I. DEFINITIONS AND GENERAL PROVISIONS
1. “Seller” – “Małkowski-Martech” S.A. with its registered office in (62-035) Kórnik, Czołowo ul. Leśna 57, entered into the Register of Entrepreneurs kept by the Regional Court Poznań – Nowe Miasto i Wilda in Poznań, 9th Commercial Division of the National Court Register (KRS) No. 0000350585; NIP (Tax ID): 1230029611, REGON (Business ID): 006372010, with a share capital of PLN 804,040, BDO: 00041562
2. “Buyer” – a natural person, a legal person, an organisational unit without legal personality that is granted legal capacity by the law, conducting business activity and placing orders for goods and services of the Seller, as part of business or professional activity.
These General Terms and Conditions of Sale do not apply to natural persons conducting sole proprietorship, registered in the Central Registration and Information on Business (CEIDG), concluding a sales agreement directly related to the conducted business activity, when the content of this agreement shows that it does not have a professional character for them, resulting in particular from the subject of their business activity.
3. “Goods and Services” – all goods sold and services provided by the Seller to the Buyer under an agreement concluded by the parties.
4. “General Terms and Conditions of Sale” – these rules concerning the conclusion and performance of sales agreements and the provision of services by the Seller to the Buyer, constituting an integral part of the agreements concluded between the Seller and the Buyer. These General Terms and Conditions of Sale shall be binding on the Buyer from the moment of sending an order to the Seller, but no later than always at the time of the first delivery. Any amendments, additional provisions or exclusion of these General Terms and Conditions of Sale shall require a separate agreement between the parties, which shall be null and void unless made in writing. In the event of any conflict between the content of these General Terms and Conditions of Sale and the content of an agreement concluded by the parties, the agreement shall prevail. The Seller shall make the General Terms and Conditions of Sale available to Buyers on its website in a manner that allows them to be copied, stored and reproduced (www.małkowski.pl).
5. “Order” – the Buyer’s offer addressed to the Seller expressing the will to conclude an agreement on the terms and conditions specified in these General Terms and Conditions of Sale.
6. “Order Confirmation” – the Seller’s statement confirming the acceptance of the order sent to the Buyer in writing or by e-mail. The confirmation of an order does not constitute the conclusion of a sales agreement.
II. CONCLUSION OF THE AGREEMENT
1. The Buyer is entitled to submit an order in writing, including by e-mail.
2. In the order, the Buyer should indicate:
1) accurate name of the Buyer's company
2) telephone and/or e-mail contact details and the name of the person authorised to contact the Seller
3) delivery address
4) exact name and code of the goods ordered
5) number of individual products
6) method of delivery of the goods
7) date of delivery of the goods
8) e-mail address to which the VAT invoice in an electronic form should be sent
9) a statement that the person placing the order is authorised to act on behalf of the represented entity.
3. The submission of the order by the Buyer is equivalent to the submission of an offer to conclude an agreement with the Seller on the terms and conditions specified in these General Terms and Conditions of Sale, which constitute an integral part hereof.
4. After receiving the order, the Seller shall send the Buyer a confirmation of the order in writing, including by e-mail, or shall inform the Buyer of the impossibility to execute the order.
5. The Buyer, who has received an order confirmation, is obliged to confirm to the Seller in writing, including by e-mail, that they accept the terms and conditions included in the order confirmation received from the Seller and accompanying documents or to reject the order confirmation.
6. The agreement shall be concluded at the moment the Seller receives the order confirmation sent to the Buyer from the Buyer.
7. The model contracts applied by the Buyer, in particular regulations, general terms and conditions of sale or delivery, shall not be binding on the Seller and may apply to agreements concluded with the Seller to the extent that they are not contrary to these General Terms and Conditions of Sale if this results from a separate agreement concluded between the Seller and the Buyer. These General Terms and Conditions of Sale are part of the Seller's agreements for sale or provision of services by the Seller, unless otherwise agreed in a written agreement between the Buyer and the Seller and signed by a person authorised to represent the Seller.
8. Materials, offers, data included, among others, in leaflets, advertisements, announcements, including those containing prices of goods and products are for information only and do not constitute an offer unless it is expressly stated that they are binding for the Seller.
9. Until the goods are delivered to the Buyer, the Seller shall be entitled, without any prior notice to the Buyer, to make structural and other changes, the introduction of which shall not involve any change to the properties of the goods and their suitability for the use specified at the time when the Buyer places an order.
10. The drawings, plans, projections and cross-sections attached to the Seller's materials, announcements and offers do not indicate the characteristics of the Seller's goods and products in a binding manner, unless this clearly results from their content. All the aforementioned documents shall remain the sole property of the Seller and shall be the subject of copyright. Without the Seller’s prior written consent, they may not be made available to third parties or used by the Buyer, and the Buyer is obliged to immediately return them at any request of the Seller.
III. PRICES
1. The applicable prices for the Seller's goods and services are specified in the Seller's price list. The prices quoted are prices for one piece or, if so specified in the price list, for a set. The prices resulting from the Seller's price list as of the date of delivery of the goods to the Buyer shall be deemed valid. At the moment the Seller has issued a new price list, the previous prices are no longer binding.
2. The prices indicated in the price list are net prices and do not include the amount of value added tax. In particular, the Buyer shall bear the costs of shipping, insurance of goods, taxes, duties and other charges connected with the delivery of the goods unless it is expressly stipulated in a written agreement between the Seller and the Buyer that these shall be borne by the Seller.
IV. TERMS AND DATES OF PAYMENT
1. Payment for the goods shall be made on the basis of a VAT invoice issued by the Seller in accordance with the applicable regulations. The form and date of payment constitute a separate agreement between the Seller and the Buyer.
2. VAT invoices shall be sent to the Buyer in an electronic form, which the Buyer accepts by placing an order unless the agreement between the Buyer and the Seller provides otherwise.
3. If the Buyer fails to pay within the period specified in the VAT invoice, the Seller shall be entitled to charge statutory interest for the delay in commercial transactions starting from the day following the payment date.
4. The Buyer is obliged to pay the entire amount resulting from the VAT invoice within the time limit specified therein, also if the parties agreed that the delivery of the goods will take place in parts, and the delivery dates are set after the due date of the VAT invoice.
5. The payment should be made to the Seller's bank account indicated by the Seller to the Buyer, unless the parties have agreed a different form of payment in a separate agreement, made in writing under pain of nullity. Any additional costs related thereto shall be borne by the Buyer.
6. In the event of a delay in payment by the Buyer, the Seller shall be entitled to withhold the deliveries of goods ordered by the Buyer and, at its own discretion, to demand the immediate payment of all receivables, including those whose payment date was postponed and prepayments for receivables not yet due, or to demand that the Buyer provide adequate security.
7. If the Buyer fails to make the payment or prepayment or fails to provide adequate security in accordance with section 6 within the time limit specified by the Seller, the Seller shall be entitled to withdraw from the sales agreement concluded with the Buyer.
8. In the event of a delay in the payment of amounts due, the Seller shall credit the Buyer’s payments in the first place towards incidental dues in the form of interest referred to in section 3 and then towards the principal amount in accordance with the right under Article 451 § 1 of the Civil Code.
9. The rights referred to in section 6 and section 7 shall also be vested in the Seller if the Seller becomes aware of any enforcement proceedings, liquidation proceedings or any other information indicating problems with the Buyer's solvency.
V. TERMS OF DELIVERY
1. The goods shall be delivered within the time limit specified by the Seller. If there is no agreement on the method of delivery of the goods, its choice shall be at the Seller's discretion. Delivery may not take place before all technical issues are clarified and the Seller receives an advance payment if the Buyer has agreed to pay the advance payment under a separate agreement. Any goods shall be delivered to the place specified by the Buyer in the order as the place of delivery. If no such place is specified, the goods shall be delivered to the registered office or principal place of business of the Buyer resulting from relevant registers and records.
2. The Seller shall be entitled to partial deliveries unless otherwise stipulated in the agreement between the Seller and the Buyer concluded in writing under pain of nullity.
3. If the agreement between the Seller and the Buyer stipulates that the goods are due to be collected by the Buyer from the Seller's warehouses, the Buyer is obliged to collect the goods on the agreed date. The date of collection of the goods may be changed only on the basis of the Seller’s written consent.
4. All costs incurred by the Seller as a result of the Buyer’s failure to collect the goods within the agreed time limit shall be re-invoiced to the Buyer.
5. The risk of accidental loss, damage, destruction or deterioration of the quality of the goods shall pass to the Buyer when the delivery is made and before the goods are unloaded, or when they are handed over to the Buyer, a person authorised by the Buyer or the carrier. The carrier or another person authorised by the Buyer to collect the goods is obliged to present the authorisation and to confirm their personal data. If the authorisation is not shown or the personal data are not confirmed, the Seller is entitled to refuse to release the goods.
6. The Seller shall not be liable for any damage suffered by the Buyer as a result of a late delivery unless wilful fault can be attributed to the Seller. The Buyer may exercise the right of withdrawal from the agreement after setting a reasonable period of time for the Seller to make the delivery.
7. In the event of delays in delivery attributable to the Buyer or failure to collect the goods by the Buyer within the agreed time limit, the Buyer shall be in default and the risk referred to in section 5 shall pass to the Buyer at the moment of notification by the Seller of readiness for delivery or the possibility to collect the goods.
8. It shall be sufficient for the delivery date to be observed if, by the expiry of the delivery period, the goods have been collected by the Buyer or a person or carrier authorised by the Buyer, or sent by the Seller, or if the Seller has notified the Buyer that the goods are ready for delivery in accordance with section 7.
9. In the event of delays in the delivery of goods to the Buyer, caused by delays or failure to deliver goods by the Seller’s suppliers or any other circumstances beyond the Seller’s control, the Seller shall be entitled to withdraw from the agreement or change the delivery date, and shall not be liable for the damage suffered by the Buyer. The Seller shall immediately inform the Buyer of the expected delivery date.
10. In the event of a delay or delay on the part of the Buyer in collecting the goods, including a partial delivery, the Seller shall set a deadline for the Buyer to collect the goods, but not less than 2 weeks, after the expiry of which the Seller shall have the right to withdraw from the agreement. The costs of storage of the goods by the Seller or a third party to whom the Seller ordered the storage of the goods as a result of a delay or delay on the part of the Buyer shall be borne by the Buyer. The Seller shall be entitled to claim damages from the Buyer under general terms.
VI. DEDUCTION
1. It shall be possible to deduct the Seller’s claims against the Buyer from the Buyer’s claim against the Seller only if both claims are due and may be brought before a court or another state authority, and if they originate from the same agreement or agreements of the same kind.
2. As a result of the deduction, both claims cancel each other out to the lower claim.
VII. RETENTION OF TITLE
1. The goods shall remain the property of the Seller until the Buyer has satisfied the Seller's claim for payment of the price under the agreement.
2. The Buyer should exercise due diligence in storing the goods and securing them against accidental loss, destruction, deterioration of quality and loss of value until the transfer of ownership to the Buyer.
3. The Buyer is obliged to store the goods in a place corresponding to their properties with a clear indication that they are the property of the Seller.
4. If no payment is made within the time limit resulting from the VAT invoice issued by the Seller, the Seller is entitled to withdraw from the agreement and demand the Buyer to immediately return the goods.
5. The return of the goods shall not exclude the demand to repair the damage suffered by the Seller.
6. The Buyer is entitled to further resell goods for which the Seller's ownership right is reserved under the terms and conditions specified in these General Terms and Conditions of Sale.
7. If the goods for which the Seller's ownership right is reserved are combined with movables owned by the Buyer or third parties, the Seller shall become co-owner of the resulting items.
8. The Purchaser transfers to the Seller the receivables to which the Purchaser is entitled from third parties due to further resale of the goods to which the Seller's ownership right has been reserved.
9. Along with the receivables, all the related rights, including a claim for outstanding interest, shall be transferred to the Seller.
VIII. QUALITY GUARANTEE. COMPLAINTS. SELLER'S LIABILITY.
1. The Seller guarantees that the goods will be fit for normal use during the guarantee period, taking into account their type and intended purpose. The guarantee covers any physical defects of the goods related to their functionality, caused by material defects of products, structural defects or technological defects.
2. The Buyer is entitled to file a complaint concerning the goods only during the guarantee period.
3. In connection with the guarantee granted, the Seller's liability under statutory warranty for defects specified in the Civil Code is excluded.
4. The guarantee period is:
1) 24 months for MARC-Ok gates
2) 12 months for any other goods
3) 12 months for services (the guarantee does not include consumables)
The guarantee period is calculated from the date of delivery or receipt of the goods by the Buyer or, in the case of services, from the date of receipt of the service.
5. The Buyer shall exercise the rights resulting from the guarantee for the goods only based on the Guarantee Card received from the Seller. The Guarantee Card includes the general terms and conditions of the guarantee, including the procedure for reporting claims and exclusions. The specimen Guarantee Cards for individual goods are available on the Seller's website at https://www.malkowski.pl/de/service/
6. A service complaint should include the Buyer’s designation, a description of the service to which the complaint pertains, a detailed description of the defects indicating what the defect consists of or how it manifests itself, if possible together with the photographic documentation of the defect, the number of the VAT invoice issued by the Seller and the place of performance of the service. If a visual inspection of the place of performance of the service is necessary, the time limit for consideration of the complaint shall commence as of the date of inspection by the Seller. A defect should be reported within 3 working days of its detection.
7. The date of filing a complaint shall be the date of its receipt by the Seller. Any complaints that are illegible, contain contradictions or ambiguities, or that do not contain all the required data referred to in section 6 shall not be regarded as effectively filed complaints and shall not be recognised by the Seller until the deficiencies have been rectified or the ambiguities clarified.
8. The Seller undertakes to consider a correctly submitted complaint within 20 working days from the date of its receipt and to inform the Buyer of its results; however, in justified cases, in particular in the case of the need to confirm the complaint at the Seller's supplier, the deadline may be extended of which the Seller shall immediately notify the Buyer. The Seller shall not be held liable for any damage which may arise on the Buyer’s part as a result of delay in considering a complaint caused by reasons beyond the control of the Seller, including as a result of the necessity to confirm the complaint with the Supplier's supplier.
9. Any opinion relating to the quality of the goods for which the complaint was filed by the Buyer or third parties shall not be binding on the Seller and shall not constitute a basis for recognising the complaint.
10. The Seller shall decide on the manner of handling the complaint.
11. The Seller has the right to suspend the processing of complaints regarding goods until the Buyer settles all required amounts under agreements concluded with the Seller.
12. If a complaint is unjustified, the Seller shall have the right to charge the Buyer with the related costs. The Buyer is obliged to collect the goods for which the complaint was rejected from the Seller within 14 days from the date of receiving information on the manner of considering the complaint or submitting a written instruction to destroy the goods. Otherwise, the Seller shall be entitled to charge the Buyer with the costs of storage of the goods.
13. Within the limits permitted by the law, the Seller's liability towards the Buyer for the non-performance or improper performance of the agreement, including for defects of goods sold or services provided, is limited to the situation where the damage was caused by wilful misconduct. The Seller's liability in this respect shall be limited solely to direct and actual damage and shall not include any lost profits. The Seller's liability is limited to the net value of the goods/services purchased by the Buyer.
IX. WITHDRAWAL FROM THE AGREEMENT. RETURN OF GOODS
1. If the Seller withdraws from the Agreement for reasons attributable to the Buyer, the Buyer shall pay the Seller a contractual penalty of 20% of the net selling price. The payment of the contractual penalty shall not prevent the Seller from claiming compensation from the Buyer for the damage suffered on general terms to the extent that it exceeds the amount of the contractual penalty.
2. In the event referred to in section 1, the goods should be returned in the original, intact packaging together with all accessories and documentation, and should not bear any traces of use. The costs of transporting the goods to the Seller's registered office and other costs incurred in connection with withdrawal from the agreement shall be borne by the Buyer. The risk of loss or damage of the returned goods shall rest with the Buyer until their receipt by the Seller. The receipt of the returned goods by the Seller shall be confirmed by a written return report, subject to signing by authorised employees of the Seller and the Buyer. Prior to the receipt of the returned goods, the Seller shall be entitled to check their technical condition, including the condition of the goods packaging. If the Seller finds any damage to the goods or their packaging, the Seller shall be entitled to refuse to accept the return.
3. Each return to the Seller's warehouse must be described with the return number assigned by the Sales Department.
4. If withdrawal from the agreement takes place before the payment, the Seller shall issue a corrective invoice for the full value of the returned goods, at the same time issuing an invoice in the amount of 20% of the value of the goods sold.
X. CORRUPTION PREVENTION AND EXPORT CONTROL
1. The Buyer warrants and undertakes that the Buyer and their affiliates and entities acting on their behalf shall comply with the ASSA ABLOY Business Partner Code of Conduct (available at www.assabloy.com) and all applicable laws and regulations, including anti-corruption laws, anti-money laundering laws and export control laws.
2. The Buyer declares that neither they nor their affiliates nor any of their representatives or persons holding managerial positions in them are subject to any sanctions or export control by the United Nations, the USA, the European Union or any government authority, nor shall they remain under the control of persons or entities subject to such sanctions or export control. Persons or entities subject to sanctions shall mean, in particular, persons or entities on the “Specially Designated Nationals and Blocked Persons List”, maintained by OFAC or any similar list maintained by the US Department of State or any other US governmental entity, the UN Security Council, the UN Security Council Sanctions Committee, the European Union, Her Majesty's Treasury (in the United Kingdom) or any other executive or legislative body, or included in a public announcement of sanctions made by any of the entities and institutions mentioned in this sentence.
3. The Buyer undertakes not to establish and maintain commercial or business relations with any persons or entities included in the lists referred to in the preceding paragraph, and in any case with persons, entities, countries and organisations subject to sanctions or to which exports are controlled.
4. The Buyer undertakes to immediately inform the Seller of any breach of the Article X hereof. In the event of such a breach, the Seller shall have the right to terminate the agreement with the Buyer, understood as the entirety of the terms and conditions agreed between the Seller and the Purchaser, with immediate effect. The Seller shall not be liable to the Buyer for the termination of the agreement in the circumstances specified in the preceding sentence.
XI. PERSONAL DATA PROTECTION
1. When processing any personal data as part of mutual cooperation, the Client and the Seller undertake to apply the rules and procedures of processing and protection of personal data resulting from Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (GDPR) and other provisions of the law regulating personal data protection.
2. The Seller is the controller of personal data provided by the Buyer for the purpose of performing the Agreement.
3. Detailed information on the rules of processing personal data by the Seller can be found in the “Information Clause for the clients of ‘Małkowski- Martech’ S.A.”, available at: https://www.malkowski.pl/de/
4. The Buyer is obliged to familiarise any person who may be designated for day-to-day cooperation and contacts with the Seller with the information clause referred to in section 3 above.
XII. CONFIDENTIALITY OBLIGATION
1. The Buyer is obliged to keep confidential and not to disclose or communicate to third parties any information constituting a trade secret of the Seller or any other information that is designated by the Seller as confidential.
2. The above obligation shall not apply to information that:
a) was made public in a way that does not constitute a breach of the Seller's trade secret;
b) is known to the Buyer from other sources, without the obligation to keep it secret and without infringing the Seller’s trade secret;
c) is disclosed in connection with the obligation provided for by law, including a court judgement or a decision of a public administration authority.
XIII. FINAL PROVISIONS
1. Any deviations from these General Terms and Conditions of Sale require a written agreement of the parties or a written consent of the Seller given by a person authorised to represent the Seller.
2. Any disputes arising out of agreements concluded pursuant to these General Terms and Conditions of Sale shall be submitted by the Seller and the Buyer to a common court having jurisdiction over the Seller’s registered office.
3. To the extent not regulated by these General Terms and Conditions of Sale, the provisions of Polish law shall apply.
4. The Seller reserves the right to amend these General Terms and Conditions of Sale.