General Terms and Conditions of Sale

1. INTERPRETATION

The following terms in these General Conditions shall have the following meanings:
- Agreement: (i) a written agreement between the Seller and the Buyer or (ii) a written Purchase Order confirmation issued by the Seller ("Order Confirmation"), delivered to the Buyer by post or e-mail.
- Buyer: the person, company or entity sending the Purchase Order to the Seller.
- General Conditions: these conditions of sale.
- Goods: any goods agreed on in the Agreement and listed therein, that the Buyer is to buy from the Seller.
- Incoterms 2010: means commercial terms published by the International Chamber of Commerce.
- Purchase Order: the Buyer’s written instructions to supply the Goods, in accordance with these Conditions.
- Price: the price of the Goods specified by the Seller in the Agreement.
- Seller: DITH Poland sp. z o.o. with its registered office in Warsaw.
As far as these Conditions concern defects in the Goods and the Seller's liability for them, these Conditions modify the statutory warranty (rękojmia) under the Act – Civil Code of 23 April 1964 (Journal of Laws of 1964, no. 16, item 93 as amended) (the "Civil Code").

2. GENERAL PROVISIONS

These General Conditions shall govern the Agreement and apply to each Agreement and to all sales of the Goods to Buyer, unless otherwise agreed in writing by the Seller and Buyer.
The General Conditions set out herein constitute an integral part of the Agreement.
In the event of discrepancies between the provisions of the Agreement and these General Conditions, the provisions set out in the Agreement shall prevail and shall be binding on both Parties.
The Buyer and the Seller shall agree any amendments and supplements to the Agreement in writing.
The Seller’s rights shall not be prejudiced or restricted by any indulgence or forbearance extended to the Buyer, and no waiver by the Seller of any breach shall be considered a waiver of any subsequent breach.
The Agreement, together with these General Conditions, constitutes the exclusive and entire agreement between the Seller and the Buyer as to the sale contemplated by the Agreement, and no agreements, representations or warranties between the Seller and the Buyer other than those set out in the Agreement shall be binding on the parties.
Seller’s confirmation of Buyer’s Purchase Order is made solely on the basis of these General Conditions irrespective of any alternative general terms and conditions submitted by the Buyer in the Purchase Order which shall not apply.

3. SUBJECT OF THE SALE

The subject of the sale, i.e. the Goods, shall be described and listed in the Agreement. In particular, the following shall be stated: (i) the type and quantity of the Goods (stating permissible weight difference), (ii) a detailed technical specification of the Goods, (iii) the mechanical properties of the Goods, (iv) inspection certificates, (v) the Price, (vi) the payment conditions and (vii) the time of delivery shall be precisely specified in the Agreement.

4. QUALITY CONTROL

Goods shall be inspected by the Quality Control Department of the Producer.
Other quality control inspections may be conducted upon separate agreement of the Buyer, Seller and Producer.

5. TERMS OF DELIVERY

The Goods shall be delivered to the Buyer's place of business or as otherwise specified in the Agreement.
Depending on the place and method of the delivery of the Goods, the applicable provisions of Incoterms 2010 shall apply in relation to the transfer of risk.

6. PARTIAL SHIPMENTS

Allowed. each part delivery or instalment of the goods to be delivered under this sales order (the "goods") shall be deemed to be sold under a separate sales order and no default by the seller in respect of any such part delivery or instalment shall entitle the buyer to treat this sales order as repudiated as regards any balance or instalment remaining to be delivered.
In the event of a failure by the buyer to pay for any instalment in accordance with the terms of this sales order the seller may suspend future instalments or deliveries, or terminate this sales order and claim damages for all losses suffered as a result.

7. TRANSPORT TOOLS

All tools: tarpaulins, stops and any packing materials of the Goods are considered non-returnable transport aids and the cost of their disposal and storage shall be borne by the Buyer.If the delivery of the Goods is provided on Seller’s steel cradles („Cradles“), the Buyer is obliged to return them to the Seller in a usable condition not later than thirty (30) days from the delivery date unless agreed upon otherwise.The return of the Cradles shall be according to the following disposal methods:Return by railway transport – the Seller shall provide to the Buyer the binding railway transport instructions. The Buyer must dispatch the Cradles to the Seller by railway wagons according to Seller’s transport instructions. Cradles must be free laid as follows:small Cradles – weight 580 kg - 24 pieces/4-axle wagon large Cradles - weight 870 kg - 16 piecess/4- axle wagon Return by truck transport - the Seller shall provide the truck (LKW) at its own cost and the Buyer must load such truck according to the Seller’s instructions. The loading area of the wagon and truck must be fully loaded and Cradles must lie in a horizontal position.Each dispatch of the wagon or truck loaded with Cradles must be forwarded in advance to the Seller’s Transport Division, fax No.: 381-26-222-520Transport of Cradles will be procured by the Seller’s Transport Division tel. No.: 381-26-222-520.If the Buyer violates the obligations stated in this Article whereby the Seller suffers damage, the Buyer shall be obliged to compensate to the Seller for th efull damage incured upon the Seller.
If the Buyer violates his obligations to return the Cradles to the Seller as per this Article 4, the Seller is entitled to invoice the Buyer with the Cradle purchase price in the amount of six hundred euros (600 EUR) per single Cradle.

8. QUANTITY AND QUALITY CLAIMS

Liability for defects of Goods
The Seller manufactures Goods according to agreed (international, domestic or other) technical specifications for dimensional, mechanical, physical, surface or other agreed characteristics. The technical specifications and/or any additional customer requirements must be set forth clearly in the Contract. Such technical specifications constitute the exclusive and sole representations of the Seller concerning the quality, capabilities and features of the Goods, and there are no other warranties or obligations by the Seller concerning the quality, capabilities and features of the Goods. The parties agree that Article 35 (2) of the CISG shall not be applicable to the transaction between them.
Buyer Responsibilities
If the Buyer breaches any of its obligations for handling of the Goods during its transport, storage and inspection as set forth in the Contract, any claim for defective Goods shall expire unless otherwise approved by the Seller in writing.

The Buyer is obliged to notify the Seller of the nature and specifics of:

Obvious defects of the Goods as well as differences in quantity of the Goods within thirty (30) days from the day of delivery of the Goods to the place of destination set forth in the Contract;

hidden defects which resulted from natural change of the physical or chemical features of the Goods (natural corrosion, material aging, etc.) as promptly as practicable after detection, but in no case later than six (6) months from the day of delivery of the Goods;

other hidden defects which are not the result of the causes stated in the previous paragraph and which have the nature of persistent and constant defects arising from manufacturing and/or in connection with manufacturing of the Goods as promptly as practicable, but in no case later than twelve (12) months from the day of delivery of the Goods.

Claims shall be notified by Buyer at the latest 5 (five) days after the defect or non compliance is identified and within the expiry of the periods mentioned above (as applicable), otherwise claims shall be considered to be time barred.

Each claim notice shall be sent by registered letter or by other appropriate means to assure the receipt of the notification by the Seller and shall include copies of the following documents and data:

Duplicate of Bill of freight (CMR, CIM, B/L),

The number of both the relevant contract and invoice,

Identification data of the allegedly defective Goods (e.g., coil/bundle number, steel grade, dimensions, claimed amount, etc.),

A description of defects including their accurate and complete photo documentation including the photo documentation of the damaged Goods loaded on the relevant transport vehicle (truck, wagon, ship, etc.), and

Buyer’s preliminary evaluation of the allegedly damaged Goods.

If damage to Goods occurred during transport, or such damage was detected during transport and according to agreed Incoterms® 2010 delivery parity the Seller is liable for such damage, the Buyer is obliged to notify the Seller on the defects, damages or losses to Goods enclosed with the following documents:

A damage report including a preliminary evaluation of the damage,

A commercial report confirmed by the forwarder,

The Bill of freight (CMR, CIM, B/L),

Any existing survey report,

The number of both the relevant contract and invoice,
Identification data of the allegedly defective Goods (e.g., coil / bundle number, steel grade, dimensions, claimed amount, etc.), complete photo documentation.

Buyer must follow the instructions stated on the applicable Certificate of Insurance. If the damage exceeds EUR 5000 , the Buyer must procure evaluation of damage of Goods by the competent authority for damage evaluation appointed by Seller.

No claim entitles the Buyer to refuse to make payment or refuse to take other deliveries from the Seller.

The Buyer shall separately store all the Goods on which it is making a claim against the Seller separately in their original condition for review by the Seller’s representative. At a minimum, the Buyer should inspect 10 % of each coil or a bundle.

The Buyer is obliged to notify the Seller in order for it to stop processing material if claimable defects are observed that continue more than 10% of the coil or bundle. The Buyer should place the removed item on hold and notify the Seller of the rejection. The Buyer is not entitled to use or sell the Goods on which it is making a claim without the Seller’s prior written consent—any such use or sale without Seller’s prior written consent shall be conclusive evidence that the Goods were fit and provided in accordance with the terms of the Contract. The Buyer is not entitled to the compensation for defective Goods in case it has not provided the Seller with a reasonable opportunity to detect them. If the claimed Goods are not available for inspection, the Buyer is not entitled to any claim of defects.
Seller’s Obligations
If the Buyer notifies the Seller on the defects in a timely manner, and the Seller recognizes the Buyer’s claim, the Seller is entitled to:

Perform additional or replacement delivery of the Goods under the Contract conditions, or set forth the appropriate discount of price of Goods in the value of particular defects of Goods recognized by the Seller.

If Goods are delivered as «not the first-class» as agreed, no claim for defects is allowed.

If agreed that the Goods is to be delivered not packed or not oiled for cold or hot rolled Goods, or hot dip galvanized Goods, then the Seller shall not be responsible for any corrosion.

Goods delivered to the Buyer as Cold Roll Full Hard are shipped directly off the cold reduction mill with residual cold mill oil on the strip surface. The thickness of the Goods at the strip ends on the outside and inside will include some off gauge area that will be outside of tolerance but not claimable.

The Seller guarantees 97% of prime quality of total delivery of Goods in coils.

Claims for coil breaks will not be accepted on hot roll product with deep drawing grade quality.

Claims will not be accepted for wood grain and general variations in surface appearance for tin product with coatings of 1.7 g/m2 and lighter.

The Seller is not liable for defects in Goods caused (a) by a breach of Seller’s recommendations for care of Goods during its transport, storage and inspection, (b) by non-standard, unskilled or unsuitable conditions of storage, use, installation or testing of the Goods, (c) by reasons related to assembly of Goods with other non authorized Goods, (d) by attempts to modify or repair the goods without the Seller’s prior written authorization, (e) by reasons related to unsuitable handling, transport and storage, or (f) by any reason other than the normal use of the Goods.

9. LIMITED LIABILITY OF THE SELLER

There are no representations or warranties, expressed or implied, of merchantability or fit for purpose granted by the Seller or Producer, in relation to the Goods which extend beyond those set out in the Agreement. The Buyer and the Seller agree that no representations or warranties have been made or relied upon except as specifically stated in the Agreement. The Seller shall not be deemed or required to have knowledge of the intended purpose or use of the Goods.
Notwithstanding anything in the Agreement to the contrary, the Seller's aggregate liability for claims made under, or in connection with, the Agreement for whatever reason shall be limited to the Price payable for the Goods under the Agreement.
In no circumstances shall the Seller be liable, whatever the cause and whether arising in contract, tort or otherwise, for any loss of profit, business, contracts, revenues or anticipated savings or for any special, punitive, indirect, incidental or consequential damage or loss of any nature whatsoever suffered by the Buyer and/or any third party under, or in connection with the Agreement.
The Seller shall, to the extent permitted by law, be entitled to suspend any further deliveries under the Agreement or terminate it if, in the Seller’s reasonable opinion, an Insolvency Event has occurred or is about to occur to the Producer. An Insolvency Event should be understood to mean an event affecting the obligations of the Producer or the corresponding rights of the Seller in relation to the supply of the Goods.
For the purposes of this clause, “Insolvency Event” means that the entity affected (i) has a winding-up petition or similar step starting an insolvency or administration procedure presented against it (or an equivalent thereof in any jurisdiction); (ii) makes a general compromise or agreement with its financial creditors or any class of them; (iii) has a receiver, administrator or liquidator (or equivalent in any jurisdiction) appointed over any of its assets or undertakings; (iv) passes a resolution for a winding-up or a court makes an order for administration or winding-up (or an equivalent thereof in any jurisdiction); or (v) is unable to pay its debts as they fall due.

10. RESERVATION OF PROPERTY RIGHTS

Notwithstanding Incoterms 2010, delivered goods will remain the property of the Seller until the Buyer pays the Price for the Goods in full as invoiced to Buyer and stated in the Agreement. Should Buyer be in default of its payment obligations under the Agreement, Seller may at any time re-possess the Goods (even without notice) up to a value equal to the unpaid amount by Buyer.

11. PAYMENT CONDITIONS

Payment to be made as per special invoicing dispositions under this Order Confirmation shall be made in full without any right of set-off or counterclaim whatsoever (and free and clear of any deduction on the due date, on the account of DITH Poland SP Zoo).

12. CONFIDENTIALITY

The Parties shall keep confidential all information which has been disclosed to them by the other Party or its representatives.
The Buyer shall keep confidential all information about the Seller, acquired during the cooperation with the Seller and it shall use this information only for the purpose of performing the Agreement. The confidentiality obligation shall continue to be in force until (two) 2 years after all contractual relationships cease with the Seller. The foregoing obligation shall not apply to the information that has been in public domain at the time the Buyer has used it.

13. FORCE MAJEURE

"Force Majeure" means any cause or event, whether direct or indirect, preventing either party from performing any or all of its obligations (save for any payment obligations, which are excluded from the operation of this clause) due to events beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of the party so prevented or of any other party), act of god, war, riot, piracy, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, sanctions and embargoes, accident, breakdown of plant or machinery, seizure, fire, flood, storm or default of suppliers, shippers or sub-contractors.
If either Party is prevented or delayed in the performance of any of its obligations under the Agreement by Force Majeure, that party shall without unreasonable delay notify in writing the other party, specifying the nature and extent of the Force Majeure and shall, subject to service of such notice, have no liability in respect of the performance of such of its obligations as are prevented by the Force Majeure during its continuation and for such time after it ceases as is necessary for that party, using reasonable endeavours, to recommence its affected operations in order for it to perform its obligations.
If either party is prevented by Force Majeure from performance of its obligations for a continuous period in excess of three months, either party may terminate the Agreement forthwith on service of written notice on the other party, in which case neither party shall have any liability to the other except in relation to obligations arising prior to the declaration of the Force Majeure event under this clause.

14. ASSIGNMENT

Neither party has the right, without the written consent of the other party, to assign the rights arising upon the Agreement to any third party, with the exception of the Seller, who may assign the rights of the Agreement to any financing entity, one of its group companies or a financing vehicle established by it or its group companies from time to time.

15. INSOLVENCY OR BANKRUPTCY OF THE BUYER

If any step towards an insolvency procedure is taken by or in relation to the Buyer or the Buyer enters into any agreement with any of its creditors, the Seller shall be entitled, without prejudice to its other rights or remedies provided for by the applicable law, to suspend any further deliveries related to the Agreement. Any such suspension by the Seller shall not release the Buyer from its obligations under the Agreement.

16. NO HARDSHIP

The Seller and the Buyer are bound to perform their contractual duties even if events have rendered performance more onerous than could reasonably have been anticipated at the time the Agreement was concluded. In particular, without limitation, no hardship withdrawal, immediate termination or renegotiation of the terms and conditions set out in the Agreement is therefore allowed in the event of price fluctuations on the market.

17. TAXES, DUTIES AND ANTI DUMPING MEASURES

It shall be a condition of this contract that if the goods become, or are reasonably likely to become, subject to duties, tariffs, charges, embargoes, or other trade measures imposed on importation of the goods into the country of destination, the seller shall at its option be entitled either to require the buyer to reimburse on invoice any additional charges and duties imposed on the goods; or by notice cancel the contract or suspend its obligations under it without liability.

18. SANCTIONS

If either (i) the Buyer, or any companies affiliated with the Buyer, or any of its owners, directors, officers, employees, agents or representatives become the subject of any sanctions administered and/or enforced by the US Department of Treasury’s Office of Foreign Assets Control (OFAC), the United Nations, the European Union, Her Majesty’s Treasury, the Swiss State Secretariat For Economic Affairs (SECO) or any other relevant government authority (collectively the “Sanctions”), or (ii) any Sanctions affect, or threaten to affect, the Seller or the Buyer’s performance under the Agreement, the Seller shall be entitled to suspend deliveries under the Agreement and/or terminate the Agreement at any time with immediate effect.
For the avoidance of doubt, the Buyer’s payment obligations for delivered goods shall remain valid and enforceable, notwithstanding any such termination or suspension by Seller.
The Buyer shall not transfer the Goods to any third party that is subject to Sanctions (a “Third Party Sanctioned Entity”), by selling, supplying, delivering, allowing the off-take, exporting or in any other way transferring the Goods to such Third Party Sanctioned Entity.

19. FORBEARANCE

The seller's rights shall not be prejudiced or restricted by any indulgence or forbearance extended to the buyer and no waiver by the seller in respect of any breach shall operate as a waiver in respect of any subsequent breach.

20. GOVERNING LAW

The construction, validity and performance of the Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, 1980, but shall be governed exclusively by Polish law

21. DISPUTE RESOLUTION

Any dispute arising out of or in connection with the Agreement which cannot be resolved by the Parties amicably shall be subject to the exclusive jurisdiction of the common court of law competent for the registered office of the Seller.

22. GENERAL

If any provision of the Agreement is found by any court to be wholly or partly illegal, invalid, void, voidable, unenforceable or unreasonable, it shall, to such extent, be deemed severable, and the remaining provisions of the Agreement and the remainder of such provision shall continue in full force and effect.
A notice required or permitted to be given under the Agreement shall be in writing addressed to the other party at its registered office or principal place of business, either via registered letter or email, or such other address as may have been notified under this provision to the party giving the notice.