GENERAL COMMERCIAL TERMS AND CONDITIONS FOR PURCHASE AND SALE OF GOODS AND SERVICES Arcoore based in Wrocław
ART. 1. GENERAL PROVISIONS
§ 1. These General Commercial Terms and Conditions (GCTC) have been established based on Art. 384 and further articles of the Act on Civil Code – consolidated text Journal of Laws of 2014 item 121 – (CC).
§ 2. GCTC apply to agreements and contracts on sale of goods and services, concluded by Arcoore Spółka z ograniczoną odpowiedzialnością based in Wrocław, address: Ul. Piękna No. 58/17, 50-506 Wrocław, with NIP tax identification number: 899-287-90-27 (the Seller) with contractors (the Buyer) who conclude such agreements solely for the purpose directly related to the business operations pursued by them.
§ 3. Placing the order, the Buyer declares that it holds the entrepreneur status and specifies the register data in compliance with KRS [National Court Register] or CEiDG [Central Registration and Information on Business].
§ 4. These GCTC shall not apply to individuals – consumers.
§ 5. GCTC are available on www.varcoore.com and can be sent to the Client to its address in the electronic or paper form upon request.
§ 6. It is assumed that signing the contract or placing the order by the Buyer as well as acceptance of the delivered goods or service is equivalent to acceptance of GCTC without objections.
§ 7. If the Buyer remains in permanent commercial relations with the Seller and GCTC were accepted in the mode specified under Art. 1 § 6 GCTC, it is assumed that they shall apply throughout the entire period of commercial relations between the parties.
§ 8. The goods being the subject of sale are intended for cooling of liquids, air, oil; this regards both regenerated products as well as products manufactured by the Seller. Details regarding the intended application, description of functionalities as well as method of use of the goods are presented in the description enclosed to the purchased goods or available on the Seller’s website: www.arcoore.com.
§ 9. The Buyer shall verify the suitability of the ordered goods and/or service for the intended application.
§ 10. The combination mark “Arcoore” is a reserved trademark of the Seller and the Buyer is authorized to use the said mark under the law. In particular, the Buyer is not authorised to modify, remove or cover the trademark placed on the goods purchased from the Buyer.
§ 11. GCTC do not regulate matters related to granting by the Seller of licences for the products it is the owner of or any other matters related to transfer of proprietary copyrights to such products or software, or any related rights.
ART. 2. CONCLUSION OF AGREEMENT
§ 1. All commercial information of advertising and marketing nature, regardless of its form, is not an offer pursuant to the provisions of the Civil Code.
§ 2. The contract is concluded based on the signatures of both parties affixed on the mutually negotiated text of the contract in the mode of submittal, acceptance and agreement of the offer, as referred to in Art. 2 § 4 – § 9 GCTC.
§ 3. The contract concluded through signing by both parties of a mutually negotiated text of the contract shall enter into force upon its signing or on a different date specified therein by the parties.
§ 4. Conclusion of the contract through submittal, acceptance and agreement of the offer requires the Buyer to each time place an order to the Seller in writing – by fax or electronic mail – specifying the price, type and quantity of the ordered goods and/or type and scope of services as well as the date of their delivery and/or performance. It is assumed that the order is placed and signed by a person authorized to place orders on behalf of the Buyer. The provision of Art. 9 § 2 of GCTC shall apply mutatis mutandis.
§ 5. For an order to be valid it must be confirmed immediately, no later than within 5 business days, by the person authorized to represent the Seller in writing – by fax or electronic mail – with confirmation of all conditions specified in the order, especially the date of delivery of the goods and/or performance of the service as well as the price. The provision of Art. 9 § 2 of GCTC shall apply mutatis mutandis.
§ 6. The Buyer can cancel or change a properly placed order only subject to the prior consent of the Seller.
§ 7. All changes in the order terms and conditions must follow the procedure specified in § 4 and § 5 or else shall be null and void.
§ 8. The contract is deemed concluded when the Seller sends the order confirmation, except for the situation described in § 7.
§ 9. In the case referred to in Art. 6 § 4, the contract is concluded upon receipt by the Seller of the confirmation of the order containing the current price of the ordered goods and/or service.
§ 10.The Seller bears no liability for the results of errors in the content of the order placed by the Buyer.
§ 11. The Buyer can assign the rights arising from the concluded contract of sale of goods and/or services to a third party only subject to the Seller’ written consent.
ART. 3. CONTRACT COMPLETION DEADLINES
§ 1. The lead time runs as of the day specified in the contract or order confirmation.
§ 2. The date of delivery and/or performance of the order as well as other conditions of sale can be subject to change, also upon placement of the Buyer’s order for the goods and/or services, especially as a result of force majeure and other circumstances beyond the Seller’s control, and due to change of the market situation and current commercial terms and conditions related, inter alia, to the Seller’s relationships with the cooperating entities in the scope of performance of contracts by the Seller. The Buyer shall be notified immediately about the change of the delivery date and/or order lead time as well as other terms and conditions of sale.
ART. 4. DELIVERY, COLLECTION OF GOODS AND/OR SERVICES, CLAIMS
§ 1. The goods shall be collected at the Seller’s warehouse, at the expense and risk of the Buyer.
§ 2. If the carriage of the ordered goods is organised by the Buyer, the carrier selected by it must be reported to the Seller prior to shipment and is subject to the Seller’s acceptance. The carriage cost is borne by the Buyer.
§ 3. The delivery of goods is deemed completed upon its transfer to the Buyer or the carrier specified by the Buyer.
§ 4. It is assumed that the said service is performed upon signing of its hand-over document by the Buyer.
§ 5. The Buyer is obliged to collect the goods and/or service ordered. Failure to collect the goods and/or services does not release the Buyer from the obligation to pay the full price.
§ 6. At the time of acceptance of the shipment organised by the Seller, the Buyer is obliged to check the condition of the external packaging thoroughly in the presence of the courier. If the Buyer finds internal damage to the package or has objections regarding the quantity of the delivered goods or content of the package, the Buyer shall draft the damage protocol in the presence of the courier, including a description and photos of the package. One of two identical copies signed by the courier must be sent to the Seller, with the other retained by the Buyer. In such a case the goods shall be returned to the Seller in order to initiate the claim procedure with the carrier.
§ 7. Quantity complaint can be filed with the Seller by the Buyer within 3 days for receipt of goods. If the Seller accepts the claim, the Seller shall supplement the goods quantity in the shortest time possible at its own expense.
ART. 5. TRANSFER OF RISK AND RESERVATION OF TITLE
§ 1. The risk of loss or damage to the goods shall be transferred onto the Buyer upon release of the goods to the carrier, no later than after the goods leave the Seller’s warehouse.
§ 2. The goods remain the property of the Seller until the price arising from the invoice for sale of the relevant goods issued by the Seller is paid in full.
§ 3. The Buyer shall handle the goods properly and conclude an insurance contract at its own expense providing full coverage in case of fire, flooding, theft, destruction or damage.
§ 4. If it is necessary to perform maintenance works or inspections, the Buyer is obliged to perform such works in a timely manner at its own expense.
§ 5. The Buyer cannot encumber the goods with any rights for the benefit of any third parties.
§ 6. The Buyer is obliged to immediately notify the Seller about any enforcement proceedings instigated against the Buyer in the course of which the goods could be seized by the enforcement authorities.
ART. 6. PRICE AND PAYMENT TERMS
§ 1. The sale of goods and/or services is based on prices applicable on the day of confirmation of orders covered by the Seller’s pricelist. If the goods and/or services being the subject of the relevant order are not covered by the pricelist, the sale price shall be mutually agreed in writing.
§ 2. The prices specified in the pricelist and agreed by the parties shall apply only to performance of the relevant order, unless the parties agree otherwise in writing.
§ 3. All prices agreed and disclosed to the Buyer shall be net prices.
§ 4. The Seller reserves the right to change the prices specified in the pricelist in case of change of the exchange rates and other factors affecting the price. In such a case the Buyer shall be notified in the order confirmation about the current price of the goods and/or service ordered.
§ 5. The method of payment shall be a bank transfer to the Seller’s account specified in the invoice, cash or COD. The bank handling costs shall be borne exclusively by the Buyer.
§ 6. The terms and other conditions of payment agreed under Art. 2 of GCTC shall apply.
§ 7. The price shall be considered paid after the funds are credited in the Seller’s account.
§ 8. In case of delay in payment of the price, the Seller shall be entitled to charge statutory interests and withhold the delivery of the goods and/or performance of services until the full price is paid together with due statutory interests accrued for the time of delay in payment.
§ 9. The Buyer’s right to set-off its receivables and liabilities arising from the contracts concluded with the Seller is hereby excluded.
ART. 7. GUARANTEE
§ 1. The bills of materials, attestations or test results referred to in the commercial documents are not equivalent to an assurance regarding the quality of goods and/or services. This reservation regards also publications or public statements of the Seller regarding the quality of goods.
§ 2. The necessary requirement to pursue claims under the warranty is the immediate performance by the Buyer of a technical inspection of the vehicle, at the service authorized for the vehicle, confirming the correct operation of the engine after installing the recirculator, and delivering the test report to Arcoore by e-mail or by post within 7 days. from the day it was made. The confirmation of the technical examination must include the VIN number of the vehicle and the number of the recirculation warranty seal.
§ 3. Under the warranty, the Seller undertakes to perform repairs of physical defects and damage to the goods free of charge if they result from reasons attributable to the Seller within 14 business days from the date of their delivery to the Seller.
§ 4. The warranty is valid for 12 months from the date of receipt of goods by the Buyer, unless otherwise stated in warranty terms provided along with the goods.
§ 5. The claims under the awarded warranty can be satisfied only based on presentation to the Seller of a properly completed warranty card, together with the proof of goods purchase. The method of satisfaction of warranty claims is determined by the Seller.
§ 6. Prior to shipment of the goods covered by the warranty claims to the Seller, the Buyer shall contact the Seller for the purpose of verification of the damage by technical consultants or determination of the method of delivery of the goods to the Seller.
§ 7. Within 14 days from the date of receipt of a proper submittal of a warranty claim, the Seller shall notify the Buyer about the method of resolution of the relevant claim as well as the date of goods repair.
§ 8. The Seller can avoid meeting the date of settlement of the warranty claims if there are any disturbances in its business resulting from import/export restrictions and/or other legal regulations or other unforeseeable circumstances.
§ 9. The warranty does not cover:
a.) damage and malfunction occurring otherwise than by the fault of the Seller, caused in particular by: lightning, flooding by liquids, mechanical shock, incorrect supply voltage or other external factors;
b.) defects resulting from improper transport, storage and use, especially use of the goods in a manner not compliant with their intended application;
c.) wear and tear resulting from normal use of the goods;
d.) defects resulting from failure to comply with the requirement specified in Art. 7 §2 of these general terms and conditions for the purchase and sale of Arcoore services;
e.) components of the exhaust gas recirculation, naturally consuming in the form of a throttle and exhaust gas control valve (check valve).
§ 10. Infringement of the terms and conditions of the warranty results in its invalidation, in particular in the following cases:
a.) the warranty card or proof of purchase of the goods are not compliant or it is impossible to read the data provided therein or if their content has been modified in any manner;
b) persons other than the Seller interfered with the goods, in particular reprocessed, changed or repaired them;
c) the warranty seal has been removed from the goods on which it was applied by an entity other than the Seller;
d.) the date of the warranty sticker has been removed or it is impossible to clearly read the date of the warranty sticker from the product on which it was used;
e.) the recirculator overheated as a result of exceeding the maximum temperature of 100 ° C, as indicated on the certified, irreversible temperature label on the recirculator.
§ 11. The Seller’s liability arising from the warranty is limited to the warranty term specified above as well as the value of the goods established based on the retail price suggested by the Seller on the day of purchase and shall not include the right to demand reimbursement of profits lost in relation to the defects of the device, in particular it does not include compensation for loss of time, temporary lack of possibility to use the goods, inconvenience as well as nuisance or costs related to the warranty claims.
§ 12. Upon lapse of the warranty term, all repairs performed by the Seller shall be charged repairs. Warranty repairs are subject to a 3-month guarantee period, granted by the Seller. The cost of delivery of goods for repair shall be borne by the Buyer.
§ 13. Warranty becomes ineffective.
ART. 8. LIMITED RESPONSIBILITY
§ 1. The Seller’s liability towards the Buyer and any third parties is excluded to the greatest extent permissible under the law.
§ 2. The tort and contractual liability of the Seller towards the Buyer and third parties is excluded, subject to commonly governing regulations of the Civil Code.
§ 3. In particular, the Seller bears no liability for damage caused by improper or unprofessional use, improper installation or launch by the Buyer or any third parties, normal wear and tear, improper or negligent use, especially for results of unprofessional reworks performed without the Seller’s consent or repair works carried out by the Buyer or third parties.
§ 4. The Seller bears no liability for functional deficiencies of the goods resulting from poor selection of devices or improper design of the system or installation by the Buyer who should have familiarized itself with and verify whether the functionalities offered by the Seller’s goods meet its needs prior to the purchase.
§ 5. The Seller bears no liability for the claims of third parties resulting in relation to the use of the goods by the Buyer or for the use of the goods by unauthorized third parties to the detriment of the Buyer.
§ 6. The Seller, however, bears no liability for the Buyer’s obligations towards any third parties.
§ 7. If a third party instigates court proceedings against the Seller based on a claim regarding damage sustained by such a person in relation to the goods and/or services, the Buyer undertakes to join the court proceedings on the side of the Seller, if the law so allows, and support the Seller in the course of such proceedings as well as pay all and any related amounts, including damages, court fees and costs of legal representation, etc.
§ 8. The Seller bears no liability for the Buyer’s failure to obtain any licenses or permits required by the law.
ART. 9. RETURN OF GOODS
§ 1. The goods can be returned within 7 days according to the principles set below.
§ 2. Only the following goods can be returned: a) in the original condition (Original Condition), i.e. goods in intact condition in comparison to the condition in which they were released from the Seller’s warehouse; b.) in a condition allowing to restore the Original Condition, with all costs related to restoration of the Original Condition being borne by the Buyer,
§ 3. Reporting the goods for return, together with specification of the cause for return, shall be made via electronic mail to the address: email@example.com or via traditional mail to the address of the company’s seat. The basis for commencement of the goods return procedure shall be the original proof of purchase – VAT invoice, and their delivery to the Seller is subject to the Seller’s prior consent provided in an electronic form.
§ 4. The Seller shall commence the goods return procedure immediately upon their provision by the Buyer and it shall be completed no later than within 30 days from the date of their receipt.
§ 5. The Seller reserves the right to refuse to accept the return of goods in the following cases: a) it is impossible to restore the Original Condition of the goods; b.) the goods were withdrawn from the Seller’s offer (the binding product offer is the pricelist of the Seller published on www.arcoore.com. c.) the goods were manufactured in a special version not subject to standard goods rotation.
§ 6. The final decision regarding acceptance or refusal to accept the return of the goods shall be made by the Seller within the time limit specified in § 4, with the Buyer being informed via the electronic route.
§ 7. Unless the return of the goods results from reasons attributable to the Seller, the costs related to transport of the goods to the warehouse of the Seller at the address its seat shall be borne by the Buyer.
§ 8. The goods sent in a manner not compliant with the requirements referred to in §2 and §3 of this article shall not be accepted to the Seller’s warehouse and shall be returned to the Buyer at its expense.
§ 9. In case of consent for goods return, it shall be settled by way of a corrective invoice. If an invoice is issued for restoration of the Original Condition of the Goods, the refund provided to the Buyer shall be decreased by the value of the said costs.
ART. 10. ADDRESS FOR CORRESPONDENCE
§ 1. The Parties mutually undertake to notify each other of any change to the address. In case of failure to notify the other party about the change of address, correspondence sent to the previously specified address shall be deemed delivered and causing all legal effects inherent to it.
§ 2. All and any correspondence between the Seller and the Buyer via the electronic mail shall be considered causing legal effects provided that the message contains the following elements: sender’s e-mail address, date and time the message was sent, name and surname of the sender. Anonymous messages shall be deemed invalid.
ART. 11. CONFIDENTIALITY CLAUSE / COMMERCIAL SECRETS
§ 1. The Buyer can provide information covered by trade secrecy and obtained as a result of commercial contact to any third parties only under the Seller’s consent.
§ 2. Any information an materials (Confidential Information) provided to the Buyer by the seller and not available publicly shall be treated as confidential, especially in relation to data regarding the Seller’s technical solutions, codes, documentation related to the commercial contacts of the parties, information about contractors, economic or legal situation of the Seller.
§ 3. The Buyer shall prevent disclosure of confidential information by the current and future employees, collaborators, partners as well as upon termination of the employment relationship (termination of cooperation with the Buyer).
§ 4. Notwithstanding the abovementioned, the Buyer is obliged to restore the condition compliant with the law immediately as well as to prevent further breach of confidential information.
§ 5. The Buyer undertakes to: a.) use Confidential Information only for the purpose conforming with GCTC; b.) maintain confidentiality of all Confidential Information; refrain from disclosing Confidential Information or providing it any third parties; c.) undertake all and any measures necessary to ensure security of Confidential Information.
§ 6. The obligation of confidentiality shall not apply if:
a) Confidential information is or becomes public otherwise than through breach of GCTC;
b) Confidential information was previously known to the Buyer from other sources, which will be demonstrated beyond any doubt, both as to the time and source of obtaining Confidential Information;
c) the duty to disclose Confidential Information to third parties results from applicable law. The Buyer is obliged to notify the Seller immediately about the receipt of the abovementioned request, unless provision of such a confidential information is prohibited by the law or decision of the authority demanding disclosure of the confidential information. The above notification must be sent, if possible, prior to disclosure of the confidential information to the entity authorised to submit such a request;
d) Disclosure of confidential information by the Buyer is subject to prior written consent of the Seller, with the scope and subject of consent specified therein.
§ 7. The confidentiality obligation shall be not limited in time. Performance completion or termination of the legal relationship between the Parties in another manner results in discontinuation of obligations specified in this paragraph.
ART. 12. MAJEURE FORCE
The Seller bears no liability for the failure to perform or to properly perform the obligations arising from the contract of sale of goods and/or services if such a failure results from circumstances beyond the Seller’s control, despite due diligence on its part (force majeure). The circumstances referred to in the above sentence shall be, in particular: Acts of God, community life disturbances, including strikes and riots, government actions, unperformed cooperation supplies from the Seller’s suppliers and other unforeseeable, unavoidable events with major consequences. Occurrence of such events releases the Seller from the obligations provided for in the concluded contracts for the duration of the disturbance and in the scope of its impact. The Seller undertakes to notify the Buyer about the situation as soon as possible and make all effort in order to perform the obligations based on the principle of good faith, insofar as the conditions of the situation allow.
ART. 13. PERSONAL DATA
§ 1. The Buyer consents to disclose to the Seller their personal data and to processing persona; data solely for the purpose related top legal relationships governed by GCTC, pursuant to the Act on personal data protection of 29 August 1997 (Journal of Laws of 2002, No. 101, item 926, with subsequent amendments).
§ 2. The Buyer has the right to access their personal data and the right to amend such data. Provision of personal data by the Buyer is voluntary.
§ 3. The Seller shall not transfer the Buyer’s personal data to any other entities. The data can be made available to entities authorised to receive them under the governing law, especially as regards the justice system authorities.
§ 4. If the Buyer’s personal data were obtained from a source other than the Buyer, the Buyer is entitled to:
a) submit a written and substantiated request for discontinuation of processing of its personal data due to its specific situation in the case of processing of personal data for the purposes of tasks required by the law and performed for the public interest or for the purpose of accomplishments of the Seller’s goals justified under the law;
b) object against processing of its personal data for marketing purposes or transfer of the personal data to another data controller – the Seller shall not process the personal data for marketing purposes or transfer them to another data controller.
ART. 14. SEVERABILITY CLAUSE
§ 1. If any provision of GCTC is deemed invalid, unlawful or becomes unenforceable for any reason, the balance of GCTC shall remain fully valid and effective as if GCTC applied without the invalid, unlawful or unenforceable provision. The invalid provisions shall be replaced by the relevant provisions of the Polish civil law.
§ 2. If the scope of the found invalidity or unenforceability prevents accomplishment of the goal, the Seller and Buyer undertake to immediately commence negotiations in good faith in order to replace the invalid or unenforceable provision by means of a valid and effective provision the intent of which is the closest possible to the original provision.
ART. 15. FINAL PROVISIONS
§ 1. The parties agree that changes introduced in GCTC by the Seller do not require an annex and that they are legally effective from the moment of their publication on the website www.arcoore.com.
§ 2. Other issues, not regulated by these GCTC shall be governed by the provisions of the Polish and in particular the provisions of the Civil Code. All disputes shall be settled according to GCTC applicable on the day the claim is filed.
§ 3. Any potential disputes arising from GCTC shall be resolved amicably, and in case of failure to reach the agreement within 30 days, all disputes shall be settled by the competent Polish court of proper venue serving the address of the seat of the Seller.
§ 4. The language applicable in communication between the Parties shall be the Polish language. If the Buyer cannot communicate in Polish, the parties agree for English to be the applicable language.
§ 5. These GCTC have been drafted in Polish, English, Spanish and German. In case of any discrepancies between the Polish, English and German versions, the Polish language version shall prevail.