General Conditions for Delivery of Screw Pile Foundations
Update 02.2024
1. General provisions:
1.1 These General Conditions of Delivery for Screw Pile Foundations (“GDC”) apply to Winkelmann Foundation Screw PL spółka z ograniczoną odpowiedzialnością sp.k., ul. Jaworzyńska 305, 59-220 Legnica, Poland, hereinafter referred to as "we" or "WFS" and the contractual partner with whom the contract is concluded or on whose behalf the delivery is made is hereinafter referred to as the "Customer". WFS and the Customer shall hereinafter be referred to collectively as the "Parties" or separately as the "Party".
1.2 The following GDCs apply to all deliveries made by WFS. These GDCs shall apply to contracts and orders regardless of the form in which they are concluded, including, in particular, contracts concluded in writing, verbally, by telephone and by means of distance communication, including electronic means. The provisions of sec. 1.8 et seq. of the GDC remain unaffected.
1.3 WFS reserves the right to modify the GDCs at any time, in accordance with the provisions of generally applicable law.
1.4 Any deviating or supplementary provisions in the Customer's general terms and conditions shall only apply if and to the extent that WFS expressly acknowledges them in writing otherwise it shall be deemed as null and void, and they shall not apply. In particular, silence with regard to such deviating provisions shall not be deemed to be acknowledgement or consent, also in the case of future contracts. WFS does not accept any contractual penalties or indemnity obligations arising from documents unilaterally drafted by the Customer, in particular those contained in the Customer's general terms and conditions of purchase or codes of conduct, unless a separate express contract has been made to this extent.
1.5 If framework or individual contracts have been concluded between us and the Customer, their provisions shall take precedence over the provisions of the GDC, and the provisions of the GDC shall only be supplementary to the extent applicable, unless the Parties have expressly agreed otherwise.
1.6 All offers, commercial and marketing information provided by WFS are non-binding, unless they are expressly marked as binding or expressly contain binding obligations or the binding nature has otherwise been expressly agreed with the Customer. Such documents constitute invitations to place an order and not a WFS’s binding offer.
1.7 The information and explanations provided by WFS with regard to its articles do not constitute any assurances with regard to the existence of characteristics (qualities) of the goods of which the seller has informed the buyer prior to the conclusion of the contract, nor do they constitute a guarantee declaration by WFS with regard to the articles. The values provided within the scope of information and explanations are to be considered as average values.
1.8 Deliveries of WFS will be made on the basis of individual orders, whereby an order can only be placed by the Customer in writing or by e-mail.
1.9 An order placed by the Customer must be confirmed for fulfilment by WFS (conclusion of the contract) in writing or by e-mail. This shall also apply if WFS and the Customer are in a continuous business relationship. Failure to confirm acceptance of an order for fulfilment within 10 business days means refusal of order fulfilment (non-conclusion of a contract). The Customer has no claim against WFS due to the refusal of order fulfilment.
2. Delivery terms:
2.1. Unless otherwise agreed, WFS articles are always delivered Ex Works (EXW - INCOTERMS 2020) - WFS factory in Legnica and in accordance with the order confirmation.
2.2. Liability and transfer of risk shall take place upon handover of the article to Ex Works or accordingly in accordance with other INCOTERMS 2020 delivery conditions, if such conditions have been agreed by the Parties. Irrespective of the agreed terms of delivery, WFS shall not be liable for transport carried out by the carrier/freight forwarder, in particular WFS shall not be liable for damage caused during transport or for delays in delivery.
2.3. In the case of delivery on a terms other than EXW, WFS reserves the right to choose the route and means of transport for the agreed delivery. However, WFS shall make every effort to take the Customer's wishes into account as far as possible with regard to the method and route of transport, whereby the Customer shall not be entitled to any claims in this respect. All costs resulting from delivery on a basis other than EXW, such as, among others, transport and insurance costs, shall be borne by the Customer.
2.4. The handover of WFS articles to the Customer or to the freight forwarder/carrier on behalf of the Customer or on behalf of WFS is equivalent to the execution of the contract (delivery) and entitles WFS to invoice for the delivery made.
2.5. Unless separately agreed otherwise, the maximum delivery date is 90 days from the WFS's order confirmation.
2.6. WFS is entitled to make partial deliveries before the delivery time agreed with the Customer.
2.7. WFS shall be entitled to withhold deliveries in the event that the Customer fails to fulfil its obligations under the contract or order.
2.8. The execution of the articles corresponds to the technical description and the drawings, subject to technical modifications.
2.9. The weight of the delivered foundation elements, accessories or tools may vary by max. +/- 12% due to production, series and standardization. Such WFS articles are deemed to be in accordance with the contract (order), i.e. a weight within the above-mentioned tolerance does not constitute a material defect.
2.10. All information provided by WFS on its articles, in particular in offers and printed material and on the Internet, as well as the illustrations, drawings, dimensions, properties or characteristics contained therein and other information, in particular technical information or information on ingredients, are approximate average values. Data on articles that do not bear tolerances, such as those contained in online presentations or catalogues and/or brochures, are also subject to the usual trade and/or industry-specific deviations and variations in production, in particular due to the materials used.
2.11. The Customer may not refuse to accept delivery in the event of a insignificant defect, i.e., among other things, a defect that does not affect the functionality of the WFS article.
2.12. The Customer is obliged to examine the delivered articles immediately after delivery and immediately report any defects detected to WFS under pain of losing warranty rights.
2.13. The Customer does not have the right to return screw foundations and WFS accessories accepted by the Customer.
3. Liability
3.1. Unless expressly agreed otherwise, WFS is liable to the Customer only for the conformity of the ordered articles with the content of the contract/order. In particular, WFS is not liable for the suitability and use of WFS articles by the Customer. The suitability of the screw pile foundation and other WFS articles for the intended use must be checked by the Customer or user and their use is the sole responsibility of the Customer/user. The user/Customer is responsible for the use and stability of the screw pile foundations and other WFS articles. All evidence required for building permit, static calculations, expert opinions, test statics in accordance with the relevant building regulations and general rules of technology and recognised testing procedures to prove the suitability and use or application of the screw pile foundations are to be borne by the Customer. Any additional costs resulting from deviations from the regulations are to be borne by the Customer.
3.2. Before installing/using WFS screw pile foundations and their accessories, the Customer/user must check that the supplied screw pile foundations / accessories are free of defects and function in accordance with the technical description. Defective screw pile foundations and accessories may not be used. Once the inspection has been carried out and defects have been identified, they must be reported to WFS in accordance with pt. 4 below and make them available for rectification. The WFS accepts no liability for damage that may result from the unsuitability of the screw pile foundations or a delay in transportation. Liability for damage to screw pile foundations resulting from installation in unsuitable ground is excluded.
3.3. Unless the Parties have agreed otherwise, WFS shall only be liable to the Customer for damages (in contract and tort) for intentional damage. Furthermore, the liability for damages of WFS arising from any claims made by the Customer as described above shall be limited exclusively to the actual losses incurred, excluding the possibility of claiming, among other things, lost profits and indirect or consequential damages.
3.4. The Parties shall not be liable for the improper performance or non-performance of their obligations to the extent that such improper performance or non-performance is due to force majeure, provided that the Party affected by the circumstances of force majeure that directly affects the performance of its obligations has promptly, no later than within 3 (three) business days of the occurrence of force majeure, notified the other Party thereof. Force majeure shall mean an event that could not be prevented or counteracted by the affected Party even with the exercise of utmost diligence, and which makes the due performance of that Party's obligations impossible in whole or in part, such as: fires, floods, earthquakes, strikes, war, mobilization, enemy hostilities, embargoes or orders of authorities, as well as the consequences of an epidemic or pandemic of a contagious disease independent of the will of the Parties.
4. Warranty
4.1. Unless otherwise agreed, WFS shall provide a warranty for defects (rękojmia) in WFS articles for a period of 12 months from the date of delivery (as determined by the INCOTERMS rule agreed between the Parties). Notification of a defect shall be made in writing or by e-mail immediately, but no later than 7 days from the date on which the defect is discovered.
4.2. If WFS recognizes a defect under the warranty:
a) WFS shall decide whether it shall replace the article found to be defective with a new one free of charge, or whether it shall repair the defective article. The replaced defective articles shall become the property of WFS;
b) if it is not possible to repair or replace the WFS’s article with a defect-free one within 30 days from the acknowledgment of the defect complaint, the Customer is entitled to a decrease in the amount of remuneration for the purchased article by the amount by which the WFS’s article has been reduced in value due to its defect.
4.3. The Parties exclude the possibility to withdraw from the contract by the Customer due to defects in the WFS’s article.
4.4. Warranty rights and claims are vested exclusively in the Customer and cannot be transferred to others without the consent of WFS.
5. Payment conditions:
5.1. WFS invoices are payable immediately after completion of the order or delivery and receipt of the invoice by the Customer, unless otherwise agreed in the order or contract. The customer is not entitled to make a compensation or retention. Delivered screw pile foundations remain the property of WFS until full payment has been made (retention of title), in particular the Customer is not entitled to use them in any way or to sell them further before the price has been paid in full to WFS.
5.2. If the Customer defaults on payment or if circumstances come to light or are recognized which raise justified doubts about the Customer's creditworthiness, including such circumstances which already existed at the time of the conclusion of the delivery contract/ placing delivery order but which were not known or could not have been known to WFS, WFS shall be entitled, without prejudice to further statutory rights in such cases to suspend the ongoing delivery and to demand deposits or the provision of a bank or insurance guarantee from an institution approved by WFS for the remaining deliveries and, after an appropriate grace period for the provision of such security has expired without prejudice to further legal rights, to withdraw from the contract/order through the fault of the Customer with regard to the part of the delivery not yet delivered. The Customer shall then be obliged to compensate for any damages resulting from the non-fulfilment of the contract.
5.3. If the Customer defaults on payment on time, all claims for payment arising from the business relationship with the Customer become immediately due, irrespective of extended payment terms, bill of exchange or instalment contracts. Claims for reimbursement of costs and/or discounts shall expire if the customer is in arrears with payments to WFS.
6. Installation conditions
If WFS is contracted to provide installation services, the General Conditions for the Installation of Screw Pile Foundations apply to the installation services.
7. Place of performance and jurisdiction
7.1. Unless otherwise agreed, the place of performance for delivery shall be WFS's plant. Any disputes arising out of or in connection with the cooperation of the Parties, including in respect of delivery, shall be settled by the court having jurisdiction over the registered office of WFS.
7.2. All contracts concluded by WFS and orders or deliveries made by WFS are subject to Polish law, excluding the application of the United Nations Convention on Contracts for the International Sale of Goods (CISG, Vienna, 11 April 1980). This shall also apply to foreign Customers.
8. Salvation clause
Should one or more provisions of the GDCs be or become invalid or ineffective, this shall not affect the validity or effectiveness of their remaining provisions. The invalid or ineffective provision shall be replaced by the provision which comes closest to achieving the objective pursued by the Parties.
9. Confidentiality
9.1. In the event that the Customer, in connection with or during the performance of the contract/order, comes into possession of confidential information relating to WFS or its business, the Customer undertakes to keep this information confidential and not to disclose it, pass it on to third parties or use it in any other way than for the performance of the contract/order, without the prior written consent of WFS otherwise it shall be deemed null and void. By confidential information, the Parties mean in particular professional, commercial, technical, technological, financial or organizational information concerning WFS.
9.2. The Customer shall be liable for any damage caused by a breach of the duty of confidentiality by the Customer, its employees, associates, subcontractors and any third parties through whom the Customer performs the contract.
9.3. In the event of a breach of confidentiality obligations by the Customer or the persons referred to in sec. 9.2 above, WFS shall be entitled to demand a contractual penalty from the Customer in the amount of EUR 50,000 for each case of breach. This does not exclude the right on the part of WFS to claim compensation on general terms for actual damage resulting from a breach of confidentiality.
9.4. In the event that the Parties have concluded a separate non-disclosure agreement (NDA), the provisions of the NDA shall prevail over the non-disclosure provisions of these GDCs, and the provisions of these GDCs shall have only supplementary value.
10. Final provisions
10.1. In accordance with Article 4c of the Act of 8 March 2013 on the prevention of excessive delays in commercial transactions (Journal of Laws 2022, item 893), WFS declares that it is a large entrepreneur within the meaning of Article 4 pt. 6 of the aforementioned Act.
10.2. The Customer is not entitled to transfer (assignment) the rights and obligations arising from the contract/order.
10.3. These GDCs have been drawn up in the Polish and English language versions. In the event of any discrepancies between the Polish and English versions of the GDCs, the Polish text shall prevail unless expressly agreed otherwise by the Parties.
11. Processing of personal data
11.1. For the purposes of the performance of the contract, order or delivery there is a need for the Parties, acting as separate data controllers, to share personal data of employees, associates and representatives of the Parties.
11.2. The Parties will process the provided personal data, in particular, name, job title and contact details as separate data controllers, under their own responsibility and in accordance with the provisions of the law, including in particular Regulation (EU) 2016/679 of the European Parliament and of the Council of April 27th, 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 (General Data Protection Regulation, hereinafter: “GDPR”).
11.3. The Parties undertake to implement appropriate technical and organizational measures to ensure the protection of processed personal data. The degree of protection of personal data should be appropriate to the degree of risk of violation of the rights and freedoms of natural persons in the event of accidental or unlawful destruction, loss, modification, unauthorized disclosure or unauthorized access to personal data.
11.4. The Customer undertakes to provide the data subjects referred to in sec. 14.1 above, acting on the Customer's side, with information on the terms of personal data processing by WFS, and shall be fully liable to WFS for this. The current WFS template for GDPR information clause is available at: www.winkelmann-construction.com/en/datenschutz. If the content of the information clause is changed, the provisions of this sec. 11.4 shall apply accordingly.
11.5. The Parties unanimously declare that the execution of the contract / order / delivery does not require entrusting the processing of personal data (within the meaning of GDPR). In the event that, within the framework of the execution of the contract / order / delivery, any of the Parties will process personal data on behalf of the other Party, prior to the processing of personal data, the Parties shall enter into a data processing agreement for the processing of personal data pursuant to Article 28 sec. 3 of the GDPR. A model data processing agreement will be delivered to the Customer by WFS.