure shall be understood as including any damage or delay caused by laws or regulations as well as orders of any of the Governments (de facto or de jure), natural phenomena such as earthquakes and floods, fires, unrests, wars, strikes, ship crashes, embargos on the transport of goods or other reasons, extensive power supply shortages which are not foreseeable and beyond the control of the Parties and which stop, in whole or in part, the fulfilment of obligations arising from the Sale Contract.

 

ARTICLE 15.

INTELLECTUAL PROPERTY RIGHTS.

Any solutions protected as Intellectual Property Rights including trademarks, specifications, drawings, information, moulds, instruments, tools and other materials related to the Product and the Product manufacturing process shall be and remain the property of the Seller or a company of the Seller’s group of companies. The Buyer shall not possess and not acquire any right, title or share in any Intellectual Property Right, and the sale of Products containing Intellectual Property Rights shall not grant any right or title to Intellectual Property Rights to the Buyer.

 

ARTICLE 16.

SANCTIONS

The Buyer shall observe all applicable provisions of law and other provisions and regulations of state authorities applicable in the country of jurisdiction, shall not violate any domestic or international trade, economic or financial sanctions or embargoes ("Sanctions") applicable to the Buyer. The Buyer declares that the Buyer itself and any of its directors, officers, agents, employees or affiliates, or any end user of the Products, is not covered by any Sanction, is not owned or controlled in whole or in part, directly or indirectly by any party subject to any Sanctions. The Buyer declares that it currently implements and will ensure that during the term of the Sales Contract all applicable procedures, monitoring measures and internal controls are implemented in order to ensure compliance with all applicable Sanctions. The Buyer declares that it will not directly or indirectly re-export, resell or otherwise dispose of the Products to any country subject to embargo under the laws and regulations of the United Nations, the European Union or the United States. In addition, the Buyer confirms that Products will not be used for activities that involve the design, development, production, use or storage of nuclear, chemical, biological weapons or missiles.

 

ARTICLE 17.

GOVERNING LAW.

The Sale Contract is governed by the Polish substantive law and is to be interpreted in accordance with it, to the exclusion of the conflict of law principles and the provisions of the United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980.

 

ARTICLE 18.

PRINCIPLES OF DISPUTE RESOLUTION. COURT JURISDICTION.

Any disputes and claims arising from the Sale Contract including any disputes concerning a violation, termination or invalidity thereof, a non-performance or an improper performance of a Purchase Order, a non-performance or an improper performance of warranty which have not been amicably resolved by the Parties shall be decided by the Polish courts of law having the territorial jurisdiction over the Seller.

 

ARTICLE 19.

FINAL PROVISIONS.

19.1 Subject to Article 1.4. and Article 7.2. of the GTCS, a Sale Contract may be modified or amended in whole or in part at any time in writing in order to be valid, by way of a written annex signed by persons authorized to represent the Parties.

19.2 The Buyer must not transfer any or all of its rights or obligations under the Sale Contract to a third party without the prior written consent of the Seller.

19.3 If any provision of the Sale Contract is declared invalid or unenforceable by a competent court in any jurisdiction, then it shall be replaced with an alternative provision which is closest to the original provision as regards scope, effect and enforceability, and such invalidity or unenforceability shall not affect the validity of remaining provisions of the Sale Contract which shall continue to be in full force and effect.

19.4 By placing the Purchase Order the Buyer states and assures the Seller that it has the full right and authorization to enter into a Sale Contract, all necessary actions of competent bodies of the Buyer for the purpose of approval and performance of the Sale Contract have been taken, there are no contractual obligations or other duties which would prevent it from signing or performing the Sale Contract.

19.5 Unless the GTCS directly provide otherwise, any notification and correspondence of the Parties to the Sale Contract is to be delivered to the Seller to the address indicated in the Article 1.2(c), and to the Buyer to the address indicated in the Purchase Order. Any correspondence, notices or any other notifications or written declarations sent by one Party to the other Party by registered mail to the last correspondence address indicated by the other Party under the Agreement shall be deemed effectively delivered to the other Party, and the date of delivery shall also be deemed the deadline of consignment receipt from the first notification of a registered item sent to the last address of correspondence provided by the other Party, or the return of consignment by post with the “unknown addressee” annotation or similar.

19.6 If the GCTS are communicated to the Buyer by the Seller in a different language than the language in which the Sale Contract has been concluded (contract language) then the exclusive purpose thereof is to facilitate the understanding. In case of differences in interpretation the text prepared in the contract language shall prevail.

 

Annex 1 to the General Conditions of Sale of Kan sp. z o.o.

Information obligation referred to in Article 13(1) and (2) of the General Data Protection Regulation (GDPR) of 27 April 2016

1. The personal data of the Buyers – natural persons engaged in business activity – are controlled by KAN sp. z o.o. ul. Zdrojowa 51, 16-001 Kleosin.

2. The data protection supervisor at KAN Sp. z o.o. is available at the following email address: inspektor@kan-therm.com.

3. The personal data made available to the Controller will be processed solely for the purpose of the implementation of the Sale Contract and the investigation of claims arising from the conducted Contract.

4. The personal data provided by the Buyers will not be forwarded to other consignees or to a third country.

5. The provided personal data will be retained during the entire period of the Contract implementation and the investigation of claims arising from the conducted Contract.

6. Buyers providing their personal data have the right to access the content of such data, rectify it, delete it, restrict the scope of its processing, transfer it and object to its processing.

7. Data subjects also have the right to lodge a complaint to the President of the Personal Data Protection Office, if they consider that the processing of their personal data by the Seller is in breach of the GDPR provisions of 27 April 2016.

8. The personal data of the Buyers will be processed by automated means, including the creation of profiles. Automated processes of making decisions will be conducted with the participation of the human factor and the preservation of transparency, legality and adequacy, in order to evaluate certain personal factors such as product preferences, economic situation, tastes – which as a consequence will enable to choose the best offer in terms of the potential needs of the Buyers.

9. Each individual provision of personal data by the Buyers is voluntary but necessary for the conclusion and implementation of the Contract.


The General Terms and Conditions of Sale of KAN Sp. z o.o. are valid since 11/23/2018