General Terms and Conditions of Delivery and Trading of STREUMASTER
- All offers, sales and deliveries of the company STREUMASTER are provided exclusively on the basis of the following Terms and Conditions of STREUMASTER. As a result, these shall also apply to any and all future business dealings, even if not expressly agreed upon again.
- We hereby expressly reject any terms and conditions of purchase and other general terms and conditions of trading of the customer. STREUMASTER shall not be bound to them, even if STREUMASTER does not expressly reject them in individual cases. Any deviating terms and conditions shall only apply if they are expressly confirmed by STREUMASTER in writing.
- Any agreements, modifications, side agreements and warranties shall only become effective towards STREUMASTER upon written confirmation by STREUMASTER.
- The drawings, figures, measurements, weights or other performance data submitted in the correspondence before the conclusion of the contract shall only be binding insofar as they have been expressly included in the text of the contract or the written order confirmation. They shall then be descriptions of the properties and conditions in terms of section 434 BGB [German Civil Code].
- All ownership rights and copyrights to any drawings and other documents remain with STREUMASTER. Without the consent of STREUMASTER, they may neither by duplicated nor disclosed or made available to any third party.
Our offers shall always be subject to change.
III. Scope of Delivery
For the content of the contract the wording of our written order confirmation shall be deemed to be decisive. Side agreements or changes to the contract require the written confirmation by STREUMASTER. This shall also apply for agreements with or warranties of representatives of STREUMASTER. They are not authorized to conclude any contracts. STREUMASTER reserves the right to change the design or shape of the delivery item, insofar as the delivery item is not changed significantly and the changes are deemed reasonable for the customer.
- Our prices shall be ex works STREUMASTER, Egglkofen, excluding packaging, insurance, shipping and customs duties. They do not include value added tax. This will be added in the respective amount applicable at the time of the delivery.
- The agreed contract price is shown in STREUMASTER’s order confirmation.
- All payments shall only be made directly to STREUMASTER’s payment office without any deductions and free of transaction charges. Payments to third parties, agents or representatives are made at the risk of the party paying, unless a valid authorization to collect is presented. Without such a written authorization, agents or agency firms shall not be authorised to make any collection.
- Unless agreed otherwise, invoices shall be payable within 30 days of the date of the invoice without any deductions, or within eight days of the date of the invoice with an early-payment discount of 2%. Set-offs and retentions shall only be permitted insofar as the counterclaims have been acknowledged by STREUMASTER or determined with legally binding effect against STREUMASTER. An early-payment deduction for new invoices is not permitted if older invoices due have not been paid yet.
- A payment shall only be deemed to be made if STREUMASTER can dispose of the amount without any reservation.
- If the Customer is in arrears, STREUMASTER shall have a right of retention to the goods ordered but not yet dispatched. In these cases as well as in the event of a deterioration in the Customer’s financial situation (e.g. in case of non-acceptance of a cheque or bill of exchange), in the event of a transfer of the business to third parties or death of the Customer, STREUMASTER shall be entitled to demand advance payment for deliveries not yet carried out. If the Customer rejects this kind of business handling, all receivables yet unpaid shall be payable immediately. STREUMASTER shall then have the right to withdraw from the contract.
- As soon as the Customer gets into arrears, STREUMASTER shall be entitled to demand interest in the amount of 8% above the base rate. Any further proven damage due to delay shall be replaced by the Customer as well.
VI. Delivery for Field Testing, Acceptance
It can be agreed in the contract between the parties that the acceptance shall be carried out as a field testing at the Customer’s premises. Subject to any other agreements in the contract, STREUMASTER will submit the device to the Customer upon completion at the Customer’s cost and risk.
The Customer shall then test the device within 14 days upon the acknowledgment of the receipt (e.g. by a delivery note) for a maximum of one working day. If the Customer is satisfied with the outcome of the field testing, they shall notify this to STREUMASTER immediately. Upon receipt of the notification by STREUMASTER or expiry of the 14 day period after the Customer’s confirmation of receipt without any notification, STREUMASTER’s remuneration shall become payable.
In the event that during the field testing defects in the function or performance of the device become visible, the Customer shall give STREUMASTER the opportunity to repeat the field testing for one day in the presence of a person delegated by STREUMASTER. If during the second field testing no defects can be detected in the device, the Customer remains obliged to accept. STREUMASTER’s remuneration shall become payable. If defects are detected, sub-paragraph XII shall apply.
VII. Delivery Time, Delay in Delivery
- The delivery time is shown in STREUMASTER’s order confirmation. Its compliance requires that all commercial and technical questions between the contractual parties have been clarified and that the Customer has fulfilled all their obligations, e.g. the timely provision of the carrier vehicle with the necessary technical documents or the payment of agreed deposits. If this is not the case, the delivery time shall be extended appropriately. This shall not apply insofar as STREUMASTER is responsible for the delays. The delivery time shall be deemed to be observed if the delivery item has left STREUMASTER’s factory in Egglkofen before the end of the period or if the Customer has been informed of the readiness for dispatch before the end of this period. Insofar as an acceptance is necessary, the date of the acceptance shall be deemed to be decisive, alternatively the notification of the acceptance readiness.
- If the dispatch and/or acceptance of the delivery item are delayed for reasons which are attributable to the Customer, they will be charged with the costs incurred by the delay beginning one month after the notification of the dispatch and/or acceptance readiness.
- If the non-compliance with the delivery time results from force majeure, labour disputes or other events which are beyond the control of STREUMASTER, the delivery time shall be extended reasonably. STREUMASTER will notify the Customer of the beginning and ending of these kinds of circumstances as soon as possible.
- The Customer may withdraw from the contract without any further notification, if it becomes finally impossible for STREUMASTER to perform before the passing of risk. Furthermore, the Customer may also withdraw from the contract if − with regard to an order − the execution of a part of the delivery becomes impossible and they have a legitimate interest to reject the part delivery. If this is not the case, the Customer shall pay the contractual price agreed for the part delivery.
- If STREUMASTER is in delay and as a result the Customer suffers damage, the Customer shall be entitled to demand a lump sum compensation. This compensation shall amount to 0.5% in total for each week completed, but not more than 5% of the value of this part of the entire delivery which cannot be used in due time or according to the contract as a result of the delay. If the Customer grants STREUMASTER – in consideration of the statutory exceptions – a reasonable period of grace to perform after the deadline and if this period of grace is not observed, the Customer shall be entitled to withdraw from the contract pursuant to the statutory provisions. Any further rights of the Customer – except in the event of intention or gross negligence – shall be excluded by STREUMASTER.
VIII. Passing of the Risk
The delivery from the warehouse of STREUMASTER in Egglkofen shall always be carried out at the risk of the Customer, even in case of deliveries free of charge. The risk shall pass on at the latest when the delivery leaves STREUMASTER’s warehouse and/or is handed over to the person carrying out the transport. If the delivery is delayed or becomes impossible due to reasons for which STREUMASTER cannot be hold accountable, the risk shall have passed on to the Customer at the day of the notification of the readiness for delivery.
IX. Retention of Title for Self-Users
- STREUMASTER retains the title to all deliveries until all payments from the respective delivery have been made. STREUMASTER shall be entitled to insure the delivery items at the expenses of the Customer against theft, breakage, fire, water and other damages unless the Customer proves to have taken out such insurance themselves.
The self-user may neither sell nor pledge, assign as a security or process the delivery item before the complete payment of the invoices to STREUMASTER. In the event of attachments or seizures or other dispositions by third parties, the Customer shall inform STREUMASTER of this immediately. However, if the delivery is sold before the complete settlements of all claims of STREUMASTER, the Customer assigns already today all claims to STREUMASTER to which they are entitled towards the buyer. STREUMASTER accepts this. Amounts collectable from the assignment will be set off against the purchase price claim which remains unaffected as well as any claims for damages.
X. Retention of Title against Resellers
- Reseller shall be entitled to resell the delivery item in the ordinary course of business if they clearly identify themselves as such during the contract negotiations. However, the Customer assigns already now all claims to STREUMASTER which they gain from this resale against the buyer or third parties. STREUMASTER accepts this assignment.
A processing, modification or combination of the delivery item with items which are the exclusive property of the Customer shall only be permissible upon prior approval by STREUMASTER. If this still happens – in violation of the contract – and the Customer sells the object arising from this, the Customer assigns already now all claims in the full amount to STREUMASTER, which STREUMASTER accepts.
XI. The following applies for Self-Users and Resellers
- STREUMASTER shall be entitled to disclose the assignment upon the occurrence of a delay and to collect the claims in its own name and on its own account. Until then the entitlement of the Customer to collect the claims themselves for the account of STREUMASTER remains unaffected.
In all cases of an assignment, the Customer shall be obliged to provide STREUMASTER on request with a list of the assigned claims with the complete name, the name of the company and the address of the debtor as well as the amount receivable including a copy of the invoice. Furthermore, the Customer will provide STREUMASTER with all the information necessary for the collection of the claims, will hand over all the documents necessary to prove the claim and will inform the respective debtors of the assignment.
In the event that the Customer behaves in a way that conflicts with the contract, in particular delay in payment, STREUMASTER shall be entitled to take back the delivery items after granting a grace period and terminating the sales contract and the Customer shall be obliged to hand them over. Here too, any further claims of STREUMASTER remain unaffected.
The request of the opening of insolvency proceedings of the Customer shall entitled STREUMASTER to withdraw from the contract and to request the immediate return of the delivery items.
- The warranty period shall be one year for self-users, calculated from the day of the passing of the risk. For resellers a warranty period begins on the date of the delivery note of the machine to the end customer.
- All those parts must be repaired free of charge or replaced free of defects which turn out to be defective within the warranty period. The detection of such defects must be immediately reported to STREUMASTER in writing. Replaced parts become the property of STREUMASTER.
- The Customer shall give STREUMASTER the time and opportunity necessary to carry out the required repairs and replacement deliveries, otherwise STREUMASTER shall be released from its liability for any consequences resulting from this. STREUMASTER will only bear the costs for a repair of the machine by resellers, if the reseller has given STREUMASTER the opportunity to check the existence of a defect before the repair or if STREUMASTER has given its written approval to carry out the repair. Only in urgent cases of an endangerment of the operating safety and/or to avoid any disproportional severe damage, the Customer shall be entitled to remedy a defect themselves or have the defect remedied by a third party – without any supplementary performance of STREUMASTER – and to demand compensation for the expenses necessary from STREUMASTER. However, STREUMASTER must be informed of this immediately.
- STREUMASTER shall be entitled to refuse the remedy of the defects, if the Customer has not fulfilled their other obligations from the contract concluded with STREUMASTER. Warranties performed do not extend the warranty period and do not start a new warranty.
- The Customer shall have the right to withdraw from the contract under the statutory provisions if STREUMASTER – allowing for the statutory exceptions – fails to meet a reasonably set period for the repair or replacement delivery due to a material defect. If the defect is only minor, the Customer shall merely have the right to reduce the contractual price.
- No warranty shall be assumed in the following cases in particular: Inappropriate or improper use, incorrect assembly or commissioning by the Customer or third parties, natural wear and tear, incorrect or negligent handling, incorrect maintenance, unsuitable operating materials or inadequate construction work – provided they are not attributable to STREUMASTER.
- If the Customer or a third party improperly carries out any repair, STREUMASTER shall not be liable for the consequences arising from this. The same shall apply to any modifications to the deliveries items undertaken without the prior consent of STREUMASTER.
- Insofar as machines, including spare parts, accessories or other goods (hereinafter Machines), are left with the reseller in consignment, they will store these with them or third parties separated from other machines and mark them as property of STREUMASTER. The Customer bears the risk of accidental loss or accidental damaging of the Machine. The Customer will insure them at their own expenses with STREUMASTER as insurant.
- The Customer will grant employees of STREUMASTER access to the Machines at all times within the business hours. In the event that damages or missing parts are detected, the Customer shall replace and/or remedy these immediately.
- STREUMASTER shall keep a list of consignment storages and shall regularly send consignment stock notifications which the Customer has to check immediately. The Customer will confirm the stock stated, notes any deviations and sends the confirmation back to STREUMASTER at the following day at the latest.
- A delivery note has to be issued for each removal from the consignment storage, even for removals on request of STREUMASTER, or in the event of demonstrations which last longer than one day which must be acknowledged by the recipient. The delivery note shall be sent by fax on the day of its issuance in advance to STREUMASTER.
- If the Customer wants to remove Machines from the consignment storage, they must inform STREUMASTER of this in advance. As soon as STREUMASTER has given the Customer a consignment relief, the Customer shall be entitled to remove Machines for the purpose of reselling in the ordinary course of business and a sales contract is concluded between STREUMASTER and the Customer regarding the Machine removed with retention of title (sub-paragraph X above).
- STREUMASTER remains entitled to remove Machines from the consignment storage at any time or to instruct the Customer to hand them over to third parties.
- Claims for damages shall be excluded regardless of the kind of breach of obligation, including tortuous acts, are excluded insofar as they are not due to intentional or grossly negligent actions.
- In the event of a breach of material contractual obligations, STREUMASTER shall be liable for each negligence but only to the amount of the foreseeable damage. Claims for loss of earnings or indemnification against claims from third parties against the Customer as well as claims from indirect and consequential damages cannot be asserted, unless a property characteristic guaranteed by STREUMASTER is intended to protect the Customer from such damages.
- The liability limitations and exclusions under the clauses 1 and 2 shall not apply for claims which arose due to a malicious behaviour of the Customer as well as in the event of a liability for guaranteed property characteristics, claims pursuant to the German Product Liability Code as well as damages arising from harm to life, limb or health.
- Insofar as the liability of STREUMASTER is excluded or limited, this shall also apply for their employees, personnel, representatives and vicarious agents.
XV. Applicable Law, Place of Jurisdiction
- For these Terms and Conditions and the entire business relationship between STREUMASTER and the Customer, the laws of the Federal Republic of Germany shall apply. The provisions of the United Nations Convention on Contracts for the International Sale of Goods shall not apply.
- If the customer is a merchant, a legal entity under public law or a separate fund under public law, the place of jurisdiction for all disputes shall be the jurisdiction competent for Egglkofen.
XVI. Final provisions
- Changes and supplements to this Contract require the written form. The same applies to the suspension of the written form clause.
- If individual provisions of this Contract are or become invalid, the legal validity of the remaining Contract shall remain unaffected.
The parties undertake to reach an agreement in this case which comes closest to the economic interests of the parties expressed in this Contract.