Terms and conditions of delivery and payment of
KARASTO Armaturenfabrik Oehler GmbH
– for export –
I. Scope of application
1. These terms and conditions of delivery and payment for export (Export Terms) apply to all contracts of the company KARASTO Armaturenfabrik Oehler GmbH with buyers who have their registered office or the branch entrusted with the contract outside of the territory of the Federal Republic of Germany. The respective branch that concludes the contract in its own name is decisive.
2. These Export Terms do not apply if the buyer acquires the goods for personal, family or household use and we knew or ought to have known this when the contract was concluded.
3. These Export Terms apply to all our offers and deliveries. They also apply to all future con-tracts with the buyer if reference is made in our offer to these Export Terms.
4. Contradictory regulations, or regulations that deviate from the regulations of these Export Terms in the buyer’s terms and conditions of business only apply if we explicitly consent to their validity.
5. If conditions are agreed between ourselves and the buyer that deviate from individual regulations of this Export Terms this will not affect the validity of the other regulations of these Export Terms.
II. Conclusion of contract, minimum order value and subject of the contract
1. Our offer is non-binding.
2. Changes and errors with regard to the figures and drawings relating to our goods in prospectuses, advertising material and price lists as well as the data contained therein, e.g. regarding material, dimensions, shape, are reserved unless they are explicitly denoted as binding. They only become legally binding elements of the contract if the contract makes explicit reference to them.
3. The buyer is obligated to point out to us before conclusion of contract if the goods to be supplied are to be solely suitable for normal use or are to be used under abnormal conditions or conditions constituting a special health, safety or environmental risk or requiring increased utilisation or if any atypical damage potential or any unusual extents of damage could be as-sociated with the contract. This obligation applies only with relation to such use conditions, damage potential, or unusual extents of damage that are known or would have to be known to the buyer.
4. Orders below a net value of EUR 1,000.00 (respectively in the event of a first order by a new buyer EUR 2,500.00) with the exception of spare parts will not be accepted.
5. The buyer is bound to an order for two weeks from receipt by us.
6. The contract comes into effect, either when our written order confirmation is sent or when the order is fulfilled, depending on which point in time occurs first.
III. Delivery times and non-availability of the performance
1. Information about delivery time is always non-binding unless such delivery time has been described as binding.
2. The delivery time promised as binding commences with the sending of the order confirmation by us, subject to Clause 3 below.
3. If the buyer is obligated to itself procure certain documents (such as permits, approvals, etc.) or to make a down payment, the delivery time promised as binding commences at the earliest at the time at which all documents to be procured by the buyer have been received by us and/or a down payment to be made has been received by us.
4. The delivery time promised as binding is complied with if the goods have left the factory or notification has been given of their readiness for dispatch up to the point in time when the de-livery period expires.
5. If we are unable to comply with binding delivery time entirely or with regard to some of the goods to be delivered, we will notify the buyer immediately of this and at the same time give notification of the new delivery time. If the goods to be delivered are also not available within the new delivery period, we are entitled to declare the contract avoided in its entirety or in part unless we are responsible for the delay because of intention or negligence; we will immediately reimburse any respective consideration of the buyer that has already been performed.
6. At any rate, a claim for compensation on the part of the buyer due to delayed delivery necessitates that the buyer has set us an appropriate subsequent period and we have not delivered within this period of time.
7. Apart from that, the statutory rights of the buyer remain unaffected; however we are only liable if we are responsible for the delay because of intention or negligence and only within the framework of Clause IX of these Export Terms below. In particular, we are not responsible for the non-timely self-delivery by our supplier.
IV. Delivery and passing of risk
1. EXW (Incoterms 2010) from our warehouse in Backnang applies for delivery and passing of risk. Risk is passed EXW to the buyer even if we assume the dispatch costs in individual cases, unless a special delivery clause has been agreed.
2. Packaging will be invoiced at cost.
3. If the goods are ready for dispatch and the dispatch is delayed due to circumstances for which we are not responsible, risk will be passed to the buyer with the receipt of the notification regarding readiness for dispatch.
6. If dispatch is delayed at the buyer’s request, he will be charged the monthly warehouse costs at 0.1% of the price of the item sold starting with one month after notification of the readiness for dispatch.
5. If the goods are dispatched at the buyer’s request, the choice of route and means of dispatch will be made by ourselves, without us providing any guarantee for the cheapest or fastest shipping.
6. In the case of orders for dispatch to third parties, a handling fee of EUR 25.00 will be charged; the minimum order value of EUR 1,000.00 (Clause II.4) remains unaffected.
V. Prices and terms and conditions of payment
1. All prices are in EUR plus applicable VAT ex stock Backnang, exclusive of packaging and dispatch costs.
2. The buyer must check the correctness and completeness of all invoices immediately on receipt. Objections to invoices are to be filed in writing within a month after receipt. Failure to file objections within this period is deemed to be approval of the invoice.
3. Payments shall be made net and free payment agent of the supplier within 30 days after the invoice date. In the event of payment within 10 days after invoice date, we will grant 2% discount. The receipt of the credit note on the account indicated in the invoice for the pay-ment is decisive for the timeliness of the payment by the buyer. All additional costs arising as a result of buyer’s choice of means of payment are to be borne by the buyer.
4. If the buyer fails to pay the purchase price in time, irrespective of other legal remedies we are entitled to charge arrears interest in the amount of 9 percentage points above the respective base interest rate of the European Central Bank. The filing of further claims is reserved.
5. The offsetting or settlement is only possible with counter receivables that are based on the same contractual relationship or have been legally established or are undisputed.
6. The buyer is only entitled to retain payments due to effective and due counter-claims arising from the same contractual relationship.
VI. Retention of title
1. We retain title to the goods until the complete fulfilment of all – including future – receivables (including all ancillary claims such as financing costs, interest) arising from the business relationship with the buyer if our right to the purchase price is not secured by other means (e.g. letter of credit). If a current account agreement has been reached with the buyer, the retention of title exists until the complete settlement of the recognised current account balance.
2. The buyer is obligated to handle the goods subject to retention carefully and to insure them sufficiently against fire and water damage and loss due to theft at its own costs.
3. We undertake to release the securities to which we are entitled at the buyer’s request and at our discretion if the realisable value of the securities exceeds our receivables to be secured by more than 10%.
4. In the case of attachment, confiscation or similar and in the event of damage and/or loss of the items delivered, the buyer must notify us immediately; a breach of this obligation gives us the right to declare the contract avoided. The buyer bears all the costs that need to be incurred in particular within the framework of an objection by a third party to the successful rescission of a seizure and if applicable to a successful new purchase of the items delivered if they cannot be collected by third parties.
5. If we have validly declared the contract avoided, we are entitled to take back the goods under retention of title if the taking back is threatened with a suitable period of time. The costs arising from the exercising of the right of retention, in particular for transport, will be borne by the buyer. We are entitled to utilise the goods under retention of title that we take back and to satisfy ourselves from their proceeds if the utilisation was threatened beforehand with an appropriate period of notice. If the proceeds should exceed the outstanding receivables from the contractual relationship, this surplus will be surrendered to the buyer.
VII. Obligation of examination and notification of defects
1. The buyer must examine the goods properly immediately on receipt, or have them examined.
2. Our liability for the goods not being in compliance with the contract lapses without the buyer being able to invoke an excuse in this regard if the buyer does not notify us of this contractual breach in writing within 7 working days (Saturday is not deemed to be a working day) after the buyer has established it or must have established it, and in the process gives a precise description of the type of contractual breach. The written notification of the defect by the buyer must have been sent within the aforementioned deadline by the buyer; in addition, it is necessary that the notification of defect sent in a timely manner has also been received by us.
3. If a contractual breach by the goods cannot be established after notification by the buyer of a defect, the buyer must reimburse us for the costs incurred in connection with the examination of the goods.
4. At any rate, the buyer loses the right to invoke the lack of conformity of the goods if it does not give notification of this at the latest within 12 months after the goods have actually been handed over to it, unless a longer period of guarantee has been granted.
VIII. Goods in breach of contract
1. If the goods are proven to lack conformity, we are also entitled even after expiry of the agreed delivery time to initially perform subsequent improvement or replacement delivery at our discretion.
2. If the buyer has set us an appropriate subsequent period for subsequent improvement or replacement delivery and the subsequent improvement or the replacement delivery has not been done within this period of time or is refused by us, the buyer has the right to reduce the purchase price or to declare the contract avoided to be rescinded pursuant to the statutory conditions. The amount by which the purchase price is reduced is based on the damage incurred by the buyer.
3. Replacement delivery or subsequent improvement does not result in the deadline pursuant to Clause VII.4 starting to run anew.
1. We are liable without restriction for damages arising from injury to life, body or health that are attributable to a wilful or negligent breach of obligation by ourselves or to a wilful or negligent breach of obligation by our statutory representative or vicarious agent.
2. We are liable pursuant to the principles of product liability law and when a special guarantee is assumed.
3. Apart from this, we are only liable in the case of intentional or negligent violation of a material contractual obligation for the typically occurring, direct damage that is foreseeable at the time of conclusion of the contract. A material contractual obligation is an obligation which enables the proper fulfilment of the contract made with the buyer and which the buyer has relied on and may rely on and the culpable non-fulfilment of which endangers the achievement of the purpose of the contract.
4. In all other cases, in particular for indirect damage and consequential damage (including loss of earnings, loss of goodwill, damage due to operational downtimes and nugatory expenses), our liability is excluded unless the buyer has explicitly pointed this damage possibility out to us before conclusion of the contract pursuant to Clause II.3.
5. If our liability is excluded or restricted, this also applies to our employees, representatives and vicarious agents.
X. Intellectual property rights
1. In the case of delivery of goods that we produce according to drawings, models or other information from the buyer, we are not liable for the breach of third-party intellectual property rights. The buyer has to indemnify us against claims by third parties.
2. On no account, we will reimburse the buyer for lost earnings, if third-party intellectual property rights are being breached.
XI. Place of performance, applicable law and place of jurisdiction
1. The place of performance for deliveries and payments is Backnang.
2. The English version of the United Nations Convention on Contracts for the International Sale of Goods (CISG) dated 11/04/1980 applies to the legal relationship with the buyer. Legal issues that are not regulated in this Convention or cannot be decided pursuant to its principles are subject to German law.
3. The sole place of jurisdiction for all disputes in conjunction with the contract is Stuttgart. However, we can also file claims at the buyer’s legal place of jurisdiction.
KARASTO Armaturenfabrik Oehler GmbH
Backnang, March 2015