(Last revised: January 2023)
1.1. These General Terms and Conditions (GTC) as amended from time to time shall apply exclusively to all deliveries and services provided by item international Handel GmbH, FN 81994f, Hollabererstrasse 4, 4021 Linz (ITEM) to companies (CUSTOMER or CUSTOMERS) as well as to all other transactions between ITEM and another company. The version valid at the time when the respective contract is concluded shall apply.
1.2. ITEM only concludes contracts based on these GTC. The CUSTOMER expressly understands and acknowledges that these GTC shall be deemed incorporated into each contract, forming an integral part thereof. This shall also apply in the event that the CUSTOMER refers to its own general terms and conditions.
1.3. These GTC shall also apply to all contractual relationships in the future without there being a need for pointing this fact out in each contract.
1.4. We accept no general terms and conditions of the CUSTOMER, even if we have knowledge of them, unless expressly agreed otherwise in writing in individual cases. ITEM hereby expressly objects to any general terms and conditions of the CUSTOMER. There is no need to further object to any GTC of the CUSTOMER.
2.1. ITEM quotations are non-binding and valid on the quotation date, unless agreed otherwise in writing between ITEM and the CUSTOMER.
2.2. CUSTOMER orders sent to ITEM are binding offers to enter into a contract with ITEM. A contract between the CUSTOMER and ITEM shall not come into effect until ITEM has confirmed it by signing the written purchase order. ITEM is not obliged to accept any orders.
2.3. ITEM is entitled to engage third parties (subcontractor) for fulfilling, in whole or in part, ITEM’s contractual obligations. Only ITEM will pay the third party. No contractual relationship of any kind will exist between the third party and the CUSTOMER.
3.1. The delivery period agreed upon by ITEM and the CUSTOMER begins on the date on which the order is confirmed by ITEM, but not before ITEM and the CUSTOMER have agreed on all details relating to the order.
3.2. Binding delivery dates are subject to an express agreement and written confirmation by ITEM. Proper fulfillment of the CUSTOMER’s obligations is a prerequisite for the fulfillment of ITEM’s delivery obligations.
3.3. The CUSTOMER shall ensure acceptance of the goods delivered by ITEM by the CUSTOMER itself or a person appointed/authorized by the CUSTOMER. The person who signs the delivery note and accepts delivery for the CUSTOMER will be deemed to have been authorized by the CUSTOMER to accept the goods.
3.4. In the event of impeded or prevented delivery, in whole or in part, due to unforeseeable events and obstacles that are not attributable to ITEM or due to circumstances beyond ITEM’s control, ITEM shall have the right to withdraw from the contract without the CUSTOMER being entitled to a substitute or subsequent delivery or any other claims for compensation (such as damages etc.) arising therefrom.
3.5. Unforeseeable events and obstacles which are not attributable to ITEM and/or delays as well as any circumstances beyond the control of ITEM which lead to a delay of the agreed delivery date shall not entitle the CUSTOMER to claim compensation of any kind (such as damages etc.) from ITEM. ITEM undertakes to deliver the goods as soon as possible once the unforeseen obstacle that is not attributable to ITEM ceases to exist.
3.6. ITEM shall be entitled to make partial deliveries. ITEM shall be entitled to invoice partial deliveries separately according to section 10 of these provisions, with the terms of payment being fully applicable.
3.7. ITEM takes out, at its own expense, cargo insurance providing minimum coverage for the goods (Institute Cargo Clause C) against the CUSTOMER’s risk of loss or damage while the goods are in transit until they arrive at the place/port of destination. Should the CUSTOMER request a higher level of insurance coverage, the CUSTOMER must promptly notify ITEM in writing and thereafter make its own additional insurance arrangements.
3.8. It is the responsibility of ITEM, in properly exercising its discretion, to select the packaging as well as the delivery method.
3.9. All deliveries are made from our Logistics-Center in Fuchsengutstrasse 7D, 4030Linz, Austria, CIP agreed destination, duty unpaid, Incoterms® 2020 apply.
4.1. All deliveries are made from our Logistics-Center in Fuchsengutstrasse 7D, 4030Linz, Austria, CIP agreed destination, duty unpaid, Incoterms® 2020 apply.
4.2. If the CUSTOMER does not accept in time or in full goods delivered properly, ITEM shall be entitled to retrieve the goods and/or put them into storage at the expense and risk of the CUSTOMER. Such goods in storage shall be considered to have been delivered in conformity with the terms of the contract. ITEM shall also be entitled – but not obliged – to withdraw from the contract and resell the goods after having set a grace period of fourteen days. In this case, the CUSTOMER shall pay a penalty equivalent to 15 % of the purchase price as compensation for the increased effort required and a potential shortfall in proceeds without prejudice to the right to assert further claims.
5.1. ITEM and the CUSTOMER stipulate the price for each order in a contract. With respect to transport costs, the price agreed in writing between ITEM and the CUSTOMER shall apply.
5.2. Prices are in EUROS, unless ITEM and the CUSTOMER agree in writing on another currency. ITEM assumes no liability for any printing and/or clerical errors.
5.3. Should additional costs arise in the course of supplying the goods due to economic, logistical or technical reasons, ITEM shall notify the CUSTOMER thereof in writing in advance and charge the CUSTOMER for these costs thereafter.
6.1. ITEM gives a 6-month guarantee for defects that are present upon transfer of the movable goods.
6.2. Upon delivery, the CUSTOMER shall promptly check the goods delivered for completeness, accuracy and absence of defects. The CUSTOMER shall give written notice of any defect detected without delay, but not later than 48 (forty-eight) hours after receipt of the goods, failing which any claims to which the CUSTOMER is entitled based on a proper investigation of detectable defects will lapse.
6.3. If unjustified notice of defects is given, all expenses and costs associated with processing and investigating such a notice of defects incurred by ITEM shall be borne by the CUSTOMER. The CUSTOMER shall indemnify and hold ITEM harmless in this regard.
7.1. ITEM shall only compensate the CUSTOMER for damage (material damage and pure financial loss) it caused in connection with the performance of the contract with the CUSTOMER if such damage results from gross negligence or willful misconduct. Liability for gross negligence is limited to the remuneration payable under the respective contract. ITEM will not compensate the CUSTOMER for damage (material damage and pure financial loss) caused in connection with the performance of the contract with the CUSTOMER if such damage results from negligence. These limitations of liability do not apply to any compensation for personal injury.
7.2. ITEM will not compensate the CUSTOMER for damage arising from any improper handling, storage, overstraining, maintenance or incorrect further processing of the goods on the part of the CUSTOMER. The CUSTOMER shall indemnify and hold ITEM harmless in this regard.
7.3. Moreover, ITEM will not compensate the CUSTOMER for the impacts of losses incurred in connection with the execution of an order and arising from circumstances beyond the control of ITEM and thus not attributable to ITEM (e.g., force majeure, blackout, etc.). In this regard, the CUSTOMER shall not have a right to claim damages from ITEM and/or assert warranty claims.
7.4. The liability provisions set out above shall apply, to the same extent, also to ITEM’s subcontractors.
8.1. The CUSTOMER shall, upon receipt, immediately inspect the goods for transport damage and follow the written instructions “TRA How to handle damage reports”, which are provided by ITEM in the course of the performance of the contract. Any transport damage detected must be reported to ITEM in writing, with photographs showing the damage, within 48 (forty-eight) hours at the latest, failing which any claims to which the CUSTOMER may be entitled based on a proper investigation of visible transport damage will lapse.
9.1. ITEM processes the personal data required for the purpose of contract performance, such as name, address, telephone number, email address, etc. in compliance with the applicable statutory provisions relating to data protection and its data privacy statement.
10.1. ITEM shall receive, from the CUSTOMER, payment of the price for the goods contractually agreed by ITEM and the CUSTOMER.
10.2. ITEM shall issue an invoice that entitles to deduct input tax and contains all elements required by law.
10.3. Unless agreed otherwise in writing by ITEM and the CUSTOMER, the agreed price shall be due and payable according to the payment terms agreed upon in writing between ITEM and the CUSTOMER.
10.4. In the case of special orders having been placed by the CUSTOMER with ITEM in writing, the payment terms agreed upon in writing by ITEM and the CUSTOMER shall apply. Irrespective of the payment terms agreed upon by ITEM and the CUSTOMER, the CUSTOMER shall, however, immediately make a down payment equivalent to 15% of the total order value upon receipt of the order confirmation from ITEM. Should the CUSTOMER cancel the special order/the contract, ITEM will keep the down payment equivalent to 15% of the total order value already paid as cancellation fee. The CUSTOMER shall indemnify and hold ITEM harmless in this regard.
10.5. In the event that invoices are not paid, ITEM is no longer under obligation to provide further goods and services. The assertion of claims resulting from the non-payment – e.g., non-payment of the total outstanding remuneration for the complete goods and services agreed, irrespective of those actually provided – is not affected thereby.
10.6. Any follow-on and ancillary contracts to already existing contracts will not affect the payment deadlines for the prices to be paid according to the original contract.
10.7. If the CUSTOMER is in default, statutory default interest at the rate applicable to business-to-business transactions shall be payable. Moreover, the CUSTOMER shall reimburse ITEM for any dunning and collection charges as far as such charges are necessary for appropriate legal action upon default of payment. This compensation for collection costs according to § 458 UGB (Austrian Commercial Code) shall amount to the lump-sum of EUR 40.00. The assertion of further rights and claims remains unaffected thereby.
10.8. If the CUSTOMER is in default, ITEM will be entitled to require the CUSTOMER to pay immediately for all goods and services provided under other contracts concluded with the CUSTOMER.
10.9. In the event of non-delivery of the contracted goods and services due to reasons arising from or within the sphere of the CUSTOMER or because of a legitimate early termination of the contractual relationship by ITEM, ITEM will still be entitled to claim full payment of the agreed invoice amount.
10.10. The CUSTOMER shall have no right to offset any debts owed to ITEM.
11.1. The contractual relationship normally ends upon provision of the agreed service (delivery of goods) by ITEM.
11.2. ITEM shall be entitled to terminate the contract for cause with immediate effect by giving written notice to the CUSTOMER if
a) performance of the service (delivery of the goods) either becomes impossible due to reasons attributable to the CUSTOMER or is further delayed, even after a grace period of fourteen days;
b) the CUSTOMER, despite a written warning and being granted a grace period of14 (fourteen) days, continues to breach material obligations under this contract, such as e.g., payment of an amount due or obligations to cooperate;
c) there are legitimate concerns about the CUSTOMER’s creditworthiness and the CUSTOMER, despite ITEM’s request, refuses to make down-payments or provide adequate collateral before ITEM delivers a performance.
11.3. The CUSTOMER shall be entitled to terminate the contract for cause with immediate effect, by giving written notice, under the circumstances defined by law.
11.4. The CUSTOMER shall, in principle, not be entitled to withdraw from the contract with immediate effect except for cause. If the CUSTOMER withdraws from the contract nonetheless, the withdrawal will not be legally effective without the consent of ITEM. Unless agreed otherwise in writing between the Parties, the CUSTOMER shall pay ITEM a cancellation fee equivalent to 15% of the order total in the case of such a withdrawal from the contract.
12.1. The goods supplied by ITEM shall remain the sole and unrestricted property of ITEM until the full purchase price is paid. Until full payment is made, the goods will only be entrusted to the CUSTOMER’s care and shall not be sold or pledged or given away or loaned. The CUSTOMER shall not be entitled to dispose of such goods without the prior express consent of ITEM and bears the full risk for the goods entrusted to it in every respect, including, but not limited to, the risk of destruction, loss and deterioration.
12.2. In the event of seizure of the goods covered by the reservation of ownership, the CUSTOMER shall immediately take all measures required for the release of the seized goods. Moreover, the CUSTOMER shall promptly notify ITEM of the seizure of the goods.
13.1. These GTC and the contracts concluded between ITEM and the CUSTOMER on the basis of these GTC shall be governed by and construed in accordance with the Austrian law only, giving no effect to the UN Convention on Contracts for the International Sale of Goods or other conflict of laws rules.
13.2. The competent court at the location of the registered office of ITEM shall have exclusive jurisdiction to settle any disputes between ITEM and the CUSTOMER arising in connection with this contractual relationship.
13.3. The contract language is German unless another language, e.g., English, was expressly agreed in writing.
13.4. All ancillary agreements or amendments or supplements must be in writing in order to be legally effective. The same applies to any waiver of this written form requirement.
13.5. If any provision of these terms and conditions is or becomes ineffective, invalid and/or void, the legal effect and validity of the remaining provisions shall remain unaffected thereby. The contracting parties shall replace the ineffective, invalid and/or void provision (the provision that has become ineffective, invalid and/or void) by a provision that is legally effective, and valid, and compliant with the replaced provision in its economic impact, as far as possible and permitted by law.
General Terms & Conditions