1.1 All deliveries and services provided by GeniCore Sp. z o.o. (hereinafter referred to as GC) are subject to the following principles which constitute an integral part of the agreement, in respect of which the Purchaser confirms that they constitute the entire and only agreement between the Purchaser and GC. Any further and different terms and conditions will be binding only to the extent that they are approved in writing by GC.
1.2 The following principles are deemed accepted upon the PURCHASER’s acceptance of the offer of GC by placing a written order or executing a contract.
2. Offer/Order Confirmation
2.1 GC offers are binding upon GC if it is expressly confirmed in the offer. If there is no confirmation, any commercial information sent to the Purchaser by GC should only be treated as an invitation to execute an agreement.
2.2 The PURCHASER’s order will not be binding until it has been confirmed by GC in writing and only to the extent of such confirmation.
3.1 The data placed in catalogues, prospectuses, offer and contract documents in the form of illustrations, drawings, dimensions and weights, consumption indices and capacity ratios and other data are approximate and not binding upon GC, unless it is expressly stated that they are binding.
3.2 GC reserves the right – in extraordinary circumstances – to change the design, in particular whenever it is justified by the need to make material and technological changes which do not lead to the deterioration of a product.
3.3 Proprietary rights to all intangible assets subject to protection under the Act on the Protection of Industrial Property and the Act on Copyrights and Neighboring Rights, in particular works protected under the copyrights law, patents for inventions, utility models, trademarks, trade names, designation of origin, registered designations of origin, mask works, improvement proposals, information about the proper use of inventions, other messages and experiences of a technical nature which are capable of being directly used in business and scientific activity, information of an organizational nature and other, made available to the PURCHASER by GC as a result of the fulfillment of the obligations arising from this Agreement, constitute the property of GC. GC owns the objects on which the works provided to the PURCHASER were recorded. The PURCHASER does not have the right to use them for any other purposes, or to copy, duplicate or make them available to any third parties. The documents do not assign the ownership title, nor do they imply that a license has been granted. Drawings and other documents being the property of GC are to be returned immediately upon GC’s request with all copies thereof.
3.4 The PURCHASER undertakes not to use them for any other purposes and not to make available or transfer to any other entities any elements, information and technical documentation on the basis of which the devices ordered by the Purchaser were produced.
3.5 After the devices are sold, GC has the right to enter any devices so sold and the data concerning the client on the standard reference list, including the name and type of the device, the date of sale, the client’s name and the country. The execution of these GCS is tantamount with the consent to the inclusion of such data in the reference list. All restrictions may be submitted by the client in writing.
3.6 The parties are obliged to ensure – during the term of the agreement and in the period of 5 years of the date of termination or expiry thereof – that all information concerning the provisions of the agreement and the business activity of the other party, which are confidential in nature and the disclosure of which may impair the other party’s interests, will be kept in confidence, subject to point 3.5.
3.7 Neither party may disclose any information about this agreement to any third parties without written consent of the other party. The foregoing restriction does not apply to the disclosure of information to all authorities, institutions and courts – if such an obligation arises from the applicable laws and to entities rendering business, legal, tax and financial advisory services and services of a similar nature (including the parties’ auditors); provided that the parties are fully liable for keeping such information in confidence by such entities.
4. Prices, Packaging, Insurance, Permits
4.1 GC’s sale prices are net prices and are not inclusive of VAT, customs duties and other charges, which GC may additionally charge PURCHASER in accordance with the applicable laws.
4.2 If according to Polish legal regulations an export authorization is required for the offered device, the PURCHASER undertakes to deliver to GC the Import Certificate issued by the competent governmental body of its country or the End User’s Statement compliant with the requirements set out in art. 23 of the Act dated 29 November 2000 on External Trade in Goods, Technologies and Services of Strategic Importance for State Security and for Maintenance of International Peace and Security), with the contents required by the Polish Department of Economic Security (DBG), within 30 days of the date of execution of a contract.
4.3 The PURCHASER acknowledges that it will be impossible to export a device without the above-mentioned authorization. If the above-mentioned 30-day deadline is exceeded, the dispatch of the device will be postponed accordingly by the period by which the deadline was exceeded. All costs and all risks related to the delay in the dispatch are borne by the PURCHASER.
5. Transfer of Risk
5.1 Unless expressly agreed otherwise, the risk passes upon the PURCHASER upon placement of the goods at its disposal Ex Works according to Incoterms 2010. In other cases indicated in the agreement or in the order confirmation, the risk passed onto the PURCHASER upon handing over the goods to the first carrier.
5.2 If the dispatch is delayed due to the PURCHASER’s failure to fulfill its obligations or if the delay arises from reasons independent from GC, the risk passes onto the PURCHASER upon being notified by GC of the goods being ready for dispatch.
6. Delivery Conditions and Dates
6.1 The parties determine the delivery date in the contract and such date is approximate and non-binding upon GC. GC will take all efforts to carry out deliveries on the agreed dates, but the meeting of the delivery deadlines will depend on the timely fulfillment of the contractual obligations by the PURCHASER, including the deadline for acceptance of the offer and provisions of the necessary technical data, fulfillment of technical conditions set out in the agreement and the timely fulfillment of the obligations of contracting parties or subsuppliers of GC for the purposes of fulfillment of contractual obligations undertaken by GC towards the PURCHASER. Any changes required by the PURCHASER may cause extension of the delivery deadline. Goods are deemed timely delivered if they are handed over to the first carrier or if they are reported as ready for dispatch Ex Works prior to the lapse of the agreed delivery date. Partial deliveries are permissible. Any minor defects do not affect the PURCHASER’s obligation to collect goods; in any such case the delivery date shall be deemed met. The place of delivery is the registered office of GC Ex Works according to Incoterms 2010, unless otherwise agreed by the parties.
6.2 If any delivery is delayed for reasons attributable to the PURCHASER or if it is not collected by the PURCHASER at an appropriate time, GC has the right, at its discretion and without PURCHASER being entitled to any compensation, to store goods at the PURCHASER’s risk, invoice them Ex Works and charge the PURCHASER with the storage costs. If goods are stored in GC’s warehouses the storage costs amount to not less than 1.0% of the invoiced value of the Purchaser’s product the delay or collection of which is delayed, for each commenced month of such storage, starting from the date on which such products are reported as ready for dispatch. GC has the right to schedule another collection date and after the lapse of such date it has the right – without any court authorization – to sell or otherwise dispose of the goods. The sale or other disposal of the goods does not release the PURCHASER from the obligation to pay the price of the goods.
6.3 If any delivery is delayed by any unpredictable events independent of GC – force majeure events, the delivery deadline will be reasonably extended. In any such case the PURCHASER is not entitled to terminate the agreement, nor has it any claims related to the delay in delivery.
6.4 Without bearing any liability or waiving any claims it may have against the PURCHASER, GC may rescind the agreement – within 60 days of the date of occurrence of any event authorizing it to rescind the agreement, as indicated in points 6.4.1 – 6.4.3, terminate the agreement with immediate effect, refuse to deliver goods or delay the delivery without bearing any liability in any of the following circumstances:
6.4.1 the PURCHASER has not fulfilled or is not fulfilling any condition of the order or the agreement.
6.4.2 the rescission of the agreement, the termination of the agreement or the refusal or delay in delivery are caused by circumstances beyond GC’s control, which are not only limited to force majeure, and caused by actions or accidents such as: fire or other casualty, strikes, problems with labor, the Purchaser’s negligence, the lack of labor or materials, breakdowns, delays in delivery of materials by subsuppliers, refusal or delay in issuing authorization by DBG.
6.4.3 if bankruptcy proceedings are instituted in respect of the Purchaser or the Purchaser has given notice of commencement of recovery proceedings.
7. Payment Terms
7.1 Payments should be made according to the provisions of the agreement or the order confirmation.
7.2 Payments shall only be made to GC’s account, free from any transfer costs, on the agreed date, without any deductions, charges, costs and expenses on the side of GC on account of acceptance of a bank guarantee, promissory note or check.
7.3 The parties exclude the right to set off any receivables hereunder against any other receivables.
7.4 If any delivery, assembly or startup is delayed for any reasons not due to GC’s fault, payments are due on the date originally scheduled.
7.5 The Purchaser’ failure to make any payment on the dates required and specified in the agreement will authorize GC to discontinue works and appropriately adjust the delivery date or deliver goods after the payment is made. If such failure to make payment continues for more than 60 (sixty) days after the required deadline, GC may at any time, after the lapse of such deadline, block the operation of the device and terminate this agreement with immediate effect by giving the Purchaser notice by regular mail or email, whereupon it will be entitled to reimbursement of the costs of all works that have been performed and materials that have been delivered, and to the redress of the damages suffered.
7.6 The Purchaser’ failure to make any payment on the due date will constitute grounds for rejection of any claims of the Purchaser against GC related to any delay in delivery or completion of works caused by the discontinuation of works arising from the failure to make payment.
7.7 The payment date is the day on which the due amount is credited on the GC’s bank account.
7.8 If the Purchaser rescinds the agreement for reasons not due to GC’s fault, it will pay to GC a contractual penalty equal to 10% of the value of the agreement and cover the costs payable on account of the completed part of the agreement and the remuneration for the purchased/ordered materials and devices which were not incorporated if the delivery / production thereof cannot be cancelled. GC is obliged to document the value of the materials and devices which were not incorporated but have to be paid for. In the circumstances referred to in this point, within 7 days of the rescission of the agreement by the Purchaser the parties will take inventory of the works in progress and will make a report setting out the value of such works and the value of purchased and ordered materials and devices. The report will constitute the basis for issuing an invoice by GC. If the Purchaser does not proceed with the inventory of the works, GC will take the inventory unilaterally and on the basis thereof it will issue an invoice.
7.9 The foregoing will be without prejudice to GC’s right to claim damages exceeding the prescribed contractual penalties.
8. Retention of Title
8.1 GC retains the ownership title to the delivered goods until it receives full payment encompassing all claims arising from the traction between GC and the Purchaser. If the Purchaser is late with any payment, GC has the right to demand that products be returned to secure its claims.
8.2 During the term of the retention of title, the Purchaser does not have the right to pledge or otherwise encumber the objects being sold, which are owned by GC and entrusted to the Purchaser.
8.3 It is also not allowed to assign the ownership title of such objects to third parties to secure any claims.
9.1 GC guarantees that the products being sold under these conditions are free from physical and legal defects.
9.2 GC’s warranties do not encompass the production process or the quality of production to which the device may be applied.
9.3 Under no circumstances will GC be liable for any loss, damage or expenditure arising, whether directly or indirectly, from the use of its device / product, including but not limited to any indirect damages.
9.4 Under no circumstances will GC be liable for any lost profits of the Purchaser as a result of any failure to perform or improper performance by GC of any provision hereof.
9.5 This warranty does not encompass fast wearable parts including but not limited to: light bulbs, seals, fan belts, filters, graphite sets, thermos-elements, vacuum heads, heating elements, fans, mechanical connectors, screens, oils for vacuum and diffusion pumps, minor ceramic elements. The warranty does not encompass any defects arising from improper use or failure by the Purchaser to carry out periodical inspections and maintenance works in accordance with the instructions included in the Operation and Maintenance Manual.
9.6 This warranty does not apply if the Purchaser made any changes or modifications, changed the installation place, or the construction, assembly or startup were carried out without GC’s supervision or in any manner not compliant with the methods acceptable to GC.
9.7 The components and materials used to manufacture GC products will be subject to manufacturers’ guarantees. GC will enforce the rights arising therefrom on behalf of the Purchaser.
9.8 GC will repair or replace, free of chargé, all elements which will be deemed or confirmed as defective by GC or whose condition has significantly deteriorated, assuming that defects appeared during 12 months of the startup of the device but not later than 18 months of the dispatch of the product. In the event of any defects in design, material or workmanship, GC will be fully liable under warranties, except for erroneously stated assumptions of the Purchaser, on the basis of which GC prepared the design.
9.9 GC warrants that it will proceed with any repair under warranty no later than within 10 business days of the date on which a defect is reported in writing.
9.10 The notice of occurrence of a defect must be give during the warranty period, i.e. not later than on the last day of such period. The Purchaser shall give such notice immediately and no later than 7 days of the date of occurrence thereof, otherwise it shall lose the rights arising from the warranty. The claim must contain a description of the defect.
9.11 The Purchaser’s rights under warranty are excluded.
10. Final Provisions
10.1 All prior oral or written agreements made by the parties to this agreement which are contradictory or incompliant with the agreement concluded between the parties or the general conditions of sale are hereby cancelled.
10.2 In the event of any discrepancies between these general conditions of cooperation and the agreement, the provisions of the agreement will prevail.
10.3 If the provisions of this agreement are ineffective or unenforceable, they should be replaced by effective or enforceable provisions, which are as close as possible to the commercial goal and intentions of the parties as of the date of execution of the agreement. If the ineffectiveness of one or more provisions of this agreement constitutes a breach of law, irrespective of whether they will be construed together or separately, which depends on the significance of the relevant provision, then through the deletion of the text which is in breach of law one should again formulate the sense of the appropriate text, such that the text will be permissible under law. If it is not possible, the desirable effect should be achieved by replacing the entire provision with a provision that is as close as possible to the commercial goal and intentions of the parties as of the date of execution of the agreement. The agreement will not cease to be valid if one of its provisions is or remains invalid.
10.4 Any disputes which may arise in connection with this Agreement will be referred by the parties for resolution of the Polish common courts having jurisdiction over the registered office of GC.
10.5 The provisions of Polish law, in particular the Civil Code, will apply to matters not regulated herein.