GENERAL CONTRACTUAL CONDITIONS

used by Winkhaus Polska Beteiligungs spółka z ograniczoną odpowiedzialnością spółka komandytowa with its registered office in Rydzyna, address ul. Przemysłowa 1, 64-130 Rydzyna, NIP: 6970011183, REGON: 410023222, entered into the register of entrepreneurs of the National Court Register kept by the District Court for Poznań-Nowe Miasto I Wilda in Poznań, 9th Commercial Division, KRS: 0000316790.

1. GENERAL PROVISIONS

1.1. These General Contractual Terms and Conditions, hereinafter referred to as the General Terms and Conditions, apply to all offers and contracts, including sales and delivery contracts, carried out 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 unless separately agreed.

1.2. The terms of the contract concluded with the customer shall prevail over these General Terms and Conditions. However, to the extent not regulated by the contract, these General Terms and Conditions apply. The priority of validity of the contract only has the effect that the provisions of the General Terms and Conditions that are inconsistent with the contract do not apply and are replaced by the appropriate provisions of the contract.

1.3. In the case of contracts concluded in a relationship with sales in the Winkhaus online store, the regulations of the online store and other regulations relating to the online store shall prevail over these General Terms and Conditions.

1.4. The application of commercial terms and conditions or regulations 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 were attached to the order or other document by the customer.

2. CONCLUSION OF A CONTRACT

2.1. The order placed by the customer becomes binding when the order is confirmed by Winkhaus, and in the absence of order confirmation - when Winkhaus starts processing the order.

2.2. The customer cannot unilaterally change a binding order.

3. PRICE AND PAYMENT TERMS

3.1. Prices are determined ex warehouse in Rydzyna.

3.2. If the prices given are net prices, they must include VAT at the currently applicable rate.

3.3. The price is payable on time and to the bank account specified on the VAT invoice or pro-forma invoice, respectively.

3.4. Winkhaus reserves the right to respond to changes in energy, raw material and materials prices with price increases. Price introductions or increases for this reason, as well as changes, are notified at least four weeks in advance.

3.5. If the customer fails to pay the amount due in whole or in part within the deadline specified in the VAT invoice or pro-forma invoice, Winkhaus may exercise all or some - at its discretion - of the rights specified below:
a) demand security from the customer for further deliveries or performance of contracts,
b) implement existing security measures,
c) withdraw from the contract within 60 days from the payment deadline specified in the invoice, without setting an additional payment deadline,
d) demand the return of goods belonging to Winkhaus and in the possession of the customer,
e) demand interest for delay in commercial transactions or other appropriate interest,
f) demand further compensation,
g) suspend the execution of all or some orders.

3.6. The customer may only set off against an undisputed or legally established counterclaim.

3.7. If a customer does not make purchases at Winkhaus for twelve consecutive months, any individual arrangements with this customer become invalid.

4. DELIVERY AND PACKAGING

4.1. Unless the parties have agreed otherwise, the goods are packed with due care, in accordance with the practice used by Winkhaus.

4.2. Delivery of the ordered goods takes place on the basis of FCA (Incoterms 2020), ex warehouse in Rydzyna, which is also the place of delivery and performance, unless the parties have agreed otherwise.

4.3. If the parties have agreed that Winkhaus organizes the transport, Winkhaus has the right to choose the transport company and the shipping method and transport route. The above does not change the fact that delivery is based on DAP principles.

4.4. Winkhaus has the right to require the buyer to pay transport costs in advance and to withhold shipment until they are paid.

4.5. If the customer is in default of receiving the goods or if the delivery is delayed for other reasons for which the customer is responsible, Winkhaus may exercise all or some - at its option - of the rights set out below:
a) Winkhaus may demand that the customer pay a contractual penalty in the amount of 5% of the gross price of the goods. The customer's obligation becomes due upon expiry of the deadline specified in the payment request sent by Winkhaus and not shorter than 5 days; and the client is obliged to pay this penalty within 5 days from being requested to pay such penalty,
b) Winkhaus may demand remuneration for storing the goods in amounting to PLN 20 net per month
1 m2 of space occupied by the goods or the pallets on which they are stored, and the customer is obliged to pay such remuneration within 5 days of being requested to do so payment of such debt.

4.6. Delivery or service dates should generally be understood only as information about the approximate delivery date, which is not binding, unless something else is expressly stated in the contract or agreed upon by the parties.

4.7. If Winkhaus is unable to meet the delivery deadline for reasons beyond its control, in particular due to non-delivery of raw materials or product components, then:
a) Winkhaus will immediately inform the customer about this, indicating a new approximate delivery date,
b) notwithstanding the above, Winkhaus may withdraw from the contract in whole or in part within 60 days from the date Winkhaus receives information about the delay in the delivery of raw materials or product components. In such a case, Winkhaus will immediately refund the price for the goods, if paid, to the customer.

4.8. Winkhaus is entitled to make partial deliveries, even if they were covered by one order.

4.9. The cost of disposable packaging is included in the price of the goods. The customer is obliged to dispose of disposable packaging at his own expense and risk.

4.10. The customer is obliged to return reusable packaging to Winkhaus.

4.11. In the event of delivery of goods with clearly damaged packaging, the customer is obliged to accept the delivery only with reservations and confirmation of this fact in the delivery document. The customer is obliged to inform Winkhaus immediately, at least in writing.

5. PRODUCT QUALITY, PROCEDURE IN THE CASE OF PRODUCT DEFECTS

5.1. The customer is obliged to check the quantity and quality of the ordered goods immediately after receiving them.

5.2. The deadline for reporting quantitative discrepancies in the goods is 48 hours from the time of delivery of the goods to the place of receipt.

5.3. The deadline for reporting quality defects is 14 days from the time of delivery of the goods from Winkhaus to the place of receipt.

5.4. Failure to meet the deadline specified in section 5.2 or 5.3. causes the expiration of warranty and guarantee rights.

5.5. Winkhaus decides how to remove the defect. The customer has the right to express his opinion on how to remove the defect.

5.6. Goods that are the subject of a complaint can only be returned with the express consent of Winkhaus.

5.7. Winkhaus' liability for defects does not cover normal wear and tear of the goods, as well as defects that arise after the goods have been issued by Winkhaus, in particular as a result of external factors or operating errors.

5.8. Insofar as the parties have expressly or tacitly agreed on a certain quality of the goods, this constitutes an agreement, at least implicitly, that it will not constitute a defect if the goods deviate from the objective requirements due to the agreed quality.

5.9. The warranty for product defects is excluded.

5.10. The customer is obliged to observe the product introduced to the market. Functional defects or sources of danger that cause or may cause a malfunction or defect must be reported to Winkhaus immediately after their detection. Failure to report will be treated as contributing to the damage.

5.11. In the case of sales to entrepreneurs other than entrepreneurs with consumer rights, Winkhaus is not obliged to issue instructions for the use of the goods or explanations regarding the use or storage of the goods. The buyer, as a professional, is obliged to determine how to use and store the goods. If the buyer has any questions or doubts about the use of the item, he should contact Winkhaus.

5.12. Winkhaus informs that the goods sold are not complete product sets and may require the use of additional elements. The use of the product depends on many factors, including the raw materials that make up the final product, the installation location, loads and frequency of use. In case of any doubts, the customer should ask Winkhaus for a recommendation regarding the use of these elements.

6. SOFTWARE

6.1. In the case of delivery of software products, the customer acquires from Winkhaus only a data carrier and a non-exclusive, spatially and temporally unlimited right to use the software stored on it.

6.2. Copyright, patent rights, trademark rights and all other ancillary copyrights in the software as well as in other items that Winkhaus delivers or makes available to the customer as part of the initiation and performance of the contract are exclusively vested in the contract between the parties. Insofar as these rights are vested in third parties, Winkhaus is entitled to the corresponding exploitation rights.

6.3. Except for backup and archiving purposes, customer will not make copies of the software or its documentation, in whole or in part. Backup copies must, to the extent technically possible, bear the copyright notice of the original data medium and be stored in a secure manner. Copyright notices may not be removed, altered or concealed.
Copies that are no longer needed must be deleted or destroyed. The user manual and other documents provided by us may be copied only for internal company purposes.

6.4. Any unauthorized use of the software by the customer automatically results in the loss of all rights of use by the customer.

6.5. Additionally, the license terms applicable to the software that Winkhaus makes available to the customer apply.

7. LIABILITY OF THE PARTIES

7.1. Winkhaus’s liability under any legal title is in each case limited to the price for the individual item of goods to which it relates, and if it concerns the entire batch of goods - the price for the batch of goods to which the damage relates, and covers only the consequences of intentionally culpable conduct.

7.2. Moreover, Winkhaus is not liable for lost profit or indirect damage, including interruption in production, suspension of deliveries, employee downtime or other costs directly or indirectly related thereto.

7.3. The customer's claims for non-conformity of the goods with the contract expire after one year from the date of delivery of the goods by Winkhaus.

7.4. The parties are not liable for damages resulting from failure to perform their obligations to the extent that the breach results from force majeure. In particular, the parties consider them to be force majeure
events such as military mobilization, hostilities, fire damage for which the contracting parties are not responsible, floods, restrictions in the supply of electricity or gas to workplaces and enterprises, epidemics and pandemics.

7.5. If deliveries are made in accordance with drawings or other information provided by the customer and if this violates the industrial property rights of third parties, the customer remains solely responsible for the consequences of such violations and will indemnify Winkhaus against any third party claims. Moreover, in such a case, Winkhaus is not responsible for the compliance of the goods with the purpose intended by the customer, but only for the execution in a manner consistent with the design.

7.6. The deliveries and services are subject to the condition that there are no obstacles to implementation due to national or international regulations, in particular export control regulations, as well as embargoes or other sanctions. This also applies to the customer in the event of export shipment or possible import-related transfer of goods. In the event of export, transfer or import by the customer, the customer undertakes - to the extent applicable - to comply with all Polish and European regulations, as well as all other national or international export control regulations, as well as embargoes and other sanctions.

7.7. The customer undertakes to provide Winkhaus upon request with all information and documents required for export, transfer or import (e.g. destination declaration). Delays caused by export controls or approval procedures will invalidate delivery dates and times. If the necessary authorizations are not granted or the customer fails to provide the necessary documents or information after setting an appropriate deadline, Winkhaus is entitled to withdraw from the contract in respect of the defective parts. Claims for damages by the customer in this regard and due to the above-mentioned deadline violations are excluded.

7.8. Winkhaus Polska Beteiligung spółka z ograniczoną odpowiedzialnością spółka komandytowa is a member of the Winkhaus group and as such is subject to the statutory catalog of obligations of the LkSG - the German Act on corporate due diligence to prevent human rights violations in supply chains. The Winkhaus Group takes these responsibilities very seriously. For this reason, the Winkhaus Group has implemented control mechanisms that allow it to identify potential threats at an early stage, investigate potential violations and prevent them. All suppliers are obliged to respect human rights and environmental protection and to provide relevant information upon request, including about their own supply chains, to the best of their knowledge and belief. Winkhaus reserves the right to use appropriate control and audit powers for legitimate reasons to ensure that the requirements of the LkSG are taken into account with an appropriate level of protection.

7.9. The Winkhaus Group has set itself the goal, in all purchasing and ordering processes with suppliers, to take due account of sustainable resource value creation and environmental protection and to take these into account in the procurement decision.

8. RE-EXPORT PROHIBITION PURSUANT TO THE RUSSIAN CLAUSE

8.1. The Customer will not, directly or indirectly, sell, export or re-export Goods falling within the scope of Article 12g of Council Regulation (EU) No 833/2014 to or for use in the Russian Federation.

8.2. The customer will use reasonable endeavors to ensure that the purpose set out in clause 8.1 is not interfered with by third parties in the wider supply chain, including potential resellers.

8.3. Customer will establish and maintain an appropriate monitoring mechanism to identify behavior by third parties in the wider supply chain, including potential resellers, that could disrupt the achievement of the purpose set out in Section 8.1.

8.4. Any breach by the customer of the provisions of section 8.1, 8.2 or 8.3 constitutes a material breach of an important provision of the Contract, and Winkhaus is entitled to take appropriate preventive actions, including in particular to terminate the Contract without notice.

8.5. The customer acknowledges that violations relating to re-export to Russia must be reported to the competent authorities. The customer is obliged to inform Winkhaus immediately of any problems in the application of point 8.1, 8.2 or 8.3, including any relevant actions of third parties that could prevent the achievement of the purpose set out in point 8.1. At Winkhaus’s request, the customer is obliged to provide information regarding compliance with the obligations arising from points 8.1, 8.2 and 8.3 within two weeks.

9. RETENTION OF OWNERSHIP

9.1. Ownership rights pass to the customer at the earliest upon payment of the total price for the goods.

9.2. The date of payment is the date the amount is credited to Winkhaus’s account.

9.3. Until payment for the goods is made, Winkhaus remains its owner, even in the event of processing, mixing or combining Winkhaus products with other products.

9.4. At the request of Winkhaus, the customer is obliged to notify his customer of the ownership rights and to provide Winkhaus with the information and documents necessary to assert Winkhaus’s rights against the customer related to the ownership of the goods. Winkhaus is also entitled to notify the buyer of the customer's ownership rights.

9.5. If third parties claim or assert rights to goods covered by Winkhaus’s property rights, the customer is obliged to immediately notify Winkhaus of this fact in writing.

9.6. At Winkhaus’s request, the customer will provide Winkhaus with a list of goods that have not been paid for and are the property of Winkhaus, along with an indication of the location of these goods and information whether the goods have been processed/combined with other goods and whether they have been delivered to another entity.

10. FINAL PROVISIONS

10.1. Winkhaus has the status of a large entrepreneur within the meaning of Art. 4 point 6 of the Act of March 8, 2013 on counteracting excessive delays in commercial transactions.

10.2. The customer is obliged to immediately notify Winkhaus in writing of any changes in ownership, legal form of the company or other circumstances affecting its financial situation, as well as any change of registered office or address.

10.3. Winkhaus is listed in the Waste Database (BDO) under the number 000107278.

10.4. The provisions of these GTC do not apply to the consumer or to the entrepreneur with consumer rights within the scope of points 5.2, 5.3., 5.4, 5.5., 5.8., 5.10. and in cases where other rights result from mandatory legal provisions.

10.5. The exclusive place of jurisdiction for disputes with the customer is the court having jurisdiction over the registered office of Winkhaus, unless otherwise required by mandatory provisions of law.

10.6. Polish law applies to all contracts containing these General Terms and Conditions, as well as to the General Terms and Conditions themselves, excluding the provisions of the United Nations Convention on Contracts for the International Sale of Goods (CISG).

10.7. These general terms and conditions were originally prepared in Polish. Any translation of this Agreement into a language other than Polish is made solely for the purpose of meeting any legal requirements and/or for information purposes. In case of questions of interpretation and/or contradictions, only the Polish version shall prevail.

10.8. GDPR information clauses are available in particular on the websites: https://www.winkhaus.pl/pl/RODO and https://www.winkhaus.pl/pl/ochrona-dani.

10.9. The GTC in this version is valid from April 23, 2024.