Conditions of Use
Conditions of use of St drums GmbH
I. Application, contract conclusion
All St drums' quotations, sales, deliveries and services are subject solely to the following terms. This applies even if St drums has not objected to the client's different business terms. These terms form part of all contracts concluded by St drums with contract partners in respect of St drums' deliveries and services; the award of an order or acceptance of a delivery is deemed to constitute recognition of the terms. Quotations issued by the company St drums are subject to change and are not binding. Purchase orders are deemed to have been accepted once they have been confirmed in writing by St drums. The delivery and invoice are simultaneously deemed to represent an order confirmation.
All prices are deemed to be ex-works, excluding packaging and insurance, and excluding the applicable statutory turnover tax. If, following contract conclusion, extraordinary and significant cost factor increases should occur (e.g. raw materials, freight or packaging materials, etc.) in respect of St drums or its suppliers, and if these increases should result in a significant increase in the purchase prices or cost prices, St drums shall be entitled to demand an appropriate price adjustment from the purchaser.
III. Product description
St drums' statements regarding the subject of the delivery and service (e.g. weight, dimensions, utility values, loads, tolerances, technical data etc.), as well as product illustrations in catalogues, are only approximately definitive. They represent descriptions rather than guaranteed attributes. Deviations or changes in accordance with ordinary trade usage, which occur as a result of statutory regulations or which represent technical improvements, are permissible as long as they do not adversely affect the product's usefulness for the contractually intended purpose. A quantity tolerance of +/- 10 % is deemed to be conceded. St drums reserves the right to make partial deliveries.
IV. Payment and settlement
Invoice amounts are payable within 7 days with a 2% discount, or within 30 days without deduction, unless otherwise agreed in writing. The date of payment shall be determined by the date on which it is received by St drums. Cheques, bills of exchange and transfers will only be considered as paid once they have been cleared or credited to St drums' account. Retention on the basis of the purchaser's counter-claims, or offsetting against such counter-claims, is only permitted if the counter-claims in question are undisputed or have been legally determined and can no longer be appealed.
V. Reservation of title
The goods delivered shall remain the property of the company St drums until all claims deriving from the business relationship, including ancillary claims and damage compensation claims, have been paid, and until all cheques and bills of exchange have been cleared. Until revocation, the party placing the purchase order is entitled to resell the goods in respect of which there is reservation of title in the context of normal business dealings, but is not permitted to pledge the goods, to transfer ownership by way of security or to make a fiduciary assignment in respect of the goods. The purchaser at this point already assigns to St drums any claims deriving from resale of the goods in respect of which St drums reserves title; St drums accepts this assignment. Until revocation, the purchaser is entitled to collect the assigned claims. If, based on the reservation of title, St drums takes back the delivery object, the contract will only be deemed to have been repudiated if St drums makes an explicit declaration in this regard. The purchaser is obliged to insure the goods in respect of which St drums has reserved title against damage, and to bear the associated costs.
VI. Delivery / Transfer of risk
Agreed delivery clauses are to be interpreted in accordance with the Incoterms applicable at the time of contract conclusion. If, in the case of an EXW delivery and at the request of the purchaser, St drums undertakes to ship the delivery object to its destination location, the transfer of risk will, at the latest, take place at the time when the first shipper takes delivery of the goods in question. Unless otherwise agreed, partial deliveries are permitted. The shipping method and packaging shall be decided by the company St drums.
On receipt, the purchaser is obliged to check the goods for damage and freedom from defects. A complaint must be lodged in respect of defective or incorrect deliveries, or delivery shortfalls, within 7 days of receiving the goods at the latest; otherwise the goods will be deemed to have been approved. The delivery time stated by St drums is not binding. Events representing force majeure, breakage or machine damage, delays in the delivery of raw materials or other substances shall release St drums from the need to observe the stated delivery time, and shall not result in dissolution of the contractual relationship. The purchaser shall remain bound by the contract and is, under all circumstances, obliged to accept the goods. If contract performance should prove impossible, St drums shall be released from its delivery obligations. In the event of delays, the purchaser must set St drums a subsequent deadline of at least 12 weeks.
In the case of a verifiably defective delivery, St drums may chose whether to rectify the defect or to deliver a replacement. If the defect rectification or replacement delivery fails, the purchaser may - ruling out all further claims of any kind, and regardless of the legal bases therefore - choose to either repudiate the contract or demand a reduction. If returning goods, the purchaser is obliged to observe St drums' stipulations (return confirmation / complaint with a request to return the test report containing all data and features of note, and including samples, within 14 working days). Any further claims on the part of the purchaser in respect of quality defects are ruled out to the extent legally permitted, unless relating to the absence of guaranteed attributes (check German). Quality defects shall become statute-barred 12 months after the initial transfer of risk. Quality defects must always be acknowledged in writing. In the case of attribute guarantees intended to protect the purchaser from the risk of any damage as a consequence of defects, St drums shall be liable for damage compensation in accordance with the provisions of statutory regulations. However, this liability is limited to typical and predictable damage.
Claims against St drums, or persons employed in performing an obligation for which St drums is vicariously liable, or St drums' vicarious agents, relating to compensation for damage as a consequence of defects, as well as damage compensation claims relating to impossibility of performance, non-performance, the absence of guaranteed attributes, culpable breach of contract, culpability when concluding the contract, and prohibited actions are ruled out unless the damage was the result of premeditation or gross negligence. This limitation of liability does not apply if a) damage compensation claims are derived from a guarantee of attributes intended to protect the client from the risk of damage as a consequence of defects; b) St drums is in breach of contractual obligations the performance of which is vital to orderly contract performance (cardinal obligations); c) the German Product Liability Act stipulates liability for damage to persons or property in the case of defects in respect of the delivery object, and relating to privately used objects. If, in such cases, minor negligence is present, St drums shall only be liable for contractually typical damage which could be reasonably predicted.
IX. Flat-rate damage compensation
In the event that the purchaser unjustifiably repudiates the contract, or does not meet his acceptance obligation, or is in arrears of over 30 days in respect of payments due, St drums is entitled to demand damage compensation for non-performance. The same applies if, for other reasons, St drums has the right, as a result of statutory provisions, to repudiate the contract, or has the right of extraordinary termination, and has availed of this right. In such cases St drums is entitled, without prejudicing its right to enforce a higher actual level of damage compensation, to demand 20% of the (gross) purchase price in the form of damage compensation, whereby there is no need to verify the damage. However, the client shall be entitled, in individual cases, to verify a lesser amount of damage.
X. Concluding provisions
The place of performance is Pirmasens. The legal relations between the client and St drums shall be solely subject to the law of the Federal Republic of Germany. Application of the UN Law of Purchase (CISG) is ruled out. If the client is a merchant as defined by the German Commercial Code, the legal venue for both parties shall be Pirmasens or, if so requested by St drums, the client's principal place of business. Should a provision in the above General Terms of Business be or become ineffective, the remaining provisions shall not be affected thereby. The parties undertake to replace an ineffective provision with an agreement which most closely approximates to the commercial purpose of the ineffective provision.These Terms of Business shall apply until revoked.