- General Trading Terms
GENERAL TRADING TERMS of New Era Materials Sp. z o. o.
1. GTT - means the General Trading Terms.
2. Agreement - means a sales agreement concluded by the Supplier and a Buyer with attachments constituting its integral part, including the General Trading Terms.
3. Product - means a product sold under this Agreement.
4. Supplier – means New Era Materials Sp z o.o. 1/7 Komandów street; 32-085 Modlniczka near Kraków.
5. Buyer - means any domestic or foreign entity or a person purchasing Products from the Supplier.
6. Party, Parties - means the Supplier, the Buyer or both.
7. Order - a written order or a First Order, placed by a Buyer, signed by the person / persons authorised to represent the Buyer, containing the elements specified in section IV.3 below.
8. First Order - the first order sent by the Buyer to the Supplier. This order should contain at least the following data: the address of the seat / the place of Buyer's business, Buyer's tax identification number, Buyer's REGON number (statistical number), an extract from the register of entrepreneurs, if applicable; documents confirming the authorisation of a person / persons signed under the order to represent the Buyer (e.g. power of attorney), if applicable, a document confirming a bank account number.
II. GENERAL PROVISIONS
1. These GTT define the rules for concluding the Agreement and the rights, obligations and responsibilities of the Parties with regard to all Agreements for the sale and delivery of Supplier's Products and constitute an integral part of all Agreements.
2. If any of the provisions of GTT prove to be inconsistent with the provisions of the Agreement, the provisions of the Agreement shall apply.
3. In the event that any of the provisions of GTT prove to be inconsistent with documents other than the Agreement (e.g. General Buyer's Terms), these GTT shall prevail.
III. PRODUCTS AND PRICES
1. The Supplier delivers the Products in accordance with the provisions of the Agreement, but is not responsible for their further use.
2. All prices are net prices, excluding VAT. The supplier will charge applicable taxes as required by applicable law.
IV. CONCLUSION OF THE AGREEMENT
1. The parties may conclude the Agreement by:
a. signing an agreement drawn up in writing by the Parties; or
b. The Order confirmed and accepted by the Supplier. Correspondence regarding the Order may be in writing via: e-mail or post.
2. The Order shall not be binding for the Supplier unless it has been accepted by the Supplier, and the Supplier's failure to respond shall in no way be understood as acceptance of the Order.
3. Each Order must contain the following data:
a. Buyer's data, in particular tax identification number, as well as the address and exact delivery address, if the delivery address is different from the address of the seat / place of business of the Buyer, in addition, legible name and telephone number of the person authorised to contact the Supplier regarding the performance of the Agreement,
b. detailed information on an ordered Product (technical specification, quantity, etc.)
c. the signature of the Buyer or the signature of the person / persons authorised to place an Order, preferred date and terms of delivery.
4. The agreement is considered concluded at the time of confirmation by the Supplier of the Buyer's Order in accordance with the terms and conditions set out in the Order confirmation.
V. CONDITIONS OF DELIVERY
1. The products may be delivered only to the Buyer or his representative indicated by the person authorised to represent the Buyer.
2. If the Products are delivered in returnable containers, the Buyer is obliged to return them within the time specified in the invoice, order confirmation or in the Agreement. If the containers are not returned within the specified time, the Parties shall then consider them sold to the Buyer, and the Supplier has the right to issue a VAT invoice for the market price of the containers. In such a case, the Buyer shall pay the Supplier the amount indicated in such VAT invoice, within the period specified in the VAT invoice.
3. Deliveries will take place according to INCOTERMS 2010 specified in the Agreement, unless the Parties agree otherwise in writing, otherwise null and void. If the terms of delivery specified in the Agreement are changed, the provisions contained in the Buyer's Order confirmation drawn up by the Supplier shall apply.
4. In the case of own transport, the Buyer guarantees the cleanliness and technical quality of the means of transport in accordance with the standards governing the transport of the Products being the subject of the Order, and the Supplier is released from liability for damages resulting from failure to meet the above-mentioned conditions, as well as the Buyer releases the Supplier from any obligation to check and notify that Buyer's means of transport are inappropriate.
5. The Supplier has the right to suspend the delivery in the event of delays in payment by the Buyer of the agreed a. fees; b. prices; or c. the amounts referred to in section VI.3 below.
6. The transfer of risk takes place on the terms specified in section V.3 above.
7. The supplier may change previously agreed delivery times for reasons other than force majeure, in particular in the event of logistical difficulties or reduction of the carriers' capacity. In such a case, the Supplier shall inform the Buyer immediately, no later than within 2 working days from the occurrence of such obstacles, specifying a new delivery date, which must occur no later than within 14 days from the initial delivery date.
VI. PAYMENT TERMS
1. The Buyer authorises the Supplier to issue a VAT invoice without Buyer's signature.
2. The parties declare that they are VAT payers.
3. If the delivery is an intra-community transaction, as defined in Article 138 of the Council Directive 2006/112 EC of 28th November 2006 on the common system of value added tax, the Buyer shall notify the Supplier thereof, in writing before the delivery, and inform Supplier on VAT numbers for each transaction. In case the Supplier does not provide transport, a product will be transported by the Buyer or on its behalf to another EU Member State.
In the above-described situation, the Supplier will issue an invoice to the Buyer charging 0% VAT, and the Buyer, as soon as possible, will provide the Supplier with documents confirming that the Product has been transported to another EU Member State. The Buyer is responsible for VAT and any penalties due/paid by the Supplier if the above-mentioned documents do not reach the Supplier on time or contain incorrect, inaccurate or misleading data. If the VAT number cannot be verified in time with the tax authorities or if the verification has not been confirmed, the delivery will be considered as a domestic delivery and the price will be increased by VAT due. If the Products are transported by or on behalf of the Supplier, and the tax authorities do not accept proof that the Product has been delivered to another EU Member State, the Buyer will do everything possible to provide the Supplier with additional information and help him obtain the approval of the proof.
4. The Buyer shall pay the amounts due/paid by the Supplier in accordance with section VI.3 above (including VAT) on the date specified in the invoice, corrected invoice or accounting note. In the event of the Buyer's delays in settling the payment, the Supplier shall deduct these amounts from the payments made by the Buyer.
5. Invoices will be sent to the Buyer after shipment of the Product, unless the Parties agree otherwise.
6. The total payment for the Product will be made entirely on the basis of the invoice within an agreed period from the date of its issue to the Supplier's bank account indicated on the invoice.
7. The payment will be deemed made on the day the payment has been credited to the Supplier's bank account. If the payment for the Product takes place before delivery, the payment will be treated as an advance payment, which will be credited towards the payment for the delivered Product upon delivery of the Product.
8. In the event of any late payment, the Buyer shall pay late interest in the amount of 0.1% of the total amount in arrears for each day of the delay. The interest, as well as other amounts, may be deducted from the Buyer's future payments.
VII. RESERVATION OF OWNERSHIP
1. The ownership of the Product shall not be transferred under any circumstances until full payment has been made, including, in particular, the payment of a. fees, b. prices and c. amounts referred to in section VI.3 above. In case of no payment by the Buyer within the specified time, the Supplier shall have the right to demand the return of the Product within 3 days from the issue the demand to the Buyer.
2. Accepting the return of the Product does not constitute the termination or cancellation of the Agreement or any of its provisions, unless expressly stated in writing by the Supplier.
3. If the Product for which the Supplier reserves ownership has been transformed into other products, the Supplier's ownership automatically extends to the products which have been transformed.
1. The Supplier guarantees the quality of the Products sold in accordance with the issued quality certificate. The Buyer is obliged to immediately check the quantity and, if possible, the quality of the received Products.
2. In the event of improper use of the Products, the Buyer loses all warranty rights of the Products.
3. The Buyer is obliged to report a complaint regarding the quantity of the Products to the Supplier in writing no later than within 3 working days from the date of receipt of the Products, confirming it with an appropriate document (e.g. a protocol drawn up with the participation of the carrier). The Supplier shall notify the Buyer of the way of settling a complaint at the latest within 21 working days from the date of its receipt.
4. The Buyer is obliged to report the complaint arising from the poor quality of the Products in writing immediately upon discovery, but not later than 30 days from the date of receipt of Products, confirming that with a relevant document.
5. A qualitative method of dealing with complaints shall be notified by the Supplier to the Buyer no later than 21 days from the date of its receipt. In the case of a quality complaint, the Buyer is obliged to secure the reclaimed Products available for the Supplier for at least 21 working days from the date of receipt of the complaint by the Supplier and to allow the representative of the Supplier to inspect and take samples.
6. The basis for the recognition of quality complaints are the applicable standards, approvals, terms specified in the agreement, or analysis made by an independent laboratory.
7. It is allowed to extend the deadline for examining quality complaints and informing about the method of settling the complaint in a situation where the examination of the complaint requires additional tests or the use of expert opinions of external specialised entities (e.g. laboratories).
8. The fact of filing a complaint does not give the Buyer the right to withhold payment for the delivered Products.
IX. TERMINATION OF THE AGREEMENT
1. Unless the agreement has been concluded for a definite period of time, either party may terminate the agreement with three-month (3) written notice. The notice period begins on the first day of the month following the month in which the notice has been delivered to the other Party.
2. The Supplier may also terminate this Agreement with immediate effect upon written notice in the event that:
a. The Buyer is late with payment obligations and the delay exceeds 14 days, and the Buyer will not rectify the situation within 7 days of receiving a written request for payment from the Supplier,
b. according to the Supplier's knowledge based on reasonable grounds, the Buyer may not be able to meet its obligations referred to in these General Trading Terms.
3. Termination of the Agreement by the Supplier shall in no way release the Buyer from the obligation to pay for the Product already delivered or ordered.
X. FORCE MAJEURE AND FAILURES
1. The parties are released from liability for partial or total failure to fulfil obligations under the Agreement when it is caused by force majeure, in particular: fire, flood, earthquake or other natural disasters, as well as military operations, local conflicts, riots, strikes (except for strikes involving only the plant of a given Party), terrorist acts, nuclear reaction or radioactive contamination, disruptions in the supply of raw materials, breakdown of production or distribution, imposition of an embargo or other decision of state or local authorities restricting import or export, in the event that the above-mentioned circumstances directly or indirectly affect the performance of the Agreement. In such a situation, the deadline for fulfilling the obligations under the Agreement will be extended by the duration of force majeure.
2. The party that is unable to fulfil its contractual obligations due to force majeure shall immediately send the other party a written notification specifying the beginning and expected end of the force majeure event, no later than within 3 days from the occurrence of force majeure. In the event that force majeure lasts longer than 30 days, the Parties will meet to find a solution satisfactory for both Parties.
3. In the event of any failure at the Supplier's plant, the Supplier shall be free from any liability for non-performance or improper performance of the Agreement to the extent resulting from the failure.
XI. FINAL PROVISIONS
1. The Buyer is not entitled to assign all or part of its rights or obligations under the Agreement to a third party without the Supplier's prior consent expressed in writing under pain of nullity.
2. All attachments, changes and additions to the Agreement are valid only if made in writing under pain of nullity.
3. If any of the provisions of GTT or the Agreement becomes or turns out to be invalid, this does not affect the validity of the remaining provisions. In accordance with the content of this point, if any of the provisions of GTT or the Agreement becomes or turns out to be invalid, the Parties commit themselves to undertake negotiations in good faith aimed at replacing the invalid provisions with new provisions that meet the most similar economic goal and original intentions of the Parties.
4. The Supplier's total liability arising out of or related to the Agreement shall in no event exceed the purchase price of the Product covered by the complaint, unless the damage has been directly caused by gross negligence or wilful misconduct of the Supplier. The parties hereby expressly exclude the Buyer's right to seek additional compensation, including in particular consequential or indirect damages, lost profits, including loss of income or profits.
5. The Agreement and GTT are subject to and will be interpreted in accordance with the law of the country of the Supplier's seat. In the event that several Suppliers are a Party to this Agreement, Polish law shall apply.
6. Subject to point XI.7 below, any disputes arising from or in connection with the Agreement or GTT will be settled by the court competent for the seat of the Supplier. In the event that several Suppliers are a Party to this Agreement, the competent court will be in Krakow (Poland).
7. In addition, the Supplier has the right to submit a claim against the Buyer to the court competent for the seat of the Buyer.
8. The United Nations Convention on Contracts for the International Sale of Goods does not apply to GTT or the Agreement.
9. The Supplier does not guarantee the quality or suitability of the Product for a specific purpose.
10. To the extent permitted by law, any warranties and declarations as to the quality of the Product are hereby excluded, unless they have been expressly agreed by the Parties in writing under pain of nullity.
11. The Supplier hereby expressly declares that it does not grant the Buyer any license or further license, nor does it transfer any intellectual property rights relating to the Product. If the Buyer uses the Supplier's Product for the production or processing of the Product into other products, the Buyer shall not be entitled, without the prior consent of the Supplier expressed in writing under pain of nullity, to use the Supplier's product markings, in particular the Supplier's trademarks on the final products or packaging or any other products or advertising materials.
12. These General Trading Terms may be revised and changed by the Supplier. The latest version of General Trading Terms is available on the Supplier's website: www.neweramaterials.com
XII. DATA PROTECTION AND NON-DISCLOSURE
1. The Parties undertake to keep secret all information, documents and data received from the other Party in connection with the negotiations, conclusion or performance of the Agreement, regardless of the form of their transmission, medium and source.
2. In the event of a request for information to be made available by an authority or other entity authorised to do so under applicable law, the Party is obliged to immediately inform the other Party about it.
3. The notification referred to in paragraph 2 above, should be made, if possible, before providing the information to the authorised body or another entity and should indicate the scope of the requested information, unless disclosure of such information is prohibited on the basis of applicable law or the decision of the entity requesting the disclosure of information.
4. At the written request of the Party, as well as upon termination or expiry of the Agreement, the other Party is obliged to return all materials, documents and information recording/containing the information referred to in paragraph 1 above or related thereto, existing in any form, together with all copies and compilations, whether authorised or not. The Party is also obliged, at the request of the other Party, to provide a written statement that all notes, memoranda, analyses, reports and all other documents containing the information referred to in paragraph 1 above, have been destroyed, under pain of recognition that the information has been disclosed to an unauthorised person (an unauthorised entity). The above does not affect the right of the Party to keep one copy of the information referred to in paragraph 1 above, in strict confidentiality, solely for the purpose of fulfilling its obligations under section XII.
5. The Parties agree that this confidentiality obligation shall remain in force for a period of three (3) years from the termination or performance of the Agreement, unless the Parties agreed otherwise in writing under pain of nullity.
XIII. PERSONAL DATA
1. Each Party informs that it is the administrator of personal data of persons authorised to represent that Party and employees of that Party, provided in connection with the conclusion and performance of the Agreement.
2. In order to properly protect personal data, each Party has appointed a contact person regarding the processing of personal data, using the contact details of the given Party.
3. Each Party processes the provided personal data of representatives and employees of the other Party for the purpose of implementing the Agreement. The legal basis for the processing of personal data is the legally justified purpose - contact regarding the performance of the Agreement. Providing personal data is voluntary, but necessary for the conclusion of the Agreement.
4. Personal data will be processed for the duration of the Agreement, and after its termination for the time resulting from applicable law or until the claims are barred by time limitations.
5. The recipients of personal data will be: external entities providing and supporting IT systems of a given Party, providing services related to the day-to-day operations of a given Party - under relevant agreements for entrusting the processing of personal data and ensuring the application by the above-mentioned entities of adequate technical and organisational measures ensuring data protection.
6. Each person whose data is processed, to the extent resulting from legal provisions, has the right to access their data and rectify it, delete it, limit processing and the right to object to data processing.
7. In the event of any doubts related to the processing of personal data, each person may request information from a given Party. Notwithstanding the foregoing, everyone has the right to lodge a complaint with the President of the Office for Personal Data Protection.
8. The party is obliged to provide the information referred to in paragraphs 1-7 above, to the representatives and employees of the Party, whose data was provided to the other Party.