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SALES AGREEMENT
concluded on ………………………. by and between:
______________________________________________________________________________________________________________________________________________________________________________________
represented by:
……………………… - ……………………
……………………… - ……………………
hereinafter referred to as ’the Seller’
and
U JĘDRUSIA SPÓŁKA Z OGRANICZONĄ ODPOWIEDZIALNOŚCIĄ having its registered office in Przemęczanki
at: Xxxxxxxxxxxx 00, 00-000 Xxxxxxxxxx entered in the Register of Entrepreneurs of the National Court Register kept by the District Court for Kraków - Śródmieście in Kraków, 12th Commercial Division of the National Court Register under no. KRS 0000398461, NIP (tax identification number) 000-000-00-00; REGON (statistical ID) no. 122420450, having a share capital of PLN 38,200,000.
represented by:
............................................
............................................
hereinafter referred to as ’Buyer‘, ’Ordering Party’
hereinafter referred to jointly as "Parties" or each of them individually as a "Party"
The Parties agreed as follows:
The Buyer is the beneficiary of the "Intelligent Development" Operational Program, Sub-activity 1.1.1 OP IE "Industrial research and development works carried out by enterprises", under which he submitted the request for proposal No. _________________ concerning _________________________.
The offer ___________________ submitted on ______________ by the Seller was selected as the most advantageous in the proceedings conducted as to the settlement of the request for proposal no. ___________________ concerning__________________________.
Therefore, the Parties hereby agree to regulate the issues related to the realisation of the contract's subject matter being the subject of the request for proposal No. ______________________.
THE PARTIES AGREED AS FOLLOWS:
§ 1
DEFINITIONS
Unless
otherwise provided in this Agreement, the terms
listed in
this section shall have the following meanings in this Agreement:
Agreement shall mean this agreement;
Offer inquiry shall mean offer inquiry no. _____________________ with respective annexes;
Proceedings shall mean the proceedings conducted by the Ordering Party in respect of __________________ in accordance with the Request for Proposal;
Order shall mean an order concerning ________________, which are the subject of the Proceedings;
Offer shall mean the Contractor's offer of ________________ that was selected as the most advantageous in the Proceedings;
Intermediary institution shall be understood as the National Center for Research and Development based in Warsaw.
§ 2
SUBJECT MATTER
The Subject of the Agreement (hereinafter ‘Subject of the Agreement’) shall be the following:
______________________
which detailed description and technical specifications are described in Annex No. 1 hereto and in the Offer inquiry together with its respective attachments, which inquiry shall constitute Annex No. 2 hereto. The Offer and its respective attachments submitted by the Seller shall constitute Annex 3 to the Agreement.
The Seller sells and the Buyer buys the Subject of the Agreement on terms and conditions specified in this Agreement.
The Seller undertakes to supply according to Incoterms 2010 DAP Morawica, install and start the Subject of the Agreement at place and time indicated herein.
§ 3
PRICE
The price of the Subject of the Agreement shall be _______________ net (in words: _______________)
The Price includes, among others:
The subject matter specified in § 2 para. 1 together with the delivery of the Subject of the Agreement to the Buyer's facility with complete documentation, including in particular the manual in Polish and technical documentation in Polish;
Assembly and installation of the Subject of the Agreement,
Start-up of the Subject of the Agreement,
Staff training,
Travel costs, costs of catering and accommodation for Seller's servicemen during the start-up of the Subject of the Agreement.
The amount determined in item 1 above shall be increased by the VAT due and shall remain unchanged throughout the duration of the Agreement. In the event of a change in the VAT rate after the date of entry into the Agreement, the invoice (s) shall be issued with the new rate applicable as at the invoicing date, unless otherwise provided by law. A change in the VAT rate shall not affect the net price of the Subject of the Agreement. A change in the price due to a change in VAT shall not require an amendment to this Agreement.
§ 4
SELLER'S OBLIGATIONS
Delivery of the Subject of the Agreement.
The subject of the Agreement shall be delivered at the Buyer's facility indicated below by 20.06.2020 at the latest - however, the delivery date may be extended by the Buyer for reasons beyond his control, i.e. in the event of a delay in expanding the Buyer's Plant. Delivery address Xxxxxxxx 000, 00-000 Xxxxxx. In the event of an extension of the period beyond 60 days from the date of delivery specified in the Agreement, the Buyer shall pay the Seller the remuneration referred to in §6 para. 2 lit. c).
The Seller shall notify the Buyer about its readiness to ship the Subject Matter of the Agreement at least 7 days in advance.
Installation and start-up:
Installation and start-up of the Subject of the Agreement shall take place upon Xxxxx'x written notification of its readiness to commence said works no later than 14 days from the date of delivery.
Providing the Buyer with a declaration of conformity.
A final acceptance report shall be drawn up after final acceptance, and shall contain all arrangements and recommendations of the Parties.
The requirement for signing the final acceptance report is the delivery of a complete, fully operational Subject Matter of the Agreement together with the documentation complying with the Agreement and with the Offer and with the Offer inquiry, in accordance with Annexes 1-3 to the Agreement, as well as correct installation, start-up and training of employees and continuous, undisrupted work of the machine for 16 hours.
After completing the installation and start-up of the Subject of the Agreement, and after completing the training of employees and submitting the complete documentation, the Parties shall proceed to the final acceptance of the Subject of the Agreement.
If the delivered Subject of the Agreement has defects, commissioning or training has not been carried out in full or has been performed improperly and the lack of continuity of the machine's operation by min. 16 hours, the Buyer has the right to refuse to proceed with the receipt or to stop the acceptance operations and set a deadline for the Seller to remove the identified defects in order to resume acceptance after their removal.
The risk of accidental loss or damage to the Subject of the Agreement shall pass to the Buyer from the moment of the delivery of the device.
§ 5
BUYER'S OBLIGATIONS
Payment of the price specified in §3. 1 hereof.
Organizational, logistic, technical and technological arrangements for the installation, training of the operators and machine/line _____________ maintenance:
The Buyer shall designate a person responsible for the installation of the device or line who shall act as a direct contact person for the Seller's service in case of any questions or ambiguities:
Name:
Surname:
Phone:
E-mail:
Utilities:
Power supply,
The readiness to supply the appropriate power cord to the line's central electrical cabinet (in case of delivery of a larger number of machines) or to the machine, the exact place of which shall be confirmed on the spot by the representative of the Seller that supervises the installation,
Thermal oil,
Readiness to bring thermal oil to the Subject of the Agreement. Place for confirmation on the installation site,
High pressure steam,
Readiness to bring high pressure steam to the Subject of the Agreement. Place for confirmation on the installation site
Compressed air,
Readiness to provide an air duct. The air should be dry and oil- and dirt-free. Place of delivery to be confirmed during installation,
Foundations and appropriate places for foundation, wall penetrations, insulation with necessary permits required by law,
Cranes, lifts and means of transport with service necessary for unloading the device from the car as well as transport and assembly at the place of installation.
§ 6
PAYMENT TERMS
Payments stated in para. 2 (a), (b), c) shall be made on the basis of issued advance VAT invoices. Payment specified in point 2d will be paid on a VAT invoice.
Buyer's payment to the Seller shall be made by bank transfer at the bank account indicated on the invoice. The price shall be paid in the following parts:
(40%) payable in PLN plus VAT payable in PLN due - advance payment payable within 7 days of the conclusion of the Agreement,
(40%) payable in PLN plus applicable VAT payable in PLN, within 5 days from the date of receipt of the notice about the readiness of the device for shipment,
(10%) payable in PLN plus applicable VAT payable in PLN, within 5 days from the date of delivery of the device to the Buyer's facility,
(10%) plus applicable VAT payable in PLN, within 14 days from the date of signing the final acceptance report with respect to the Subject of the Agreement referred to in § 4 para. 6 of this Agreement, confirming the training of employees as well as the installation and launch of the Subject of the Agreement without any objections, based on a correctly issued final VAT invoice.
The Buyer shall transfer the payments at the account indicated on the advance VAT invoice or VAT sales invoice. If the Seller is established in Poland, he undertakes to provide the Buyer with a bank account to pay, which will be on the whitelist of VAT taxpayers..
OR EURO:
Payments stated in para. 2 (a), (b), c) shall be made on the basis of issued advance VAT invoices. Payment specified in point 2d will be paid on a VAT invoice.
Buyer's payment to the Seller shall be made by bank transfer at the bank account indicated on the invoice. The price shall be paid in the following parts:
(40%) payable in EUR plus VAT due payable in PLN - advance payment payable within 7 days of the conclusion of the Agreement,
(40%) payable in EUR plus applicable VAT payable in PLN, within 5 days from the date of receipt of the notice about the readiness of the device for shipment,
(10%) payable in EUR plus applicable VAT payable in PLN, within 5 days from the date of delivery of the device to the Buyer's facility,
(10%) payable in EUR plus applicable VAT payable in PLN, within 14 days from the date of signing the final acceptance report with respect to the Subject of the Agreement referred to in § 4 para. 6 of this Agreement, confirming the training of employees as well as the installation and launch of the Subject of the Agreement without any objections, based on a correctly issued final VAT invoice.
The Buyer shall transfer the payments at the account indicated on the advance VAT invoice or VAT sales invoice. If the Seller is established in Poland, he undertakes to provide the Buyer with a bank account to pay, which will be on the whitelist of VAT taxpayers.
§ 7
STATUTORY WARRANTY, GUARANTEE AND SERVICING
The Seller shall be liable under the warranty and guarantee with respect to the Subject of the Agreement to the extent and on terms and conditions set out in the Civil Code and in the sections below.
The Subject of the Agreement shall be covered by a 24 -month guarantee valid from the date of signing the final acceptance report from the date of signing the final acceptance report, or from the date of commencement of the Buyer's use of the Subject of the Agreement, if this occurs before final acceptance. The use by the Buyer will take place after signing the commissioning report and after training employees.
The guarantee does not cover wearing parts (consumables), in accordance with the list indicated in the Offer in Annex 3.
The servicing team shall respond within 24 hours of reporting the defect at the following email address: ________________, and the repair of the detected defects shall take place within 48 hours of reporting the defect, unless, due to the type of defect or due to the necessity to provide spare parts with longer waiting times, the Parties agree on another, as soon as possible date of repair.
The costs of travel, possible accommodation, as well as all other costs resulting from the performance of the guarantee services shall be borne by the Seller. Defects and damages revealed during the guarantee period shall be removed free of charge.
The Seller will provide post-guarantee service after the end of the guarantee period based on a separate Agreement.
If the defect of the Subject of the Agreement occurs during the guarantee period, the Buyer may in particular request the repair of the Subject of the Agreement, refund of the price or reduction thereof, replacement of the Subject of the Agreement for a new one and provision of other services necessary to keep the Subject of the Agreement free of defects.
The buyer shall have the right to request the delivery of the item free from defects, if under the warranty there have been at least 4 of its repairs of defects related to the same element, which had an impact on the functioning, performance or other parameters of the subject of the contract, and the subject of sale is still defective.
The Buyer is obliged to use the Subject of the Agreement in accordance with the user manual.
§ 8
CONTRACTUAL PENALTIES
The Buyer may charge the Seller a contractual penalty:
for any delay in executing the Subject of the Agreement within the time limit specified in § 4 para. 1 of the Agreement, in the amount of 0.1% of the net remuneration indicated in § 3 para. 1 of the Agreement, for each day of delay, but not more than 10% of the net price indicated in § 3 para. 1 of the Agreement;
for delay in the removal of defects in the Subject of the Agreement detected upon acceptance or during the period of guarantee and/or statutory warranty, in the amount of 0.1% of the net price, indicated in § 2 para. 1 of the Agreement for each day of delay, counting from the date indicated in § 7 sec. 3, but no more than 10% of the net price indicated in § 3 para. 1 hereof.
A party may charge the other party a contractual penalty of 10% of the net price in the event of that Party's rescission from the Agreement through the other party's fault.
The Parties have the right to claim damages on general terms in excess of contractual penalties.
Payment for the contractual penalty will be made on the basis of an accounting note.
§ 9
CONFIDENTIALITY
The contracting parties mutually agree that during the term of the Agreement and thereafter, without the prior written consent of the other party, they will not copy, distribute or disclose to anyone, directly or indirectly any information, materials and/or documents provided to each other in in connection with the performance of the Agreement, as well as information about the other party or its interests, finances or activities including all technical data, costs and trade secrets, regardless of the sources of this information, except for information, materials or documents that are publicly available or must be disclosed to under applicable law - however, provided that their confidentiality is safeguarded and the other Party is notified immediately. The obligations imposed upon the Parties in this section shall continue to apply after expiration or completion of the Agreement for a period of 5 years.
§ 10
PROHIBITION OF OBTAINING EMPLOYEES OF SECOND PARTY
The Parties declare that during the execution of the Agreement, they will not process the personal data of the other Party's employees, consultants and cooperating persons under separate legal relations.
The Seller undertakes that during the term of the Agreement and within a period of 12 months from the date of its termination, he will not make any effort to infringe upon the Buyer's human resources, in particular which will result in the fact that the persons employed by the Buyer or performing work and other factual and legal activities regardless of legal basis, will directly or indirectly be employed by the Seller on the basis of an employment contract or will perform activities on the basis of a specific work contract, commission contract or other contract of a similar nature or will be entrusted with any other factual or legal activity. The above provisions refer in particular to persons performing managerial functions and employees of the Buyer.
In the event of a breach by the Seller of the provisions of this sec. 2, the Buyer shall be entitled to demand that the Seller pay a contractual penalty of PLN 50,000 (in words: fifty thousand zlotys) for each case of violation.
§ 11
OTHER PROVISIONS
The Agreement shall enter into force after it has been signed by both Parties.
The moment of crediting the account is considered as the moment of payment.
In the event of a discrepancies between the provisions of the Agreement and the Annexes, the provision of the Agreement shall prevail.
The Parties to this Agreement shall be free from any liability for total or partial non-compliance with obligations under this Agreement in the event of Force Majeure. The term ‘Force Majeure’ shall be understood as the circumstances that arose after the conclusion of the Agreement as a result of extraordinary, irreversible natural disasters and other such circumstances outside the control of the Parties.
Any changes to this Agreement may be made by means of annexes signed by the authorized representatives of both Parties, in writing and under the pain of nullity.
The Seller and the persons representing the Seller hereby declare and confirm that:
The Seller is a duly formed company with legal capacity and capacity to make juridical acts;
the conclusion of this Agreement shall not constitute any breach of any obligations arising from applicable regulations or legal relations between the Seller and other entities;
the conclusion of this Agreement shall not require the consent of any entity or authority of the Seller;
this Agreement is valid and constitutes an effective obligation upon the Seller;
there are no circumstances known to the Seller or the Seller's representatives that may hinder or prevent the Seller from performing its obligations under this Agreement;
The Seller is not insolvent, no motion for bankruptcy of the Seller has been filed, and no circumstances are known to the Seller or the Seller's representatives that could make the Seller insolvent,
In the event that any of the above statements ceases to be true during the term of this Agreement, the Seller undertakes to immediately inform the Buyer.
The parties declare that this contract has been constructed based on Polish law and in accordance with this law will be interpreted. Any disputes between the parties arising out of the application, interpretation or execution of this Agreement, the parties submit to jurisdiction of Polish courts under decision of the court competent for the plaintiff's principal place of business.
Should any provision of this Agreement be invalid or ineffective for any reason, the remaining provisions shall remain in force and the Parties undertake to replace these invalid or ineffective provisions with provisions having legal force and economic effect as close as possible to the provisions being replaced.
The rights arising from this Agreement are not transferable in whole or in part to third parties without the written consent of all Parties to this Agreement.
For all matters not covered by this Agreement, the relevant provisions of the Polish Civil Code shall apply.
List of Annexes:
Technical specification (Annex no. 1)
Offer inquiry No. ______________ dated _____________(Annex no. 2).
Offer dated _______________ (Annex no. 3).
The annexes mentioned above form an integral part of this Agreement.
This Agreement was made in Polish and English language versions. In case of any discrepancies, the Polish version will prevail.
This agreement has been made in 2 (say: two) identical counterparts, 1 (one) for the Seller and one for the Buyer.
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