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General Terms and Conditions of Purchase RAWLPLUG

1. Definitions
In these General Terms and Conditions of Purchase (“Conditions”) the words below have the meanings next to them:

‘Agreement’ means any agreement between Rawlplug and the Supplier, under which Rawlplug will place Orders for Products from the Supplier and the Supplier will Deliver them to Rawlplug; as well as any price lists and/or commercial terms or special commercial terms of cooperation agreed between Rawlplug and the Supplier in any form.

‘Ancillary Material’ means systems, concepts, brands, logos, marks, slogans, digital scans, promotional material, packing material, packaging, art works, illustrations, documents, instructions, manuals, databases, drawings, information, designs, specifications, formulae, test results, software, inventions, tooling, display equipment, labels, models, samples, photographs or other similar materials developed for, or used in relation to, a Product; 

‘Construction Products Law’ means any and all universally applicable legal regulations enacted by European Union bodies or authorities of the Country of Destination, decisions of governmental authorities and/or judiciary, pertaining to production and placing on the market of any products that may be used in construction.

'Confidential Information' means all information or data disclosed to or obtained by the Supplier which relates to the business of Rawlplug, including but not limited to any information relating to the operations, processes, plans, intentions, price lists, pricing structures, know-how, works on inventions, design and utility models, trade secrets, software, market opportunities, Customers and business affairs of Rawlplug.

'Country of Destination' means the country to which the Products are to be Delivered for Rawlplug. 

‘Customer’ means any person to whom Rawlplug will resell the Products purchased from the Supplier.

‘Delivery’ shall have the meaning set out in Clause 4.

‘Electronic Equipment Law’ means any and all universally applicable legal regulations enacted by European Union bodies or authorities of the Country of Destination, decisions of governmental authorities and/or judiciary, pertaining to production and placing on the market of electric devices, including power tools.

‘Forecast’ means any forecast of the likely amount of Products available to Rawlplug but shall exclude any Order;

‘Force Majeure’ means any event or circumstances beyond reasonable control of either Party, including but limited to declaration of war, military activities, disorders, epidemics, blockades, earthquakes, floods, fires or other natural disasters, as well as actions of the governmental authorities, embargoes and other events and circumstances, the Parties were not aware of on the date of submitting the Order for the Products, the parties were unable to foresee or prevent by any reasonable measures, and which hinder or make impossible the fulfilment by the parties of their obligations hereunder

“IPR” means any intellectual property rights in the meaning given under Convention establishing the World Intellectual Property Organization signed in Stockholm on 14th July 1967 and amended on 28th September 1979, including but not limited to copyrights, data bases, software, patents, trademarks, designs, utility models and right to apply for or register patent, trademark, design and utility model. 

‘Incoterms®’ means the 2020 Rules for the use of Domestic and International Trade Terms of the International Chamber of Commerce, subject to Clause 4.6.

‘Order’ means a order (or tender) in respect of Products issued on behalf of Rawlplug by an authorised person and/or Rawlplug’s employee to the Supplier.

‘Private Label’ means any brand, logo, trade mark or any other work and/or composition in respect of the Product, packaging or labelling which to which Rawlplug has all IPR, or which may be otherwise legally used by Rawlplug.

‘Private Label Products’: Products which contain Private Label, notwithstanding any Supplier Background IPR, ordered on terms and conditions as determined in the Agreement and/or the Order.

‘Products’ means services and/or the goods, including construction products, as well as tools, power tools and raw materials, which may include Ancillary Material, supplied by the Supplier to Rawlplug in fulfilment of an Order, which may include Private Label Products.

‘Rawlplug’ means Rawlplug S.A. with its registered office at 6 Kwidzynska Str, 51-416 Wroclaw, Poland, entered into a business registered of National Court Register under no 33537, NIP (tax identification number) PL8951687880, or other company from Rawlplug Group using or referring to this Conditions within its business activity.

‘Rawlplug’s Code of Conduct’ means an ethical code of conduct relating to business of Rawlplug, published on Rawlplug’s website:

‘Special Marking’ means any graphic or word sign on Products that is required by Construction Products Law and/or Electronic Equipment Law prior to their placing on the market of European Union, including construction sign, CE sign, name and address of a manufacturer, identification code of product-type, declaration of performance reference number, level or class of the performance declared, reference to the harmonized technical specification, norm or national technical assessment, identification number of the notified body, intended use (if applicable), security markings, pictograms.

‘Supplier’ means an entity or entrepreneur who supplies the Products under the Agreement and/or the Order within the course of its professional business activity.

2. Status of these Conditions
2.1 The terms of this Conditions cannot be modified by any other terms referred to in any quotation or any delivery note, consignment note, confirmation of an Order or correspondence of Rawlplug or elsewhere or implied by trade, practice or course of dealing or otherwise, unless made in writing under the pain of nullity. If there is any conflict or inconsistency between this Conditions and the Agreement, the provisions of the Agreement shall prevail. Notwithstanding the previous sentence, if there is a conflict between the Agreement and an Order as to which Incoterm® applies to that Order, the provisions of the Agreement shall prevail.
2.2 The Convention on the International Sale of Goods (Vienna) 1980 shall be excluded from the Agreement and the contract referred to in Clause 3.2.

2.3 A contract for the sale of Products concluded in accordance with Clause 3.2 shall be governed by this Conditions, irrespective that Rawlplug and the Supplier entered into the Agreement, provided that the Supplier could have easily read this Conditions prior to or on the date of conclusion of the contract for the sale of Products, especially if the Conditions were notified to it via email, by postal services and/or directly onto the hands of the Suppliers representatives and/or published on the website of Rawlplug.

2.4 Rawlplug is entitled to unilaterally amend this Conditions. Clause 2.3 is applied accordingly. The amended Conditions are applicable to the Orders placed after the date of publication of these Conditions on Rawlplug’s website.

2.5 Any general terms and conditions of sale or any other general rules used by the Supplier shall not be applicable to the extent regulated by these Conditions and are hereby excluded, unless otherwise agreed between the Parties in writing under the pain of nullity.

2.6 Any expressed waiver by Rawlplug in respect of application of any of the provisions hereof may be enforced only in relation to a particular Order.

3. The order process
3.1 Rawlplug may purchase Products by placing an Order. 

3.2 An Order constitutes an offer or an tender to buy Products by Rawlplug. On the date the offer is confirmed by the Supplier, or in case of a tender, the offer of the Supplier is confirmed by Rawlplug, they forms a contract for the sale of Products.

3.3 The Supplier is expected to deliver the Products in full in accordance with the Order, the Agreement and/or this Conditions. No reservations by the Supplier regarding the content of the Order shall be deemed as the confirmation of the Order.

3.4 The Supplier will only sell Products to Rawlplug pursuant to an Order. Rawlplug shall be required to: (1) place Orders with the Supplier; or (2) purchase a particular volume of Products from the Supplier, only if such obligation is expressly specified in the Agreement or an Order.

3.5 Rawlplug may unilaterally and without any costs cancel the Order until the Products are handed to a first carrier. This provision is not applicable to Private Label Products. In case of Order for Private Label Products, Rawlplug can unilaterally cancel the Order only until the Supplier starts performing the Order, and later only after prior consent of the Supplier which shall not be unreasonably withhold.

3.6 Any Forecast provided by Rawlplug will not be binding on either party, unless otherwise provided in the Agreement.

3.7 If the Supplier begins to perform the Order submitted, it is deemed that the Supplier accepted the Order and these Conditions.

4. Delivery
4.1 The Supplier will deliver Products in accordance with the Agreement, the Order and this Conditions (Delivery), to the place (Place of Delivery) and by the time (Due Date) stated in the Agreement or on the Order. The day where the ordered Products have been collected by the Rawlplug from the chosen carrier shall be the Delivery Date. 

4.2 The Supplier must ensure that all Products are packaged and labelled in accordance with requirements provided by Rawlplug, if any, and each time with applicable laws of European Union and/or any Country of Destination.

4.3 Products shall be delivered in packaging ensuring protection against damage during transportation and in a manner specified by Rawlplug Delivery Standards notified to the Supplier, if any.

4.4 The Supplier is responsible for the Products to be allowed to be placed on the market in the Country of Destination and undertakes to provide Rawlplug with any relevant documents required by the laws of European Union, Poland or Country of Destination, such as commercial invoice, packing list, transport documents, certificate of origin, declarations of conformity, manuals and/or other, and/or other documents as may be stipulated in the relevant letter of credit which has been established as the method of payment for the Products, or are otherwise requested by Rawlplug.

4.5 If the Agreement or the Order is silent as to the Term of Delivery, the Delivery shall be on DAP (Incoterms®) – Place of Delivery terms; or if the Place of Delivery has not been specified - registered address of Rawlplug terms.

4.6 Rawlplug may decline to receive the Delivery (collect the Products) if the delay in Delivery exceeds 30 days, and/or where the Delivery is inconsistent with requirements referred to in Clause 4.3 and/or 4.4, and/or due to incompleteness in respect of delivery documents it is impossible or requires too much costs to ascribe the Delivery to particular Order, and/or Products are visibly damaged. Where any delay in Delivery occurs, the Supplier is obliged to inform Rawlplug about the cause of the delay and  anticipated date of such delayed Delivery. Rawlplug is entitled to charge the Supplier with a contractual penalty of 0,5% of the Delivery value for each of the delay. Rawlplug is entitled to charge the Supplier with a contractual penalty of the net value of the Order in case Rawlplug decline to receive the Delivery.

4.7 The Supplier will not be liable for any delay or failure to supply Products arising from Force Majeure circumstances if it notifies Rawlplug of such circumstances promptly (within 3 calendar days) and offers to supply on the same terms when such circumstances have passed. Rawlplug shall, at its sole discretion, accept such offer or propose alternative terms. If such circumstances continue for period of more than 30 days, each party can cancel the affected Order without any liability to the other party. Presence of Force Majeure circumstances in the applicable cases should be evidenced by the relevant chamber of industry and commerce or by other authorized organization or body.

4.8 Rawlplug may control the quality of the Products. Especially Rawlplug may request from the Supplier to be provided with a ‘golden sample’, which is a sample of each Product from a particular order. After the acceptance of the golden sample, the Supplier shall organize the shipment of ordered Products. Release of particular shipment of ordered Products without or before the acceptance of a golden sample by Rawlplug shall not oblige Rawlplug to receive the delivery or bind Rawlplug in any other way, especially shall not be constituted as a sale of Products, as per Clause 3.2.

5. Ownership and risk
5.1 An ownership in Product passes to Rawlplug on the earlier of:
a)    the Delivery Date; or
b)    the date of full payment for that Product.

5.2 Risk in the Products will pass to Rawlplug on the Delivery Date. 

6. Representations and warranties
6.1 Products sold must be: (1) compliant with the Agreement and/or the Order (2) of satisfactory quality and free from any defects; (3) usable safely and without causing death, injury, loss or damage; (4) consistent with any sample or specification previously supplied to and approved by Rawlplug, if any, and (5) compliant with any requirements applicable to the Products in the Country of Destination.

6.2 The Products, their Delivery and performance of the Supplier’s obligations under the Agreement or the Order must comply in each and every respect with all relevant legal, regulatory and other requirements for the time being in force, including applicable health and safety law; applicable environmental law; relevant legal, regulatory and other requirements of the Country of Destination, including: (i) any applicable marking requirement; (ii) Special Markings requirements; (iii) general product safety requirements and/or compliance of the Products with applicable standards, including those provided for in Construction Products Laws and/or Electronic Equipment Law.

6.3 The Supplier is liable for defects in Products if the defect appeared within twelve months from the Delivery Date.

6.4 Rawlplug loses the rights under the statutory warranty for defects in the Product if they shall not notify the Supplier of the defect within 60 days after the discovery of the defect.

6.5 If the Product is defective, Rawlplug may (i) direct the Supplier to remedy the defect by repairing the Product or  by replacing the Product, and claiming contractual penalty in the amount equal to price of defective Products; or (ii) rescind the contract for the purchase of the Product or demand reduction of price, and claim contractual penalty in the amount equal to price of defective Products. 

6.6 If the Supplier shall not respond to Rawlplug’s claims under Clause 6.5 within 7 days, they shall be deemed to be accepted by the Supplier. The Supplier shall make good to Rawlplug’s claims within 14 days from the date of their acceptance, or in another term agreed by the parties.

6.7 Costs of repairing or replacing the defective Products are upon the Supplier. Defective Products shall be returned or scrapped by Rawlplug at the election of the Supplier and on its cost.

7. Customer returns
7.1 Where the Product was defective and Rawlplug incurred costs as a result of Customer’s enforcing its rights under the warranty for physical or legal defects, Rawlplug may claim damages from the Supplier.

7.2 Damages referred to in preceding paragraph shall cover expenses necessary for enforcement of Customer’s rights, including but not limited to costs of repairing or replacing the defective Product, its transport, an amount of price reduction and loss of profits.

7.3 In case referred to in Clause 7.1, Rawlplug may also claim contractual penalty in the amount equal to price of defective Products.

8. Shortages and over-delivery
8.1 In relation to any shortage in the quantity of Products delivered to Rawlplug, all such shortages will be notified to the Supplier in writing immediately, however no later than within 30 days from the Delivery of the products to Delivery Place.

8.2 In such situation, the Supplier shall deliver the Products in deficiency immediately, however no later than within 14 days, unless such delivery is not possible or would require inadequate costs. If the latter is the case, the Supplier shall immediately inform Rawlplug and issue a correcting invoice for the amount of shortages. Clause 7.3 shall applied accordingly. The parties may agree on the other term of delivery of shortages.

8.3 If the Supplier delivers the Products in excess of the quantity specified in the Order (over-delivery), Rawlplug shall be entitled in respect of any such over-delivered Products: (i) to sell the same for same price as quoted for the other Products of the same type if the Supplier fails, at its own expense, to remove such Products within 7 days as of notice of such over-delivery; and (ii) to retain from the proceeds of sale, an amount equivalent to its usual profit margin on such Products, the costs of sale, storage and transport then paying the balance to the Supplier in accordance with the payment terms stated in the Agreement or in this Conditions, or (iii) to refuse to accept the whole Delivery or to refuse to accept over-delivery.

9. Price and payment
9.1 The price for the Products shall be determined in the Agreement. If there is no such price determined, the price in the contract referred in Clause 3.2 shall apply.

9.2 The price for the Product include cost of Delivery, unless the Agreement or applicable Incoterms® provides for otherwise. The price exclude any rates, taxes or duties which may be payable thereon in the Country of Destination and are upon Rawlplug.

9.3 The Supplier will invoice Rawlplug for Products supplied in accordance with the Agreement and the Order(s). Each such invoice will be paid by Rawlplug in accordance with the Agreement or the Order. In case of services provided by the Supplier, the payment is conditional upon provision by the Supplier of certificate of tax residence.

9.4 In case where the price list is incorporated into the Agreement, the prices may be increased only once during a calendar year, and only if prices of raw materials used for manufacturing of Products increase for more than 15%. The increase of raw materials’ prices must be proven by the Supplier. Otherwise, the agreed prices for the Products shall not increase without the consent of Rawlplug

9.5 The payment is deemed made on the date where Rawlplug’s bank account is debited with the amount paid to the Supplier.

10. Intellectual Property
10.1 The Supplier hereby grants (or, to the extent they cannot, they will procure prior to title in Products passing under Clause 5.1, the grant of) to Rawlplug a non-exclusive, sub-licensable, transferable, royalty free, world-wide, perpetual licence to use the Supplier’s IPR subsisting in Products in order to (exploitation fields) market, promote, display, distribute and sell the Products in any territory and in any manner considered appropriate by the Supplier or in accordance with the Supplier’s guidelines, including via the internet or other electronic or digital means and via any platforms for advertising and/or promotion.

10.2 Each Party shall notify the other Party of any infringement or apparent or threatened infringement of or any actions, claims or demands in relation to any IPR owned by the other Party and used in the Products and shall render to such Party, at such Party’s expense all such assistance as the Party may reasonably require in connection therewith.

10.3 If the Supplier is supplying Private Label Products, Rawlplug grants the Supplier a non-exclusive, non-transferable, non-sublicensable, royalty free licence to use and apply the Private Label (exploitation fields) solely in connection with the manufacture and supply to Rawlplug of the Private Label Products. The Supplier shall apply the Private Label only in the form and style supplied by Rawlplug and shall comply with all other reasonable directions in relation to use of the Private Label as may be notified by Rawlplug from time to time. The Supplier acknowledges that Rawlplug is the owner of the Private Label.

10.4 Any Private Label Products not supplied to Rawlplug may not be sold or otherwise disposed of by the Supplier except with the prior agreement of Rawlplug.

10.5 Nothing in the Agreement or these Conditions gives the Supplier any rights to any of the Rawlplug IPR and Rawlplug to any of the Supplier’s IPR.

11. Legal compliance
11.1 In carrying out its obligations under the Agreement Rawlplug and the Supplier will comply in all respects with all applicable legal, regulatory and other requirements, including: (1) those relating to competition and the prohibition of anti-competitive behaviour; (2) those relating to the protection of the environment and the sourcing and nature of raw materials used within the Products; (3) those relating to anti-bribery and anti-corruption.

11.2 The Supplier undertakes to provide all certificates, declarations or other documents that are required by the laws of European Union, Poland or the Country of Destination to accompany the Products or to apply proper markings, including Special Markings, receive necessary authorizations or any other confirmations that enable the Products to be sold in the market of Country of Destination.

11.3 If the party do not agree otherwise in the Agreement, the Supplier or their subsidiary or associate shall be the only nominated manufacturer of the Products, subject to Clause 11.4.

11.4 In case of particular Private Label Product, Rawlplug may be nominated as a manufacturer of the Private Label Product provided that Rawlplug shall be defined as such in the Polish technical assessment (approval), European technical assessment (approval) issued for this Product, or certificates issued by the technical assessment bodies, as defined by Construction Products Law or Electronic Equipment Law. The Supplier entitles Rawlplug to receive such documents in Rawlplug’s own name and shall provide Rawlplug with all necessary documents and assistance in their endeavor. If the Supplier nominates Rawlplug the manufacturer of the Products in any other situation than above, the Supplier shall be liable for any loss sustained by Rawlplug as a result of such nomination and pay Rawlplug a contractual damage of 50.000EUR.

11.5 In case Rawlplug terminates the Agreement for any reason, other than reasons attributable to the Supplier, Rawlplug may purchase and collect Private Label Products already manufactured by the Supplier and/or any packaging or labels bearing Private Label. The payment for such Private Label Products shall be made within 120 days from the Delivery Date.

12. Confidentiality and customer data protection
12.1 The Supplier will ensure that all personal data (as defined in Regulation of European Parliament and Council no. 2016/679 dated on 27th April 2016 as amended from time to time) processed by the Supplier, provided to the Supplier by Rawlplug or a third party, and all personal data generated by the Supplier during the course of the Agreement shall be used by the Supplier only to perform its obligations under the Agreement. The Supplier shall be a controller of these personal data.

12.2 The Supplier shall protect all personal data referred to in Clause 12.1 as administrator thereof and shall implement all technical and operational measures required by statute for the proper protection of personal data.

12.3 The Supplier shall keep confidential all Confidential Information, whether or not it is in permanent or written form, and shall not, without the Rawlplug’s express written consent, sell, use, market or reveal any Confidential Information to any third person for any reason (“Non-Disclosure”).

12.4 The Supplier remain subject to Non-Disclosure obligation after the termination of the Agreement, and these obligations shall remain in force unless and until such time as the Confidential Information stops being secret and confidential and becomes part of the public domain, unless these occurs as a wrongful conduct by Rawlplug or its partners, subcontractors, officers, employees or as a result of breach of Non-Disclosure obligation.

12.5 The Supplier shall immediately return to Rawlplug all copies or samples of Confidential Information that are in the Supplier’s possession at the time of receiving the above request.

12.6 Any breach of the above provisions by the Supplier, entitles Rawlplug to claim contractual penalty of EUR 500,000.

13. Dispute resolution and jurisdiction
If an issue or dispute arises under or with connection to the Agreement, the Order and/or this Conditions between the Supplier and Rawlplug (Dispute), which they are unable to resolve through ordinary discussions within 20 days of the Dispute arising, the Dispute shall be referred to courts competent for the sear of Rawlplug. Notwithstanding the above, Rawlplug shall also have the right to commence court proceedings against the Supplier regarding the Dispute before the courts/tribunals or any competent authority for the seat of the Supplier.

14. Governing law
The Agreement, the Orders and this Conditions, all contractual and non-contractual matters arising in connection with them will be construed and governed according to the laws of Poland.

15. Miscellaneous
15.1 The Supplier will comply with the requirements of the Rawlplug’s Code of Conduct.
15.2    Any notice given by Rawlplug or the Supplier to the other party shall be in Polish or English or accompanied by an accurate translation into English, bear a form of a document and be sent to the e-mail address of the party, as indicated in the Agreement or the Order, unless this Conditions or the Agreement provide for otherwise.
15.5    In relation to the Supplier whose registered seat is outside territory of Poland, in case of any discrepancies between languages versions, English version shall prevail.
3 January 2023

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