General Terms and Conditions May 2018
All deliveries and services rendered by Steambow GmbH, Bäckerstraße 1, A-2433 Margarethen am Moos, Austria, (called “STEAMBOW” in the following) to natural or legal persons (the “CUSTOMER” in the following) who order or purchase a product offered by STEAMBOW (“OBJECT OF PURCHASE”) shall be subject to the following General Terms and Conditions. This shall also apply when not expressly stated in individual cases.
The application of any general and/or special terms of business or any other contract terms of any kind whatsoever of the CUSTOMER and/or third parties is expressly precluded in relation to any business relationship or transaction with STEAMBOW. STEAMBOW expressly rejects the application of any such terms or contractual provisions. The fulfillment of orders or the lack of specific objections on the part of STEAMBOW shall not result in the application of other provisions or contract terms of the CUSTOMER and/or third parties. Supplementary, deviating, or ancillary agreements; assurances; and/or amendments to these General Terms and Conditions, and especially contradictory terms and conditions of the CUSTOMER and/or third parties shall only be valid in individual cases when accepted by STEAMBOW in writing in a specific stamped and signed declaration pertaining only to the sole case in question.
- OBJECTS OF PURCHASE AND ORDERS
All orders shall not come into effect until STEAMBOW issues a written order confirmation (by letter, fax, or e-mail), or by the latest upon fulfillment of the order if no order confirmation is sent. Orders shall only be valid in the scope indicated in the corresponding order confirmation or in the delivery. The CUSTOMER shall have no entitlement whatsoever pertaining to OBJECTS OF PURCHASE that cannot be delivered aside from a refund of the purchase price.
OBJECTS OF PURCHASE shall conform with the general and typical required characteristics. Information in catalogs, brochures, or similar materials and the characteristics of samples (such as color, surface treatment or coating, condition, materials, or dimensions) shall only be binding when specifically and explicitly stated in the order confirmation from STEAMBOW. Orders shall clearly indicate the OBJECT OF PURCHASE and the quantity. Unclear information in orders shall not be interpreted to the detriment of STEAMBOW.
All prices shall be net in euros ex works (EXW) according to Incoterms 2010, unless agreed otherwise. The generally valid prices as set by STEAMBOW at the time that the order is placed shall apply unless agreed otherwise.
- TERMS OF PAYMENT
4.1. All payments shall be made in advance by means of wire transfer in euros to our account unless agreed otherwise in individual cases. The due date shall be the non-binding delivery date specified in the order confirmation, or the date of the handover of the OBJECT OF PURCHASE to the CUSTOMER (EXW Incoterms 2010) at the latest.
Should the CUSTOMER effect payment in a different freely convertible currency than the invoice currency, the CUSTOMER shall bear the foreign exchange risk and all currency differences arising from the payment obligation. The CUSTOMER shall cover all bank fees.
4.2. STEAMBOW shall be entitled to withhold delivery of the OBJECT OF PURCHASE until the full payment of the purchase price. The payment shall be deemed to have been effected when STEAMBOW has free access to the agreed amount.
The CUSTOMER shall pay interest on arrears in the amount of 12% p.a. starting on the first day after the invoice due date. Any claims, counterclaims, or compensation claims of the CUSTOMER shall not entitle the CUSTOMER to offset such claims against amounts due to STEAMBOW or to delay payment past the due date. STEAMBOW reserves the right to cease delivery in the event of repeated delay in payment (more than 2 times), in which case the CUSTOMER shall be entitled to no claims against STEAMBOW relating to the suspension of delivery.
STEAMBOW reserves the right to amend its terms of payment or to cease fulfillment of any agreements with the CUSTOMER when this is justified on the basis of the financial situation or payment history of the CUSTOMER.
5.1. Unless expressly agreed otherwise in writing beforehand, all deliveries shall be made ex works in Margarethen am Moos, Austria (EXW) according to Incoterms 2010. Deliveries will be made by STEAMBOW as dictated by the operations in the facility. The delivery period shall begin on the date of the order confirmation. Indicated delivery dates shall be non-binding and can be found in the order confirmation. Compensation for damages and other claims arising from a lack of fulfillment or late fulfillment are expressly precluded. In the event that an order is not fulfilled, the CUSTOMER shall be entitled to a refund of the purchase price. Partial deliveries shall be permitted and shall be paid in accordance with the terms of payment (as specified in Article 4). The CUSTOMER shall accept such partial deliveries.
5.2. STEAMBOW fulfills all contracts subject to unforeseen events or events beyond its control, such as any instances of force majeure, armed conflict, government interventions and prohibitions, transport and customs processing delays, transport damage, the unavailability of energy, and labor conflicts. These circumstances shall also permit an extension of the delivery deadline when incurred by suppliers.
5.3. Should the dispatch of OBJECTS OF PURCHASE that are ready for delivery, including partial deliveries, be impossible for reasons not attributable to STEAMBOW, should the CUSTOMER not wish the dispatch of or refuse to accept a delivery, or should STEAMBOW be unable to freely access the due purchase price in good time, STEAMBOW shall be entitled to store the goods at the costs and risk of the CUSTOMER, at which point the delivery shall be deemed to have been made. Any additional costs incurred in this shall be billed separately. This shall have no effect on the agreed terms of payment (see Article 4).
5.4. OBJECTS OF PURCHASE can deviate from the defined specifications (Article 2); the CUSTOMER shall not be entitled to assert any claims based on minor deviations. The CUSTOMER shall bear the burden of proof in the event that a material deviation is claimed. STEAMBOW also reserves the right to change the OBJECTS OF PURCHASE and/or their specifications at any time. STEAMBOW will issue no delivery guarantee whatsoever except when agreed in individual cases.
- COMPLAINTS, WARRANTY
The CUSTOMER shall inform STEAMBOW of apparent defects that can be identified by a proper incoming goods inspection within 8 days of the receipt of the goods at their intended destination by e-mail or registered letter. This notice shall include a detailed description of the defect. If no such notice is received, the goods shall be deemed to have been accepted, and any further warranty claims against STEAMBOW shall be precluded. STEAMBOW offers a warranty of 6 months from the date of delivery (EXW, Incoterms 2010) on material and manufacturing defects for hidden defects that cannot be discovered by an ordinary businessperson within this period even with a careful inspection.
Claims above and beyond this warranty, especially claims for compensation for any damages, are expressly precluded. Warranty claims and damage compensation claims against STEAMBOW shall also be precluded when the CUSTOMER has modified the OBJECT OF PURCHASE in any way.
A defect in an OBJECT OF PURCHASE that has been confirmed by STEAMBOW shall be remedied at the discretion of STEAMBOW by means of repair, replacement with non-defective goods, or an appropriate price reduction, if agreed. All defects covered by warranty shall be reported by registered letter containing a detailed description of the defect immediately upon discovery. Returns shall only be permitted with the prior authorization of and in accordance with the instructions of STEAMBOW. Otherwise, the CUSTOMER shall especially bear the shipping costs.
The liability of STEAMBOW shall be limited to damage to the OBJECT OF PURCHASE itself. Compensation for any other damages whatsoever shall be precluded with the exception of liability for personal injury or liability in cases of culpability or gross negligence on the part of STEAMBOW. Total liability shall be limited to the purchase price or to no more than EUR 5,000 as far as permitted by law. The CUSTOMER shall bear the burden of proof with regards to the amount of the damages as well as to the culpability of STEAMBOW.
Under the product liability regulations, STEAMBOW shall only be liable for personal injury and for property damage suffered by a consumer. The modification of the OBJECT OF PURCHASE, failure to comply with owner’s manuals or operating instructions, failure to comply with the product information, the use of parts other than original parts from STEAMBOW, and any use in a manner other than intended by STEAMBOW shall release STEAMBOW from liability. STEAMBOW precludes any and all liability for damages to third parties, subsequent damages, lost profits, or anticipated but not realized savings. The CUSTOMER shall pass the limitation of liability on to any subsequent customers in the event of sale.
- INDUSTRIAL PROPERTY RIGHTS
8.1. STEAMBOW reserves all intellectual property rights relating to the OBJECTS OF PURCHASE and other products, components, processes, plans, drawings, and other technical documents as well as to samples, catalogs, brochures, illustrations, and the like (called “STEAMBOW Documents” below) including patents, brand names, samples, copyrights, designs, know-how, and commercial, technical, and process-related information. The CUSTOMER shall be granted no rights to such (in particular no licenses of any kind) aside from the right to use the OBJECTS OF PURCHASE as intended. STEAMBOW retains the sole authorization to use these rights, profit from these rights, to file patents, and to exercise or defend its rights in any other manner. STEAMBOW also reserves all rights to the STEAMBOW Documents, especially copyrights and usage rights. The CUSTOMER may use no STEAMBOW Documents for any of its own purposes or purposes of third parties, especially as a direct or indirect template, sample, or aid without the prior, express, and written permission to do so in each individual case, and may not duplicate, store, or disseminate any STEAMBOW Documents without prior, express, and written permission in each individual case.
The CUSTOMER expressly recognizes the rights of STEAMBOW to all such documents and its obligation to absolute secrecy upon acceptance of these documents at the latest. The CUSTOMER shall not make the STEAMBOW Documents available to third parties in whole or in part or use them for any purpose other than the purpose for which they were provided by STEAMBOW without the prior written consent of STEAMBOW.
This prohibition on dissemination shall not apply to any advertising materials provided by STEAMBOW for the purposes of distribution to end customers, such as product photos, product brochures, catalogs, and other advertisements.
8.2. STEAMBOW shall not be liable for the violation of industrial property rights of third parties when STEAMBOW manufactures or sells goods for the CUSTOMER on the basis of drawings, drafts, models, specifications, or other manufacturer information. The CUSTOMER shall indemnify STEAMBOW against all liability and/or claims in such cases.
STEAMBOW Documents do not include any owner’s manuals or operating instructions that are included with the OBJECTS OF PURCHASE. STEAMBOW retains ownership and all rights to the content, but the CUSTOMER shall always pass these documents on to its purchasers together with the OBJECTS OF PURCHASE.
Should STEAMBOW authorize the dissemination of STEAMBOW Documents, the CUSTOMER shall inform its purchaser of the rights of STEAMBOW as outlined above and shall obligate its purchaser to comply with and pass on the provisions above. This shall especially apply to the obligation to require each further purchaser to comply with the provisions above. This shall not apply to any advertising materials provided by STEAMBOW for the purposes of distribution to end customers, such as product photos, product brochures, catalogs, and flyers.
8.3. The CUSTOMER shall not modify brands or other marks of STEAMBOW, remove them from the OBJECT OF PURCHASE or the packaging, or use them separately from the OBJECT OF PURCHASE. The CUSTOMER is entitled and obligated to use the brands and other labels applied by STEAMBOW to the OBJECT OF PURCHASE or its packaging in unmodified form and to use brands or labels applied to the OBJECT OF PURCHASE or packaging to identify an unmodified product or product that was packaged at the factory, namely in the manner and form that such are applied to the OBJECT OF PURCHASE and packaging upon delivery. Any other use brands, names, logos, or other marks of STEAMBOW is prohibited without the prior written authorization of STEAMBOW in each individual case, and is only allowed as specified in the respective declaration of consent.
The CUSTOMER shall use all STEAMBOW Documents and all commercial, technical, and other information that comes into its possession or to its knowledge in the course of the business relationship with STEAMBOW solely for the proper and normal use of the rendered deliveries and services. The CUSTOMER shall treat these at least with the same care as its own operational and business secrets, in any case at least with due care, and shall only make them available to employees who need them to enable proper and normal use, shall not make them available to third parties, and shall protect them against theft.
After the termination of this agreement or of the collaboration, the CUSTOMER shall return all documents containing confidential information from STEAMBOW and shall permanently delete all confidential information held in electronic form; the CUSTOMER shall have no right to retain such information.
The CUSTOMER is not permitted to make reference to STEAMBOW in advertising, external communication, or other publications without the prior written authorization of STEAMBOW in each individual case. This prohibition shall not cover the use of STEAMBOW marks as approved by STEAMBOW, provided that this use does not create the impression that the measure in question comes directly from STEAMBOW.
- RETENTION OF OWNERSHIP
STEAMBOW retains ownership of the OBJECT OF PURCHASE until complete payment of the purchase price by the CUSTOMER. In the event that the OBJECT OF PURCHASE is processed further or permanently integrated into another item, STEAMBOW shall acquire proportionate ownership of the new overall product in accordance with the value of the OBJECT OF PURCHASE relative to the total value of all components. The CUSTOMER is entitled to sell the OBJECT OF PURCHASE or overall products created by processing the OBJECT OF PURCHASE as part of its ordinary business operations subject to the retention of ownership until further notice. The CUSTOMER shall assign all claims arising from the sale of the OBJECT OF PURCHASE in separate form or as part of an overall product to STEAMBOW in the amount of the value of the OBJECT OF PURCHASE until full payment of the purchase price. The CUSTOMER is entitled and obligated to collect these assigned claims from its purchasers until further notice. STEAMBOW shall be entitled to inform the CUSTOMER’S purchasers of this assignment at any time, and STEAMBOW shall be entitled to secure the OBJECT OF PURCHASE or the overall product or to demand direct payment to STEAMBOW by the CUSTOMER’S purchasers in the amount of the claim in the event that the CUSTOMER fails to fulfill its contractual obligations, in particular when the CUSTOMER handles the OBJECT OF PURCHASE improperly or fails to pay the purchase price on time. The surrender and securing of the OBJECT OF PURCHASE shall not be construed as withdrawal from the contract and shall not release the CUSTOMER from its obligations, in particular the obligation to pay the purchase price.
- SUPPLEMENTARY PROVISIONS, REPAIRS
11.1. STEAMBOW is generally prepared to accept OBJECTS OF PURCHASE for repair under the following conditions. Any repair approval shall only be binding with written confirmation and under the terms specified in this confirmation (cost estimate), especially the time required and the costs.
11.2. Estimates will only be prepared on the basis of a concrete inquiry. The placement of an order, the formulation of an order confirmation, and the effecting of a delivery shall all not obligate STEAMBOW to repair the OBJECT OF PURCHASE in question.
Estimates will only be provided in written form and are only binding in written form. Verbal information about the expected repair costs or flat fee offers are non-binding.
11.3. STEAMBOW will deliver the OBJECT OF PURCHASE to the CUSTOMER immediately after the repair or inspection. The time periods specified for repairs in an estimate are guidelines. Fixed dates will not be agreed in general.
11.4. The delivery to STEAMBOW and return of the OBJECT OF PURCHASE to the CUSTOMER shall take place at the costs and risk of the CUSTOMER.
11.5. Replaced parts shall automatically become the sole property of STEAMBOW without compensation and shall be at the sole disposal of STEAMBOW.
11.6. No warranty whatsoever shall be provided for temporary repairs, such as the replacement of wearing parts based on an express request. Wearing parts have a limited service life based on the respective technical specifications.
11.7. STEAMBOW warrants its repairs and the installed parts in accordance with the legal requirements from the date of handover (dispatch to the CUSTOMER; EXW Incoterms 2010). The warranty shall generally be honored by way of the repair of proven defects within a reasonable time. Should a repair be impossible or involve disproportionate costs, an appropriate replacement shall be provided but shall not exceed the amount paid to STEAMBOW for the repair of the OBJECT OF PURCHASE. The CUSTOMER shall deliver the OBJECT OF PURCHASE in question to STEAMBOW’S facility at its own cost and risk for the rendering of warranty services. Materials provided by the CUSTOMER shall not be covered by any warranty. Claims under the warranty shall expire when
- apparent defects are not reported in writing within 8 days after receipt (e-mail or registered letter).
- the parts affected by the defect are processed, modified, or repaired in any way by third parties or the CUSTOMER.
These provisions shall only apply to consumers in so far as they do not contravene mandatory legal provisions, in particular the provisions of consumer protection law.
- DATA PROTECTION
The CUSTOMER authorizes STEAMBOW to save and process the data it provides under the business relationship, including any personal data of the CUSTOMER himself or herself or of the CUSTOMER’S employees and business partners
– for the purposes of accounting and the maintenance of customer records at STEAMBOW, as well as to serve as references for advertising purposes. The data will be used by STEAMBOW to fulfill the legal regulations, to process payment transactions, and for advertising and reference purposes. The CUSTOMER ensures that it has the consent of its customers for the processing of this data and shall indemnify STEAMBOW against all related claims.
- ASSIGNMENT OF RIGHTS AND OBLIGATIONS
The CUSTOMER shall only be permitted to assign its rights and obligations under these General Terms and Conditions and from the order to third parties with the prior written consent of STEAMBOW in each individual case. STEAMBOW shall be entitled to assign its rights and obligations under these General Terms and Conditions and from an order to an affiliate of STEAMBOW or to a third party at any time without the consent or approval of the CUSTOMER.
- FINAL PROVISIONS
14.1. Should one or more provisions of these General Terms and Conditions prove to be invalid, unlawful, or unenforceable for any reason whatsoever, this shall have no effect on the other provisions, and these General Terms and Conditions shall be interpreted as if they contained no invalid, unlawful, or unenforceable provisions. The Contracting Parties are independent contract partners and are not affiliated with one another on the basis of this business relationship, and also have no labor-related or representation ties.
14.2 The provisions of these General Terms and Conditions shall only apply to consumers in so far as they do not contravene mandatory legal provisions, in particular the provisions of consumer protection law.
14.3. The failure to enforce or the late enforcement of a right under the legal agreement between the Contracting Parties shall not be construed as the waiver of this right in future by the Contracting Party in question. The waiver of a right shall only be effective when agreed in writing between the Contracting Parties
14.4. Articles 6, 7, 8, and 9 shall remain in force after the termination of this agreement or the collaboration between the CUSTOMER and STEAMBOW, regardless of the grounds for termination. The CUSTOMER shall ensure that these obligations are passed on to every further purchaser.
- JURISDICTION, APPLICABLE LAW
This agreement shall be subject to Austrian law. The provisions of the United Nations Convention on the International Sale of Goods and the choice of law rules of international private law are expressly precluded.
The sole court of jurisdiction for all disputes arising from or in relation to the business relationship between the CUSTOMER and STEAMBOW shall be Vienna, Austria, provided that the CUSTOMER is domiciled in an EU member state, Iceland, Norway, or Switzerland. If the CUSTOMER is domiciled in another country, all disputes arising from or in relation to the business relationship between the CUSTOMER and STEAMBOW shall be settled with final effect according to the Rules of Arbitration of the International Chamber of Commerce by an arbiter appointed according to these rules. The place of arbitration is Zurich, Switzerland. The language of the proceedings shall be German.
If the CUSTOMER is a consumer in the sense of Article 15 of Council Regulation (EC) No. 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, the place of jurisdiction shall be the court presiding over the residence of the CUSTOMER.