Terms and Conditions

[MOCHNIK Glass Sp. z o.o. with its registered office in Opole, registered in the Register of Entrepreneurs of the National Court Register by the District Court in Opole, 8th Commercial Division, under KRS number: 0000891476]

General Terms and Conditions of Sale, Deliveries and Services.

1. General provisions. Scope of application.

1.1. Pursuant to these General Terms and Conditions of Sale, Deliveries and Services (hereinafter referred to as the “GTC”), MOCHNIK Glass Spółka z o.o. with its registered office in Opole, at ul. Składowa 6, entered into the Register of Entrepreneurs of the National Court Register under number 0000891476, NIP number: PL7543330739, REGON number: 388506345, hereinafter referred to as the “Seller”, concludes agreements with entrepreneurs within the meaning of Article 33¹ of the Polish Civil Code being natural persons, legal persons or organizational units without legal personality, both domestic and foreign, hereinafter jointly referred to as the “Client”. The subject matter of the agreements are movable goods hereinafter referred to as the “Goods”. The Client and the Seller are also hereinafter jointly referred to as the “Parties”.

1.2. These GTC shall apply to all contracts for sale, deliveries and services, including assembly and consulting services for Clients. The same applies where the Seller has not expressly objected to the Client’s regulations or general terms and conditions of purchase, delivery or payment.

1.3. In the event of sales outside the territory of the Republic of Poland, Polish substantive law shall apply as the governing law, excluding the Vienna Convention referred to in section 12.2 of the GTC. These GTC are also available in English and German.

2. Offer. Conclusion of the contract.

2.1. Statements contained in our catalogues, other commercial documents, as well as those available on the Internet, do not constitute offers within the meaning of the Civil Code and shall only be treated as invitations to conclude a contract. The contract shall be concluded exclusively upon written or documentary (e-mail, fax) confirmation by the Seller of acceptance for execution of the order placed by the Client (hereinafter referred to as the “Order Confirmation”).

2.2. It is permissible to conclude a contract confirmed and documented by a delivery document or issued VAT invoice in the case of sale of ready-made, standard commercial goods.

2.3. Oral arrangements or assurances made by our employees, sales representatives or advisors that exceed the scope of the accepted Order require written confirmation to be valid. This shall not apply to statements made by persons authorized to represent the Seller in accordance with the rules disclosed in the register of entrepreneurs.

2.4. The General Terms and Conditions of Sale constitute an integral part of every offer, price list, delivery agreement, sales agreement or cooperation agreement to which the Seller is a party.

2.5. Offers submitted by the Seller shall remain valid for the following periods: fixed-term offer – during the validity period specified in the offer, indefinite offer – for a period of 30 days.

2.6. Lack of confirmation of acceptance of an order shall not be deemed tacit acceptance of the terms and conditions of the order.

2.7. If new circumstances arise after the conclusion of the contract, in particular if the Client delays payment of the price for deliveries already completed under previously concluded contracts, the Seller may demand payment of the price or prepayment regardless of the agreed due date, and also reserves the right to demand appropriate security (guarantee, limited property right, bill of exchange of the debtor or a third party). Until payment, prepayment or security is received, the Seller may refrain from performing contractual obligations.

2.8. Amendments, supplements or cancellation of the accepted Order in whole or in part shall only take place on the basis of a separate written agreement with the Seller, which may be concluded no later than the commencement of the manufacturing, processing or treatment process of the ordered Goods.

2.9. A sales contract shall be concluded when the Parties agree on all terms of order execution and these are confirmed by the Seller. The scope of the contract shall include the order confirmed by the Seller for execution.

2.10. If the detailed terms of order execution sent by the Seller in the confirmation of acceptance of the order for execution are not accepted, the Client shall immediately notify the Seller thereof (no later than within 24 hours). Failure to notify shall mean acceptance of the additional conditions stated in the confirmation.

2.11. The Seller undertakes to manufacture the products in accordance with the confirmed order, the standards currently in force in Poland and reference documents.

2.12. For orders in all design formats (such as DXF, DWG), as well as non-design formats (such as PDF, JPG), the Seller shall adopt the descriptive dimensions indicated in the drawings as production dimensions. The Client is obliged to verify the drawings for consistency between the actual dimensions and the descriptive dimensions. The Seller shall not be liable for errors arising therefrom.

3. Delivery deadlines.

3.1. The Goods delivery date is indicative and estimated, unless expressly stated in the accepted Order that it is binding on the Seller. The delivery period begins once all technical and other order details have been clarified between the Parties, the required documents submitted, and/or an advance payment or prepayment has been made. The Goods delivery date shall be extended by at least the period during which the Client is delayed in fulfilling its obligations under the current order or contract.

3.2. Partial deliveries are permissible. In such a case, the Seller shall issue a VAT invoice each time covering the price for the completed delivery.

3.3. The contract performance or Goods delivery deadline shall be extended for the duration of force majeure or unforeseeable obstacles existing at the time of contract conclusion caused by circumstances for which the Seller is not responsible (e.g. disruptions at the production plant, strikes, road blockades, traffic disruptions, infrastructure failures). Extension of the deadline for the duration of the above events shall also apply if such events affected the Seller’s predecessors in the supply chain: supply contractors, suppliers or subcontractors. The Client shall be immediately informed, where possible, about the occurrence of force majeure or the above obstacles and the expected duration thereof. In such a case, the Client may request the Seller to declare whether the Seller withdraws from the contract or whether delivery will be completed within an additional deadline appropriate under the circumstances. If the Seller fails to provide such declaration, the Client may withdraw from the contract, taking into account partial withdrawal and acceptance and payment for the already manufactured part of the order. The Client’s claims for damages are excluded in such case.

3.4. The Seller’s liability for delay in delivery of the Goods shall be limited to liability for its own actions or omissions. The Seller shall not be liable for the actions or omissions of its predecessors in the supply chain.

3.5. In the event of delay in delivery of the Goods, the Client shall grant the Seller in writing an appropriate additional deadline for performance of the contract, not shorter than 7 business days. After the ineffective expiry of the additional deadline, the Client shall declare whether it still demands performance of the contract in whole or in part, or whether it withdraws from the contract.

4. Transfer of risk. Packaging.

4.1. In the case of a sales contract including delivery or transport obligations on the Seller’s side, both the route and the means of transport shall be chosen at the Seller’s discretion. The method of packaging shall correspond to the properties of the Goods covered by the order. The choice of racks intended for placement of the Goods during loading, transport and unloading depends on individual arrangements with the Client, whereby “A” or “L” type racks and wooden crates are customarily used. If the Parties individually agree on the use of metal racks, a metal rack loan agreement shall apply between the Parties and shall constitute an integral part of the Client’s obligations.

4.2. As a rule, the obligation to deliver the Goods shall be fulfilled when the Goods are placed at the Client’s disposal at our registered office or plant (EXW [Opole] Incoterms® 2010).

4.3. If the Goods are shipped to the destination via a carrier, the Client is obliged to inspect the shipment. If it is found that loss or damage to the Goods or their packaging occurred during transport, the Client shall take all actions necessary to establish the carrier’s liability.

4.4. If the Goods are to be delivered to the Client at the place indicated by the Client (e.g. construction site), the risk of accidental loss or damage to the Goods shall pass to the Client upon entrusting them to the carrier, regardless of whether the carrier was selected by the Seller, the Client or a third party.

4.5. If the Goods are transported using the Seller’s own transport or transport commissioned by the Seller, the risk of accidental loss or damage to the Goods shall pass to the Client once they are made available for unloading at the place indicated by the Client. The Client is obliged to have properly trained personnel and equipment enabling proper unloading, storage and use of the Goods. If the Seller is charged additional costs by the transport company for unloading delays caused by extended downtime and waiting for unloading, such costs shall be re-invoiced to the Client. Assistance and cooperation of the driver during unloading shall not mean acceptance of additional liability of the Seller for unloading and the Goods.

4.6. If commencement or completion of transport using the Seller’s own transport or transport commissioned by the Seller is temporarily hindered due to circumstances attributable to the Client, the costs of storage and the risk of accidental loss or damage to the Goods shall be borne by the Client. Upon placing the Goods in storage, the unpaid price for the Goods shall become immediately due and payable.

4.7. Metal racks remain the property of the Seller. During loading, transport and unloading, the Client has the right to use the racks free of charge in accordance with their properties and intended purpose. The Client may not hand over the racks to a third party for use without the Seller’s consent. After unloading, the Client is obliged to immediately return the metal racks to the Seller in undeteriorated condition. If the racks have been entrusted to another person, e.g. a carrier, forwarder or construction site security, the obligation to return the racks shall also rest on such persons. The Seller’s claims for compensation for damage or deterioration of the metal racks, or for their loss, shall exist independently of claims arising from the sale.

4.8. Wooden racks and wooden crates become the property of the Client upon delivery of the Goods, unless the Parties agree otherwise individually.

4.9. Quality and quantity inspection of the Goods shall take place at the place of delivery, i.e. at the Client’s registered office or another place of delivery indicated by the Client (e.g. construction site), and for EXW terms at the Seller’s registered office.

4.10. Each batch of delivered Goods is documented for domestic deliveries by: WZ (Warehouse Release) or PD (Delivery Confirmation), and for foreign deliveries by a consignment note (CMR) and WZD (Warehouse Release for Delivery) or PD, with specified specifications, which shall constitute the basis for quantity and quality acceptance of the Goods.

4.11. A delivered batch of Goods shall be deemed accepted without reservations regarding quantity and visible damage upon signing by the Client’s representative of the documents referred to in section 4.10. The Client is obliged to designate an authorized person to sign Goods acceptance documents. In the absence of indication of an authorized recipient or in case of other doubts, any person signing the above-mentioned documents at the Client’s registered office or another place of Goods acceptance indicated by the Client shall be deemed a duly authorized representative of the Client.

4.12. Quantity shortages in delivery in relation to the state specified in the documents referred to in section 4.10 or visible damage to the Goods must be reported at the time of transfer of the batch of Goods by making an appropriate entry on the WZ/WZD or PD document.

4.13. Quality inspection of the delivered batch of Goods should be carried out during acceptance of the delivered batch of Goods, or later if this was objectively impossible during acceptance, but no later than before assembly and no longer than 7 days from the delivery date.

4.14. The Seller’s liability for loss or damage to delivered Goods ends for EXW terms after loading onto the means of transport, and for DDU terms at the moment unloading by the Client/recipient should commence.

4.15. The Client is obliged to ensure proper storage conditions for the Goods, including storing them in covered, dry, ventilated places not directly exposed to sunlight. If the Goods are protected by the Seller with packaging foil, the Client is obliged to remove it within 7 days from the delivery date. The Seller shall not be liable for damage resulting from improper storage of the Goods.

4.16. Confirmation by the Client on the consignment note of receipt of the Goods shall also constitute confirmation of receipt of the racks.

4.17. Delivery of the Goods to the Client does not include unloading unless the Parties agree otherwise. Unloading and the associated risk shall lie with the Client.

5. Price. Payment terms.

5.1. The price includes the ordered Goods and is a net price. The price also includes the customary cost of packaging the Goods on wooden racks and in wooden crates. The price is individually determined in the contract.

5.2. The price payable is the value expressed in monetary units, in the currency agreed between the Parties, which the Client is obliged to pay the Seller for the Goods and the service. VAT shall be added to the price each time at the applicable rate.

5.3. A separate fee shall be charged for transport using metal racks, for downtime and waiting time for unloading, and for storage or warehousing costs of the Goods. At the Client’s request, the Goods may be insured, whereby the insurance premium cost shall be borne entirely by the Client.

5.4. If delivery of the Goods is to take place later than 3 months from the date of acceptance of the Order, the Seller reserves the right to change the price of the Goods unless the Parties agree otherwise.

5.5. The Seller may demand partial payment where delivery of all Goods cannot take place within the agreed deadline due to circumstances for which it is not responsible. In such a case, the Seller shall submit a declaration to the Client specifying both the amount of individual partial performances and the deadline for each of them.

5.6. The price shall become due on the date indicated on the VAT invoice, unless due to the circumstances referred to in section 4.6 of these GTC the price becomes immediately due and payable. If the Client has become insolvent or if, due to circumstances for which it is responsible, payment security is doubtful due to the financial condition of the debtor or guarantor, the Seller may demand payment regardless of the due date indicated in the VAT invoice.

5.7. Payments made by the Client shall first be credited by the Seller towards debts arising from due prices and related ancillary receivables (e.g. default interest). If there are several due debts arising from separate sales transactions, the Seller has the right to credit the payment towards the debt that became due earliest.

5.8. If the Client delays payment, the Seller may demand statutory interest for delay in commercial transactions in accordance with the Act of 8 March 2013 on payment terms in commercial transactions.

5.9. In the event of delay, the Seller shall be entitled to demand return of the delivered Goods referred to in Chapter 6, and shall also have the right to enter the Client’s enterprise or premises in order to collect the Goods for which the price has not been paid.

6. Retention of Title.

6.1. The Seller retains ownership of the sold Goods only in the case of unprocessed glass sold in standard commercial dimensions until the full purchase price has been paid. In such case, ownership of the Goods shall pass to the Client upon payment of the purchase price together with any default interest. In the event of delayed payment, the Seller shall be entitled to inform the owner of the building structure about the retained ownership of the Goods and to demand their return or payment of compensation, as applicable.

6.2. If the Goods are combined with other items located on the construction site in such a way that restoration of the previous condition would involve excessive difficulties or costs, the previous owners of the items shall become co-owners of the whole. The share in co-ownership shall correspond to the ratio of the value of the sold Goods to the total value of the item with which they were combined. The Seller shall have the right to notify the investor, substitute investor or general contractor, at its discretion, of the creation of co-ownership resulting from such combination.

6.3. If a third party or law enforcement authority (bailiff, trustee, court supervisor, administrator) raises claims regarding the Goods in the possession of the Client, the Client shall immediately notify the Seller thereof and summon the Seller to participate in the matter.

6.4. During the period from delivery of the Goods until the due date of the purchase price, the Client is authorized to further resell the Goods provided that the Client assigns to the Seller the Client’s claims against end purchasers (assignment for security purposes). The term resale shall also include incorporation of the Goods into a building structure.

6.5. The Client is authorized to monetize receivables covered by the assignment for security purposes. This authorization may be revoked by the Seller, who may then apply directly to end purchasers for payment of the unpaid purchase price for the Goods subject to retention of title. At the Seller’s request, the Client shall notify end purchasers about the retention of title as well as the assignment for security purposes. The Seller is also entitled to independently notify end purchasers about the retention of title and the assignment for security purposes. Upon each request, the Client shall provide the Seller with the first name, surname, company name and address of debtor end purchasers, as well as the address of the construction site where the Goods subject to retention of title are located.

7. Complaints. Liability for Quality. Warranty.

7.1. Complaints regarding purchased Goods shall be considered in accordance with the following rules:

7.1.1. Liability under statutory warranty is excluded. The Seller hereby grants a warranty for conformity of the properties of the purchased Goods only with respect to the offered glass products and goods in accordance with the currently applicable standards listed below. Liability under the granted warranty covers only non-conformity with a given standard arising from causes inherent in the substance of the sold Goods.

7.1.1.1. Basic glass products: conformity with EN 572-1 (Glass in building. Basic soda lime silicate glass products. Definitions and general physical and mechanical properties);

7.1.1.2. Float glass: conformity with EN 572-2;

7.1.1.3. Polished wired glass: conformity with EN 572-3;

7.1.1.4. Drawn sheet glass: conformity with EN 572-4;

7.1.1.5. Patterned rolled glass: conformity with EN 572-5;

7.1.1.6. Patterned wired glass: conformity with EN 572-6; Basic special glass products:

7.1.1.7. Borosilicate glass: conformity with EN 1748-1-1; Processed glass:

7.1.1.8. Heat-strengthened soda lime silicate glass: conformity with EN 1863-1;

7.1.1.9. Thermally toughened soda lime silicate safety glass: conformity with EN 12150-1;

7.1.1.10. Heat soaked thermally toughened soda lime silicate safety glass: conformity with EN 14179-1;

7.1.1.11. Chemically strengthened soda lime silicate glass: conformity with EN 12337-1;

7.1.1.12. Laminated glass and laminated safety glass: conformity with EN 12543-1, -2, -3;

7.1.1.13. Thermally toughened borosilicate safety glass: conformity with EN 13024-1;

7.1.1.14. Coated glass: conformity with EN 1096-1; Manufacture of insulating glass units – other materials:

7.1.1.15. Other materials used for manufacturing insulating glass units shall comply with the requirements of EN 1279 parts 1 to 6; Additionally, for each type of glass and product:

7.1.1.16. The standards specified in the document entitled “Factory Standard of MOCHNIK Glass Sp. z o.o. with its registered office in Opole”, available on the website: https://www.mochnik.com.pl/, shall apply unless the Parties agree otherwise.

7.2. The glass tempering service performed on glass entrusted to the Seller shall in each case be carried out at the Client’s risk, taking into account the possibility of spontaneous breakage of the glass during the tempering process.

7.3. The obligations of the guarantor and the rights and obligations of the Client in the event that the Goods do not possess the properties specified in the above-mentioned standards are regulated as follows:

7.3.1. The Client is obliged to immediately inspect the delivered Goods for conformity with the Order, possible quantity shortages or quality defects and to notify the Seller in writing of any defects within 24 hours from the date of delivery of the Goods and absolutely before subjecting them to any processing or installation into the structure of a building.

7.3.2. The guarantor is the Seller. The guarantor shall perform the obligations arising from the warranty independently or through its representatives in the Republic of Poland, who provide warranty protection to the Client on behalf of and for the benefit of the guarantor.

7.3.3. The Seller’s warranty does not cover deviations in dimensions, thickness, weight or color tone customarily accepted in the industry and generally tolerated.

7.3.4. In the event of discovering a defect, the Client is obliged to preserve the Goods in unchanged condition as of the moment the defect was discovered. In particular, the Client may not further dispose of the Goods, divide them into smaller parts, resell them or subject them to further processing until an agreement regarding consideration of the complaint has been reached.

7.3.5. The Client is obliged to make available to the Seller the Goods with respect to which defects have been reported, at the place where they are located. At the Seller’s request, the Client is obliged to deliver the Goods or a sample thereof for the purpose of considering the complaint. In the event of culpable refusal to perform the above-mentioned actions, the Seller’s liability for the reported defect shall expire.

7.3.6. The Client is obliged to deliver the Goods at the guarantor’s expense to the place indicated in the guarantor’s statement, unless circumstances indicate that the defect should be examined at the place where the Goods were located at the time the defect was revealed.

7.3.7. In the case of an unjustified complaint, the cost of delivering the Goods to the guarantor shall be borne by the Client.

7.4. The physical properties of the sold Goods listed below shall not constitute a physical defect covered by warranty protection or the Seller’s contractual liability. The Seller shall not be liable for the following properties and events:

7.4.1. interference in the case of insulating glass units;

7.4.2. double glazing effect;

7.4.3. condensation of water vapor inside and outside the building;

7.4.4. the phenomenon of variable wettability of glass on the outer glass surface;

7.4.5. anisotropy in the case of toughened safety glass and toughened laminated glass (ESG, TVG, ESG, VSG, ESG, TVG, VSG);

7.4.6. rattling of internal glazing bars;

7.4.7. differences in glass color deviation;

7.4.8. spontaneous breakage of annealed glass;

7.4.9. changes in pane parallelism caused by pressure and temperature changes;

7.4.10. damage resulting from improper use or maintenance of the Goods;

7.4.11. damage resulting from improper installation by third parties;

7.4.12. damage resulting from improper repairs performed by third parties;

7.4.13. wear and tear of the Goods resulting from proper use.

7.5. The warranty period shall be 2 years from the date of delivery of the Goods.

7.6. If the complaint is accepted, the guarantor undertakes to remove the physical defect of the Goods (repair) or to deliver defect-free Goods (replacement), unless the Parties agree otherwise.

7.7. If only some of the sold Goods are defective and can be separated from the defect-free items without damage to both Parties, the Client’s warranty rights shall be limited only to the defective items.

7.8. The Seller may also refuse to replace the Goods or remove the defect if the costs of satisfying this obligation exceed the net sales price.

7.9. The Seller may refuse dismantling and reinstallation if the cost of these activities exceeds the net sales price.

7.10. The guarantor is obliged to perform its obligations arising from an accepted complaint within the period specified in the written statement acknowledging the complaint, but no later than within 60 days from the date of acceptance of the complaint.

7.11. Warranties granted by manufacturers of the Goods or their component parts do not constitute our obligation. In the manufacturers’ warranty statements, the Client shall find the basic information necessary to exercise warranty rights, in particular the name and address of the guarantor or its authorized representative in the Republic of Poland, the duration and territorial scope of warranty protection, as well as the rights available in the event of discovering a defect.

8. Limitation of Liability.

8.1. Claims for damages and claims for reimbursement of expenditures (hereinafter referred to as “Damage Claims”), regardless of their legal basis (contractual or tort), are excluded.

8.2. This shall not apply where the Seller has assumed warranty liability in a separate agreement to a greater extent than resulting from section 7 of these GTC; however, in such case the Seller shall only be liable for normal, foreseeable and typical consequences of the act or omission from which the damage arose.

8.3. The exclusion of civil liability in these GTC shall not cover cases regulated by mandatory provisions of law, i.e. civil liability for damage caused intentionally, liability for a dangerous product, nor shall it exclude claims of a further seller related to defects of goods sold to a consumer, whose rights have been confirmed by a final judgment of a common court.

8.4. The scope of the Seller’s possible obligation to pay damages shall be limited to compensation for actual loss. The Seller shall not be liable for lost profits, i.e. benefits that the Client could have achieved had the damage not occurred.

8.5. The Client is obliged to fully protect and indemnify the Seller against any pecuniary or non-pecuniary claims of third parties which may be raised against the Seller due to the Client’s breach of these GTC.

9. Personal Data Protection.

9.1. The Seller informs the Client that, in connection with the execution of the Order, performance of the agreement and in after-sales and complaint proceedings, it shall process personal data of natural persons to the extent necessary, in accordance with Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC.

9.2. The controller of the acquired personal data shall be MOCHNIK Glass Sp. z o.o. with its registered office in Opole (45-125), ul. Składowa 6. You may contact us by post at: MOCHNIK Glass Sp. z o.o., 45-125 Opole, ul. Składowa 6, or by e-mail: mochnik@mochnik.com.pl ; rodo@mochnik.com.pl

9.3. The acquired data shall be processed by the Seller in order to ensure performance of tasks related to execution of orders, concluded agreements for services, deliveries and technical and intellectual support. The legal basis for processing personal data is Article 6(1)(f) GDPR.

9.4. The acquired personal data may be transferred to other companies cooperating with the Seller for purposes necessary for execution of commercial agreements.

9.5. Rights vested in Clients related to personal data processing: a) the right to withdraw consent; insofar as your data are processed based on consent – you have the right to withdraw consent for data processing at any time. Withdrawal of consent does not affect the lawfulness of processing carried out on the basis of your consent before its withdrawal; b) the right of access to your personal data; c) the right to request rectification of your personal data; d) the right to request erasure of your personal data; e) the right to request restriction of processing of your personal data; f) the right to object to processing of your data due to your particular situation – in cases where we process your data based on our legitimate interest; g) the right to data portability, i.e. the right to receive from us your personal data in a structured, commonly used machine-readable format. You may transmit such data to another data controller or request that we transmit your data to another controller. However, we shall do so only if such transmission is technically feasible. The right to data portability applies only to data processed on the basis of an agreement with you or on the basis of your consent. h) To exercise the above rights, please contact us (contact details in section 9.2.). i) The right to lodge a complaint with the supervisory authority responsible for personal data protection, i.e. the President of the Personal Data Protection Office.

10. Correspondence

10.1. All correspondence between the Seller and the Buyer related to the conclusion or performance of the sales agreement shall be made in writing or via electronic mail.

11. Application of the GTC

11.1. The GTC shall apply from the date they are made available to the Client by the Seller until they are replaced by subsequent general terms and conditions of sale established by the Seller.

11.2. The GTC may be amended by the Seller at any time. The amended GTC shall enter into force upon publication on the Seller’s website.

12. Final Provisions.

12.1. In the event of a dispute, the court having territorial jurisdiction shall be the Polish common court having jurisdiction over the Seller’s registered office. The Seller reserves the right to sue the Client before the court having jurisdiction over the Client’s registered office. In case of doubt, the place of performance of the agreement shall be the Seller’s registered office.

12.2. Agreements for sale concluded between the Seller and the Client shall be governed exclusively by Polish substantive law, excluding the United Nations Convention on Contracts for the International Sale of Goods, concluded in Vienna on 11 April 1980 (“Vienna Convention”).