General Terms and Conditions of Sale - Incoterms 2020

1. INTERPRETATION

1. 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 2020: 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.
      
2. 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

1. 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.
    
2. The General Conditions set out herein constitute an integral part of the Agreement.
    
3. 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.
    
4. The Buyer and the Seller shall agree any amendments and supplements to the Agreement in writing.
    
5. 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.
    
6. 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.
    
7. 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

1. 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. PACKING

1. Export seaworthy.

5. TERMS OF DELIVERY

1. The Goods shall be delivered to the Buyer's place of business or as otherwise specified in the Agreement. 
    
2. Depending on the place and method of the delivery of the Goods, the applicable provisions of Incoterms 2020 shall apply in relation to the transfer of risk.

6. PARTIAL SHIPMENTS

1. Allowed. Each part delivery or instalment of the Goods to be delivered under this Agreement shall be deemed to be sold under a separate agreement and no default by the Seller in respect of any such part delivery or instalment shall entitle the Buyer to treat this Agreement as repudiated as regards any balance or instalment remaining to be delivered.  
    
2. In the event of a failure by the Buyer to pay for any instalment in accordance with the terms of this Agreement the Seller may suspend future instalments or deliveries, or terminate this Agreement and claim damages for all losses suffered as a result.

7. QUANTITY CLAIMS

1. Claims in relation to quantity of the goods shall only be valid when made in accordance with this quantity claim section. 
   All quantity claims shall be notified in writing to the Seller, either by email or registered letter. All quantity claims must be supported by original scale weight tickets conducted at discharge place. Quantity claims notification and fax copies of supporting documents must be received by the Seller, either by email or registered letter, not later than 25 days after arrival at discharge place and originals not later than 30 days after arrival at discharge place. A franchise of +/- 0.5 % is allowed in case of overage or shortage and Seller or Buyer must be compensated only for weight exceeding the +/- 0.5 % franchise. If partial shipments are effected for this Order Confirmation, quantity claims shall be settled after the last shipment based on the entire quantity shipped.

8. QUALITY CLAIMS

1. Claims in relation to quality or conformity of the goods shall only be valid when made in accordance with this quality claim section. 
   All quality claims in relation to goods (‘Claimed Goods’) shall be notified in writing, either by email or registered letter, and received by the Seller within 50 days from arrival at discharge place. On Seller’s request, the Buyer shall without prejudice to the Seller's right to dispute such report, deliver to the Seller the report of an Independent International Inspection Company, containing the following information: date / number of shipping document(s); Order Confirmation(s) and/or specification(s); number and weight of delivered goods; weight and quantity of goods checked by the surveyor; dull description of defects and quantity of claimed goods. The Buyer must also, at its own cost, send a sample of claimed goods to the Seller if so requested. All costs pertaining to the inspection company and sending samples, are to be borne by the losing party. 
   Unless the Seller agrees otherwise in writing, upon buyer becoming aware of a potential quality claim, the Buyer shall procure that none of the claimed goods shall be processed further, sold, dealt with or otherwise disposed of until the Seller has conducted an inspection of such claimed goods. All claimed goods must be clearly marked and stored separately and safely, on trust for the Seller. 

9. LIMITED LIABILITY OF THE SELLER

1. 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.
    
2. 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.
    
3. 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.
    
4. 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.
    
5. 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

1. Notwithstanding Incoterms 2020, 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

1. 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

1. The Parties shall keep confidential all information which has been disclosed to them by the other Party or its representatives.
    
2. 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

1. "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.
    
2. 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.
    
3. 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

1. 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

1. 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

1. 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

1. 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

1. 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.
    
2. 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.
    
3. 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

1. 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

1. 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

1. 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

1. 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.
    
2. 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.

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