Prenez connaissance des règles de passation et d’exécution des commandes, des conditions de livraison et des principes de coopération avec Photonica S.A.
1.
These General Terms and Conditions of Trade (“GTC”) have been established pursuant to Art. 384 et seq. of the Act of 23 April 1964 – the Civil Code (the “CIVIL CODE”).
2.
Unless the parties agree otherwise, the GTC apply to all (i) contracts for the sale and supply of Photonica goods, including framework contracts for the sale and supply of Photonica goods (each referred to as the “CONTRACT”) concluded by Photonica Spółka Akcyjna with its registered office in Warsaw (02-676), ul. Postępu 15, a company entered in the Register of Entrepreneurs of the National Court Register kept by the District Court for the capital city of Warsaw in Warsaw, 13th Commercial Division, under KRS number: 0000869153, holding tax identification number (NIP): 5252843077 and REGON: 387554282, with share capital of PLN 1,393,650.00 paid up in full, as the seller (“PHOTONICA”), together with counterparties (“BUYERS”) in the course of its business activity.
3.
The sale of goods is not made to consumers, i.e. natural persons within the meaning of the Civil Code performing a legal act with an entrepreneur not directly related to their registered business activity; therefore the GTC do not apply to such Buyers.
4.
Before the Buyer places an order with Photonica, at Photonica’s request the Buyer shall provide Photonica with copies of documents/statements confirming its status as an entrepreneur from the relevant business registers, and shall notify Photonica of any changes.
5.
The current version of the GTC is available on Photonica’s website: photonica.solar. At the Buyer’s request, the current version of the GTC will be made available in printed form / PDF format.
6.
It is understood that (i) signing a specific contract without a reservation excluding the GTC, or (ii) accepting Photonica’s pro forma invoice or sales invoice, whichever is first issued to the Buyer by Photonica (which is also tantamount to concluding any Contract), shall be deemed consent by both parties to comply with the GTC in the version current on the date the contract is concluded or the pro forma / sales invoice is issued.
7.
If the Buyer and Photonica remain in a continuing business relationship, the Buyer is deemed obliged to comply with the GTC in their most current and available version throughout the entire period of the parties’ ongoing commercial cooperation.
8.
In these GTC, “business days” means any day other than a Saturday or Sunday which is not a statutory public holiday in Poland and in the country of the Buyer’s registered office or in the country of delivery (“BUSINESS DAYS”).
1.
A Contract is deemed concluded when: a. the parties have signed a specific contract for the sale and supply of goods, or b. Photonica’s offer has been accepted by the Buyer, as set out below.
2.
Upon Photonica receiving the Buyer’s enquiry regarding the sale of goods, specifying at least the type and quantity of goods ordered, the proposed delivery date and the place of delivery (the “ORDER”), Photonica will make efforts to determine whether such an order can be fulfilled and will send back preliminary information on the enquiry.
3.
Following the actions described in point 2.2 above, as a result of the communication and negotiations conducted between Photonica and the Buyer, including after the Order is placed, Photonica may send the Buyer an offer specifying in particular the type, quantity and price of the goods, the delivery date and place, and payment terms (the “OFFER”).
4.
The Offer is binding on Photonica for the period indicated in it. If no period is indicated, the Offer is binding for 3 (three) business days from the date it is sent to the Buyer.
5.
Acceptance of the Offer by the Buyer without reservations, within the period of its validity, results in the conclusion of the Contract on the terms set out in the Offer. Acceptance of the Offer with reservations, amendments or supplements is deemed a new enquiry and requires a further Offer from Photonica.
6.
Photonica is not bound by any of the Buyer’s general terms and conditions of purchase, even if Photonica has not expressly objected to them. The Buyer’s terms apply only if expressly accepted by Photonica in writing.
7.
The conclusion of the Contract is confirmed by Photonica issuing a pro forma invoice, a sales invoice, an order confirmation, or by commencing performance of the Contract.
1.
Where the parties have concluded a framework contract, individual deliveries are made on the basis of Orders placed by the Buyer under that framework contract, in accordance with its terms.
2.
Each Order should specify at least the type and quantity of goods, the proposed delivery date and the place of delivery. Photonica confirms the possibility of fulfilling the Order or proposes amendments.
3.
An Order is deemed accepted for fulfilment upon its confirmation by Photonica or upon commencement of its performance.
4.
Photonica may refuse to accept an Order for fulfilment, in particular in the event of the Buyer’s payment arrears, exceeding a granted trade credit limit, or the unavailability of goods.
1.
Photonica performs Contracts with due diligence, in accordance with their terms and these GTC.
2.
The delivery dates indicated by Photonica are estimated dates unless expressly designated as binding. Photonica will make efforts to meet the indicated dates.
3.
Photonica is entitled to make partial deliveries unless the parties have agreed otherwise. Each partial delivery may be invoiced separately.
4.
If the performance of a Contract is hindered or prevented for reasons attributable to the Buyer, including failure to collect the goods or to provide required information, Photonica is entitled to charge the Buyer with the resulting costs.
1.
Delivery of the goods takes place in the manner and on the terms agreed by the parties, in accordance with the applicable Incoterms rules where these have been agreed.
2.
Unless the parties agree otherwise, the place of delivery is Photonica’s warehouse, and the goods are deemed delivered upon their release to the carrier or to the Buyer.
3.
The Buyer is obliged to collect the goods within the agreed period. If the Buyer fails to collect the goods on time, Photonica may store the goods at the Buyer’s expense and risk or exercise other rights provided for by law and these GTC.
4.
The costs of delivery and transport are borne by the party specified in the Contract or Offer. If not specified, transport costs are borne by the Buyer.
5.
Upon delivery, the Buyer is obliged to inspect the shipment and confirm its collection. Any reservations as to the condition of the shipment should be recorded in accordance with Section 6 below.
1.
The Buyer is obliged to collect and accept the goods covered by the Contract at the time of delivery.
2.
Collection of the goods together with unloading takes place at the Buyer’s risk and expense.
3.
Upon collection of the goods, the Buyer is obliged to sign the CMR consignment note and any other documents indicated by Photonica and, within 2 (two) Business Days of their collection, send them to Photonica’s address indicated in point 13.2, with a copy to Photonica’s e-mail address. Otherwise, Photonica will be entitled to impose a contractual penalty equal to the relevant amount of value added tax (VAT) charged on the goods for which the documents referred to in this point were not provided. The contractual penalty is payable to Photonica’s bank account indicated in the written demand within 5 (five) Business Days of the date such demand is served on the Buyer by Photonica.
4.
The Buyer may decide that, instead of the designated place of delivery, the goods covered by the Contract or their individual parts may be collected directly from the port of unloading, provided that at least 5 (five) Business Days before the delivery of the goods or a part (batch) thereof, the Buyer notifies Photonica of such direct collection.
5.
If the Buyer refuses to collect the goods from a delivery in the manner set out above, Photonica will store them in its warehouse, and the Buyer will be obliged to pay Photonica a storage fee of PLN 3.00 (three zlotys) net plus applicable VAT for each 1 (one) pallet of goods and each 1 (one) commenced day of storage, payable on the basis of an invoice issued by Photonica.
1.
Subject to point 7.2 below, legal title to the goods and their ownership under the Contract (including the transfer of the risk of loss or damage) will be effectively transferred to the Buyer at the moment the goods, or any part thereof, are made available to the Buyer at the place of delivery (in accordance with the Ex Works rules).
2.
If, under separate arrangements between the parties, the goods are released to the Buyer despite non-payment of their price or any part due, Photonica reserves legal title to and ownership of the goods until the full price for the goods is paid.
3.
In the case of transport of the goods to a place indicated by the Buyer, legal title to the goods passes to the Buyer on the terms set out in point 7.1 above; however, Photonica is responsible for their transport unless agreed otherwise.
4.
For the avoidance of doubt, the parties agree that ownership of the goods covered by the Contract may not be transferred before they are paid for.
1.
All payments under the Contract will be made in accordance with the terms specified by Photonica on pro forma / sales invoices and, unless the parties agree otherwise, the Buyer will provide Photonica with bank confirmation of the payments made within 3 (three) Business Days of the date they are made.
2.
All pro forma invoices and sales invoices issued on the basis of the Contract may be issued in electronic form and will be sent to the Buyer at the e-mail address indicated by it.
3.
Payments are made in EUR or PLN by bank transfer to Photonica’s bank account indicated on the pro forma / sales invoice. The moment of payment is deemed to be the moment the given amount is credited to Photonica’s bank account.
4.
If the Buyer is late with any payments under the Contract, Photonica is entitled to charge the Buyer statutory interest for delay in commercial transactions for each day of delay and to withhold delivery of the goods until payment is settled.
5.
Any set-off or netting by the Buyer of its claims against Photonica with Photonica’s claims against the Buyer under this Contract is excluded.
1.
The procedure for complaints regarding ordered goods is available at: photonica.solar/complaints/
1.
The goods are covered solely by the warranty of their manufacturer, which may be granted to the Buyer in a separate document confirming the manufacturer’s warranty for the goods.
2.
Photonica does not cover any goods with its own warranty, and the manufacturer’s warranty for the goods does not in any case constitute any obligation or liability of Photonica in this respect; the obligations in Section 8 relate solely to the completeness of the delivery of the goods.
3.
In the case of the manufacturer’s warranty proceedings for the goods, Photonica may cooperate with the Buyer where, in the given circumstances, action or support from Photonica is required to provide documents necessary for the manufacturer to process the Buyer’s warranty claims, e.g. consignment notes, bills of lading, invoices, etc.
1.
Photonica’s liability towards the Buyer in connection with any contract concluded on the basis of or in connection with the GTC is limited to actual damage, excluding lost profits, indirect damage and benefits or anticipated benefits (lucrum cessans), and to Photonica’s wilful misconduct. In particular, Photonica is not liable for the following events: a. damage caused by improper or unprofessional handling, improper installation or commissioning by the Buyer or third parties, normal wear and tear, improper or negligent use, and in particular the consequences of unprofessional modifications made without the manufacturer’s consent or repair work carried out by the Buyer or third parties; b. functional deficiencies of the goods resulting from the wrong choice of equipment or from improper system design or assembly by the Buyer, who before purchase should carefully learn and verify whether the functionalities and properties offered by Photonica’s goods meet its requirements; c. any third-party claims arising in connection with the Buyer’s use of the goods or the use of the goods by unauthorised third parties to the Buyer’s detriment; d. the Buyer’s obligations towards third parties; and e. the Buyer’s failure to obtain permits required by law.
2.
In any case, Photonica’s liability is limited to the value of the Order or the specific goods indicated in the Order, if the Buyer’s claim concerns only that specific item/items from the Order.
3.
Photonica’s liability under the warranty for defects and under the guarantee (referred to in particular in Art. 556–581 et seq. of the Civil Code) is excluded.
4.
The Buyer declares that it is a professional participant in commercial trade and that, in its assessment, the amount of any contractual penalty specified under these GTC is not excessive. Furthermore, Photonica has the right to claim damages exceeding the amount of the contractual penalty specified in the GTC.
5.
Any right to compensation lapses if the Buyer fails to notify Photonica of the occurrence of damage, its scope and cause, in writing and in detail, within five (5) Business Days of the event causing the damage.
6.
The Buyer releases Photonica from liability for any damage that Photonica may incur as a result of third-party claims in connection with the goods supplied by Photonica, including any claims resulting from failure to pay a recycling fee or failure to pay it in full or on time.
1.
Photonica is not liable for non-performance or improper performance of obligations arising from an Order and any contract for the sale of goods, insofar as the non-performance or improper performance is caused by circumstances beyond Photonica’s control, despite due diligence (“FORCE MAJEURE”). Such circumstances include in particular: a. war and other armed or similar actions, invasion, mobilisation, embargo, nuclear explosion, radioactive contamination, rebellion, revolution, uprising, coup d’état or civil war, riots, social unrest, terrorist attacks; b. natural disaster, flood, hurricane, earthquake, storm, fire; c. states of epidemic and pandemic, lockdowns, disruptions to collective life, including strikes and riots, official actions; d. undelivered supplies from Photonica’s suppliers; and e. other unforeseeable, unavoidable events with serious consequences.
2.
The occurrence of such events releases Photonica from the obligation to perform the concluded contracts for the duration of such obstacles and to the extent of their effects. The contractual deadline for performing a given action is extended by the period during which it is impossible to perform the contractual obligations due to Force Majeure referred to in point 12.1.
3.
Photonica undertakes to notify the Buyer of the occurrence of such circumstances promptly, as soon as possible but in any case within 20 (twenty) Business Days of their occurrence, to provide all details regarding the possibility of resuming performance of the contract on the terms set out therein, and to do everything in its power to fulfil its obligations in good faith, as far as the conditions in the given situation allow.
4.
If performance of the contract is suspended due to Force Majeure referred to in point 12.1, Photonica is entitled to reimbursement of reasonable and necessary expenses incurred before the suspension, in particular where the goods were ordered by Photonica from the manufacturer.
5.
Events and circumstances related to the COVID-19 pandemic and the war on the territory of Ukraine may be regarded as Force Majeure under this Contract only to the extent that they can be considered reasonably unforeseeable at the time the Order is placed, or to the extent that these events change their consequences after the Order is placed or new circumstances in this respect emerge, in particular those indicated in point 12.1 a)–e).
1.
The Buyer has no right to disclose to third parties any information covered by trade secret obtained as a result of business contacts.
2.
All information and materials provided to the Buyer by Photonica and not publicly available will be treated as confidential (“CONFIDENTIAL INFORMATION”), in particular any information concerning Photonica, the Order / contract and its performance, provided or disclosed before or after the conclusion of the contract, regardless of the form of its recording or the manner of its transfer, but in each case in connection with Photonica’s activity, in connection with the contract, by Photonica, its partners, advisers, employees, members of its company’s bodies, contractors, legal counsel, entities related to or controlled by them, or other related entities, by contract or in any other way, except for those expressly marked as not being Confidential Information.
3.
The obligations set out in this Section 13 do not apply if: a. the Confidential Information is or has become publicly known otherwise than as a result of a breach of the GTC; b. the Confidential Information was previously known to the Buyer from other sources, which must be demonstrated beyond doubt, both as to the time and the source of obtaining the Confidential Information; c. disclosure of the information is required by applicable law, capital-market regulations, court judgments or administrative decisions, also in connection with a possible application to admit a party’s shares to trading on a regulated market; d. the obligation to disclose the Confidential Information to third parties arises from applicable law — the Buyer will promptly notify Photonica of receipt of such a request, unless providing such Confidential Information is prohibited by law or by a decision of the entity requesting disclosure; such notice should be sent, where possible, before the Confidential Information is made available to the entity entitled to make such a request; e. the Confidential Information is to be disclosed to members of the Buyer’s managing or supervisory bodies, its employees and associates, advisers, investors, auditors or lawyers, provided they maintain confidentiality; and f. Photonica has given prior written consent to disclose the Confidential Information.
4.
The Buyer undertakes to: a. use the Confidential Information solely in a manner consistent with the GTC; b. keep all Confidential Information confidential and not disclose or transfer it to third parties; c. take all steps to ensure the security of the Confidential Information.
5.
The Buyer is obliged to prevent the disclosure of Confidential Information by its current and future employees, associates and advisers, also after the end of the employment relationship (end of cooperation with the Buyer).
6.
Notwithstanding the above, the Buyer is obliged to promptly restore a lawful state and to prevent further breaches of the Confidential Information.
7.
The confidentiality obligation applies indefinitely. The expiry or other termination of the legal relationship between the Parties does not cause the obligations described in this point to expire.
8.
The confidentiality obligation described in this Section 13 applies throughout the entire period of the commercial cooperation and for 6 years after its end.
9.
In the event of a breach of the GTC by disclosing Confidential Information to third parties, and thus a breach of this Section 13, the Buyer will be obliged to remedy the resulting damage in full.
1.
Photonica has the right to withdraw from all or part of the Contract or Order, as the case may be, in the event of extraordinary circumstances beyond Photonica’s control, such as Force Majeure described in point 12.1, mandatory changes in the law or extraordinary adverse market changes, e.g. changes in exchange rates and commodity prices, or any material obstacles on the Buyer’s side, within 3 (three) months of concluding the Contract / placing the Order, by providing the Buyer with a decision to withdraw, which should state its reasons (contractual right of withdrawal).
2.
In the event of Photonica’s withdrawal from the Contract and the Orders arising from it, for reasons attributable to the Buyer, Photonica has the right to retain, by way of compensation, an amount equal to 5% of the gross value of the Order.
3.
Upon withdrawal from this Contract, unless otherwise specified, the parties will be released from their obligations under this Contract, except for the obligations under Section 13, which remain unaffected despite withdrawal from the Contract.
1.
If any provision of the GTC is found to be invalid, unlawful or becomes unenforceable for any reason, the remaining provisions of the GTC will remain fully binding and effective, as if the GTC applied without such invalid, unlawful or unenforceable provision. In place of the invalid provisions, the relevant provisions of the Civil Code apply.
2.
If the scope of the established invalidity or unenforceability prevents the objective from being achieved, Photonica and the Buyer undertake to promptly enter into good-faith negotiations to replace the invalid or unenforceable provision with a new valid and effective provision that corresponds as closely as possible to the intentions of the one being replaced.
1.
Photonica reserves the right to unilaterally amend the GTC, and any amendments made by it do not require an annex. The amended GTC will be promptly published on Photonica’s website indicated in point 1.5.
2.
In accordance with the provisions of the Act on counteracting excessive delays in commercial transactions of 8 March 2013, Photonica declares that it has the status of a large entrepreneur. This declaration applies to all contracts concluded with Photonica on the basis of these GTC.
3.
The Buyer may not, without Photonica’s written consent, transfer rights arising from the Contract to third parties.
4.
Polish law applies to the GTC and to the transactions provided for therein, including the Contract.
5.
Unless the GTC or the contract provides otherwise, any offers, notices or information related to the contract require documentary form within the meaning of the Civil Code for their validity.
6.
Any disputes or claims arising from or in connection with the GTC, including disputes concerning their validity, breach, termination or invalidity, will be finally resolved on the basis of the Arbitration Rules of the Court of Arbitration at the Polish Chamber of Commerce in Warsaw in force on the date proceedings are initiated, by an arbitrator or arbitrators appointed in accordance with those Rules.
7.
The language governing communication between the Parties is Polish. If the Buyer is unable to communicate in Polish, the parties permit English as the binding language.
