TERMS AND CONDITIONS (T&C)
General terms and conditions (last updated: May 2018)
Please note that Steambow GmbH is an Austrian company operating according to Austrian law. The below is a direct translation of the German original of Steambow’s Allgemeine Geschäftsbedingungen (AGB). All deliveries and services of Steambow GmbH, at Bäckerstraße 1, 2433 Margarethen am Moos, Austria, (hereinafter referred to as “STEAMBOW”) to the natural or legal person (“CUSTOMER”) who orders/purchases a product offered by STEAMBOW (“OBJECT OF PURCHASE”), are based on the following general terms and conditions (“T&C”). This also applies if no separate reference is made to the T&C in individual cases.
The application of other general and/or special business and/or other conditions of the CUSTOMER and/or third parties, of whatever kind, is expressly excluded with regard to business relationships with STEAMBOW. STEAMBOW hereby expressly objects to the applicability of these other conditions. Fulfillment actions or silence on the part of STEAMBOW also do not lead to the applicability of other conditions of the CUSTOMER and/or third parties. Supplementary or deviating agreements, side agreements, assurances and/or changes to these terms and conditions, in particular contradicting terms and conditions of the CUSTOMER and/or third parties, require the express, written and company-signed recognition of STEAMBOW in each individual case in order to be legally effective.
2. OBJECTS OF PURCHASE AND ORDERS
All orders only become legally effective with written confirmation (letter or fax, but also e-mail) from STEAMBOW, in the absence of such confirmation at the latest when the delivery is made. However, this always only applies to the extent of the corresponding order confirmation or delivery. With the exception of a corresponding reimbursement of the purchase price, the CUSTOMER is not entitled to any claims with regard to PURCHASE ITEMS that cannot be delivered.
OBJECTS OF PURCHASE correspond to their general and usually assumed properties. However, information in catalogs, advertising brochures and the like, or properties of samples (such as color, type of surface coating and properties, materials or dimensions) are only binding if STEAMBOW expressly refers to them in the order confirmation. Orders and commissions must clearly indicate the OBJECT OF PURCHASE as well as quantity. Unclear information in the order must not be interpreted to the detriment of STEAMBOW.
Unless otherwise agreed, all prices are net in euros ex works (EXW) in accordance with INCOTERMS 2010. Unless otherwise agreed, the prices of STEAMBOW valid at the time of the order apply.
4. PAYMENT TERMS
4.1. Unless otherwise specified in individual cases, payments are to be made in advance in euros by bank transfer to our business account. The due date is the non-binding delivery date stated in the order confirmation or, at the latest, the day on which the OBJECT OF PURCHASE is handed over to the CUSTOMER (EXW Incoterms 2010).
If the CUSTOMER pays in another freely convertible currency than the invoice currency, the CUSTOMER bears the exchange rate risk and all currency differences arising from the payment obligation. Bank charges are borne by the CUSTOMER.
4.2. STEAMBOW is entitled to withhold delivery of the OBJECT OF PURCHASE until the purchase price has been paid in full. The free availability of the agreed amount to STEAMBOW is deemed to be the payment made.
The CUSTOMER acknowledges his obligation to pay default interest of 12% p.a. from the due date. Any claims, counterclaims or remuneration claims on the part of the CUSTOMER do not entitle the customer to offset or postpone payments beyond their due date. STEAMBOW reserves the right to stop deliveries in the repeated (more than twice) case of payment default without the CUSTOMER having any claims against STEAMBOW as a result.
STEAMBOW reserves the right to change payment terms or to suspend the fulfillment of any agreement with the CUSTOMER if this appears necessary due to the financial situation or payment history of the CUSTOMER.
5.1. Unless otherwise agreed in writing in advance, all deliveries are made in accordance with Incoterms 2010 ex works Margarethen am Moos (EXW). Deliveries are carried out by STEAMBOW according to operational capacity. The delivery time begins on the date of the order confirmation. Scheduled delivery dates are non-binding and stated in the order confirmation. Compensation for damages or other claims due to non-fulfillment or late fulfillment are expressly excluded. In the event of non-fulfillment, the CUSTOMER is entitled to a corresponding purchase price refund. Partial deliveries are permitted and must be paid in accordance with the terms of payment (in accordance with Article 4). The CUSTOMER undertakes to accept these accordingly.
5.2. Fulfillment of the contract on the part of STEAMBOW may be subject to unforeseeable circumstances, or circumstances that are independent of the will of the parties, such as all cases of force majeure, warlike events, official interventions and prohibitions, transport and customs clearance delays, transport damage, lack of energy and labor disputes. The aforementioned circumstances also entitle STEAMBOW to extend delivery deadline if they occur at the suppliers level.
5.3. If the dispatch of PURCHASE OBJECTS, in particular partial deliveries, are not possible through no fault of STEAMBOW, or not requested by the CUSTOMER; if the CUSTOMER refuses to accept or STEAMBOW cannot freely access the amount of the purchase price due in time, STEAMBOW may store the goods at the expense and risk of the CUSTOMER, whereby delivery is deemed to have been made. The CUSTOMER may then be charged with additional costs caused by this. The agreed terms of payment (see Article 4) do not change as a result.
5.4. OBJECTS OF PURCHASE may deviate from specifications (Article 2) without the CUSTOMER being entitled to any claims resulting from insignificant deviations. The burden of proof for a significant deviation lies with the CUSTOMER. STEAMBOW also reserves the right to change the OBJECTS OF PURCHASE and/or their specifications at any time. Unless expressly agreed in each individual case, STEAMBOW does not give any delivery guarantee.
6. COMPLAINTS OF DEFECTS, WARRANTY
Obvious defects detected when the goods are properly inspected must be reported by the CUSTOMER within 8 days of receipt of the goods in the form of an email or a registered letter, stating the defect in detail, otherwise the goods shall be deemed approved and further warranty claims against STEAMBOW are excluded. For hidden defects that cannot be discovered within this period even with the most careful inspection by a proper operator STEAMBOW provides a 6-month warranty from the delivery date (EXW, Incoterms 2010) for material or manufacturing defects.
Claims beyond the guarantee, in particular any claims for damages, are expressly excluded. Warranty and claims for damages against STEAMBOW are also excluded if the CUSTOMER has changed the OBJECT OF PURCHASE in any way by working or processing.
A defect in an OBJECT OF PURCHASE confirmed by STEAMBOW can be remedied, at STEAMBOW’s discretion, through repair, replacement delivery of non-defective goods or, by agreement, through an appropriate price reduction. All warranty defects are to be reported immediately after discovery by registered letter with detailed information on the defect. Returns may only be made with the consent of, and according to instructions from, STEAMBOW, otherwise the CUSTOMER has to bear the shipping costs themselves.
STEAMBOW’s liability remains limited to damage to the OBJECT OF PURCHASE itself. With the exception of liability for personal injury, as well as in cases of fault or gross negligence on the part of STEAMBOW, any other compensation is excluded. As far as legally permissible, liability is limited to the purchase price in total, but to a maximum of EUR 5,000. The burden of proof, both for the amount of damage and for STEAMBOW’s fault, lies with the CUSTOMER.
In the context of product liability, STEAMBOW is only liable for personal injury and for property damage suffered by a consumer. Changes to the delivery item, non-compliance with the instructions for use, non-compliance with the product information, the use of non-original STEAMBOW parts or non-intended use all exempt STEAMBOW from liability. STEAMBOW’s liability for damage to third parties, consequential damage, loss of profit, or anticipated savings that didn’t occur, is excluded. The CUSTOMER undertakes to transfer the limitation of liability to later customers in the event of a resale.
8. INTELLECTUAL PROPERTY RIGHTS
8.1. All intellectual property rights in connection with the PURCHASE ITEMS as well as other products, components, processes, plans, sketches and other technical documents as well as samples, catalogs, brochures, images and the like (“STEAMBOW documents”) (including patents, brands, samples, Copyrights, designs, know-how and commercial, technical and procedural information) belong solely to STEAMBOW, and the CUSTOMER is not granted any rights (in particular no further license rights) with the exception of the intended use of PURCHASE ITEMS. Only STEAMBOW is entitled to use these rights, to exploit them and to register industrial property rights or to protect its rights in any other way. STEAMBOW also reserves all rights, in particular copyrights and rights of use, to STEAMBOW documents. Without express prior written consent in each individual case, STEAMBOW documents may not be used by the CUSTOMER for any own or third-party purposes – in particular not as direct or indirect templates or auxiliary means – duplicated, saved or reproduced.
Upon receipt of these documents at the latest, the CUSTOMER acknowledges STEAMBOW’s rights to them and the duty of absolute confidentiality. The CUSTOMER undertakes to make the STEAMBOW documents available to third parties neither as a whole or in parts, nor to use them outside the purpose for which they were handed over, without the prior written consent of STEAMBOW.
Any advertising material made available by STEAMBOW for the purpose of passing it on to end customers, such as in particular product photos, product brochures, catalogs or advertising brochures, is excluded from this prohibition.
8.2. STEAMBOW is not liable for the infringement of commercial property rights of third parties if STEAMBOW manufactures or markets goods for the CUSTOMER on the basis of drawings, drafts, models, specifications or other manufacturer information. In such cases, the CUSTOMER releases STEAMBOW from any liability or claims.
STEAMBOW documents do not include any operating instructions and/or user manuals that may be enclosed with the ITEMS OF PURCHASE. The ownership and the rights to the content remain with STEAMBOW, but the CUSTOMER undertakes to always pass these on to his customers with the OBJECTS OF PURCHASE.
If STEAMBOW documents are released, the CUSTOMER is obliged to inform his customers of the aforementioned rights of STEAMBOW and to oblige them to comply with and pass on the above provisions. This applies in particular to the obligation to oblige every further customer to comply with the above provisions. This does not apply to any advertising material made available by STEAMBOW for the purpose of passing it on to end customers, such as advertising photos, product brochures, catalogs or advertising brochures.
8.3. The CUSTOMER is not entitled to change brands or other marks of STEAMBOW, to detach them from the PURCHASE OBJECT and/or the packaging and/or to use them detached from the PURCHASE OBJECTIVE. The CUSTOMER is entitled and obliged to use the brands and other labels affixed by STEAMBOW to the goods or their packaging in unchanged form and affixed to the PURCHASE OBJECT or the packaging to identify the unchanged or originally packaged goods, in the manner and manner form as it is attached to the OBJECT OF PURCHASE or the packaging upon delivery. Any further use of brands, names, logos or other marks of STEAMBOW is only permitted with the prior written consent of STEAMBOW in each individual case and only as approved in the corresponding consent.
The CUSTOMER undertakes to use all STEAMBOW documents as well as commercial, technical and/or other information that is passed on and/or becomes known to him in the course of the business relationship with STEAMBOW exclusively for the proper and customary use of the service to be delivered. The CUSTOMER will treat these at least like its own trade and business secrets, but in any case at least with reasonable care, only make them available to those employees who need them so that proper and normal use is possible, not make them accessible to third parties and protect them from theft.
After termination of this agreement or the cooperation, the CUSTOMER must return documents containing confidential information from STEAMBOW and permanently delete electronic confidential information; the CUSTOMER has no right of retention.
The CUSTOMER is prohibited from referring to STEAMBOW in any individual case in advertising, external communication or other publications without the prior written consent of STEAMBOW. This prohibition does not include the use of STEAMBOW marks approved by STEAMBOW, provided that and as long as the impression is not given that the specific measure originates from STEAMBOW itself.
10. RESERVATION OF TITLE
STEAMBOW reserves the right of ownership to the OBJECT OF PURCHASE until the due purchase price has been paid in full by the CUSTOMER. In the case of further processing of the OBJECT OF PURCHASE or its integration as an inseparable part of an overall item, STEAMBOW becomes co-owner of the new overall product according to the value ratio of the components. Until further notice, the CUSTOMER is entitled to resell the OBJECT OF PURCHASE or the entire product resulting from the processing within the scope of his normal business operations, subject to retention of title. Until the purchase price has been paid in full, the CUSTOMER shall assign to STEAMBOW all claims to which he is entitled from the resale of the OBJECT OF PURCHASE in separate form or as part of an overall product in the amount of the value of the OBJECT OF PURCHASE. Until further notice, the CUSTOMER is entitled and obliged to collect the assigned claims from his customers. STEAMBOW can notify the CUSTOMER’s purchaser of the assignment at any time and STEAMBOW is entitled to secure the OBJECT OF PURCHASE or the entire product or to request the customer to pay STEAMBOW directly in the corresponding amount if the CUSTOMER does not fulfill his contractual obligations, in particular the OBJECT OF PURCHASE improperly treated or is in arrears with the purchase price payment. The execution of the surrender and the security do not count as withdrawal from the contract and do not cancel the obligations of the CUSTOMER, in particular to pay the purchase price.
11. ADDITIONAL PROVISIONS REGARDING REPAIRS
11.1. STEAMBOW is ready in principle to take in PURCHASE ITEMS for repair under the conditions listed below. A commitment to repair a PURCHASE ITEM only becomes binding with written confirmation, and is limited to the conditions outlined in a cost estimate, especially concerning service period and cost.
11.2. Cost estimates are only issued on the basis of a specific request. Neither the placing of an order nor the preparation of an order confirmation and/or a delivery oblige STEAMBOW to carry out maintenance or repair work with the respective OBJECT OF PURCHASE.
Cost estimates are only made in writing and are only binding in writing. Verbal information about expected repair costs and/or lump-sum price commitments are non-binding.
11.3. STEAMBOW delivers the OBJECT OF PURCHASE to the CUSTOMER immediately after repairs or checks have been carried out. The service periods defined in a cost estimate are guidelines. Fixed dates are not guaranteed in principle.
11.4. Both the delivery and the return of the OBJECT OF PURCHASE to be repaired are carried out for the account and at the risk of the CUSTOMER.
11.5. Replaced parts automatically become the property and sole power of disposal of STEAMBOW without compensation.
11.6. In the case of makeshift repairs, in particular the replacement of wear parts, which are carried out on express order, any warranty is excluded. Wear parts only have a service life that corresponds to the current state of the art.
11.7. STEAMBOW guarantees the repair work carried out and the installed parts in accordance with the statutory provisions from the day of handover (dispatch to the CUSTOMER; EXW Incoterms 2010). The guarantee takes the principal form of STEAMBOW eliminating the proven deficiencies within a reasonable period of time. If rectification is not possible, or associated with disproportionately high costs, an appropriate replacement must be provided, the value of which, however, must not exceed the amount paid to STEAMBOW for the repair of the OBJECT OF PURCHASE. In order to carry out the services within the scope of the guarantee, the CUSTOMER must transfer the OBJECT OF PURCHASE concerned to STEAMBOW at their own risk and expense. Materials provided by the CUSTOMER are not subject to warranty. Claims arising from the guarantee expire if
In relation to consumers, these provisions only apply insofar as they do not contradict mandatory statutory provisions, in particular those of the Consumer Protection Act (“Konsumentenschutzgesetz”) of the Republic of Austria.
12. DATA PROTECTION
The CUSTOMER declares their consent that their data made available to STEAMBOW as part of the business relationship – including any personal data of the CUSTOMER themselves, their employees, or the customers and business partners of the CUSTOMER –
13. TRANSFER OF RIGHTS AND OBLIGATIONS
The CUSTOMER may only transfer their rights and obligations arising from these T&C and the order to third parties in each individual case with the prior written consent of STEAMBOW. STEAMBOW is entitled at any time to transfer its rights and obligations from these T&C and an order to a company affiliated with STEAMBOW, or to a third party, without the CUSTOMER’s consent or approval being required.
14.1. Should one or more provisions of these terms and conditions be declared invalid, inadmissible or unenforceable for whatever reason, this shall not affect the remaining provisions. The contractual partners are independent contractual partners and, moreover, are not connected on the basis of this business relationship and have neither employment contract nor legal representation connections.
14.2. In relation to consumers, the provisions of this contract only apply insofar as they do not contradict relevant mandatory statutory provisions, in particular those of the Consumer Protection Act (“Konsumentenschutzgesetz”) of the Republic of Austria.
14.3. Failure or delay in asserting a right established for the business relationship of the contractual partner does not constitute a waiver by the respective contractual partner for current or future cases. A waiver of rights is only effective if agreed in writing between the contractual partners.
14.4. Articles 6, 7, 8 and 9 remain in effect even after the termination of this agreement or a cooperation between the CUSTOMER and STEAMBOW, regardless of the reason for the termination. With regard to these obligations, the CUSTOMER must ensure that these are transferred to every further customer.
15. JURISDICTION, APPLICABLE LAW
Austrian law is applicable to this contract. The application of the provisions of the Vienna Convention on the International Sale of Goods, and the conflict of laws provisions of international private law, are expressly excluded.
The exclusive place of jurisdiction for all legal disputes arising from and/or in connection with the business relationship between the CUSTOMER and STEAMBOW is Vienna, Austria, provided that the CUSTOMER has his permanent seat in an EU member state, Iceland, Norway, or Switzerland. If the CUSTOMER has his permanent seat in another country, all disputes arising out of and/or in connection with the business relationship between the CUSTOMER and STEAMBOW are to be finally decided by an arbitrator appointed in accordance with this legal system according to the arbitration rules of the International Chamber of Commerce. The place of arbitration is Zurich, Switzerland. The arbitration language is German.
If the CUSTOMER is a consumer within the meaning of Article 15, Council Regulation (EC) No 44/2001
of December 22nd, 2000 on the jurisdiction and the recognition and enforcement of decisions in civil and commercial matters, the place of jurisdiction is the seat of the CUSTOMER.
Steambow is an Austrian company operating under Austrian law. It is the buyer’s responsibility to make sure the products they order from Steambow are legal in their country and can be shipped there without any issues arising from customs and other restrictions. Steambow GmbH assumes no liability for difficulties arising from the legal situation in the buyer’s country.