GENERAL TERMS AND CONDITIONS
OF PRODUCT SALE AND DELIVERY
in XDISC S.A.
of 20 September 2018
§ 1.Preliminary provisions
1. These General Terms and Conditions (hereinafter: “General Terms and Conditions) shall apply to the sale and delivery of discs and products and services related to discs (hereinafter jointly referred to as (“Products”) offered by XDISC S.A. (hereinafter: “XDISC”), including, in particular:
a) CD and DVD,
b) matrices and optical discs,
c) vinyl discs.
as well as
d) raw materials, accessories, transport services, confectioning and other services related to products listed in items 1–3.
2. The General Terms and Conditions regulate the principles of procedure of XDISC and a purchaser (hereinafter referred to as: “Purchaser”) at all stages of conclusion and performance of a sales and/or delivery agreement, including procedures for contract awarding and order placement, collection of goods, flow of documents on orders and performance of agreements, payment for goods and services, and complaint procedure. XDISC and the Purchaser shall be hereinafter also jointly referred to as “Parties”.
3. General Terms and Conditions shall regulate the sale and delivery of Products for business entities and consumers.
4. The sale and delivery of Products as part of public procurement is generally regulated by the provisions of law applicable in this scope. The General Terms and Conditions shall apply to public procurement only the matters that are not mandatorily regulated by applicable provisions of law.
5. In the case of any deviations between the provisions of the General Terms and Conditions and the arrangements resulting from a general or individual agreement concluded between XDISC and Purchaser – the provisions of the agreement shall prevail.
6. The General Terms and Conditions are published at the XDISC website.
§ 2. Conclusion of the agreement, tenders, orders, confirmation of orders, performance of production
1. The sale of Products is realised on the basis of:
a) an order placed via XDISC tender form,
if the Parties agreed so, also through:
b) a written order placed in the form of a description included in the content of an e-mail message or
c) an order placed on the Purchaser’s own form.
2. Orders or tenders should include all elements necessary for the performance and, possibly, delivery of Products, and in particular: specification of Products ordered, data on collection or delivery (if the order includes delivery – the exact address of delivery), expected date of performance and, possibly expectations in the scope of price, payer’s details, data on the authorised ordering person.
3. The placement and acceptance of an order may be made electronically, and in special circumstances, upon the Purchaser’s request and XDISC’s consent, also in writing or by fax.
4. Orders shall be placed at the department handling a given Product segment.
5. An order is considered accepted for completion if XDISC representative confirmed its acceptance and in the case of a tender submitted by XDISC, if the Purchaser confirmed its acceptance.
6. Any amendment of any of the conditions in the agreement by the Purchaser, after receiving a confirmation of the order shall be possible only upon an explicit (written or electronic) consent of XDISC. An amendment of the content of the order is made according to a procedure provided for placement and acceptance of orders (§ 2.1 – 2.5).
7. Any delay in the Purchaser’s delivery of all starting materials (including – if in a given case necessary – reference files, colour patterns or other components necessary for the production) may result in postponing the deadline for the performance of production by XDISC.
8. The Purchaser cancelling – already after the start of the production – an order for reasons not attributed to XDISC, shall be charged for the part of order already produced.
9. Materials shall be accepted in accordance with the parameters adopted for such orders.
10. The Purchaser providing materials to XDISC that include a content on the basis of which the production is to be performed shall be equivalent to:
a. the Purchaser making a statement that it is fully authorised to use any of the intellectual property rights to materials that are the subject of an order and that the materials provided do not include any content contrary to the law or good practices,
b. The Purchaser accepting responsibility for consequences of non-compliance of a statement described in item (a) with the factual state.
11. XDISC shall store the starting materials provided for production via FTP server owned by XDISC only for own production purposes, and only for the time necessary to perform a production. XDISC has the right to delete the Purchaser’s material within 30 days of the completion of production, without notifying the Purchaser of the fact. In relation to this, the Purchaser should, acting in its own interest, have a copy of materials provided to XDISC for production.
12. A stamper shall remain the property of XDISC and shall not constitute the subject of sale (it is not invoiced).
13. A stamper produced by XDISC and used for production shall not be stored by XDISC longer than 1 year and after this time, it may be utilised, unless The Purchaser earlier requests the stamper to be continued to be stored in XDISC warehouse in order to perform another production.
§ 3. Handover and transport of the Products
1. The conditions for handover and transport of Products should be specified during the procedure of placing and accepting orders. In the case of lack of different arrangements of the Parties, the transport of Products shall be the responsibility of the Purchaser.
2. In the case when the Product transport is provided by the Purchaser, the order shall be considered completed upon handing over the Products to loading (on the verge of a ramp in the XDISC warehouse).
3. If the transport of the Products is organised by XDISC, the order shall be deemed completed – unless otherwise specified by the Parties – upon loading the Products on a means of transport provided by the carrier. XDISC undertakes to order the Product transport at a company providing professional transport services.
4. The risk of destruction or loss of the Products shall pass on the Purchaser:
a) in the case provided for in section 1 – upon handing over the Products to loading (on the verge of a ramp in the XDISC warehouse),
b) in the case provided for in section 2 – upon loading the Products on a means of transport.
5. In the case when the transport of Products is organised by XDISC, the terms and conditions of transport (including dates of deliveries and terms of insurance for carriage) agreed with the carrier shall apply.
6. The Parties may agree on principles of transport, unloading and responsibility for Products as well as of collection of Products (e.g. establish the need to notify the readiness to hand over the Products) different than the ones specified in sections 1–5.
7. After 5 weeks/months of ineffective notification to the Purchaser of the readiness of Products to be collected, the Products may be utilised at the Purchaser’s cost.
8. The Product utilisation shall not release the Purchaser from the obligation to pay for the uncompleted order.
9. The principles provided for in sections 7–8 shall apply also to the storage of not collected surplus of any components related to any order.
§ 4. Personal data processing
1. During placement and completion of an order, XDISC and the Purchaser shall process personal data within the meaning of the Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation, Official Journal of the EU L 119, p. 1, hereinafter referred to as: “GDPR”). Personal data processing shall concern the Purchaser’s data (if it is a natural person) and employees and co-workers of XDISC and the Purchaser participating in the entire process.
2. The legal basis for the processing of personal data by the Parties, as referred to in section 1 shall be the need to process for the performance of the agreement between the Parties, as a result of which, in the light of GDPR provisions, there is no obligation to obtain consents of any of the Parties.
§ 5. Financing the purchase
1. XDISC may grant to the Purchaser, in particular, when placing orders regularly and fulfilling its obligations in a timely manner, the right to a deferred payment (a credit limit covering the value of Products in production plus the value of current obligations).
2. XDISC reserves the right to assess, at its own discretion, the financial capacity of the Purchaser with regard to granting a credit limit and a possibility to withdraw or reduce the limit at any moment without justification.
3. In the case of lack of different arrangements of the Parties, the Purchaser that has no credit limit with XDISC, shall make a pre-payment in full amount of the value of order.
§ 6. XDISC’s liability, complaints
1. The Purchaser is obliged to check the Products at the moment of their delivery.
2. Complaints related to the quality and quantity of Products delivered or damage arising in transport (in the case when the delivery is performed by XDISC with its own transport means) shall be examined if the above mentioned shortages and damage are reported during unloading and entered in a delivery document and when the circumstances are confirmed by the representative of the carrier – the driver. The above shall not apply to latent defects of the Products.
3. Complaints must be sent in writing to XDISC within 3 working days of the date of delivery.
4. The Purchaser’s representative should check the amount of collective packaging and lack of visible external defects of the packaging during the collection of the Products.
5. XDISC’s responsibility on account of production performance shall be limited up to the value of Products of a given order and shall not cover profits lost by the Purchaser.
6. No Party shall be held liable for damage caused by force majeure which shall be understood, in accordance with a common practice in trade, as cases independent of the Parties and beyond their control that prevent from timely production, delivery or collection of a Product or performance of a service.
§ 7. Final provisions
1. Any and all disputes arising in relation to the completion of the orders and production executed should be settled primarily in an amicable way.
2. In the case of lack of a possibility to resolve a dispute amicable and referring the case for settlement in court, the jurisdiction shall be determined in accordance with the place the production is executed.
3. These General Terms and Conditions shall be in force as of 20 September 2018 (date of publishing at XDISC website) and binding upon the Parties with regard to orders placed after that date.