General Terms and Conditions of Sales Contracts and Service Provision of WARK Group sp. z o.o. sp. k.
“WARK Group” shall mean WARK Group sp. z o.o. sp. k. with its registered office in Jelonek at ul. Topolowa 1, 62-002 Jelonek, entered into the Register of Entrepreneurs of the National Court Register kept by the District Court of Poznań – Nowe Miasto i Wilda in Poznań, 8th Economic Division of the National Court Register, under No KRS: 0000546524, Tax No: 9721253670, EU Tax No: PL9721253670, REGON (National Official Register of Business Entities) No: 360924490.
“WARK Group Trademarks” shall mean “WARK” and “WARK Group” names, the logo as shown above, any and all trademarks, tradenames, characteristic colour patters or other commercial designations or elements of intellectual property rights of WARK Group or of any of its subsidiaries and affiliates, including any names and marks of individual products.
“Customer” shall mean an entrepreneur within the meaning of Art. 431 of the Civil Code who concludes with WARK Group sales contracts or service contracts as the Purchaser, the Beneficiary or the Principal.
“Product” shall mean any and all products, equipment, components of equipment and their spare parts offered by WARK Group.
“Contract” shall mean each contract concluded by WARK Group with the Contractors, in particular sales contracts, contracts for specific work, service contracts, including any contracts made in the form of the order placed with respect to WARK Group’s quotation.
1. Subject and Scope
1.1. The General Terms and Conditions of Sales Contracts and Service Provision (hereinafter referred to as the “General Terms and Conditions”) provide for the rules applied by WARK Group to sell dedicated food and advertising trailers together with equipment and spare parts (hereinafter jointly referred to as the “Products”) and to render maintenance services.
1.2. The General Terms and Conditions shall constitute an integral part of WARK Group’s quotation. The General Terms and Conditions shall apply to any and all Contracts made by WARK Group with the Customers and constitute their integral part. The provisions of the Contracts shall prevail over the provisions of the General Terms and Conditions. In case of any discrepancies between the Contract made by WARK Group and the General Terms and Conditions, the Parties shall be bound by the Contract. The General Terms and Conditions shall prevail in case of any inconsistencies of any terms and conditions of any quotation or other correspondence unless amendments to or exclusions of these terms and conditions are explicitly reserved by WARK Group.
1.3. Any and all agreements, in particular any oral and telephone agreements and any additional contractual arrangements shall be legally binding, if they are approved by WARK Group in writing.
1.4. The General Terms and Conditions shall apply to any and all entities which are deemed to be entrepreneurs under Art. 431 of the Civil Code. These General Terms and Conditions shall also apply to the sale to natural persons subject to consumer laws to the extent not regulated by these provisions.
1.5. The valid General Terms and Conditions shall be available on the website of WARK Group:www.warkGroup.com.
1.6. The General Terms and Conditions shall be served on the Customers in writing, in particular with a commercial quotation, Contract or invoice. The General Terms and Conditions shall also be deemed to be served on the Customer, if the quotation, Contract, order acknowledgment, or invoice applies to these General Terms and Conditions and the website of WARK Group containing the entire General Terms and Conditions is indicated.
1.7. By approving the quotation of WARK Group or by placing the order to WARK Group, the Customer is deemed to approve these General Terms and Conditions.
2. Personal Data Protection
2.1. By concluding the Contract, the Customer agrees that WARK Group is authorised to process the Customer’s personal data to perform the Contract according the Act of 29 August 1997 on Personal Data Protection (consolidated text, Journal of Laws of 2002, No 101, item 926, as amended).
2.2. The personal data shall be protected according to the Act of 29 August 1997 on Personal Data Protection (consolidated text, Journal of Laws of 2002, No 101, item 926, as amended) and the Act of 18 July 2002 on Rendering Electronic Services (consolidated text, Journal of Laws of 2011, No 134, item 779) in a way that prevents any unauthorised access.
2.3. By approving these General Terms and Conditions, the Customer agrees to receive from WARK Group any commercial information about WARK Group’s quotation and current promotions provided that the Customer may at any time opt out of receiving such information, providing WARK Group with such opt out statement.
3. WARK Group’s Quotation, Order and Contract Conclusion
3.1. No information included in catalogues, folders, leaflets and advertisements of WARK Group constitute a quotation according to the Civil Code. Any information about measurements, weights or other parameters, figures, descriptions and drawings included in or attached to any commercial materials of WARK Group shall be for convenience of reference only, unless specified otherwise. Any discrepancies between product visualisations in catalogues, folders, leaflets and advertisements and their real appearances may not be complained and the Products purchased may not be returned.
3.2. WARK Group’s written statement containing commercial information shall constitute a binding quotation within the meaning of the Civil Code only if such statement bears a date, a quotation number and no reservation is made that such quotation is not binding. The quotation is binding within the period as set forth in the quotation with a proviso that prices for the Product’s equipment elements manufactured by WARK Group may change. If the binding period of the quotation is not determined, the quotation shall be valid for 3 (three) days from its placement.
3.3. If WARK Group provides the Customer with the written quotation or quotations, the Customer placing the order shall indicate the quotation number to which the order applies.
3.4. The sales contract shall be concluded upon confirming by WARK Group the acceptance of the order for fulfilment unless specified otherwise. The order acceptance may be confirmed in writing or by e-mail.
3.5. WARK Group reserves the right to refuse to accept the order due to reasonable reasons of which it notifies the Customer.
4. Date of Order Fulfilment and Delivery Terms
4.1. The date of fulfilling the order, providing services and supplying the Products shall be agreed separately depending on the subject of the Contract and be set forth in the quotation or the confirmation of the acceptance of the order for fulfilment. If more quantities of the Products are ordered, the deadline for fulfilling the order may be extended.
4.2. The deadline for fulfilling the order shall start from the latest of the dates:
a. the date of crediting WARK Group’s bank account with the advance payment;
b. the date of confirming the order by WARK Group in writing; or
c. the date of making the Contract or signing the order according to the Customer’s correct representation.
4.3. The deadline for supplying the Products shall be confirmed by WARK Group within 3 (three) weeks from accepting the order for fulfilment. Any change to parameters of the order may affect the delivery deadline.
4.4. In case of any circumstances that may cause shipment delay, WARK Group shall forthwith notify the Customer in writing of this fact and determine a new deadline for delivering the Products.
4.5. In case of any fortuitous events as set forth in Section 11 (Force Majeure), WARK Group shall have the right to extend the delivery period as set forth in the order. The Customer may not rescind the Contract, if the delivery period is extended due to the Force Majeure.
4.6. In Poland WARK Group delivers the Products according to Incoterms 2010 EXW – the Products are available at the plant in Jelonek provided that the Customer is obliged to register the trailer, unless otherwise specified in the Contract.
4.7. The Customer shall collect the ordered Products within 14 (fourteen) days from receipt of WARK Group’s notice that the Products are ready for collection. If WARK Group stores the Products until they are collected by the Customer for a period exceeding 14 (fourteen) days from the date on which WARK Group informs the Customer that the Products are ready for collection, the Customer shall pay in whole for the Products and make a separate agreement to this extent.
4.8. If the Customer is in default of collecting the Products for longer than 14 (fourteen) days, WARK Group shall have the right to issue the VAT invoice, claim the due sales price and charge the Customer with costs of storing the Products at the amount of PLN 100.00 for each day of default.
4.9. Notwithstanding the aforesaid rights, WARK Group shall have the right to terminate the Contract within 3 (three) months from the Customer’s default and keep the advance payment paid by the Customer in whole and seek any compensation due to any damage caused by the failure to perform the Contract to the amount exceeding the amount of the advance payment made.
4.10. The aforesaid rights shall not restrict WARK Group’s rights under the Civil Code that apply in case of the improper performance of the Contract by the other Party.
4.11. If the Product is not collected or refused to be accepted in a place and on a date as set forth in the Contract, the Customer shall pay the whole price and incur any costs arsing from the delay in collecting the Product.
4.12. The handover of the Product shall be proved by a relevant report.
4.13. If the Products are exported, the Customer shall provide WARK Group with a signed statement laying down that the Product has been delivered to a country and a destination and that the Product will be used in such country. The statement specimen shall be provided by WARK Group.
4.14. If the deadline for delivery does not exceed more than 3 (three) weeks, the Contractor may not rescind the sales contract. The Customer has no right to seek any compensation for exceeding the deadline for delivery to this extent.
5. Payment Terms, Price Lists and Invoices
5.1. WARK Group reserves the right to request the Customer to pay an advance payment or a deposit or – in special cases – other collaterals.
5.2. The advance payment shall be paid within 7 (seven) days from the order. The remaining part of the price shall be paid prior to collecting the Product.
5.3. If the Customer fails to pay the agreed advance payment for more than 7 (seven) days, WARK Group may rescind the sales contract. This entitlement may be exercised within up to 45 (forty-five) days from such default.
5.4. WARK Group reserves the right to secure the performance of the Contract by the Customer, claiming the advance payment in whole or in part (before the delivery of the Products) or withholding deliveries or services which have not already been provided until the price is paid in whole.
5.5. The advance payment paid by the Customer shall not be reimbursed unless the Contract is performed due to WARK Group’s reasons.
5.6. WARK Group reserves the right to apply rebates and discounts and other bonuses granted to the Customers with respect to:
a. the period of cooperation with a specific Customer;
b. the timely payment of any amounts arising from any contracts between the Customers and WARK Group;
c. the amount of the turnover made with WARK Group;
d. other circumstances agreed by WARK Group as part of promotional actions.
5.7. The Customer’s complaint shall not allow the Customer to suspend the payment of any amounts due to WARK Group.
5.8. Prices are net prices (less VAT) denominated in PLN or EUR. The Customer shall pay the price plus VAT according to the applicable laws.
5.9. The price (remuneration) shall be paid by bank transfer into the following bank account of WARK Group: BZ WBK 54 1090 1463 0000 0001 3021 6515 (for payments in PLN) and BZ WBK 70 1090 1463 00000001 3021 6518 (for payments in EUR). If the price is denominated in EUR but the payment is agreed to be made in PLN, such payment shall be converted from EUR into PLN according to an average exchange rate of EUR/PLN announced by the National Bank of Poland as at the invoice date.
5.10. The payment deadline shall be set forth in the invoice or the Contract. In case of any contractual agreements the deadline for payment shall be 14 (fourteen) days from the date of issuing the invoice by WARK Group.
5.11. For any payment delays WARK Group shall have the right to impose statutory interest.
5.12. By making the Contract (placing the order) and approving the General Terms and Conditions, the Customer shall authorise WARK Group to issue VAT invoices without the Customer’s signature.
5.13. WARK Group shall not be held liable for organising the Product financing, including any issues with respect to any grants or subsidies granted by relevant authorities.
5.14. If the subject of the Contract is financed by a leasing company, the leasing company’s order together with the authorisation to collect the Products and other relevant documents shall be submitted to WARK Group not later than 30 (thirty) days before the scheduled deadline for deliver of the Products. If the aforesaid deadline is failed to be met, WARK Group shall have the right to deliver the Products to the Customer and provide it with the VAT invoice.
6. Retention of Title
6.1. Unless specified otherwise, the ownership of the Products sold shall be transferred to the Customer as soon as the Customer effectively pays the full price for the Products to WARK Group according to the terms and conditions of the Contract.
6.2. WARK Group shall have the exclusive title to the Products until the sales price is effectively paid. The Customer shall not have the right to dispose of, donate or burden the Product with any lien or any third parties’ rights until the Product is owned by WARK Group unless WARK Group agrees to it in writing on pain of nullity.
6.3. In case of any delay in payment of the sales price WARK Group may request the immediate return of the Product. In such case, the Contractor shall, at its own expense, return the Product to WARK Group and to pay WARK Group any compensation for the improper performance of the Contract. The Customer shall incur any and all costs arising from the full wear and tear of or damage to the Product.
7. Improper Performance and Rescission of the Contract
7.1. If the Customer is in default of payment for any order, WARK Group has the right to suspend the order until any outstanding amounts are paid by the Customer.
7.2. WARK Group shall have the right to rescind the Contract, if the Customer has financial problems that may result in its insolvency, in particular if liquidation proceedings or enforcement proceedings against the Customer have been initiated or a petition for bankruptcy or recovery has been filed.
7.3. If the deadline for payment is exceeded by 30 (thirty) days, WARK Group shall have the right to rescind the Contract due to the Customer’s fault following the expiry of the additional 7 (seven) days’ period for payment of any outstanding amounts and if such additional period expires ineffectively, WARK Group may rescind the Contract.
7.4. The Customer may not rescind the Contract due to no fault of WARK Group unless otherwise specified in the Contract or the written confirmation of the order or WARK Group consents to the rescission of the Contract in lieu of the payment of the compensation fee agreed with the Customer.
7.5. If WARK Group rescind the Contract due to the Customer’s fault, the Customer shall incur any and all damage caused by such rescission to WARK Group and WARK Group shall have the right to keep any advance payments paid by the Customer.
8. Quality Warranty and Statutory Warranty
8.1. WARK Group shall grant the Customers the quality warranty concerning the Products sold according to the General Terms and Conditions of WARK Group available at www.warkgroup.com. The warranty terms and conditions of WARK Group shall constitute an integral part of the Contract (quotation) of WARK Group.
8.2. WARK Group’s liability for the statutory warranty for defects to the Products shall be excluded.
9. Terms and Conditions of Maintenance Services
9.1. WARK Group shall provide maintenance services dedicated to its Products and carry out warranty inspections in its own registered place of business or in another place indicated by WARK Group.
9.2. Before delivering the equipment to the service point it is necessary to contact WARK Group’s consultants, calling at the phone number available at www.warkgroup.com.
9.3. The cost of maintenance services shall consist of man-hour costs of a serviceman and travel costs according to a fixed rate per 1 (one) kilometer of the travel, according to the valid price list of WARK Group and of costs of spare parts in case of the replacement.
9.4. The maintenance services shall be proved by the report. The warranty inspection shall be recorded in the maintenance book of the Product.
9.5. The Customer shall collect the Product in a timely manner immediately upon completing the maintenance service.
10. Force Majeure
10.1. The Parties shall not be liable to each other for any damage, losses, penalties or other liabilities for the failure to perform or improper performance of the Contract due to the force majeure.
10.2. In these General Terms and Conditions the force majeure shall particularly mean any war, civil commotion, coup, civil strife, earthquake, fire, explosion, flood, seizure, strike, lockout, industrial disputes, sound failures and other activities or wilful omission of authorities of the Republic of Poland and authorities of other countries, including national and local-government authorities that prevent either Party from performing its liabilities.
11. Trademarks of WARK Group
11.1. Any trademarks of WARK Group shall be protected by law.
11.2. The Customer has the right to apply the trademarks of WARK Group only in a way approved in writing by WARK Group, considering the welfare and reputation of WARK Group.
12. Final Provisions
12.1. Any transactions made by WARK Group shall be governed by Polish law.
12.2. The Customer’s rights to WARK Group may be transferred to any third parties arising from any contracts to which the General Terms and Conditions apply (assignment of contractual obligations) provided that each time WARK Group expresses its written consent on pain of nullity.
12.3. Any disputes arising from the performance of the sales contract or of the General Terms and Conditions shall be resolved by a competent court with jurisdiction over WARK Group.
12.4. The obligation to pay contractual penalties arising from the General Terms and Conditions and from any contracts made by WARK Group shall not waive WARK Group’s right to claim compensation in excess of the reserved contractual penalties.
12.5. Any notices and other communications to be served on a relevant Party shall be sent to addresses respectively set forth in the quotation or the order.
12.6. If any of the provisions of the General Terms and Conditions is held to be ineffective or invalid, in whole or in part, such invalidity or ineffectiveness shall not affect the validity and effectiveness of the remaining provisions. The ineffective and invalid provision shall be replaced with a relevant statutory provision.