1.1. These terms of sales are applicable to all sales agreements concluded by ELKOM TRADE S.A.
and prevail over purchase terms of the Buyer. All rates and offers are subject to these terms, acceptance of an order is equivalent to acceptance of these terms. Any changes and amendments to these terms require written consent of the Seller under pain of nullity. In the event of discrepancies or contradictions between these terms and detailed terms presented in other documents of the Seller, addressed to the Buyer, detailed terms shall prevail.
1.2. “Seller” means ELKOM TRADE S.A., selling Products to the “Buyer”.
1.3. “Buyer” means the Seller’s client. Buyer and Seller collectively will be referred to as “Parties” and individually as “Party”.
1.4. “Terms” means these sales terms.
1.5. “Products” means any product or good or any parts or components or services sold to the Buyer by the Seller.
1.6. Only these Terms exclusively are applicable to any sale of Products to the Buyer by the Seller. Any changes to these Terms shall require written consent of both Parties, signed by duly authorized representatives of the Parties, under pain of nullity.
1.7. Orders placed by the Buyer to the Seller shall be deemed as unconditional acceptance of these Terms.
1.8. Subject to the provisions of item 1.6, the Terms shall constitute inseparable part of any agreements and deals regarding transactions concluded between the Seller and the Buyer.
1.9. Subject to the provisions of item 1.6, changes to these Terms proposed by the Buyer and accepted by the Seller shall always be implemented at the risk and responsibility of the Buyer; all costs of such changes shall be incurred by the Buyer.
2. Products and Samples
2.1. Any statements, technical specifications and guidelines regarding Products sold and samples furnished by the Seller are based on tests deemed as reliable, however they are not equivalent to warranty or assurance. The Parties hereby agree that all Products are sold and/or samples furnished under the conditions that the Buyer shall be exclusively responsible for determining that the products are suitable for aims indicated by the Buyer, before the use of such Products.
2.2. Samples delivered to the Buyer are furnished only for informational purposes and do not constitute any direct or indirect warranty or assurance regarding their conformity with requirements, quality, specification, suitability for use or trade quality. The Parties acknowledge that the Buyer is fully aware of the above and has no objections in regard to the subject of the above item.
3.1. Delivery is subject to the International Commercial Terms (Incoterms) of the International
Chamber of Commerce (ICC) applicable on a given day of the shipment.
3.2. Unless other specific Incoterms and place of destination have been agreed, the deliveries with
the final place of destination in the European Union ( “EU”) are carried out under the terms:
” … named place of delivery” (Free Carrier – hereinafter abbreviated as “FCA”) to the final
place of destination in the EU, after the preparation of the valuation of the cost of delivery by the Seller and its acceptance by the Buyer.
3.3. Unless other specific Incoterms and place of destination have been agreed upon, the deliveries
with the final place of destination outside the EU (exports) are carried out under the Ex-works
terms: ” … named place of delivery” (ex-works – hereinafter abbreviated ” ExW ” ) to a final
place of destination outside the EU, after the preparation of the valuation of the cost of
delivery by the Seller and its acceptance by the Buyer.
3.4. Unless other specific Incoterms and place of destination have been agreed upon, the deliveries with the final place of destination outside the EU (exports) are carried out under the Ex-works terms: ” … named place of delivery” (ex-works – hereinafter abbreviated ” ExW ” ) to a final place of destination outside the EU, after the preparation of the valuation of the cost of delivery by the Seller and its acceptance by the Buyer.
3.5. The delivery is subject to the ICC Incoterms as on the date of shipping. Unless specific Incoterms details and shipping destination are specified otherwise, deliveries with final destination within the territory of the European Union will be performed on Delivery Duty Unpaid (“DDU”) basis, to the final destination within EU. Deliveries with final destination outside of EU (export) will be performed on ex-works terms (“ExW”) of the Seller’s location. Any changes are subject to item 1.6.
3.6. Delivery dates stated in any offers or on the order acceptance form or other medium are only estimates and do not constitute a binding obligation of the Seller towards the Buyer.
Small deviations in terms of quality, symmetry, format, color, hardness and finish shall not constitute basis for rejection of the Products. When assessing scale of deviation, a batch average shall be considered to avoid rejection on the basis of small quantities of a given product.
5. Packaging costs
5.1. The Products will be packed and labeled according to standard requirements for a given mean of transport. Any fees regarding packaging will be accrued according to the Seller’s rates as on the shipping date. Orders requiring shipping abroad will generate additional special packaging costs as well as ferry, insurance and other fees and expenses to be incurred by the Seller.
5.2. The Seller may use return (replacement) pallets being the Seller’s property, which will remain his property and be returned or retrieved in accordance with the Seller’s guidelines.
6.1. The Seller’s offer does not constitute an irrevocable offer. The Seller reserves the right to withdraw such offer and to change it at any time before its confirmation by the Buyer.
6.2. Upon submitting the offer, the Seller, unless stated in writing otherwise, may withdraw the offer within ten (10) days from the date of acceptance of such offer by the Buyer.
6.3. Any data, drawings, dimensions etc. presented by the Buyer to the Seller shall be deemed by the Seller as correct and complete, and, as such, adequate to base his offer on them.
7.1. The prices do not include VAT or other taxes, fees or duties unless expressly agreed in writing otherwise. The Buyer shall bear costs of the above mentioned.
7.2. In case the Seller uses price list for the Products to be sold, prices payable for the Products shall be price list prices of the Seller as on the shipping date.
7.3. The Seller shall have the right, at any time, to change the price list and/or the agreed prices, to adjust them against inflation and increase in costs, including, among others, costs of procurement of Products or materials, transport, labor and other overheads, or an increase
in any taxes imposed, duties and/or other fees and/or any currency exchange rate fluctuations.
8. Payment terms
8.1. Subject to point 1.6 above, payment of invoices will be performed (i) in currency stated in the invoice (ii) to the banking account stated in the invoice and (iii) within thirty (30) days from invoice date, in an amount prior to settlement of dues and rebates.
8.2. The Seller, at any time, shall have the right to demand down payment or cash payment upon shipping of Products, or demand providing security in form accepted by the authorized representative of the Seller, to ensure that the Products’ price is paid fully.
8.3. In case the Buyer does not apply solutions stated in these Terms, including, among others, obligation to pay the purchase price, he shall be deemed as responsible for breaching the Terms, to immediate effect and without the need of filing a lawsuit. In such event: (i) The Seller shall have the right to withhold performing its contractual obligations stated in these Terms, and, among others, shall have the right to withhold shipping Products, without waiving the Buyer’s obligations; also (ii) all amounts due and interests payable by the Buyer shall immediately become transferred to the Seller.
8.4. Any credit granted to the Buyer may be changed or withdrawn at any time.
8.5. In case of the Buyer’s delay in payment, the Seller shall have the right to impose interests in an amount of one and a half (1,5%) percent monthly, or, if higher, customary interests according to law of the Buyer’s country of residence, accrued from amount due; partial months will be deemed as full months. Any costs, attorney’s fees and such, incurred by the Seller as a result of the Buyer’s breach of the Terms, shall be covered by the Buyer. Costs other than attorney’s fees shall constitute minimum ten (10%) percent of all amounts due.
8.6. The Seller shall have the right, at any time, in an amount he sees fit, to compensate any payables owned by the Buyer against payables of the Seller to be paid to the Buyer.
9. Ownership title
9.1. Despite shipment and transfer of risk and substituting a relevant Incoterm, the Products remain the Seller’s property and may be transferred to the Buyer only when the Buyer has fulfilled all its obligations under these terms or resulting from them, as well as from any sales contracts made between the Buyer and the Seller.
9.2. If the Buyer fails to fulfill any of its obligations under these terms and conditions of any agreements relating to the sales concluded between the Seller and the Buyer, the Seller shall have the right to take over at any time the Products, of which right is reserved, wherever they are located, without prejudice to the Seller’s right to compensation from the Buyer for the failure to fulfill obligations of the Buyer.
9.3. The Buyer hereby grants the Seller and its employees and agents the right and license to access the Buyer’s premises during normal business hours, to inspect and / or accept the Products, to which he retained the right. This law and license shall be in force regardless of termination of sales, for any reason, under these Terms or any other sales agreement. Such right and license shall continue regardless of termination, for any reason, of any transaction of sales under these Terms or any agreement related to the sales between the Seller and the Buyer.
9.4. The Seller reserves the right to reclaim and resell all the products to which he retained the title, and the Seller’s consent to retain the Products by the Buyer, as well as all rights which the Buyer may have to retain the products in any case cease to effect:
9.4.1. if any amount due of the Buyer for the Seller (with respect to the Products and any other title) is not paid by the Seller in accordance with paragraph 8 above 9.4.2.after the occurrence of any event specified in paragraph 16 below, or
9.4.3. if the Buyer breaches any agreement concluded with the Seller.
9.5. When the Buyer keeps the Products under the Seller’s consent (but not otherwise), the Buyer shall have the right, during normal business, to sell or rent products, provided that:
9.5.1. regarding the relationship between the Buyer and its subcontractor or client, the Seller shall sell or rent Products as employer; the Buyer shall have no right of demanding the Seller to enter in any contractual relationships or to take responsibility towards another buyers or clients or any other entity;
9.5.2. regardless of any agreed crediting periods for payment of prices for Products, the Buyer shall settle any payables from such sales or rent to the Seller’s account, upon accepting the Product.
9.6. The Buyer shall be obliged to assign or transfer any rights and claims which the Buyer may have against its subsequent purchasers or customers arising from such sales, until completing payment in full amount, as specified above, promptly after receiving such demand from the Buyer.
10. Intellectual property
10.1. The Buyer shall indemnify and satisfy any claim against the Seller in respect of obligations, costs, damages and expenses incurred by the Seller or for which the Seller may be liable, arising indirectly or directly from:
10.1.1. performing any work required or related to the Products under requirements or specifications of the Buyer that violates intellectual property rights belonging to any third party.
10.1.2. making any supplementations, modifications or performing other actions on Products violating intellectual property rights belonging to any third party.
10.2.Notwithstanding the above, in the case, at any moment, of violation of patent, intellectual property rights, trademark or design right regarding the Products, or in the case the Seller sees such event as likely to happen, the Seller may, at his own discretion and cost:
10.2.1. modify or replace Products without altering their general functionality in order to avoid said violation; or
10.2.2. purchase the right to further use of the Products for the Buyer; or
10.2.3. buy the Products at price paid by the Buyer reduced by amortization at rate applied by the Seller in his own settlements.
The Buyer shall notify the Seller on any claims, actions or risk of claiming violation of third party rights. The Seller shall supervise such proceedings in a way he sees fit. The Buyer shall assure any aid in this regard, at the Seller’s request. Costs of such proceedings shall be covered in proportion agreed by the parties.
10.3.This sales agreement and/or agreements related to sales do not transfer to the Buyer any intellectual property right of the Seller, including, among others, copyrights, trademarks, design rights and patent rights. The Buyer shall not disclose any information regarding the Products, designing the Products or production methods of the Products to third parties.
11.1.The Seller warrants for a period stated in point 11.2 above that the Products are free from material and workmanship defects under normal use. The Seller does not issue any other, direct or implied warranties regarding the Products. The Buyer shall not be liable for any claims of third parties.
11.2.The warranty period is period determined in technical sheet for a given product and/or information publication as on the shipping date. If such statement is not included in the product technical sheet and/or information publication , the warranty period shall be one (1) year from the date of shipment.
11.3.The Seller shall not be responsible for defects of Products caused by normal wear. Rights assigned by this warranty shall be held exclusively by the Buyer and not clients or users of the Buyer.
11.4.This warranty does not apply to Products recognized by the Seller, the Buyer or any third party to have been exposed to operating conditions which were incompliant with relevant specification or were subject to abuse, negligence, incurrent installation, damage or incorrect storage conditions, or were by any means altered or modified by entities other than the authorized personnel of the Seller. The Buyer is obliged to disclose any information required by the Seller to recognize the above mentioned.
11.5.No warranty shall apply if the Products are used after period stated in point 11.2. In case of claims or complaints of the Buyer, the Seller must present that he used the products within warranty periods and in accordance with any instructions and guidelines of the Seller.
11.6.In case of defects of a part of the delivered Products, the Seller shall have the right to inspect and remove such defects. The Buyer shall provide the Seller with reasonable time for repairing a defective Product.
11.7.Complaints regarding visible defects of products shall be reported to the Seller within 48 days from delivery. The Buyer shall record defects in a relevant shipping documentation and preserve the defective Products as an evidence. The Buyer, only at the Seller’s request, will return defective Products to the Seller in its original packaging. Only within the range deemed by the Seller’s warranty department as justified, will the Seller, at his discretion, replace or repair the Products. The Seller shall not be liable for any losses or visible defects of the Products occurring during shipping, or for defects of delivered products, or for visible shortages other than in quantities permitted in paragraph 4, if the Buyer does not notify the Seller of such within 21 days from delivery date determined in the schedule and/or date of actual delivery. On that date, the products shall be deemed as delivered in good condition. Upon delivery, the Buyer’s quality inspector shall inspect the Products in quantitative and qualitative terms. Such inspection will be based on shipping documentations, the Seller’s samples and/or relevant specifications of Products.
11.8.Complaints regarding latent defects of Products that occur in the future, must be reported to the Seller promptly after occurring. The Buyer shall promptly notify the complaints department of the Seller on such complaint.
11.9.Any claims on product defects that the Buyer may raise, will be ineffective after the period indicated in point 11.2.
11.10. In case of any breach of terms of the warranty within period stated in point 11.2, the Seller’s sole obligation under these Terms shall be, at the Seller’s discretion, to return the price of Products to the Buyer, in whole or in part, or replace the given Products or any of their non-compliant parts, under condition of fulfilling each of the following:
11.10.1.The Seller shall receive written notification on non-compliance and/or breach within 15 days from the date in which the Buyer learned or should have learned of the defect,
11.10.2. upon written authorization of the Seller, the defective product will be returned to the Seller, to the destination from which it was shipped, shipping costs paid; and
11.10.3.after inspecting the products it is sufficiently evident to the Seller that the product does not conform to the relevant requirements. No such replacement may extend the warranty period.
11.11. Notwithstanding any other provisions, the Seller’s sole obligation towards any attributable non-compliances of the delivered Products, for reasons other than material or workmanship defects, shall be, on the Seller’s discretion, to return in full or in part to the Buyer the purchase price for given Products or to replace the given Products or any noncompliant parts, provided that the Seller is notified in writing of the non-compliances within
six (6) months from the initial shipping date, and that the provisions (i), (ii) and (iii) presented in the above point 11.10 are fulfilled.
12.1.ENTIRE LIABILITY OF THE BUYER FOR NEGLIGENCES, BREAHC OF THIS AGREEMENT, MISREPRESENTATION OR FOR OTHER REASONS SHALL NOT, UNDER ANY CIRCUMSTANCES,
EXCEED THE COST OF DEFECTIVE, INCOMPLIANT WITH SPECIFICATIONS, DAMAGED OR UNDELIVERED PRODUCTS CONSTITUTING BASIS FOR BEARING LIABILITY AND DETERMINED IN NET PRICES ON INVOICES FOR THE BUYER, IN REFERENCE TO ONE EVENT OR SERIES OF EVENTS RESULTING IN SUCH LIABILITY.
12.2. Subject to the above, all terms, warranties and statements, including, but not limited to warranty of not violating patent, direct of implied from law or otherwise, regarding the delivered Products, are excluded. Moreover, the Seller is not liable for any losses or
damages resulting from material defects, wrong making or others resulting from sales or sales agreement, regardless of whether effecting from the Seller’s negligence, or of his personnel or agents, , with the reservation that the Seller accepts liability for death or injury caused by the Seller’s negligence.
12.3.In any case shall the Seller not be held liable towards the Buyer for any losses, damages or injury, whether direct or indirect, including loss of profit, company value, reputation, transfer of business, agreement, losses or expenses resulting from claims of third parties.
13. Canceling Agreement
Unless or until performing sales and/or performing agreements related to sales is impossible, the Buyer may withdraw from sales and/or sales agreements exclusively in the event of withdrawing from sales and/or performing sales agreements by the Seller, if the Seller withdrew from sales and/or performing sales agreements under these Terms, within additional, reasonable period assigned for the Seller by the Buyer through a notification under paragraph 19 below. Canceling sales and/or agreements related to sales is permissible only to the extent in which sales and/or performing sales agreements was ceased under these Terms, and the Buyer cannot be expected to uphold the subject sales and/or continuing performing sales contracts.
14. Force Majeure
None of the Parties will be liable for non-performance of any of their contractual obligations, to any extent, in which their performance is delayed or made impossible due to acts of force majeure, including, but not limited to, fire, flood, war, embargo, riots, strikes (including strike, Italian strike, minimum work) or governmental interventions, provided that the affected Party notifies the other Party on the delay and its reason. If (i) the force majeure lasts for more than thirty (30) days total and (ii) acting of force majeure causes severe damage to the Party affected, that Party may terminate the sales and/or the sales agreement, upon sending written notification under paragraph 19 to the Party affected by force majeure. The terminating Party, as defined above, shall not be held liable against the other Party for damages incurred by the other Party resulting from termination of sales/sales agreement.
The Buyer shall not disclose confidential information to any third party, obtained from the Seller in relation to the sales and/or sales agreement. Moreover, the Buyer shall use such information only for the purpose of performing its obligations towards the Seller, except for other legally required aims or at the Seller’s written consent.
16.1.In the event of submitting bankruptcy petition by any of the Parties or assigning a liquidator to any Party’s business, or if any of the Parties performs a general transfer for the benefit of their debtors, or if proceedings are initiated against it or by it with an aim of judging insolvency, or due to third parties’ actions, including, but not limited to overtaking assets, or if any such proceedings are initiated in any jurisdiction, resulting in disturbance to the Party’s business, limiting its possibility to perform sales/contractual obligations, the
other Party shall have the right to terminate sales and/or sales agreement with immediate effect, upon notice subject to paragraph 19 below.
16.2.Upon terminating any sales/sales agreement under point 16.1 above, any amounts payable by the Buyer for the Seller shall become due and payable with immediate effect, and the Seller shall be waived from further obligation to deliver any Products to the Buyer under such sales agreements/sales-related agreements.
Non-exercising any right attributed under these Terms and/or sales transactions and/or sales-related agreements shall not be deemed as waiving such rights and shall not prevent such exercise in the future.
No rights or obligations of the Buyer under these terms and/or sales-related agreement shall be transferred in whole or in part without written consent of the Seller.
Any notifications delivered under this Agreement shall be made in writing by an authorized person, in accordance with relevant provisions, and shall be deemed as delivered only if delivered by registered letter, by facsimile, courier or e-mail.
Headings being part of this Agreement are for reference purposes only and do not influence its interpretation.
21. Governing law, courts of jurisdiction
21.1. Any obligations not included in this agreement and sales transactions and/or agreements regarding sales with final destination within EU (export) between the Buyer and the Seller shall be interpreted according to law of the country in which the Seller’s main office is located, or where he resides. Sales transactions and/or agreements between the Buyer and the Seller within EU shall be interpreted according to law of the country in which the Seller’s main office is located, or where he resides. Provisions of the UN Convention on international sales agreements (The Vienna Convention) shall not apply.
21.2.Any disputes resulting from or related to the sales transactions and/or sales-related agreements shall be resolved by courts of relevant jurisdiction, under point 21.1. Regardless of the above, the Seller, at his discretion, reserves the right to initiate such proceedings or raise claims in courts with jurisdiction for the Buyer’s office, in accordance with law of the relevant country.
The language for interpreting these Terms shall be Polish. Any translations of these Terms are for readers’ convenience only.
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