General terms of delivery and payment
der KARASTO Armaturenfabrik Oehler GmbH
– Export –
1. These general terms of delivery and payment for export (Export GTDP) apply to all contracts of KARASTO Armaturenfabrik Oehler GmbH with customers, whose registered office or office concerned with the contract is located outside the Federal Republic of Germany. The relevant office is that which enters into the contract in its own name.
2. These Export GTDP will not apply if the purchaser acquires the goods for personal use or use in the family of household and we either knew or should have known about this at the time of conclusion of the contract.
3. These Export GTDP apply to all our offers and deliveries. They apply also to all future contracts with the purchaser, even if our offer does not make express reference to these Export GTDP.
4. Contrary terms and conditions of the purchaser or any provisions in the terms and conditions of the purchaser which deviate from the rules of these Export GTDP will apply only if we expressly consent to their validity.
5. If terms are agreed between us and the purchaser that are contrary to individual provisions of these Export GTDP, the validity of the remaining provisions of these Export GTDP will not be affected.
II. Conclusion of contract, minimum order value und subject matter of the agreement
1. Our bid is non-binding.
2. Changes and errors regarding the images and drawings relating to our goods and drawings found in brochures, promotional material and price lists, and the data contained therein, for example, material, dimensions, consistency of form, are reserved unless they are expressly designated as binding. They will form legally binding parts of the contract only if the contract expressly refers to them.
3. The purchaser is obliged before conclusion of the contract to inform us if the goods to be delivered are intended to be suitable solely for ordinary use or are to be used under unusual conditions or under conditions that represent a particular risk to health, safety or environmental or under conditions of enhanced stress, or if atypical possibilities of damage or unusual levels of damage that are known or should be known to the purchaser can be associated with the contract.
4. Orders under a net goods value of € 1,000 and, in the case of a new customer’s first order, € 2,500, with the exception of orders for spare parts, are not accepted.
5. The purchaser’s order is binding after a period of two weeks following the order being received by us.
6. The contract is concluded either by the despatch of our written order confirmation or with the fulfilment of the order, depending on which occurs first.
III. Delivery periods and non-availability
1. Information about delivery periods is not binding unless it has been designated as binding.
2. The delivery period to which we have committed will commence subject to paragraph 3 with the despatch by us of the order confirmation.
3. If the purchaser is obliged to obtain certain documents, such as permits, approvals, etc., or to make a deposit payment, the delivery period to which we have committed will begin at the earliest at the point at which all the documents to be procured by the purchaser are received by us or a deposit to be paid is received by us.
4. The delivery deadline to which we have committed will be deemed to have been met if the delivery item has left the factory before the expiry thereof or readiness for dispatch has been communicated.
5. If we cannot adhere to binding delivery periods either for an entire order for part of the goods to be delivered, we will immediately inform the purchaser thereof and, at the same time, inform the purchaser of the envisaged new delivery period. If the delivery also cannot be made within the new delivery period for reasons for which we are not responsible, we will be entitled to withdraw from the contract either wholly or in part; any payment already made by the purchaser will be refunded without undue delay.
6. In any case, a claim for damages on the part of the purchaser on the grounds of a delayed delivery presupposes that the purchaser has set us an appropriate period of grace and that we have failed to deliver within this period.
7. The statutory rights of the customer otherwise remain unaffected; we will however be liable only if we are responsible for the delay and only in the context of the following para. IX of these Export GTDP. We cannot be held responsible in particular for any failure of our supplier to deliver to us on time.
IV. Delivery and transfer of risk
1. EXW (Incoterms 2010) applies to delivery and transfer of risk from our warehouse in Backnang. The risk will pass EXW to the purchaser even if we pay the shipping costs in individual cases, unless a special delivery clause has been negotiated.
2. Packing is calculated at cost.
3. If the shipment is ready for dispatch but is delayed due to circumstances that are not attributable to us, the risk will be transferred to the purchaser at the point of notification of readiness to ship.
6. If shipment is delayed at the request of the purchaser, monthly storage costs of 0.1% of the price of the sold merchandise will be invoiced starting one month after notification of readiness to despatch.
5. If the goods are shipped at the customer’s request, the shipping routes and means of shipment will be selected by us without any assumption on our part of liability for the cheapest shipment.
6. For orders for shipment to third parties a surcharge of € 25.00 will be charged; the minimum order value of € 1,000.00 remains unaffected.
V. Prices and terms of payment
1. All prices are quoted in EURO plus VAT at the applicable rate ex stock at Backnang, plus packaging and shipping costs.
2. The purchaser must check all invoices for accuracy and completeness immediately upon receipt thereof. Objections to invoices are to submitted in writing within one month of receipt. The failure to raise an objection in a timely manner will be deemed to amount to approval of the invoice.
3. Payments are to be made free of banking costs to the supplier in 30 days net. In the event of settlement within 10 days of the date of invoice, we will grant a 2% cash discount. The payment will be deemed to have been made on time only if it has been credited to the account stated on the invoice. All additional costs incurred in connection with the choice of means of payment are to be borne by the purchaser.
4. If the purchaser fails to pay the purchase price in time, we will be entitled without prejudice to any other legal remedies to charge interest at a rate of 9 percentage points above the base interest rate of the European Central Bank in force at the time. We reserve the right also to assert further claims for damages.
5. The purchaser will be entitled to set our claims off against counterclaims of its own only if these are based on the same contractual relationship or have been established by declaratory judgement by a court of law or are undisputed.
6. The purchaser will be entitled to withhold payments only as a result of effective and due counterclaims from the same contractual relationship.
VI. Retention of title
1. We reserve title to the goods until the complete payment of all present and future receivables (including all ancillary claims such as financing costs, interest rates) from the business relationship with the purchaser, if our claim to payment of the purchase price is not secured by some other means (e.g. LOC). If a current account agreement has been agreed with the purchaser, the retention of title will apply until full payment of the recognised current account balance has been made.
2. The customer is obliged to handle the goods with care; it is in particular obliged at its own expense to insure the goods at their replacement value against damage caused by fire, water and theft.
3. We undertake at the request of the purchaser to release the securities to which we are entitled insofar as the realisable value of our securities exceeds the claims to be secured by more than 10%.
4. The purchaser will immediately notify us of the garnishment, seizure or the like, damage and/or misplacement of the delivered goods; a breach of this obligation will gives us the right to withdraw from the contract. The purchaser will bear all the costs involved in the cancellation of the contract. The purchaser will bear all the costs incurred particularly in the context of third-party proceedings for the successful revocation of a garnishment and, if necessary, the successful recovery of the delivered goods, insofar as these costs cannot be collected from third parties.
5. If we have effectively withdrawn from the contract, we will be entitled to take back the reserved goods as long as their repossession has been threatened with a reasonable period of notice. The purchaser will bear the costs incurred by the exercise of the right of repossession, in particular for transport. We will be entitled to exploit the repossessed reserved goods and avail ourselves of the proceeds as long as such exploitation was previously threatened with a reasonable period of notice. If the proceeds exceed the outstanding claims from the contractual relationship, this surplus will be returned to the purchaser.
VII. Duty of examination and notification
1. The purchaser must itself subject the goods to due inspection immediately upon the receipt thereof or commission a third party with their immediate inspection.
2. Our liability for a failure of the goods to conform to the contract will lapse without any right of the purchaser to require an apology if the customer, once it has identified or should have identified said lack of conformity, should fail to inform us in writing of the lack of conformity, stating the exact nature thereof, within 7 working days (Saturday is not considered working day). The written notification of defects must be sent by the purchaser within the above-mentioned time limit; the written notification of defects sent within the time limit must also actually be received by us.
3. If, once the purchaser has informed us of a lack of conformity of the goods with the contract, no such lack of conformity can be identified, the purchaser must pay back to us the costs incurred in connection with the examination of the goods.
4. Unless we have granted it a longer warranty period, the purchaser will in all cases lose the right to assert a claim based on a lack of conformity with the contract if it should fail to notify us thereof within 12 months of actual receipt of the goods.
VIII. Goods that do not conform to the contract or goods with a defect of title
1. If evidence is forthcoming of the non-conformity of the goods with the contract, we will be entitled at our discretion to replace or repair the goods even after expiry of the agreed delivery time.
2. If the purchaser has granted us a reasonable grace period for repair or replacement and the rectification or replacement does not take place within this period or is refused by us, the purchaser will have the right to reduce the purchase price or to demand the annulment of the contract pursuant to the statutory regulations. The reduction of the amount of the purchase price will be limited to the damage suffered by the purchaser.
3. Any replacement or repair will not cause the period of grace pursuant to para. VII.4 to begin anew.
1. We will be liable without limitation for damage due to injury to life, limb or health based on a negligent breach of duty by us or an intentional or negligent breach of duty by one of our legal representatives or vicarious agents.
2. We will be liable pursuant to the principles of the German Product Liability Act and in the event of acceptance of a special warranty.
3. In all other cases we will be liable only for intentional or negligent violation of essential contractual obligations, where the liability is restricted to the damage typical of such a contract that is foreseeable at the time of the conclusion of the contract. An essential obligation is an obligation without whose fulfilment the execution of the contract concluded with the purchaser would be impossible and on whose fulfilment the purchaser has relied and should be able to rely and whose culpable non-fulfilment would jeopardise the achievement of the contractual purpose.
4. In all other cases, in particular for indirect or consequential damage (including lost profits, loss of goodwill, damage incurred through operating loss and fruitless expenditure), liability in our part is excluded unless the purchaser has expressly pointed out to us prior to the conclusion of the contract the possibility of such damage pursuant to para. II. 3.
5. If our liability is excluded or limited, this applies also to the personal liability of our employees, representatives and vicarious agents.
X. Industrial property rights
1. In the case of the delivery of goods that we produce according to drawings, models or other specifications of the customer, we will not be liable for any infringement of third-party rights. The purchaser must indemnify us against claims of third parties.
2. In no case of violation of third-party rights will we reimburse the purchaser for lost profits.
XI. Place of performance, applicable law and place of jurisdiction
1. The place of performance for deliveries and payments is Backnang.
2. The legal relationship with the purchaser, is governed by the United Nations Convention of 11 April 1980 on contracts for the international sale of goods (UN purchase law/CISG) in the English version. Legal issues which are not governed by this Convention or which cannot be decided according to its principles are subject to German law.
3. The exclusive place of jurisdiction for all disputes arising in connection with the contract is Stuttgart. We can however also assert claims in the legal jurisdiction of the purchaser.
KARASTO Armaturenfabrik Oehler GmbH
Backnang, March 2015