Part I. Sale.
- General Provisions
1.1. These General Conditions of Sale apply to the sale of products, components and services by Ufnal Guitars Sp. z o.o., office in Malbork, hereinafter referred to as “Seller”.
1.2. Hereinafter the “Instruments” shall mean guitars and other instruments made at special, customized order of the Buyer. Hereinafter the “Products” shall mean any goods and services included in the Seller’s offer, among others, Instruments, components, parts and products made in series. Hereinafter the “Commercial Documents” shall mean the offers, orders, invoices, contracts and their modifications transferred to the Buyer by the Seller.
1.3. The sale of the Product shall mean any legal relationship under which the Seller transferred ownership of products, components or provided services to the Buyer (Customer).
1.4. These General Conditions of Sale shall be binding on both the Seller and the Buyer.
1.5. Seller shall not be bound by any conditions specified by the Buyer, unless such conditions are agreed in writing between the Seller and the Buyer. Such conditions, specified by the Buyer, shall not be binding for the Seller, even if the Seller shall not report separate opposition to these conditions.
1.6. If the Buyer is a Consumer within the meaning of the Act on the specific conditions of Consumer sale and an amendment to the Civil Code of 27 July 2002 (Journal of Laws No. 141, item 1176) – these General Conditions of Sale shall apply while maintaining the provisions of this Act, hereinafter referred to as the “Act on Consumer sale”. In such case the term “Buyer” also refers to the Consumer.
1.7. The buyer is obliged to refer to the provisions of these General conditions of sale before the final reconciliation of all relevant elements of the Contract, and at the latest at the time of signing the Contract (if it has been drawn up in writing) or at the time of order submission. General conditions of sale are generally available on the www.ufnalguitars.com website and in the office of the Seller.
1.8. In the event that the Buyer is in permanent trade relations with the Seller, the Buyer’s acceptance of the General conditions of sale in one transaction (in case the Buyer does not express any reservations) constitutes an acceptance of the use of the General conditions of sale for all the other Sales Contracts between the Parties.
1.9. In case of doubt in the interpretation of the trade clauses – Incoterms 2010 apply.
2.1. A signed order becomes binding when an advance payment has been made. The advance charged shall amount to 50% of the total order value. The advance may be charged at a different rate but it must be stated in the Commercial Papers.
2.2. An order shall be the Order Form issued by the Seller and signed by the Customer. Also a signed Offer print and a written Contract in the form of an e-mail order are considered to be Orders. The Contract specifies the product, the quantity, price, date of execution and delivery, and the length of the warranty if it is different than in General conditions of sale, the person responsible for the Contact on behalf of the Customer.
2.3. Successful conclusion of the Contract takes place through signing of the Contract by the Seller or through the accession to the service or through delivery of the Product by the Seller. Any arrangements, additions, amendments to the Contract and declarations are required to be made in written form.
2.4. Seller accedes to the Contract realization after the confirmation of its acceptance to implementation. In case of an Instrument sale – immediately after the completion of components and sub-assemblies.
2.5. Seller has the right to cancel the Order before production for legitimate reasons. In such a case, the Seller shall inform the Buyer and return the advance paid. All the offers may at any time be changed or withdrawn without notice.
2.6. Seller is guided by quality and professionalism and produces an Instrument with components agreed with the Buyer, which is confirmed in the Contract.
3.1. Seller will perform instrument efficiently and without undue delay. The division of the work into stages, their sequence, and number of employees, time, hours and manner of performance are an integral decision of the Seller. If a time limit for completion has been set in the Order or in the Contract – it be shall a term in which the Seller will report the performance of the instrument. Extension of the period may take place in particular in the case of:
3.1.1. unforeseen manufacturing problems (technical),
3.1.2. unforeseen delay in delivery of wood or components,
3.1.3. in case of major force occurrence.
3.2. The Seller is not responsible for damages incurred by Buyer as a result of the delay. Buyer has no right to withdraw from the Contract, unless the Seller agrees to such a waiver, and the subject of the Contract does not include Instruments made to order.
4.1. While the Commercial Documents explicitly state otherwise, Products are sold without delivery, according to the EXW formula, and all conditions relating to the supply will be interpreted in accordance with the rules of Incoterms 2010. Buyer is obligated to pick up products from the warehouse of the Seller within the agreed term, stated in the Order. In case if the Buyer does not pick up the products within seven (7) days from the agreed date of reception, the Seller shall be entitled to arrange for the Product’s shipping, at market conditions, at Buyer’s expense and to charge him with the with the consequent storage costs, administrative costs, manipulative costs and any other costs incurred.
4.2. If Commercial Documents provide delivery terms other than EXW and the choice of the transport method is up to the Seller, the Seller is obliged to arrange the transport of Products in accordance with the instructions given by the Purchaser. In the absence of such instructions, the Seller shall – on his discretion – choose the type of shipment and carrier. Any custom requirements of the Buyer in terms of the consignment shall be considered non-proprietary, if not expressly confirmed by the Buyer after their introduction into the Commercial Documents by the Seller. If necessary – the Seller may pay the cost of shipping in advance and charge the Buyer with those by placing them – as a separate item – on the invoice for the Products. All delivery conditions contained in the Commercial Documents shall be interpreted in accordance with Incoterms 2010.
4.3. The Buyer agrees to very carefully examine the Product at the time of acceptance – in terms of quality and quantity, compliance with the specifications set in the Commercial Documents and for any visible defects. Also the documentation attached to the Product shall be subject to careful control. After examination of the Product – an Issuance Protocol shall be signed. The Issuance Protocol may be in the form of an invoice, acceptance protocol, storage document or other evidence. Signing the Issuance Protocol is tantamount to stating the compliance of Product’s parameters with the order and absence of defects that could be detected at a very careful examination of the Product during the reception.
4.4. If – in the case of an external company shipment – the Buyer will have any doubts as to the condition of the Product, the Buyer is obliged to draw up – together with the courier – an appropriate protocol. After examination of the Product in the presence of the courier and acceptance of the consignment without reservations, the Buyer acknowledges that the product is fit and proper and does not show any evidence of damage.
4.5. If – after the shipment issuance – loss or damage was discovered that could not be seen from outside of the delivery, the carrier shall determine the state of the consignment at the request of the person authorized and shall report it immediately after the disclosure of the damage, but no later than within 7 days of reception of the consignment.
- Price and remuneration.
5.1. The basis for determining the price and remuneration shall be the offer issued by the Seller, or pricing of Products and Services of the Seller, on the day of confirmation of the Order by the Seller.
5.2. Prices and remuneration indicated in the offer, contract and price list are expressed on a net basis. Individually agreed prices relate only to the specific offer, Contract or Order. Offers are valid for a period not longer than one month from the date of their issuance, unless the offer itself states otherwise.
5.3. The prices indicated in the price list of the Seller’s Products and Services include the sale price of the Product and the value of Services. Remuneration does not include costs related to shipping of the Products ordered from the warehouse of the Seller to the place indicated by the Buyer – unless the Contract states otherwise.
5.4. Seller reserves the right to adjust the prices agreed in the case of tax changes, exchange rates changes, higher raw material prices, government intervention or other circumstances beyond the control of the Seller.
- Terms of Payment
6.1. The Buyer is obliged to pay an advance for the production of the Instrument amounting to 50% of the price agreed within 7 (seven) days from the confirmation of the Order by the Seller. In the case of Products other than Instruments, the advance payable amounts to 30% of the price agreed.
6.2. The remaining part of the Price and Remuneration is payable: in cash at the Instrument reception – if a cash invoice has been issued or within 2 (two) days from the date of the VAT invoice issuance – if the agreed payment method is bank transfer. Seller shall decide whether the invoice will be paid in cash or by bank transfer.
6.3. The Parties may agree on a different method of payment, but such arrangements shall be included in a written form in the Order.
6.4. Any bank transfer payments should be made by Buyer to Seller’s bank account at the BZ WBK Bank, indicating the payment title.
6.5. In case of delay in payment, Buyer shall pay the statutory interest for each day of delay of the delay and the cost of reminders – if any. Default interest will also be charged in case of extension of the payment period. The Buyer is not entitled to withhold payment or make any deductions for claims against the Buyer, unless the Seller has agreed such a deduction with the Seller.
6.6. Seller is entitled to transfer the rights and obligations under the Contract concluded with the Buyer, as well as any claims against the Buyer arising from the Contract to a third party.
6.7. If the Buyer is in arrears with payment to the Seller, the Seller has the right to refuse to accept another Order until the payment of the debts outstanding.
6.8. In the absence of reception and/or lack of full payment for the Products within 30 days from the date of the reception of the Products, the deposit becomes the property of the Seller.
- Reservation of rights.
7.1. The Seller reserves the property right to the products sold until the date of full payment of their Price. Buyer is only the wielder of the Products and it is his duty to inform third parties about this fact, including the potential further buyers of the Products. Ownership of the Products shall pass to the Buyer upon payment of the total price for the Products. Reservation of the ownership right by the Seller does not affect the transfer of risk in any way. Risk of loss of the Products, their destroying or damaging passes to the Buyer at the moment of their reception.
- Deductions and assignment
8.1. The Seller is entitled to deduct his claims against the Buyer with the claims of the Buyer against him and to make the assignment of claims held in relation to the Buyer to any selected entity.
- Catalogues, descriptions, etc.
9.1. Offers, advertisements, catalogues, price lists, brochures and other advertisements on Products contained the commercial offer of the Seller – also those contained on his website – are for information purposes only and do not constitute an offer within the meaning of the Civil Code – those are only invitation to submit Orders. Specific requirements of the Buyer shall be binding only so far as they have been confirmed by the Seller in writing.
9.2. Seller reserves the right to introduce – at any time – changes in the Product range offered. Placing information about the Products on the Ufnal Guitars Sp. z o.o. website, in catalogues, price lists and brochures is not equivalent to their availability.
9.3. The Seller reserves the right to modify his products without notice, if such modifications may be made without change in the agreed technical specifications.
10.1. Any developments, information and documents that the Buyer has received in connection with the submission of the Order or the sale of Products – shall be confidential.
10.2. The Buyer shall use them only for his own needs – those shall not be made available to third parties. The Buyer is obliged to protect them against third party access within five years of their acquisition.
10.3. In case if no Contract was concluded by the Parties – all the developments and documents delivered to the Buyer by the Seller shall be immediately returned together with all copies, no later than within fifteen (15) days from the date of such request by the Seller.
11.1. In addition to liability under the guarantee in accordance to the rules set out the General terms of warranty or for non-compliance of the Product with the Contract in relation to the Buyer being a Consumer within the meaning of the Consumer Sales Act or in respect of damage caused by a dangerous product in accordance with the Civil Code – responsibility of the Seller shall be limited – including any recourse liability – to the extent permitted by the provisions of Polish law.
11.2. In the scope, in which the product liability towards third parties may be imposed on the Seller, the Buyer shall indemnify the Seller and hold the Seller’s liability to the extent to which the Seller’s liability is limited in these General Conditions of Sale.
11.3. Buyer is obliged to appear as a participant before the court or the arbitrary tribunal dealing with a claim against the Seller in respect of damage caused by the Products. If a third party has a claim for loss or damage as described in this paragraph to one of the Parties, that Party shall promptly notify the other Party.
11.4. The Seller is not responsible for any delay or failure to perform the Contract due to temporary shortages of components at Suppliers.
11.5. Seller’s total liability for non-performance, untimely or improper performance of obligations, including in respect of defects in Products is limited in each case to 10% of the Contract.
11.6. Liability for damages resulting from a slight carelessness is excluded, unless the damages were suffered by individuals. Damages resulting damages derived from the damage caused by the Seller, damage to property, lack of savings, loss of bank interest, as well as being a derivative of the damage claims of third parties are not covered by liability of Ufnal Guitars Sp. z o.o. – unless the law provides otherwise.
11.7. The Seller shall not be liable for any damages (direct or indirect, including loss of profits) which may arise from defects or delays in delivery of the Products or improper performance of the Contract or which may arise in connection with product liability, regardless of the cause of the error, delay or defects, including but not limited to production downtime, loss of profits or loss of goodwill.
12.1. All complaints, including those relating to defects, delays in the execution of the Contract and any claims, including product liability or damages shall be drawn up in writing and forwarded to the Seller by the Buyer without undue delay. Complaints will be dealt with according to the rules described in the section describing the guarantees and service.
12.2. In case of Instrument production, return is excluded.
12.3. In the case of sales of Products other than Instruments (such as assemblies and components) – return is possible only under a separate agreement of the Parties. Only Products fit for sale, in undamaged original packaging may be returned. Items to be returned must be accompanied by a copy of the invoice. The Buyer shall cover the return carriage costs. In the case of returned Products, an administration fee set by the Seller in the amount of 15% shall be deducted from the price.
- Rights to Products
13.1. The Buyer shall not acquire any intellectual property rights in the form of licenses, patents, copyrights, trademarks or any other intellectual property rights relating to the Products in connection with the purchase of the Products.
13.2. Prices of individual Products pointed in the Commercial Documents are prices for those Products only and do not include license rights, copyrights, industrial property rights, technology rights or documentation related to the production process.
13.3. Seller reserves all the rights, titles and interest in any intellectual property rights contained or embodied in the Products or arising out of the Services, including any improvements in processes and Products created or supplied by Seller under these General Conditions of Sale. No part of this General Conditions of Sale will be treated as a grant of rights of ownership to such intellectual property to the Buyer.
- Ban on resale for certain purposes
14.1. Products of the Seller are prepared for civilian purposes.
14.2. Seller’s Products may not be sold to persons, businesses or organizations of any type, if those are known for or suspected to be associated in any way with any form of terrorism or drug trafficking. Seller’s products may be subject to statutory controls and restrictions and, therefore, may be subject to restrictions on sales to certain countries, including covered by the prohibitions of exports/imports. In the case of sales of the Products of the Seller to such countries, such restrictions must be observed.
14.3. Seller’s products may not be resold, if there is any doubt or suspicion that the Products can be used for the above purposes. If the Buyer knows or suspects that the above conditions have been violated, the Buyer shall notify the Seller immediately.
- Force majeure
15.1. The Seller is entitled to cancel Orders of the Buyer or to postpone the execution of such Orders and is not responsible for failure to deliver, faulty or delayed delivery caused in whole or in part by circumstances beyond the reasonable control of the Seller, in particular, such as insurrection, riot among the population, war, fire , the requirements of the public, strike, lockout, slowdown, shortage of transport, shortage of components, disease or defect or delay in delivery from the suppliers, accidents at production, control or shortage of energy. In such cases, the Buyer is not entitled to liquidated damages or other claims against the Seller.
- Partial Invalidity
16.1. In the event if one or more provisions of these General Conditions of Sale is held to be invalid, illegal or unenforceable, this shall not affect or limit the validity or legality or enforceability of any other provision.
- Ban on recruitment
17.1. Seller and Buyer mutually agree not to recruit, during the term of the Contracts concluded and for 12 months after their termination or expiration of employees of the other Party and not to employ them in any form. Unless the Parties agreed otherwise – the Party breaking this commitment agrees to pay liquidated damages to the injured Party in an amount equivalent to twelve gross wages paid last to the employee recruited.
- Disputes Resolution
18.1. Any disputes arising out of or in connection with these General Conditions of Sale and basic contractual relationship shall be resolved in accordance with the law of the country of the Seller, by the ordinary courts competent for the seat of the Seller. If the Seller and Buyer both agree, the dispute may be finally settled by arbitration. In this case, the decision will be issued in accordance with the arbitration rules set by the International Chamber of Commerce (ICC). Meetings of the court of arbitration shall be held at a place designated by the Seller, and the language of the arbitration shall be Polish, unless the Parties agree otherwise.
- Final provisions
19.1. Parties exclude the application of the Buyer’s contract templates (in particular, the general conditions and standard contracts, regulations).
19.2. The Buyer agrees to the processing of personal data by the Seller for the purpose of issuing invoices, trade statistics, and marketing of products and services in accordance with the Act of 29 August 1997 on the Protection of personal data. The Buyer also agrees to receive commercial information from the Seller by means of electronic communication, in particular electronic mail in accordance with the Act of 18 July 2002 on Electronic services.
19.3. The Seller has the right to inform on his websites, as well as to inform the public about the fact of purchase and/or possession of an Instrument made by him by the Seller.
19.4. The provisions of these General Conditions of Sale shall apply to all contracts entered into by the Seller. It is unacceptable for the Buyer to rely on ignorance of these conditions upon signature of the Contract, an applicable Order or other Document of Commerce.
19.5. Seller provides services, performs delivery and enters into other agreements with the Buyer under the rules set in this General Conditions of Sale. Buyer acknowledges that Seller’s General Terms of Sale are valid even if the Buyer’s General Terms of Sale have not been expressly contradicted. Any actions relating to the performance of Seller’s agreements cannot be interpreted as consent to Buyer’s General Conditions of Sale.
19.6. Buyer agrees to promptly notify the Seller in writing of any change of residence or registered office and correspondence address. Lack of notification means that the delivery made to the address indicated on the Order or inquiry is considered to be effective.
19.7. In matters not covered by these General Conditions of Sale – applicable provisions of the Civil Code shall apply. Any disputes arising in the implementation of the Contract will be settled by a common court having jurisdiction over the registered office of the Seller.
19.8. Any changes contrary to the provisions of these shall General Conditions of Sale or deviations from those need to be made in writing under pain of nullity.
19.9. The General Conditions of Sale are an integral part of all sales contracts between the Seller and the Buyer, and in the situation where the Parties have agreed their rights and obligations under a separate written Contract, the provisions of such written Contract apply first, and the provisions of these General Conditions of Sale only apply to the extent not regulated in the Contract.
19.10.These General Conditions of Sale are valid from the date of 01/05/2014.
Part II. Warranty and Service.
- Warranty period
The warranty period for products contained in the Seller’s offer is 12 months. Warranty is provided only to the Buyer and has a non-transferable nature. In case of Instruments, the warranty can be extended to 10 years – in such case, this fact will be confirmed in the Contract and/or on the guarantee document.
If the warranty has been extended for the Buyer on the basis of writing to the Contract or an Agreement only, then the necessary condition to maintain it is the performance of technical review of the Instrument by the Seller every 2 (two) years.
Within the warranty granted, the Seller shall be obligated to repair defects in the Instrument, namely to remove any defects resulting from causes inherent in the Product.
This excludes liability under the warranty, except where pursuant to applicable law disclaimer of implied warranties is not permitted.
- Guarantee coverage
This warranty covers defects inherent in the Product. The Guarantee does not cover damage or malfunction of the Product resulting from:
• mechanical damage and defects caused by those,
• damage caused by failure to comply with the general rules on the use and maintenance of the Instrument and all other damages caused due to the negligence of the Buyer,
• damages caused directly or indirectly by external events such as flooding, fire, power line surge, etc.
• damage resulting from the impact of chemical and thermal factors,
• damage resulting from flooding the equipment with any liquid or its contamination,
Warranty does not cover parts subject to wear and tear during use of the Product.
This warranty does not cover problems of cooperation of the equipment purchased with third-party devices and the problem of incompatibility.
- Loss of warranty
The Buyer shall loose the guarantee rights in case of:
• breach of warranty labels and also breach or seizure of labels containing Codes and serial numbers
• statement of damage resulting from situation described in point 2,
• any attempts of repairs and alterations undertaken by unauthorized persons or companies,
• expiry of the warranty period.
- Reporting faults.
In the event of a defect or malfunction, the Buyer shall promptly, and no later than 7 working days, effectively notify the Seller on this fact in the form of telephone, fax or e-mail. The Buyer – within the next 14 days – shall provide the Product to the Seller for repair – at his own expense.
In the case of paid service, rate of one working hour of a violin maker is applied amounting to: PLN 290 per hour.
Services provided at the request of the Buyer outside of normal working hours (Monday-Friday during hours: 8:00 to 16:00) will be settled with 100% overhead for overtime. Services will be billed according to the actual level of working time. The Seller shall issue a VAT invoice. Payment shall take place on the basis of the invoice issued, within seven days from the date of delivery of the invoice to the bank account designated on the invoice.
The Seller is not responsible for any damages, costs, loss of anticipated benefits and data loss incurred by the Buyer or third parties arising from the occurrence of faults and failures and resulting from the use or inability to use the purchased Instrument during the warranty period.
Parts obtained during a repair under warranty become the property of the Seller.
The Seller reserves the right to temporary extend the repair due to lack of suitable parts or for technical or other reasons that make the proper repair performance impossible.