General Business Conditions

general business conditions

I. General provisions

§1 Definitions

Whenever these General Business Conditions of Next Generation Engineering Poland sp. z o.o. refer to:

1. „Protected Information” – it means all confidential information constituting a secret of Next Generation Engineering Poland sp. z o.o. or its associates and Clients, in particular such as technical, technological, organizational, commercial and any other information of economic value, design, computational data and documents, technical drawings, material requirements (regardless of the form in which they were prepared and the media on which they were recorded) and the terms of cooperation of Next Generation Engineering Poland sp. z o.o. with the Contractor, associates or Clients (data on applied prices, commissions and discounts, size of orders and their subject, as well as the conditions of their execution and any other mutual benefits obtained by the parties in connection with the cooperation).

2. „Quotation” - this means a non-binding invitation to conclude an agreement within the meaning of Article 71 of the Civil Code, initially defining the subject matter of the service and preliminary calculation of the price of the service. The Commercial Information does not constitute an offer within the meaning of Article 66 § 1 of the Civil Code. After presenting Commercial Information, in order to conclude an agreement, the Parties must use the offer mode referred to in § 3, or the non-offer mode referred to in § 4 of the GBC.

3. „Civil Code” – the Act of 23 April 1964 Civil Code (consolidated text; Dz.U. of 2017, item 459, as amended).

4. „Client” or „Clients” – they mean counterparties or clients of Next Generation Engineering Poland sp. z o.o. other than the Counterparty.

5. „Consumer” – it means a consumer within the meaning of Article 22¹ of the Civil Code.

6. „Counterparty” – it means an entity (natural person, legal person, organizational unit without legal personality to which the Act grants legal capacity) which concludes with Next Generation Engineering Poland sp. z o.o. the Agreement. If the Agreement is multilateral, the Counterparty is understood as all entities being a party to the Agreement with the exception of Next Generation Engineering Poland sp. z o.o.

7. „NGE” – Next Generation Engineering Poland sp. z o.o.

8. „Offer” – it means an offer within the meaning of Article 66 § 1 of the Civil Code formulated by Next Generation Engineering Polska sp. z o.o. as an offeror to the Counterparty as an offeree.

9. „GBC” – these General Business Conditions of Next Generation Engineering Poland sp. z o.o.

10. „Design Specification” – it means a document submitted by the Counterparty in writing or electronically to NGE, containing the exact scope and data of a structure.

11. „Parties” – they mean Next Generation Engineering Poland sp. z o.o. and the Counterparty jointly.

12. „Party” – it means Next Generation Engineering Poland sp. z o.o. or the Counterparty separately.

13. „Agreement” – it means an agreement concluded by the Counterparty with Next Generation Engineering Poland sp. z o.o. of which the GBC is an integral part. This shall include, in particular, a contract to perform a specified task, a contract of mandate, a supply contract and innominate contracts. If the Agreement is concluded by way of offer and acceptance, the term “Agreement” has the meaning which includes the Offer and the GBC.

14. „ACRR” – the Act of 4 February 1994 on copyright and related rights (consolidated text; Dz.U. of 2017, item 880, as amended).

15. „AIPL” – the Act of 30 June 2000 Industrial Property Law (consolidated text; Dz.U. of 2017, item 776, as amended).

16. „Amended GBC” – they mean the General Business Conditions of Next Generation Engineering Poland sp. z o.o. together with changes agreed individually, in writing (otherwise being null and void) with the Counterparty.

§2 Scope of application of the GBC

1. The GBC constitute an integral part of all Agreements (and Offers) concluded between NGE and the Counterparty. The GBC define the rights and obligations of the Counterparty and NGE.

2. The GBC do not apply to the legal relations between NGE and Consumers.

3. The legal relations between NGE and the Counterparty are based on the Agreement, the GBC and the provisions of the Acts. If the amendments to the GBC have been individually agreed upon in writing, the legal relations between NGE and the Counterparty are based on the Agreement, the Amended GBC and the provisions of the Acts, otherwise being null and void. In the case referred to in the preceding sentence, whenever the GBC uses the term “GBC”, it should be understood as the Modified GBC (with the exception of § 3 and § 4 of the GBC).

4. Unless the Parties have agreed otherwise (in writing, otherwise being null and void), the GBC are binding in the wording indicated in the GBC. If the Parties have changed in writing (otherwise being null and void) the provisions of the GBC, the Parties are bound by the content of the Modified GBC. If the Counterparty has ordered the commencement of performance of the Agreement by NGE without reservations or has accepted the Offer without reservations, the GBC are deemed to be in force in the wording indicated in the GBC (without amendments).

5. Unless otherwise stated, the GBC apply in the version in force at the time of preparation of the Offer and, if the Offer was not prepared, at the time of conclusion of the Agreement. For future service agreements between NGE and the Counterparty, the GBC are binding in the wording most recently provided to the Counterparty by NGE as a framework agreement, without the need to refer to them each time by NGE.

6. The Counterparty declares, that:

a) prior to the conclusion of the Agreement, received the GBC in an electronic version in such a way that it may store and reproduce the template in the ordinary course of business (if the content of the GBC was provided to the Counterparty by NGE electronically);

b) was able to individually determine the content of the GBC prior to the conclusion of the Agreement;

c) prior to the conclusion of the Agreement, it familiarized itself with the content of the GBC supplied before the conclusion of the Agreement and accepts them.

7. Statements and notifications that are made after the conclusion of the Agreement by the Counterparty to NGE (e.g. with respect to setting the deadline, notification of deficiencies) must be made in writing, by e-mail or by fax in order to be valid. However, termination, withdrawal or dissolution of the Agreement must be made in writing, otherwise being null and void.

8. Any doubts as to the interpretation are explained to the benefit of NGE.

II. Offer and conclusion of the agreement

§3 Conclusion of the agreement by way of offer and acceptance

1. If the Counterparty is interested in using the services of NGE, it will provide NGE with the Design Specification for the performance of the service on the basis of which NGE will prepare the Offer. The Offer will then be sent by NGE in writing or electronically to the Counterparty. Along with the Offer, NGE sends the GBC which contain instructions referred to in Article 66¹ 2 of the Civil Code.

2. The Offer of NGE is effective from the moment of its receipt by the Counterparty for a period of 14 days, unless a different period is clearly indicated in the offer and subject to paragraph 3.

3. The NGE's Offer is binding on NGE only if its receipt is confirmed by the Counterparty within 3 days from the date of its sending. In the absence of confirmation within this time limit, the Offer is not binding on NGE. If a confirmation is received, the date of receipt of the Offer is deemed to be the date on which the Offer is sent by NGE.

4. The Counterparty may accept the Offer only unreservedly, in writing or electronically within 14 days of its receipt. Acceptance of the Offer after this time limit is treated as a new offer (of the same content) addressed by the Counterparty to NGE. In such a case, NGE may confirm acceptance of the new offer or refuse to accept the offer or propose changes to the new offer.

5. If the Counterparty's response to the Offer stipulates amendments or supplements, the Offer is not accepted by NGE taking into account such amendments or supplements, but is treated as a new offer addressed by the Counterparty to NGE. In such a case, NGE may confirm acceptance of the new offer or refuse to accept the offer or propose changes to the new offer.

6. If the Counterparty, within 14 days from the date of receipt of the Offer, requests that the Agreement be performed by NGE despite the lack of an explicit declaration of acceptance of the Offer, the Offer is deemed to have been accepted by the Counterparty unreservedly (tacit acceptance of the Offer; Article 69 of the Civil Code). Any such request made after the lapse of 14 days from the date of receipt of the Offer is deemed to constitute acceptance of the Offer and conclusion of the Agreement only if NGE commences performance of the Agreement.

7. The Agreement (the Offer together with the GBC) will be made available to the Counterparty in electronic or written form.

8. The Agreement is concluded in Polish, with the possibility of a bilingual version with priority being given to the Polish version.

9. Offers, the data, information and documents contained therein (also in electronic form) are Protected Information and are also the intellectual property of NGE. Offers, information and documents may be made available to third parties only with the prior consent of NGE in writing, otherwise being null and void. Chapters VI and VII are applied mutatis mutandis.

10. Quotation do not constitute an offer within the meaning of Article 66 § 1 of the Civil Code, but are a non-binding invitation to conclude an agreement within the meaning of Article 71 of the Civil Code. After submitting Quotation by NGE, in order to conclude an agreement, the Parties must use the offer mode referred to in § 3 (1-9) or the non-offer mode referred to in § 4.

§4 Conclusion of the agreement by way other than of offer and acceptance

1. The Agreement may also be concluded without the offer and acceptance procedure, i.e. without submission of the Offer.

2. Prior to the conclusion of the Agreement, the Counterparty shall provide NGE with the Design Specification.

3. By way other than of offer and acceptance, the Agreement is concluded at the moment of:

a) signing by the Parties

b) submission by the Parties of statements in electronic form on the conclusion of the Agreement (after it has been sent to the Counterparty by NGE).

4. In the case referred to in paragraph 3(b), the submission of consistent statements must take place within 14 days from the date of sending of the Agreement by NGE. In order to determine the date of receipt of the Agreement by the Counterparty, § 3 paragraph 3 is applied mutatis mutandis. The time limit is deemed to have been met, provided that NGE has at least 7 days to submit a relevant statement. The submission of a statement by the Counterparty is deemed to be either an explicit statement on the conclusion of the Agreement or a request for its performance.

5. An integral part of the Agreement are the GBC or the Modified GBC.

§5 Design Specification

1. The Counterparty shall provide the Design Specification to NGE at the latest prior to the submission of the Offer by NGE (way of offer and acceptance) or prior to the conclusion of the Agreement (way other than of offer and acceptance).

2. The Design Specification must contain the exact scope and data of the structure.

3. The Offer or the proposed content of the Agreement submitted by NGE refers only to the data contained in the Design Specification. In the event of a subsequent change to the Design Specification, NGE is entitled to an additional remuneration (price increase).

4. NGE is not obliged to verify whether the structure can actually be used for the purpose specified in the Design Specification when using data from the Design Specification.

5. NGE is not liable for any errors in the performed service resulting from errors in the Design Specification.

6. If drawings, models or formulas are included in the Counterparty's Design Specification, the Counterparty declares that they are not encumbered with third party rights and may be used by NGE. If it turns out that drawings, models or formulas were encumbered with third party rights, then the Counterparty is liable for the infringement.

III. Price and conditions of payment

§6 Price and conditions of payment

1. The price of the service is each time agreed by NGE with the Counterparty and clearly specified in the Agreement or the Offer. The given price of the service is the cost estimate remuneration which may be subject to subsequent changes.

2. All prices are net. VAT at the rate in force on the date of payment must be added to the amount specified.

3. All costs associated with the performance of the service are covered by the Counterparty. In particular, these are costs such as taxes, duties and transport costs. The Parties may agree otherwise by expressly specifying the method of covering the costs in the content of the Agreement.

4. The price indicated in the Agreement or Offer refers only to the scope of services and data indicated in the Design Specification, as determined by the Parties.

5. If the Counterparty changes the scope of services or the Design Specification or orders additional services, resulting in an increased workload of NGE, NGE is entitled to additional remuneration. In this case, the Parties will enter into an additional agreement in writing, otherwise being null and void. If the Counterparty refuses to enter into an additional agreement, NGE may terminate the agreement with immediate effect and demand a portion of the price and reimbursement of costs already incurred, appropriate to the work already performed. If the Counterparty has already paid part or all of the price (or costs), NGE may retain it. NGE also is entitled to claim damages on general terms.

6. The price, costs and additional remuneration will be payable within 14 days from the receipt of a VAT invoice or bill by the Counterparty.

7. The Parties exclude the possibility for the Counterparty to set off a debt due to NGE against Counterparty's receivables due to NGE.

IV. Agreement performance

§7 Counterparty's obligation to cooperate

1. The Counterparty will deliver documents, information and data necessary for the performance of the Agreement immediately after signing the Agreement or within the time limits agreed by the Parties.

2. The Counterparty is obliged to obtain any permits, authorizations or decisions necessary to execute the mandate (if required by law), unless the Parties have agreed otherwise in the Agreement.

3. If the data, information or documents made available by the Counterparty are erroneous, incomplete or ambiguous, as a result of which the design cannot be executed, NGE will immediately inform the Counterparty thereof. In this case, the Counterparty shall promptly make any necessary corrections or additions.

4. If the Counterparty fails to make the corrections or supplements referred to in paragraph 3, NGE will set an additional two-week period for their execution. In the event that this period expires without effect, NGE may terminate the agreement with immediate effect and demand a portion of the price and reimbursement of costs already incurred, appropriate to the work already performed. If the Counterparty has already paid part or all of the price (or costs), NGE may retain it. NGE also is entitled to claim damages on general terms.

§8 Delivery date

1. Delivery dates are set by the Parties in the Agreement.

2. If the Counterparty fails to comply with its obligation to cooperate, in particular the timely transmission of all information, data, permits and approvals necessary for the execution of its mandate, or if this is done late, and thus the performance of the service consistent with the mandate or delivery is delayed, the agreed delivery dates are extended by the period during which the Counterparty failed to comply with its obligation to cooperate.

3. In the event of force majeure that delays the performance of the service or delivery, the duration of the service or delivery is extended by the duration of the obstacle. If the performance of the service or delivery by the Counterparty is impossible due to force majeure, the agreement is terminated and only the portion of the price corresponding to the work already performed and the costs incurred are due to NGE.

§9 Acceptance

1. NGE may request partial acceptance if a given part of the service is nondependent. In such a case, the Counterparty shall accept part of the service.

2. During the acceptance of the service, the Parties will draw up a report of service provision in writing, otherwise being null and void. If the Counterparty refuses to sign the report, NGE will prepare the protocol unilaterally indicating the reason for refusing to sign.

3. If the NGE services are ready for acceptance and the Counterparty does not accept them within 14 days, the NGE services are deemed accepted and NGE draws up the report referred to in paragraph 2 unilaterally.

V. Rules of liability

§10 Guarantee

1. NGE gives a guarantee for its services within the scope of:

a) non-conformity of the service with the Design Specification

b) construction errors, provided that they are not the result of errors in the Design Specification, its change at the Counterparty's request after the conclusion of the Agreement or lack of cooperation or delays in cooperation on the Counterparty's part.

2. The scope of the guarantee referred to in paragraph 1 does not cover in particular:

a) errors in the service resulting from errors in the Design Specification

b) services and elements of the Design Specification modified at the Counterparty's request after the conclusion of the Agreement

c) inapplicability to use the structure under the given environment or conditions

d) defects in the product made on the basis of design documentation prepared by NGE

e) elements introduced or changed by the Counterparty in the service performed by NGE

f) errors caused by the Counterparty's lack of cooperation or delays in cooperation by the Counterparty.

3. The guarantee period is 1 year and starts from the day of the service. Where the service has been provided in stages, the guarantee period runs separately for each of those stages.

4. As part of the guarantee, NGE undertakes, at its discretion, to rectify a defect in the service or to provide the service again within a time limit that takes into account the specific nature of the defect.

5. The Counterparty is entitled to exercise the rights resulting from the guarantee, provided that the Contractor is notified of the defect in writing (otherwise being null and void) within the guarantee period. A visible defect must be reported within two weeks of receipt of the service provided. A hidden defect should be reported immediately, not later than within two weeks from the day on which it became possible to detect it, but not later than on the last day of the guarantee period. Lack of timely notification of a defect (visible or hidden) will cause the guarantee claims to expire.

§11 Warranty

1. NGE is liable under warranty for defects in the service within the scope of:

a) non-conformity of the service with the Design Specification

2. The scope of the warranty referred to in paragraph 1 does not cover in particular:

a) errors in the service resulting from errors in the Design Specification

b) services and elements of the Design Specification modified at the Counterparty's request after the conclusion of the Agreement;

c) inapplicability to use the structure under the given environment or conditions

d) defects in the product made on the basis of design documentation prepared by NGE;

e) elements introduced or changed by the Counterparty in the service performed by NGE;

f) errors caused by the Counterparty's lack of cooperation or delays in cooperation by the Counterparty.

3. NGE's liability under the warranty for defects of the service is 1 year and starts from the day the service is provided. Where the service has been provided in stages, the warranty period runs separately for each of those stages.

4. As part of the warranty, NGE is obliged, at its discretion, to rectify a defect in the service or to provide the service again within a time limit that takes into account the specific nature of the defect. The Parties exclude the possibility of withdrawing from the agreement and the possibility of making a declaration of price reduction in case of defects in the service.

5. The Counterparty is entitled to exercise the rights resulting from the warranty, provided that the Contractor is notified of the defect in writing (otherwise being null and void) within the warranty period. A visible defect must be reported within two weeks of receipt of the service provided. A hidden defect should be reported immediately, not later than within two weeks from the day on which it became possible to detect it, but not later than on the last day of the warranty period. Lack of timely notification of a defect (visible or hidden) will cause the warranty claims to expire.

6. NGE is liable for damage caused by a defect only up to the amount equivalent to the remuneration for performance of a given service under the Agreement for the Counterparty.

7. NGE is not liable for damage within the scope of lost profits caused by the occurrence of a defect.

§12 Contractual and tort liability

1. NGE is liable for non-performance or improper performance of the agreement only up to the amount equivalent to the remuneration for performance of a given service under the Agreement for the Counterparty.

2. NGE is not liable for damage within the scope of lost profits caused by non-performance or improper performance of the agreement.

3. If the non-performance or improper performance of the agreement by NGE is also a tort, tort liability is to be excluded.

VI. Intellectual property rights

§13 Inventions, utility models, industrial designs

1. If, in connection with the performance of the Agreement, NGE creates an invention, utility model, industrial design within the meaning of the AIPL, NGE remains exclusively entitled to obtain an invention patent, utility model protection right or the right to register an industrial design, unless the Parties have agreed otherwise in the Agreement.

2. Upon payment of the price, costs and any additional remuneration, NGE grants the Counterparty the right to use the completed design (/ service) in its own business (limited license), unless the Parties have agreed otherwise in the Agreement.

3. The Contracting Party may not sell, make available, grant further licenses (sublicenses), permit the use or transfer on any other basis to another entity the invention, utility model or industrial design resulting from work (design / service) of NGE, unless the Parties have agreed otherwise in the Agreement or an additional agreement has been concluded (in writing, otherwise being null and void) in this respect.

4. In case of breach by the Counterparty of the provision referred to in paragraph 3, NGE may claim damages or exercise other rights under general rules (provided for in particular in the AIPL).

5. NGE is entitled to exercise its rights related to an invention, utility model or industrial design created during the performance of the Agreement without limitation, in particular to dispose of and use, including its sale, making it available, granting a license, permit to use or transfer on any basis to another entity, unless the Parties have agreed otherwise in the Agreement.

§14 Copyrights

1. If in connection with the performance of the Agreement, the creation of a work within the meaning of the ACRR, the provisions of this GBC shall apply to the author's economic rights and moral rights, unless the Parties agreed otherwise in the Agreement.

2. Upon payment of the price, costs and any additional remuneration, NGE grants the Counterparty the economic copyrights to the work in all fields of exploitation known at the time of conclusion of the Agreement, in particular:

a) with respect to the recording and reproduction of the work - production of copies of the work using a specific technique, including printing, reprography, magnetic recording and digital technique,

b) as regards trade in the original or copies on which the work is recorded - marketing, lending or renting the original or copies,

c) as regards distribution of the work otherwise than in point b), to the public performance, exhibition, display, reproduction, broadcasting and rebroadcasting, and making the work available to the public in such a way that everyone can access it from a place and at a time individually chosen by them.

3. In the event that new fields of exploitation are created after the conclusion of the Agreement, NGE shall transfer to the Counterparty the copyrights to the work also in those fields of exploitation.

4. NGE shall transfer to the Counterparty the right to permit the execution of the derivative copyright.

5. NGE shall authorize the Counterparty to make any changes in the work.

6. NGE agrees not to exercise any moral rights in the work. This commitment is irrevocable.

7. Counterparty shall not be required to distribute the work.

§15 Other

1. If the result of NGE's work does not constitute an invention, industrial design, utility model or work, upon payment of the price, costs and possible additional remuneration, NGE grants the Counterparty the right to use the completed design (/ service) in its own business, unless the Parties have agreed otherwise in the Agreement.

2. The Counterparty may not sell, make available, permit the use or transfer the results of work (project/services) of NGE to another entity on any other basis, unless the Parties have agreed otherwise in the Agreement or an additional agreement has been concluded (in writing, otherwise being null and void) in this respect.

3. In case of breach by the Counterparty of the provision referred to in paragraph 2, NGE may claim damages or exercise other rights under general rules.

VII. Confidentiality

§16 Subject matter

1. This section of the GBC applies only if the Parties have not concluded a separate confidentiality agreement covering the performance.

2. The subject matter of this section of the GBC is to ensure the confidentiality of information (in particular the Protected Information) constituting a secret of the business of the Parties or their associates and Customers transferred between the Parties in the course of their cooperation, including in particular within the scope of the Agreement performance.

3. The Protected Information are provided by the Parties exclusively for the purposes related to the cooperation conducted by the Parties, and in particular for the purpose of proper performance of the concluded Agreement.

4. The Parties declare that they are aware of the fact that the Protected Information received by them are confidential business information of the Parties and may constitute a business secret of

5. third parties, and that violation of their confidentiality may also give rise to their liability towards such third parties, regardless of the liability arising from the GBC.

6. The obligation of confidentiality applies regardless of the source of information, i.e. regardless of whether it was provided directly by a Party, its employee, contractor, associate or Customer and regardless of whether it was provided in connection with the performance of the Agreement or whether the Party came into its possession only on the occasion of cooperation with the other Party.

§17 Duty of confidentiality

1. The Parties undertake to maintain confidentiality of the information referred to in § 16 paragraph 2 of the GBC.

2. The obligation of confidentiality includes, in particular, the prohibition of disclosing such information, transferring or making it available to third parties, as well as using it in any way and in anyone's interest that does not serve the purpose referred to in § 16 paragraph 3 of the GBC.

3. The Parties may process the Protected Information only for the purpose referred to in § 16 section 3 of the GBC.

4. The Parties shall take all factual and legal actions necessary to maintain the confidentiality of the Protected Information. In particular, the Parties shall limit the number of persons having access to the Protected Information to the minimum necessary to achieve the purpose referred to in § 16 paragraph 3 of the GBC, as well as to provide appropriate instructions to persons receiving access to the Protected Information and to conclude confidentiality agreements. This applies in particular to persons employed by the Parties or their subcontractors.

5. The Protected Information may be used and utilized for purposes other than those specified in § 16 paragraph 3 of the GBC only with the express written consent of the other Party, otherwise being null and void.

§18 Violation confidentiality

1. Disclosure of the Protected Information to a third party, using it in any way and in anyone's interest, as well as violation of its confidentiality in any other way incompatible with the purpose referred to in § 16 paragraph 3 of the GBC, constitutes a breach of the GBC (and thus of the Agreement), regardless of whether such behavior is culpable. A Party is liable for violation of the GBC (and thus of the Agreement) even in the case of unintentional, accidental breach of the provisions of the GBC, including in particular in the case of unintentional, accidental disclosure of the Protected Information.

2. In case of violation by a Party of any provisions of the GBC concerning confidentiality, the other Party has the right to demand an immediate cessation of the violation and removal of its effects, as well as to repair the damage on general terms.

VIII. Final provisions

§19 Final provisions

1. NGE reserves the right to change these GBC at any time, however the Counterparty is bound by the version of the GBC pursuant to § 2 paragraph 5 of the GBC.

2. Amendments to the GBC apply from the date of their entry into force, unless an amending act indicates a different date of entry into force.

3. The sole place of jurisdiction for all disputes related to the Agreement and/or the GBC is the court with territorial jurisdiction over the registered office of NGE.

4. Any disputes related to the Agreement and/or the GBC will be settled in accordance with Polish law by the Polish courts.

5. If any provision of the Agreement or the GBC is invalid, the validity of the remaining provisions remains unaffected.

6. In matters not regulated in these GBC, separate provisions are applicable, in particular the provisions of the Civil Code.