GENERAL TERMS AND CONDITIONS OF SALE (GTC)
HASBORG Rafał Mucha

 

EFFECTIVE DATE: 01.01.2020

DEFINITIONS:

The Seller – HASBORG Rafał Mucha, conducting business activity under the business name HASBORG Rafał Mucha, with its seat in Rakszawa 508, 37-111 Rakszawa, Poland,  Taxpayer’s Identification Number NIP: 794-128-09-46, National Business Registry Number REGON: 650231331
The Buyer – an entrepreneur being a party to the legal relationship with the Seller in connection with the purchased equipment, with the exclusion of authorised distributors (sales representatives of the Seller);
Items of Equipment – machinery, equipment and process lines for the manufacturing of cookies, sweets, chocolate products, and the like, offered by the Seller, including spare parts and accessories thereof;
Offer – a proposal to conclude a Sales Agreement addressed to the Buyer;
Confirmation – confirmation of acceptance of an order for the realisation of Item(s) of Equipment by the Seller, containing a specification of the Item(s) of Equipment, configuration, terms of realisation, etc. - as provided in the Offer;
Agreement – Agreement on the Sale of the Item(s) of Equipment, containing the terms and conditions accepted by the Buyer, specified in the Confirmation;
Parties – the Seller and the Buyer;
Guarantee – a document that specifies the conditions of the maintenance and repair of Items of  Equipment or  replacement thereof, in the cases specified in the guarantee document.

  1. 1.       GENERAL PROVISIONS

1.1. These General Terms and Conditions, hereinafter referred to as the GTC, constitute an integral part of all commercial Offers/Agreements concerning Items of  Equipment. Any regulations different from those contained herein require joint written statements of will of the Seller and the Buyer, otherwise they shall be considered null and void.

1.2. If any of the provisions of these GTC is considered to be illegal, invalid, or unenforceable, it does not affect the validity and effectiveness of any other provisions. The invalid or ineffective provisions shall be replaced by provisions that reflect the original intentions of these GTC as closely as possible.

2. THE SALES PROCESS

2.1. The Seller provides the Buyer with an Offer to purchase Items of  Equipment, which constitutes an invitation to enter into an Agreement.

2.2. The Seller shall send the Buyer an invoice/a pro-forma invoice that will constitute the basis for the payment for the Items of Equipment. Such invoice/pro-forma invoice should contain a reference to the accepted Offer, i.e. specify the number and date of the Offer.

2.3. After the Buyer has paid the price of the Items of Equipment in whole or in part, the Seller shall send the Buyer a Confirmation compliant with the terms and conditions of the accepted Offer, to the e-mail address of the Buyer.

2.4. Sending a Confirmation to the e-mail address of the Buyer shall constitute  proof of concluding the Agreement between the Seller and the Buyer, on the terms and conditions specified in the Offer and in these GTC.

2.5. All published catalogues, photographs, advertising brochures, and the technical data of the Items of Equipment provided therein are of a purely informational nature. Only the technical parameters of the Items of Equipment provided in the Offer are binding.

2.6. The procedure described in items 2.1. - 2.5. hereinabove shall be applied accordingly to any modifications of the Agreement.

3. PRICE AND TERMS OF PAYMENT

3.1. The date of payment of the whole or part of the price shall be deemed to be the date of crediting the funds to the bank account of the Seller specified in the invoice/pro-forma invoice.

3.2. All costs of banking operations shall be borne by the Buyer and the Seller, respectively, in their banks. The costs of intermediary bank charges shall be borne by the Buyer. Delayed payments shall be charged with statutory interest for delays in commercial transactions.

3.3. In the event if the Agreement is terminated for reasons attributable to  the Buyer, the Buyer shall be obliged to compensate for the related damage incurred by the Seller. In such event, the Seller may retain the received advance payments towards the compensation for damage. The amount of damage not settled by the retained advance payments may be claimed on general terms.

4. REALISATION DATE AND DELIVERY OF ITEM OF  EQUIPMENT

4.1. The Seller shall produce the Items of Equipment within the periods and on the terms and conditions specified in the Confirmation, it being understood that  the period of realisation shall not commence until  the date of payment of the whole price or part thereof.

4.2. The period of realisation shall be binding for the Parties, provided that the Buyer  makes the payments according to  the terms and conditions specified in the Confirmation. In the event of delay in payment, the Seller may suspend the realisation of the Items of Equipment and set a new date for the performance  of the Agreement, according to its manufacturing capacity.

4.3. In the event of delays or shortages in the supply  of resources, raw materials, and/or the devices necessary to manufacture the Items of Equipment, which are not caused by fault of the Seller and are beyond the control of the Seller, and if the Seller was not aware of the potential problems with deliveries at the moment of preparing the Offer and the Confirmation, the dates of realisation may be subject to changes.

4.4. The Seller shall make all efforts to minimise the risks specified in item 4.3. hereinabove and, at the request of the Buyer, the Seller shall submit  statements of its suppliers documenting the delays in the supply  of materials to the Seller.

4.5. The Seller shall notify the Buyer electronically that the Items of Equipment are ready for collection.

4.6. The Buyer shall collect the Items of Equipment within 14 days from the receipt of the Seller’s notification that the Items of Equipment are ready for collection.

4.7. In the event of delay in the collection of the Equipment, the Seller may charge storage costs in the amount not exceeding 0.5% of the price per each 10-day period  of delay, however not more than 5% of the price.

4.8. The responsibility for the Items of Equipment shall be transferred to the Buyer upon:
4.8.1. loading the Items of Equipment onto the means of transport at the premises of the Seller, on the terms of sale FCA (Rakszawa) Incoterms 2010,
4.8.2. the delivery of the Items of Equipment to the destination on the terms of sale DAP (Delivered At Place) Incoterms 2010

- on the terms and conditions specified in the Confirmation.

4.9. Unless the Parties have agreed otherwise, the date of hand-over  of the Items of Equipment to the Buyer shall be considered as the date of loading onto the means of transport (item  4.8.1) or the date of delivery of Equipment to the destination (item 4.8.2.) as specified in the Confirmation.

4.10. During the acceptance of the delivery containing the Items of Equipment (item 4.8.2.), the Buyer shall inspect the delivery and make annotations concerning any visible damage or missing elements in the signed delivery documents (CMR). Then, the Buyer shall notify the Seller immediately about any such findings in writing or electronically. If the Seller does not receive such immediate notification, the Seller shall not take into consideration any reports of damage or missing elements resulting from transport.

4.11. Until the installation of the Items of Equipment at the target location, the Buyer shall ensure that the Items of Equipment are stored in a sheltered, dry place at temperatures above zero. Any damage resulting from improper storage of the Items of Equipment shall be covered by the Buyer.

5. TECHNICAL CONDITIONS AND DOCUMENTATION

5.1. The Seller shall provide the Buyer with:
5.1.1. the instruction manual of the Items of Equipment in electronic or hardcopy form and the Guarantee,

5.1.2. Pre-installation instruction manual containing the instructions for unloading and mounting as well as a specification of the conditions and works that should be provided by the Buyer in order to ensure smooth unloading, proper storage, installation, and start-up of the Items of Equipment. The Buyer shall comply with the terms and conditions and with the recommendations provided in the Pre-installation Instruction Manual.

6. INSTALLATION AND FINAL HANDOVER

6.1. The Seller shall install and start up the Items of Equipment with accessories at the premises of the Buyer, in compliance with the terms and conditions of the Agreement.

6.2. The Buyer shall unload the Items of Equipment and transport it to the place of installation at its own risk and expense. The Buyer shall unload the Items of Equipment in compliance with all applicable safety principles.

6.3. The Parties agree that the Buyer shall notify the Seller electronically that the Items of Equipment are ready for installation within 30 (thirty) days from the date of delivery, according to the Pre-installation Instruction Manual.  

6.4. The Seller shall commence the installation and start-up of the Items of Equipment at the latest within 30 business days from the date of the electronic notification about the readiness for installation sent by the Buyer, provided that the Buyer has met the obligations specified in the Pre-installation Instruction Manual. The Buyer shall cover the potential additional costs of installation and start-up that result from the delay on part of the Buyer (in particular: costs of transport and accommodation of the service staff of the Seller).

6.5. During the start-up of the Items of Equipment, they will be inspected and an acceptance report will be drawn up and signed by one representative of each Party. The Parties hereby authorise the persons who will participate in the Item of Equipment start-up procedure to sign such a report  on behalf of the given Party. If any of the Parties does not sign the report, the reasons should be specified therein. Any potential defects of the Items of Equipment detected during the final commissioning procedure shall be removed by the Seller as specified in Article 7.

6.6. Before the final commissioning of the Equipment and completion of the training by the designated staff, confirmed by a signed training certificate, the Buyer must not perform any operations using  the Items of Equipment on its own. Failure to comply with the above condition shall mean that the Equipment has been accepted for use and thus that all the obligations of the Seller under the Agreement have been fulfilled.

6.7. If the Buyer fails to fulfil its obligations related to the final commissioning of the Items of Equipment under the Agreement due to reasons beyond the control of the Seller, in spite of specifying an additional 14-day period by the Seller for the Buyer to notify it about the readiness of the Items of Equipment for installation, the Parties agree that the obligations under the Agreement are deemed to have been performed by the Seller on the date of expiry of the aforementioned 14-day period, i.e. that the Items of Equipment have been accepted by the Buyer in compliance with the Agreement without any reservations.

6.8. In the cases specified in the preceding items, the Buyer shall lose its rights under the Guarantee.

6.9. The Buyer acknowledges that, until the payment of the full price, the Items of Equipment may be protected with a security code.
6.9.1. The code shall be disclosed after the Seller has received the payment of the due amount of the price,
6.9.2. Non-disclosure of the code due to failure to pay the due amount of the price and stopping the operation of the Items of Equipment shall not be considered as non-performance or improper performance of the obligations.

6.10. The provisions of item 6.9. hereinabove shall apply accordingly to any other existing due and payable  obligations of the Buyer towards the Seller.

7. GUARANTEE OF THE MANUFACTURER AND LIABILITY OF THE SELLER

7.1. The period of manufacturer’s liability under the guarantee agreement is specified in the content of the Guarantee and is 12 months starting from the date of issue of the Guarantee Certificate.

7.2. Under the guarantee for physical defects, the Buyer is entitled to demand the Seller to remove the defects of the Items of Equipment at the Seller’s expense.

7.3. In order for the rights  under the Guarantee of the manufacturer to arise and for the Buyer to be able to exercise such rights, the Buyer shall ensure that the Items of Equipment are operated in the conditions recommended by the Manufacturer, specified in the Instruction Manual, Guarantee, Pre-installation Instruction Manual, and in other guarantee documents of the Seller or the Manufacturer. Apart from that, the Buyer shall comply with the instruction of the Seller’s service staff and perform all maintenance procedures.

7.4. All operations performed on an Item of  Equipment by the Buyer (operational and maintenance work, etc.) may be performed only by appropriately trained personnel. The Seller shall not bear any responsibility for damage and incorrect results of operating the Items of Equipment that emerge as a result of improper operation, non-compliance with the received instruction manuals and technical documentation, provisions of the Agreement, and unauthorised repairs.

7.5. The manufacturer’s guarantee shall not include responsibility for such decrease in the value or usability of the Equipment that results from proper operation, in particular it does not include operational materials and parts that are subject to normal wear and tear, such as: belts, tapes, transport nets, nozzles, trays, burners, radiators, etc.

7.6. If repairing the Items of Equipment requires sending the Items of Equipment (or some of them ) to the facility of the manufacturer or the premises of the Seller, the refusal to hand over the Items of Equipment (or some of them ) shall result in releasing the Seller from liability under the Guarantee. The costs of transporting the Items of Equipment (or some of them ) to the facility of the manufacturer or of the Seller shall be borne by the Seller. If the manufacturer finds out that the defect emerged due to the fault of the Buyer, in particular due to improper operation of the Items of Equipment, the costs of repair and of transporting the Items of Equipment (or some of them ) to and from the facility of the manufacturer or the Seller shall be borne by the Buyer.

7.7. For the purposes of performing repairs, the Buyer shall provide the service staff of the Seller with free access to the Items of Equipment and to parts thereof.

7.8. The Buyer shall notify the service staff of the Seller about any defects within 48 hours from the detection, through the form that is available on the website of the Seller at https://www.hasborg.pl/serwis.html. The Seller shall respond to the reported failures within a period not exceeding 24 hours from the moment of receiving the report. The defect shall be removed within 30 business days. However, this period may be extended in the event of obstacles that are beyond the control of the Seller or that result from the technological capacity of the Seller.

7.9. The defective parts that have been replaced under the Guarantee constitute the property of the Seller.

7.10. The Buyer may withdraw from the Agreement if the delay in the delivery of the Items of Equipment by the Seller exceeds one hundred and twenty days after the expiry of the period specified in item 4 of these GTC. If the Items of Equipment have been delivered and the delay is related to accessories, parts thereof, or the performance of other contractual obligations, the Buyer may withdraw from the part of the Agreement that is subject to the delay within the period specified above.

7.11. The Buyer may exercise its right specified in item 7.10. hereinabove after having specified an additional, at least 30-day period for the Seller in writing.

7.12. After the expiry of the period specified in item 7.11. hereinabove, the Buyer may charge a contractual penalty in the amount of 0.5% of the price for each 10-day period of delay. However, the contractual penalty must not exceed 5% of the price.

7.13. The Seller shall be liable for non-performance or improper performance of the Agreement. However, the total value of the liability cannot exceed the amount equivalent to 10% (say: ten per cent) of the net value of the Agreement, including, in particular, the value of discounts granted to the Buyer as compensation, the reduction of the price, and the value of the offered substitute items of equipment.

7.14. The Parties agree that the rights of the Buyer and obligations of the Seller specified in this Article shall supersede the relevant legal regulations concerning their subject, unless they are contrary to generally binding laws.

8. FORCE MAJEURE

8.1. The Parties shall not bear responsibility for failure to perform their non-financial obligations under the Agreement if such failure is caused by circumstances of force majeure.

8.2. The Parties agree that force majeure shall be understood as any circumstances beyond the control of the Parties that were not known to them at the moment of concluding the Agreement and whose effect on the performance of the Agreement was not known, i.e. in particular: wars, martial laws or states of emergency, epidemics, pandemics, riots, sabotage, terrorist attacks, strikes announced formally by trade unions, natural disasters including: strong thunderstorms, floods, damage caused by lightning, earthquakes, typhoons, storms, and other atmospheric anomalies, as well as explosions, fires, destruction of equipment or installations, nationwide actions of the governments, and embargoes.

9. FINAL PROVISIONS

9.1. In cases not regulated in the Agreement or in these GTC, the relevant legal regulations shall apply.

9.2. The Buyer shall provide the Seller with an e-mail address for all notifications under the Agreement. Otherwise, the Seller shall be entitled to send all notifications to any e-mail address of the Buyer that is known to it or to the e-mail address of the Buyer to which the previous notifications and statements of the Seller were delivered.

9.3. The Buyer may send notifications, with the exception of statements that require written form under the pain of nullity, to the e-mail address specified in item 9.2.

9.4. Withdrawal from the Agreement requires written form, otherwise it shall be considered null and void. The Party shall notify the other Party about any changes in their correspondence address in written form, otherwise such notification shall be considered null and void. However, such notification shall not constitute a modification of the Agreement. The change shall become effective on the day following the delivery of the notification.

9.5. Written notifications sent to the other Party to the address specified in the Confirmation or to the new address as defined in item 9.4. hereinabove shall be deemed as effectively delivered at the latest 7 days after the first delivery attempt by a post operator or a courier mail service.

9.6. The right of the Buyer to transfer the receivables due from the Seller to third parties is hereby excluded.

9.7. If the Parties fail to settle the disputes arising from the Agreement (including those concerning the withdrawal from the Agreement) in an amicable manner, the disputes shall be settled by a common Court of local jurisdiction for the seat of the Seller.

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