General Terms and Conditions of Contracts

“item Polska” sp. z o.o.

For the purposes of these General Terms and Conditions, the following definitions shall apply:

1. T&C – these General Terms and Conditions of Contracts.

2. Company – “item Polska” sp. z o.o. seated in Wrocław, registered in the Register of Entrepreneurs of the National Court Register operated by the District Court for Wrocław-Fabryczna in Wrocław, 6th Economic Department of the National Court Register under number KRS 0000232430.

3. Purchaser – any entrepreneur entering into a Contract with the Company as part of its business activity.

4. Parties – both parties to the Contract (Company and Purchaser).

5. Contract – each contract concluded by the Company whose subject is a paid transfer, by the Company to the other party to the contract, of title to movable item as well as hand-over of such item, and whose other party is not a consumer; in particular, a Contract may be a sales contract or a supply contract within the meaning of the provisions of the Civil Code.

6. Goods – products sold by the Company, offered to the Purchaser.

1. General provisions

1. These T&C specify rules of cooperation between the Parties on the sale of Goods and apply to all contracts concluded with entrepreneurs.

2. These T&C are an integral part of all offers made by the Company as well as each Contract.

3. Once the Purchaser signs the Contract or places an order, it shall mean that the Purchaser consents to and approves these T&C without reservations.

4. These T&C are publicly available in an electronic form on the Company’s website (www.item24.pl) and may be stored and reproduced in the ordinary course of business within the meaning of Article 384(4) of the Civil Code. In addition, these T&C are available in a written from at the Company’s premises.

5. Contractual relationship between the Company and the Purchaser shall be governed solely by the provisions of these T&C. Using any other contractual templates applied by the Purchaser is hereby excluded. Any contractual templates applied by the Purchaser shall be valid only if the Company consents in writing to their applicability.

6. If a separate Contract is concluded, it shall exclude the application of these T&C only to the extent of different provisions laid down therein. Different arrangements between the Parties which have been agreed on and confirmed in writing shall take precedence over the provisions of the T&C.

7. Any information on the Company’s website, publications, presentations or any other materials about the Goods, including but not limited to descriptions, catalogues, brochures, illustrations, photographs, drawings, reproductions, data or technical parameters, prices etc. do not constitute an offer within the meaning of the Civil Code (even if there is a price), but only an invitation to enter into the Contract.

2. Orders and individual contractual arrangements

1. The minimum order value is PLN 200.00 net, except for orders placed through an online shop run by the Company.

2. Placing an order may be preceded by submitting a request for offer to the Company by the Purchaser. In such case the Company’s offer shall be presented according to the Purchaser’s guidelines which the Company is not obliged to verify. 

3. If the Company provides the Purchaser with an offer in response to the Purchaser’s request for offer, placing the order by the Purchaser on the basis of the offer received from the Company shall mean that the offer was accepted without reservations.

4. Before placing the order referred to in paragraph 3 above, the Purchaser shall verify whether the offer provided by the Company is complete and whether it includes all information necessary to assess whether the Goods offered by the Company comply with the guidelines indicated in the request for offer. 

5. If the Purchaser places an order on the basis of the offer received from the Company, the Goods offered by the Company shall be deemed to comply with the guidelines specified in the request for offer also if there are any discrepancies between the offered Goods and the guidelines specified in the request for offer. In such case the Company shall not be liable for any discrepancies. The Purchaser’s reply to the Company’s offer requesting changes shall be treated as a new request for offer from the Purchaser. Application of the provisions of Articles 68(1) and 68(2) of the Civil Code is hereby excluded.

6. Orders may also be placed outside of the procedure referred to in paragraphs 2–7 above.

7. An order shall be deemed to have been accepted if it is confirmed by the Company in writing, by electronic means or by fax. The Contract shall be deemed to have been concluded once the Company confirms the acceptance of the order.

8. Placed orders are binding. 

9. Any change to the offer and/or the order must be made in the form of a document, otherwise null and void, and must be accepted by the other Party. 

10. Any costs incurred in relation with changes to the order made by the Purchaser shall be borne by the Purchaser.

11. The Company reserves the right to charge the Purchaser with the actual costs incurred by the Company if the Purchaser cancels the order, provided that such costs may not exceed the value of the order.

12. Individual arrangements made during negotiations, in particular guarantees of certain characteristics of the Goods or their particular functionalities, as well as information about repair periods and deadlines, shall not be binding until explicitly confirmed by the Company in writing or by electronic means. 

13. Employees of the Company operating outside the Company’s premises are authorized to mediate on accepting orders. 

3. Prices

1. Prices quoted by the Company are in PLN, excluding VAT. Prices apply ex-factory/warehouse of the Company in the country plus VAT and do not include costs of assembly, installation, commissioning (see special Terms and Conditions of Assembly) as well as packing, transportation, shipping and insurance. 

2. If, after the conclusion of the Contract but prior to its implementation by the Company, circumstances independent of the Company arise which justify an increase in the price of the Goods, such as an increase in the costs of raw materials, energy, transport or prices charged by the Company’s subcontractors, the Company shall have the right to unilaterally increase the price of the Goods accordingly, providing the Purchaser with the reason for such price increase. If the Purchaser does not accept the increased price, the Purchaser shall have the right to provide the Company with a notice of withdrawal from the Contract in respect of those Goods whose price has been increased. The Purchaser may exercise the right of withdrawal within 3 working days of receipt of a notification about price increase from the Company.

3. The Company shall not be liable for any damage suffered by the Purchaser as a result of the price change referred to in paragraph 2 above or for any delay in the performance of its obligations arising in connection with the time limit for withdrawal from the Contract reserved for the Purchaser.

4. In the absence of specific arrangements, the Company reserves the right to choose, at its discretion, both the form and the means of transport and the type of packaging. The Company shall not be liable on this account. 

5. Transport costs indicated by the Company are indicative and the Company does not assume any responsibility if such costs change.

4. Terms of payment

1. VAT invoices shall be delivered by post or by electronic means.

2. VAT invoices issued by the Company are payable in their entirety within 14 days of the invoice date. In special cases, the Company reserves the right to establish other terms of payment (prepayment, partial payment, letter of credit etc.). 

3. The payment shall be deemed made once the Company’s bank account is credited with the amount. If the Purchaser is late with payment, the Company may request maximum interest for the delay.

4. In the case of foreign deliveries, the Company reserves the right to require security in the form of opening a confirmed, irrevocable letter of credit in its favour, payable at one of the banks designated by the Company, or to establish other equivalent security.

5. The Company shall credit the Purchaser’s payments first against the debt for the price due and related incidental dues. If there are several debts due, the Company shall have the right to credit the payment to the debt with the earliest due date.

6. The Company shall have the right to refrain from completing further orders of the Purchaser until the Purchaser has paid all outstanding payments to the Company, including any interest due. In addition, if the Purchaser delays with the payment of due invoices, the Company shall have the right to shorten the due date of subsequent invoices or demand prepayment of up to 100% of the order value before forwarding subsequent orders for completion.

7. If, after submitting an offer or after concluding the Contract with the Purchaser, the Company has doubts about the Purchaser’s solvency, the Company shall have the right to demand that the Purchaser pays the entire price or provides security within a time limit specified by the Company before the completion of the order. In addition, the Company shall have the right to withdraw from the Contract upon ineffective expiration of the set deadline for payment of the entire price or provision of security. If the Company has doubts about the Purchaser’s solvency after delivery of the Goods to the Purchaser, the price becomes due on the date on which the Company expressed doubts about the Purchaser’s solvency.

8. In particular, the following shall be considered circumstances justifying doubts about the Purchaser’s solvency:

(a) insolvency within the meaning of Article 11 of the Bankruptcy Law Act of 28 February 2003 (consolidated text of the Journal of Laws of 2020, item 1228, as amended);

(b) risk of insolvency within the meaning of Article 6(3) of the Restructuring Law Act of 15 May 2015 (consolidated text of the Journal of Laws of 2021, item 1588, as amended);

(c) the Purchaser’s delay in payment of the due invoice issued by the Company exceeding 14 days.

9. The Purchaser shall have the right to set off or retain the Goods only if its counterclaims are established by a final judgment, undisputed or recognized by the Company.

5. Reservation of title

1. The Company reserves the title to the sold Goods until the price is paid in its entirety. The title to the Goods shall be transferred to the Purchaser upon payment of the price together with any interest for late payment.

2. The Purchaser shall not have the right to resell the Goods prior to payment of the entire price to the Company.

3. If the Purchaser acts in a manner violating the Contract, in particular if the Purchaser fails to make payments on time, the Company shall have the right to immediately take back the Goods at the Purchaser’s expense.

6. Delivery

1. The Company applies the following terms and conditions for delivery of the Goods, in accordance with Incoterms 2020: 

(a) collection by the Purchaser from the Company’s warehouse (EXW Incoterms 2020) or 

(b) shipping to the Purchaser (FCA Incoterms 2020).

2. The terms and conditions of delivery of the Goods shall be each time specified in the Company’s offer sent in response to the Purchaser’s request for offer or in the Company’s confirmation of acceptance of the Purchaser’s order. 

3. The delivery date is calculated from the day the order is accepted by the Company. Acceptance of the order is subject to provision of all documents the Purchaser is required to provide (such as required permits, exemptions, clarifications, plan approvals), compliance with agreed payment terms and other obligations as well as compliance with any technical issues that the Parties have reserved to clarify when concluding the Contract. If the above conditions are not met in due time, the delivery date shall be extended accordingly. 

4. The Company shall not be liable for non-performance or improper performance of its obligations under the Contract, provided that the non-performance or improper performance is caused by circumstances beyond the Company’s control, despite exercising due care (force majeure). The circumstances referred to above shall be, in particular: acts of nature, disruptions in social order, including strikes and riots, official actions, unfulfilled or untimely deliveries of the Company’s subcontractors, including, in particular, those from item Industrietechnik GmbH/Germany and other unforeseeable and unavoidable events. If such events occur, the Company shall be relieved of its obligations laid down in concluded Contracts for the duration of the disruption and to the extent of its impact.

5. The Company shall promptly and as soon as possible notify the Purchaser of the occurrence of force majeure and its expected duration. The Purchaser may withdraw from the Contract within 7 days of receiving the notification about the occurrence of force majeure. 

6. Changes made to the order by the Purchaser may result in an extension of the order completion date for which the Company shall not be liable.

7. The Goods shall be collected at the Company’s premises promptly after the Company sends a notification in writing or by electronic means which confirms that the Company is ready for collection. The costs of collection shall be borne by the Purchaser. Partial deliveries are allowed to a reasonable extent.

8. If the Purchaser fails or refuses to collect the ordered Goods on the agreed date, the Company shall have the right to withdraw from the Contract after 7 days from the agreed collection date by submitting a notice to the Purchaser within 7 days of the occurrence of the reason for withdrawal. The Company may then demand that the Purchaser pays a contractual penalty in the amount of the agreed value of the order.

9. Returning delivered Goods is possible only in exceptional cases, after making separate arrangements with the Purchaser in this regard. In such case the Purchaser shall be charged with the costs of returning the Goods to the Company’s warehouse in the amount of 20% of the net price in the case of profiles and 10% of the net price in the case of equipment. The Goods may be returned on the condition that they have not been damaged or used, and they must be in the original packaging.

7. Transfer of risk

1. All shipments, including returns, shall be made at the Purchaser’s risk. 

2. The risk of accidental loss of or damage to the Goods shall also pass to the Purchaser if delivery at the Company’s expense has been agreed upon, at the time the Goods are handed over to the Purchaser, carrier or other person acting on behalf of the Purchaser at the Company’s premises, and in other situations at the time the Goods leave the Company’s premises, regardless of the form and means of transportation (own or third-party). In the event of a delay in shipment due to reasons beyond the Company’s control, the risk shall pass to the Purchaser as of the date the Company is ready for shipment. The same rule applies to partial deliveries.

8. Warranty

1. The Purchaser shall inspect the Goods immediately upon hand-over and notify the Company immediately of any noticed defects in writing or by electronic means, under the conditions described below. If the Purchaser fails to notify the Company of defects in accordance with the following conditions, the Goods shall be deemed to have been accepted without reservations, and the Purchaser shall lose its warranty rights.

2. The Company shall not be liable for any damage to the Goods caused during transport. Any loss, shortage or damage to the shipment must be recorded in transport documents. The absence of an appropriate annotation on a transport document shall mean that the Purchaser accepted the Goods without reservations.

3. Subject to paragraph 2 above, any shortage in quantity and type must be reported within 7 days of the date of hand-over of the Goods from the Company’s warehouse, in the case of deliveries on an EXW basis, or the date of receipt of an undamaged shipment, in the case of deliveries on a DAP basis.

4. If a defect other than differences in quantity and type is found, the notification shall be made promptly after the Purchaser discovers the defect, but no later than within 7 days from the hand-over of the Goods or the discovery of the defect if the probable value of the damage exceeds PLN 1 500.00 and no later than within 30 days from the date of hand-over of the Goods or the discovery of the defect if the value of the damage does not exceed PLN 1 500.00. 

5. If the Purchaser finds a defect in quality of the delivered Goods for which the Company is responsible, the Company shall, at its discretion, remove the defect or deliver the Goods free of defects within a time limit agreed on with the Purchaser, taking into account the Company’s technical capabilities. If removing the defect or delivering the Goods free of defects is impossible or would require incurring excessive costs, the Company may withdraw from the Contract.

6. Shortages in quantity for which the Company is responsible shall be replenished within a time limit agreed on with the Purchaser, taking into account the Company’s technical capabilities.

7. Liability under the warranty does not cover damage caused by normal wear and tear, operation of the Goods or other events for which the Company is not responsible.

8. Reporting reservations in terms of quantity or quality shall not entitle the Purchaser to refuse collection of the Goods and withhold payment.

9. Limitation of liability

1. To the fullest extent permitted by law, the Company’s liability for non-performance or improper performance of the Contract, as well as liability on any other grounds (especially tort liability), is hereby excluded, except for wilful misconduct and the cases described in these T&C.

2. The Company’s liability for any damage caused to third parties by the Goods supplied to the Purchaser by the Company, including damage caused to them by a hazardous product, is hereby excluded. 

3. The Company shall not be liable for usefulness and suitability of the Goods for any purposes intended by the Purchaser, nor for the manner in which the Goods are used by the Purchaser, nor shall the Company be liable for the proper installation of the Goods unless the Company itself has performed the installation.

4. If the Company is liable for damage, its liability shall be limited to the actual losses incurred by the Purchaser.

5. To the extent that the Company’s liability is excluded or limited, such exclusion or limitation of liability shall also apply to all entities referred to in Article 474 of the Civil Code, in particular employees, representatives, agents and other persons acting for or on behalf of the Company under contracts with the Company.

10. Copyright

1. The Company shall have the title to and copyright in the copies of drawings, illustrations, photographs, reproductions, calculations, cost estimates and other documents provided or made available to the Purchaser when concluding the Contract covered by these T&C.

2. The documents listed above in paragraph 1 are intended only for the purposes of the Contract between the Parties and may not be used by the Purchaser for other purposes, nor may they be distributed, published, reproduced, modified or made available to third parties, either in whole or in part, using any technology or technical means, without the prior express written consent of the Company.

3. Nothing in the Contract shall be construed as the Company granting a license, transferring copyright or assuming an obligation to grant a license or transfer copyright in the future to any of the works created in the performance of the contractual relationship between the Parties, unless otherwise agreed on by the Parties.

4. The Purchaser shall pay the Company a contractual penalty in the amount of 50% of the net value of a given order each time the Purchaser violates the provisions of paragraph 2 above.

11. Final provisions

1. The place of performing the Contracts between the Parties shall be the registered office of the Company.

2. Any amendments and additions to these T&C may be made unilaterally by the Company at any time, but they shall become binding on the Purchaser, with respect to subsequent orders, at the time of delivery of a notice about changes to the Purchaser in a manner that makes it possible for the Purchaser to become familiar with the amended content of these T&C. For individual orders, the T&C in effect at the time of the order shall apply. A change in the provisions of these T&C after the order has been placed is possible only in the form of an additional agreement between the Parties made in writing, otherwise null and void.

3. Any contractual penalties reserved for the benefit of the Company shall not exclude the Company’s right to claim damages in excess of their amount under the general rules.

4. All disputes arising directly or indirectly out of the concluded Contracts shall be resolved by a court of competent jurisdiction over the Company’s registered office. The Company shall also have the right to seek claims before a court of competent jurisdiction over the Purchaser’s registered office – at its discretion. 

5. Transfer of rights and obligations under the Contract by the Purchaser to third parties requires written consent of the Company, otherwise null and void. 

6. All contractual relationships between the Parties shall be governed by the Polish law. The provisions of the United Nations Convention on Contracts for the International Sale of Goods, drawn up in Vienna on 11 April 1980, and the provisions of the United Nations Convention on the Limitation Period in the International Sale of Goods, drawn up in New York on 14 June 1974, shall not apply to the Contracts.

7. If individual provisions of these T&C are or become invalid, this shall not affect the validity of the remaining provisions. 

Applicable: August 2022

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