HUTA POKÓJ S.A.

GENERAL TERMS AND CONDITIONS OF SALES

DEFINITIONS

1.1.

The General Terms and Conditions of Sales are hereinafter referred to as the GTCS.

1.2.

Seller: “Huta Pokój” S.A., with its registered office in 41-709 Ruda Śląska, ul. Niedurnego 79.

1.3.

Buyer: a legal or natural person that is an entrepreneur.

1.4.

Products: metallurgical products and services as included in the Seller’s production programme.

1.5.

The provisions relating to the signing of contracts shall apply accordingly to accept and confirm the order (i.e. a two-document contract).

SCOPE OF APPLICATION OF THE GENERAL TERMS AND CONDITIONS OF SALES

2.1.

These General Terms and Conditions of Sales specify standard terms and conditions under which the Seller manufactures and sells the Products to the Buyer, and they apply to all sales offers, unless stipulated otherwise in writing.

2.2.

By placing an order, the Buyer or a person authorised by it acknowledges that it knows and accepts the Seller’s GTCS. The fulfilment of that condition is necessary to maintain commercial liaisons.

2.3.

The Seller does not accept the performance terms and conditions relating to the contract with different contents.

2.4.

The Seller allows for concluding individual commercial contracts through negotiations between the parties. The accepted contractual arrangements, different than those included in the GTCS, prevail over the GTCS.

2.5.

The GTCS become part of the contract connecting the parties.

OFFERS AND ORDERS

3.1.

Any offers submitted by the Seller for the Products remain valid for a period indicated by it in the offer, unless stipulated otherwise. The offer ceases to be valid if the Buyer has not accepted the offer unconditionally.

3.2.

The order sent to the Seller by the Buyer, signed by representatives or persons authorised according to a registration document (KRS) or a relevant power of attorney has to include:

The Buyer’s details,
The detailed information about the Product to the extent necessary to identify it, e.g. the reference to the Seller’s offer if it had been submitted before the order was placed,
Information concerning the order fulfilment terms and conditions expected by the Buyer.

3.3.

The placement of an order does not bind the Seller and does not mean that it was accepted unconditionally, and the absence of the response does not mean that the order was accepted tacitly.
The Seller’s acceptance of an order for fulfilment requires the Seller’s written order confirmation. If the Seller accepts the order with objections, the Buyer is bound by the objections, unless it presents immediately its comments, if any. The immediate presentation of the comments is considered as the placement of a new order; however, mutual arrangements preceding the new order have to be accounted for. The order is accepted for fulfilment when the written acceptance of the completion terms and conditions were delivered within 3 business days of the date when the order confirmation was received. The absence of the acceptance within the period as above is deemed as the order renouncement.

3.4.

The order acceptance does not bind the Seller if:

	3.4.1.	For reasons not attributable to it, in particular due to force majeure, it is impossible or hindered excessively to manufacture or sell the Products.
	3.4.2.	The Seller keeps in its warehouse a Product ready for acceptance, made to the Buyer’s previous order and the Buyer does not collect it despite being requested.
	3.4.3.	The Buyer’s total liabilities towards the Seller have exceeded the amount of the trade credit (debt limit) granted to the Buyer by the Seller.
	3.4.4.	The Buyer is in delay with the payment to the Seller of any amounts due or does not pay despite being requested, also if there are any outstanding payments due to the circumstances specified in Section 6.8.
	3.4.5.	The Buyer has not established upon the request any security required or the security has expired in full or in part.

DELIVERY CONDITIONS: DELIVERY TIME, TRANSPORT, INSURANCE, RISK TRANSFER

4.1.

The Parties to the contract agree on the delivery conditions based on the delivery rules specified in INCOTERMS 2010.

4.2.

The completion date given in the order confirmation should be treated as agreed between the parties. A failure to keep the delivery date by the Seller authorises the Buyer to pursue its rights only if the Seller does not effect the delivery despite the fact that new dates were agreed in writing.

4.3.

The Buyer is obliged to collect or accept the Product it ordered within 5 business days after it was notified that the Product was available in the Seller’s warehouses. In the case of any delay to collect the Product, the Buyer may be charged with the warehousing costs.

4.4.

Every partial delivery is a separate transaction and may be invoiced separately by the Seller.

4.5.

The Buyer may change or cancel the order that was already confirmed upon the Seller’s consent only. The conditions of the change or cancellation are included in the confirmation of the order in question.

4.6.

The confirmed order in full or in part by the Buyer may be withdrawn upon the Seller’s consent only.

PRICE

5.1.

The Product’s price is set based on the arrangements applicable on the order confirmation day.

5.2.

The Product’s unit price given in the order confirmation may be increased following the increase of the cost of manufacture not attributable to the Seller (feed price, power costs, taxes and charges, etc.) affecting the Product’s cost of manufacture.

PAYMENT

6.1.

The buyer makes the payment for the Seller’s invoices to the bank account given in the invoice. If the parties have not agreed otherwise, the Buyer bears the bank charges relating to the payment. The payment should be made following the terms and conditions given in the order confirmation (in the contract). If there is the delay in the payment, regardless of any interest it is entitled to, the Seller has the right to suspend and cancel the remaining deliveries and charge the Buyer with documented costs of starting the delivery or manufacture.

6.2.

The Seller reserves the title to the Products sold until the full payment is made. If the payment date has expired without effect, the Seller may request from the Buyer that it give immediately all or part of the Products. The Products are given in a place indicated by the Seller, at the Buyer’s cost. If the Products have been used by the Buyer in such a way that giving them would be connected with too many difficulties or costs, the Seller may request that it be given all of the objects, the manufacture of which involved the use of all or part of the Products.

6.3.

If the arrangements between the parties do not indicate whether the prices are net or gross, the prices are always going to be considered as net prices to which VAT is going to be added at applicable rates, appropriate to the Product.

6.4.

The payment will be made at a date given in a contract or an invoice, following the arrangements between the parties.

6.5.

It is not allowed to pay the amounts due to the Seller under the order by deducting the Buyer’s liabilities to the Seller without the previous written consent of the latter.

6.6.

The Seller has the right to sell the Buyer’s debts if the Buyer has not paid its liabilities on time, and after the additional period stated in the demand for payment expired ineffectively.

6.7.

The day when the amount is credited in the Seller’s bank account is considered as the day of making the payment. If the payment is delayed, the Seller has the right to claim statutory or contractual interest to be paid by the Buyer.

6.8.

If there are grounds to presume that the Buyer will not meet its payment obligations, the Seller has the right to request, before the Product is given and regardless of the payment date agreed earlier, either making all of the payment in cash or by transfer or providing specific payment guarantees or securities, and may change the payment date unilaterally.

6.9.

Any complaints submitted by the Buyer do not suspend the payment period.

QUANTITY AND QUALITY

7.1.

The Product is sold in quantities in units specified in the contract (running meters, kg, pieces or otherwise).

7.2.

All technical information relating to steel grades, dimensions, converter factors and quality following catalogues, brochures and other advertising materials developed by the Seller is indicative. It applies to the extent as agreed by both parties.

7.3.

The Buyer is responsible for the contents of the order it places, i.e. so that the technical parameters and quality and quantity information of the Product correspond to its requirements.

7.4.

If the order does not provide for the compliance of the Product with a standard or does not contain the description of the requested Product quality, it is going to be delivered as an ordinary commercial product, without any responsibility for special quality requirements.

7.5.

The Parties agree on the quantity tolerance of -/+10% for each item and the entire order.

COMPLAINTS

8.1.

The Buyer is obliged to check the Product in terms of its quantity and quality immediately after it receives it.

8.2.

If the Buyer discovers, having checked the Product, that shortages or defects occurred during transport, it has the obligation to draw up a report in the presence of the carrier and send it within 7 days of the delivery day to the Seller along with other documents required. That rule applies to the Product deliveries carried out following other rules than EXW, FCA and CPT according to INCOTERMS 2010.

8.3.

The quality complaints relating to hidden defects, the discovery of which was impossible despite the thorough check of the Product, are to be submitted to the Seller in writing, along with a detailed description, possibly with Product photos and samples, immediately after they were discovered, however not later than within 1 year of the sales date. After that date, the Seller’s responsibility expires.

8.4.

The Seller has the right to inspect the Product being reported in the complaint through its representatives. In such cases, the Buyer is obliged to provide the Product for inspection and ensure all the conditions necessary to carry out the inspection and find whether the complaint is justified.

8.5.

Until the complaint is finally settled, the Buyer is obliged to keep separately the Product batch under the complaint so as to prevent any damage or shortage in it.

8.6.

Having accepted the claim, the Seller complements the delivery, repairs or replaces the Product under the complaint or reduces the price accordingly. In no case the complaint value may exceed the value of the Product under the complaint.

8.7.

On account of the complaint submitted by the Buyer, the Seller does not bear any liability for indirect losses or lost profits.

8.8.

If the Buyer fails to provide to the Seller the Product under the complaint in a manner specified in Section 8.4., the Seller deems the complaint as unjustified.

FORCE MAJEURE: following the provisions of the Force Majeure Clause 2003 according to the ICC in Paris and the Hardship Clause 2003 according to the ICC in Paris.

ICC Force Majeure Clause 2003
(Texto da cláusula)

Unless otherwise agreed in the contract between the parties expressly or impliedly, where a party to a contract fails to perform one or more of its contractual duties, the consequences set out in paragraphs 4 to 9 of this Clause will follow if and to the extent that that party proves:

That its failure to perform was caused by an impediment beyond its reasonable control;
That it could not reasonably have been expected to have taken the occurrence into account at the time of the conclusion of the contract; and
That it could not reasonably have avoided or overcome the effects of the impediment.

Where a contracting party fails to perform one or more of its contractual duties because of a default by a third party whom it was engaged to perform the whole or part of the contract, the consequences set out in paragraphs 4 to 9 of this Clause will only apply to the contracting party:

If and to the extent that the contracting party establishes the requirements set out in paragraph 1 of this Clause; and
If and to the extent that the contracting party proves that the same requirements apply to the third party.

In the absence of proof to the contrary and unless otherwise agreed in the contract between the parties expressly or impliedly, a party invoking this Clause shall be presumed to have established the conditions described in paragraph 1 (a) and (b) of this Clause in case of the occurrence of one or more of the following impediments:

War (whether declared or not), armed conflict or the serious threat of same (including but not limited to hostile attack, blockade, military embargo), hostilities, invasion, act of a foreign enemy, extensive military mobilization;
Civil war, riot rebellion, military or usurped power, insurrection, civil commotion or disorder, mob violence, act of civil disobedience;
Act of terrorism, sabotage or piracy;
Act of authority whether lawful or unlawful, compliance with any law or governmental order, rule, regulation or direction, curfew restriction, expropriation, compulsory acquisition, seizure of works, requisition, nationalization;
Act of God, plague, epidemic, natural disaster such as but not limited to violent storm, cyclone, typhoon, hurricane, tornado, blizzard, earthquake, volcanic activity, landslide, tidal wave, tsunami, flood, damage or destruction by lightning, drought;
Explosion, fire, destruction of machines, equipment, factories and of any kind of installation, prolonged break-down of transport, telecommunication or electric current;
General labour disturbance such as but not limited to boycott, strike and lock-out, go-slow, occupation of factories and premises.

A party successfully invoking this Clause is, subject to paragraph 6 below, relieved from its duty to perform its obligations under the contract from the time at which the impediment causes the failure to perform if notice therefore is given without delay or, if notice therefore is not given without delay, from the time at which notice therefore reaches the other party.

A party successfully invoking this Clause is, subject to paragraph 6 below, relieved from any liability in damages or any other contractual remedy for breach of contract from the time indicated in paragraph 4.

Where the effect of the impediment or event invoked is temporary, the consequences set out under paragraphs 4 and 5 above shall apply only insofar, to the extent that and as long as the impediment or the listed event invoked impedes performance by the party invoking this Clause of its contractual duties. Where this paragraph applies, the party invoking this Clause is under an obligation to notify the other party as soon as the impediment or listed event ceases to impede performance of its contractual duties.

A party invoking this Clause is under an obligation to take all reasonable means to limit the effect of the impediment or event invoked upon performance of its contractual duties.

Where the duration of the impediment invoked under paragraph 1 of this Clause or of the listed event invoked under paragraph 3 of this Clause has the effect of substantially depriving either or both of the contracting parties of what they were reasonably entitled to expect under the contract, either party has the right to terminate the contract by notification within a reasonable period to the other party.

Where paragraph 8 above applies and where either contracting party has, by reason of anything done by another contracting party in the performance of the contract, derived a benefit before the termination of the contract, the party deriving such a benefit shall be under a duty to pay to the other party a sum of money equivalent to the value of such benefit.

ICC Hardship Clause 2003
(Texto da cláusula)

A party to a contract is bound to perform its contractual duties even if events have rendered performance more onerous than could reasonably have been anticipated at the time of the conclusion of the contract.

Notwithstanding paragraph 1 of this Clause, where a party to a contract proves that:

The continued performance of its contractual duties has become excessively onerous due to an event beyond its reasonable control which it could not reasonably have been expected to have taken into account at the time of the conclusion of the contract; and that
It could not reasonably have avoided or overcome the event or its consequences;

The parties are bound, within a reasonable time of the invocation of this clause, to negotiate alternative contractual terms which reasonably allow for the consequences of the event.

Where the paragraph 2 of this Clause applies, but where alternative contractual terms which reasonably allow for the consequences of the event are not agreed by the other party to the contract as provided in that paragraph, the party invoking this Clause is entitled to termination of the contract.

10.

SCOPE OF LIABILITY

10.1.

Any Seller’s liability relating to the conclusion of the contract or sale of the products (except for wilful negligence), regardless of the title of such liability, does not include the remedy of the damage relating to the expected benefits, lost profits, production losses, loss of market reputation, etc.

10.2.

The Seller shall bear any liability for any characteristics of the Product or for the suitability of the Product to the purposes desired by the Buyer only on condition that it assured the Buyer in writing that the Product had certain characteristics or was suitable for such purposes.

10.3.

Except for the liability for Product defects specified above, the Buyer does not have any right to pursue compensation for any damage inflicted by the Product, including by the hazardous Product, or in connection with possessing or using it, except for the statutory liability arising out of the mandatory legal regulations.

10.4.

If any third party submits any claims against the Buyer which may be related with the Product(s) sold to the Buyer by the Seller, the manufacture of which used the Products sold to the Buyer by the Seller, the Buyer should immediately notify the Seller about that, allowing it to participate in any proceedings related with that party’s claims or else any Seller’s liability connected with such claims will be excluded.

10.5.

The Seller reserves the right to pursue compensation to the extent where the damage it suffered exceeds the value of the liquidated damages as provided for in the contract.

11.

OTHER PROVISIONS

11.1.

The Polish common court having jurisdiction over the Seller’s registered office or which is competent to settle certain type of cases will settle any disputes which may occur between the parties, to which these General Terms and Conditions of Sales would apply.

11.2.

These General Terms and Conditions of Sales apply to every sales contract under which the Seller sells any Products to the Buyer (if the Buyer was notified about them in any form and at any time or could have easily read them, and if the parties did not exclude the application of the terms and conditions, all or some of them, in writing), also to the extent not provided for in these GTCS; the relevant provisions of the Civil Code; and other mandatory legal regulations.

12.

APPLICATION OF THE GTCS RULES UNDER INTERNATIONAL CONTRACTS

12.1.

For international sales contracts, the application of the Convention of 11 April 1980 on Contracts for the International Sale of Goods is excluded.

12.2.

The contracts are concluded following the laws of Poland, and the parties select the Polish law as applicable to the contract, subject to applicable mandatory regulations.

12.3.

The Polish regulations shall apply in issues not provided for in the contract and the provisions of the GTCS, or according to Section 12.2. The disputes between the parties will be settled by Polish courts.

12.4.

If the Products cross the borders of Poland, the Buyer will deliver to the Seller the documents confirming the intracommunity delivery or confirming the export of the goods outside the borders of the European Union to the 15th day of the last day of the month when the shipment was made.
Otherwise, the Seller will issue to the Buyer a note for the deposit of 23% of the Products’ value sold according to the order confirmation, and the Buyer authorises unconditionally the Seller to effect it. The deposit will be paid by the Buyer within 7 days of the date when the note for the deposit was issued. The deposit will be reimbursed to the Buyer after the required documents have been delivered. It is possible to apply the deposit towards further deliveries following the written arrangement by the parties.

12.5.

If not stipulated otherwise in the written contract, any fees, including bank charges, taxes, duties and other such liabilities, will be on the side of the Buyer, provided that the Seller is obliged to pay its own liabilities for any acts it performs under the contract in Poland and which should be paid in the Seller’s country to comply with the laws.

12.6.

Any declarations and letters should be made in the contract language agreed in the written contract; in the absence of such a provision, the Polish or English language will be the contractual language.

CONFIDENTIALITY CLAUSE

In the term of the contract, the parties undertake to each other not to disclose to any third parties any information they receive from each other and relating to the contract or contract performance, or other confidential information delivered to each other. Except for when the obligation of disclosing such information to authorised state bodies results from legal regulations.

Personal Data Protection

By accepting these GTCS, the Buyer agrees to its personal data being processed by “Huta Pokój” S.A. in connection with the performance of the contracts for the sales of the products offered by “Huta Pokój” S.A. and for marketing purposes connected with the business activity carried out by “Huta Pokój”. The Buyer has all and any rights resulting from the act of 29 August 1997 on personal data protection (Journal of Laws Dz. U. No. 101, item 926, of 6 July 2002).