Allgemeine Einkaufsbedingungen der Winkhaus Unternehmensgruppe
applicable at Winkhaus Polska Beteiligungs spółka z ograniczoną odpowiedzialnością spółka komandytowa with its registered office in Rydzyna, at ul. Przemysłowa 1, 64-130 Rydzyna, NIP [tax ID No]: 6970011183, REGON [business reg. No]: 410023222, entered in the Register of Entrepreneurs of the National Court Register kept by the District Court for Poznań-Nowe Miasto and Wilda in Poznań, 9th Commercial Division, KRS [National Court Register No]: 0000316790.
1. GENERAL PROVISIONS
1.1. These General Terms and Conditions, hereinafter referred to as GTC, apply to all offers and contracts, including sales and delivery contracts, executed by Winkhaus Polska Beteligungs spółka z ograniczoną odpowiedzialnością spółka komandytowa with its registered office in Rydzyna, NIP 6970011183, hereinafter referred to as Winkhaus. These conditions also apply if they have not been separately agreed upon.
1.2. The terms and conditions of the contract concluded with the customer shall prevail over these GTC.
1.3. For contracts concluded in connection with sales in the Winkhaus online shop, the Terms and Conditions of the online shop and other regulations applicable to the online shop shall take precedence over these GTC.
1.4. The use of trade conditions or terms and conditions of the customer or third parties is excluded in contracts and legal relations with Winkhaus, even if Winkhaus does not object to them and even if they are attached to an order or other document by the customer.
2. CONCLUSION OF THE CONTRACT
2.1. A purchase order placed by the customer shall become binding as soon as Winkhaus confirms the order and, in the absence of an order confirmation, as soon as Winkhaus commences processing the order.
2.2. The customer cannot change a binding order without permission.
3. PRICE AND PAYMENT TERMS
3.1. Prices are calculated ex warehouse at Rydzyna.
3.2. If the specified prices are net prices, VAT at the current rate must be added.
3.3. The price is payable by the due date and to the bank account indicated in the VAT invoice or pro-forma invoice, as the case may be.
3.4. If the customer fails to pay all or part of the amount due within the period specified in the VAT invoice or pro-forma invoice, Winkhaus may at its discretion exercise all or some of the rights specified below:
(a) demand that the customer provides security for further deliveries or the performance of contracts,
(b) realise the existing security,
(c) rescind the contract within 60 days from the due date of the invoice without setting a further date for payment,
(d) demand the return of the goods owned by Winkhaus and held by the customer,
(e) demand interest for late payment in commercial transactions or other relevant interest,
(f) demand further compensation,
(g) withhold all or part of the orders.
3.5. The customer may only set off against an undisputed or legally established counterclaim.
3.6. If a customer does not purchase from Winkhaus for twelve consecutive months, all individual arrangements with that customer are no longer valid.
4. DELIVERY AND PACKAGING
4.1. Unless otherwise agreed between the parties, the goods shall be packaged with due care according to Winkhaus practice.
4.2. The ordered goods shall be delivered on an FCA basis (Incoterms 2020), ex warehouse at Rydzyna, which is at the same time the place of delivery and performance, unless otherwise agreed by the parties.
4.3. If the parties have agreed that Winkhaus shall arrange transport, it is Winkhaus' prerogative to select the transport company, the method of shipping and the transport route. The above is without prejudice to the fact that delivery is on an DAP basis.
4.4. Winkhaus shall have the right to demand that the transport costs be paid in advance by the buyer and to withhold shipment until they are paid.
4.5. If the customer is in arrears with acceptance of the goods or if delivery is delayed for other reasons for which the customer is responsible, Winkhaus may at its discretion exercise all or some of the rights specified below:
(a) Winkhaus may require the customer to pay a contractual penalty of 5% of the gross price of the goods. The amount owed by the customer shall become due upon the lapse of the period specified in Winkhaus' request for payment and not shorter than 5 days, and the customer shall pay this penalty within 5 days of being requested to pay such penalty,
(b) Winkhaus may demand payment for storage of goods at the rate of PLN 5 net per month per m2 of the area taken up by the goods or pallets on which they are stored, and the customer shall pay such penalty within 5 days of the date of request for such a payment.
4.6. Delivery or service dates are essentially to be interpreted as indicating only an estimated delivery date and are not binding, unless otherwise expressly stated in the contract or agreed by the parties.
4.7. If Winkhaus is unable to comply with the delivery date for reasons beyond its control, in particular, due to non-delivery of raw materials or product components, then:
(a) Winkhaus shall without delay inform the customer thereof, indicating a new, estimated delivery date,
(b) notwithstanding the above, Winkhaus may rescind the contract in whole or in part within a period of 60 days from the date Winkhaus becomes aware of the delay in the delivery of raw materials or product components. In this case, Winkhaus shall immediately refund the price of these goods to the customer, provided that it has been paid.
4.8. Winkhaus may make partial deliveries, even if they are included in a single order.
4.9. The cost of disposable packaging is included in the price of the goods. The customer is responsible for disposing of the disposable packaging at its own expense and risk.
4.10. The customer shall return reusable packaging to Winkhaus.
5. PRODUCT QUALITY, HANDLING OF PRODUCT DEFECTS
5.1. The customer shall check the quantity and quality of the ordered goods immediately upon receipt.
5.2. The deadline for reporting quantitative discrepancies in the goods is 48 hours from the time the goods are delivered to the place of acceptance.
5.3. The period for reporting quality defects is 14 days from the delivery of the goods from Winkhaus to the place of acceptance.
5.4. Failure to comply with the time limit set out in section 5.2 or 5.3 will result in the termination of warranty and statutory warranty rights.
5.5. Winkhaus shall decide on the manner in which the defect is to be remedied. The customer has the right to express its opinion on how the defect should be remedied.
5.6. Goods that are the subject of a complaint may only be returned with the express consent of Winkhaus.
5.7. Winkhaus' liability for defects does not include normal wear and tear of the goods as well as defects that arise after Winkhaus has released the goods, in particular as a result of external factors or incorrect handling.
5.8. The statutory warranty for product defects shall be excluded.
5.9. The customer is responsible for monitoring the product being marketed. Functional defects or sources of danger which cause or may cause a malfunction or defect must be reported to Winkhaus as soon as they are detected. Failure to report will be considered as contributing to the damage.
5.10. In the case of sales to traders other than traders with consumer rights, Winkhaus is not required to issue user manuals for the goods or to provide explanations on the use and storage of the goods. The buyer, as a professional, is responsible for determining the use and storage of the goods. If the buyer has questions or doubts about the use of an item, they should contact Winkhaus.
5.11. Winkhaus informs that the goods sold are not complete product sets and may require additional components. The use of a product depends on a number of factors, including the raw materials of which the final product is composed, the site of installation, loads and frequency of use. In case of any doubt, the customer should ask Winkhaus for a recommendation on the use of these elements.
6. LIABILITY OF THE PARTIES
6.1. The liability of Winkhaus for any legal cause shall in each case be limited to the price of the individual item to which it relates or, if it relates to the entire lot, to the price of the lot to which the damage relates, and shall only cover the consequences of wilful misconduct
6.2. Furthermore, Winkhaus shall not be liable for loss of profit or indirect damage, including production downtime, stoppage of deliveries, staff downtime or other costs directly or indirectly related thereto.
6.3. The customer's claims for non-conformity of goods expire one year after Winkhaus has released the goods.
6.4. The parties shall not be liable for damages resulting from non-performance of their obligation to the extent that the breach is attributable to force majeure.
6.5. If deliveries are made in accordance with drawings or other information provided by the customer and if this infringes the industrial property rights of third parties, the customer shall be held solely liable for the consequences of such breaches and shall indemnify Winkhaus against all claims of third parties. Furthermore, Winkhaus shall not be held liable in this case for the conformity of the goods with the customer's intended use, but only for the execution in accordance with the design.
6.6. Neither party shall be held liable for the consequences of events resulting from force majeure.
7. PROPERTY RIGHTS
7.1. Title to the goods shall pass to the customer not earlier than upon payment of the total price for these goods.
7.2. The payment is deemed to have been made on the date on which the amount due is credited to Winkhaus' account.
7.3. Until the goods are paid for, Winkhaus also remains the owner of the goods also if Winkhaus products are processed, mixed or combined with other products.
7.4. At the request of Winkhaus, the customer shall notify its customer of the ownership title and provide Winkhaus with the information and documents necessary to assert Winkhaus' rights against the customer in relation to the ownership of the goods. Winkhaus shall also have the right to notify the customer's purchaser of the right of ownership.
7.5. If any third party claims or asserts a right to the ownership of Winkhaus goods, the customer shall immediately notify Winkhaus thereof in writing.
7.6. At Winkhaus' request, the customer shall provide Winkhaus with a list of the goods that have not been paid for and are the property of Winkhaus, together with an indication of the location of the goods and whether the goods have been processed/combined with other goods and whether they have been delivered to another party.
8. FINAL PROVISIONS
8.1. Winkhaus has the status of a large trader within the meaning of Art. 4 item 6 of the Act of 8 March 2013 on counteracting excessive payment delays in commercial transactions.
8.2. The customer shall immediately notify Winkhaus in writing of any change with regard to the owner or legal form of the company or other circumstances affecting its financial position, as well as any change in its registered office or address.
8.3. Winkhaus is listed in the National Waste Database (BDO) under the number 000107278.
8.4. The provisions of these GTC shall not apply to a consumer or a trader with consumer rights with respect to sections 5.2, 5.3, 5.4, 5.5 and 5.8. 5.10. and in cases where other rights arise from mandatory legal provisions.
8.5. The exclusive place of jurisdiction for disputes with the customer shall be the court having jurisdiction over the registered office of Winkhaus, unless otherwise provided for in mandatory legal provisions.
8.6. Polish law shall apply to all contracts in which these GTC are included, as well as to the GTC themselves, to the exclusion of the provisions of the United Nations Convention on Contracts for the International Sale of Goods (CISG).
8.7. The GDPR information clauses are available in particular on the website: https://ru.winkhaus.com/ru/Datenschutz
8.8. The GCT and Conditions in this version are effective from 9th October 2023.