Domestic.
I. Scope of Application.
1. These General Terms and Conditions of Delivery and Payment (GTCDP) apply to all contracts between KARASTO Armaturenfabrik Oehler GmbH and customers whose principal place of business is in the Federal Republic of Germany. The relevant place of business is the one that concludes the contract in its own name.
2. These GTC apply exclusively to business customers, legal entities under public law or special funds under public law. A business customer is any natural or legal person or partnership with legal capacity who, at the time of concluding the contract, is acting in the course of their commercial or self-employed professional activity.
3. These General Terms and Conditions of Business apply to all our quotations and deliveries. They also apply to all future contracts with the customer, even if they are not expressly agreed upon again.
4. Any provisions in the customer’s terms and conditions that conflict with or deviate from the provisions of these General Terms and Conditions shall only apply insofar as we expressly agree to their validity.
5. Should provisions deviating from individual terms of these General Terms and Conditions be agreed between us and the customer, this shall not affect the validity of the remaining provisions of these General Terms and Conditions.
II. Quotation, Acceptance of Order
1. Our quotation is subject to change.
2. We reserve the right to make changes and correct errors regarding the illustrations and drawings of our goods in brochures, advertising material and price lists, as well as the data contained therein, e.g. regarding materials, dimensions and shapes, unless they are expressly designated as binding.
3. The documents accompanying the offer do not constitute a guarantee of quality or durability.
4. Orders with a net goods value of less than €250, or €500 in the case of a first order from a new customer, with the exception of spare parts, will not be accepted.
5. The customer is bound to an order for two weeks from receipt by us.
6. The contract is concluded either upon dispatch of our order confirmation in writing (e.g. by email or in writing) or upon fulfilment of the order, whichever occurs first.
7. The content of the contract is governed by the order confirmation or the documents expressly referred to in the order confirmation.
III. Delivery times, unavailability of the service
1. Information regarding delivery times is always non-binding, unless it has been designated as binding.
2. Subject to paragraph 3 below, the delivery period shall commence upon our dispatch of the order confirmation.
3. If the customer is obliged to procure certain documents themselves, such as permits, approvals, etc., or to make a down payment, the delivery period shall commence at the earliest at the time when all documents to be procured by the customer have been received by us or a down payment to be made has been received by us.
4. The delivery period shall be deemed to have been met if, by the end of the period – depending on the agreed method of delivery – the goods have left the factory or the goods have been made available to the customer and the customer has been notified that the goods are ready for dispatch.
5. If we are unable to meet binding delivery deadlines for reasons beyond our control (non-availability of the goods), we shall inform the customer of this immediately and at the same time notify them of the expected new delivery deadline. If the goods are still unavailable within the new delivery period, we shall be entitled to withdraw from the contract in whole or in part; we shall immediately refund any consideration already paid by the customer. In this context, the following shall in particular be deemed a case of unavailability of the goods
a) failure by our supplier to deliver to us on time, provided that we have entered into a corresponding covering transaction or that neither we nor our supplier are at fault;
b) force majeure in accordance with Clause IV;
c) virus attacks and other attacks by third parties on our IT system, insofar as these occurred despite the exercise of the due care customary for appropriate protective measures.
5. The occurrence of a delay in delivery on our part shall be determined in accordance with the statutory provisions. In any event, however, a written reminder setting a reasonable deadline by the customer is required.
6. Our liability for delay in delivery is limited in accordance with Clause XI of these GTC. Otherwise, the statutory rights of the customer and our statutory rights, in particular in the event of an exclusion of the obligation to perform (e.g. due to impossibility or unreasonableness of performance and/or subsequent performance), remain unaffected.
IV. Force Majeure
1. “Force majeure” means the occurrence of an event or circumstance that prevents a party from fulfilling a contractual obligation, if and to the extent that the party affected by the hindrance (hereinafter “the affected party”) proves (a) that such an impediment is beyond its reasonable control and (b) that the effects of the impediment could not reasonably have been avoided or overcome by the affected party. Impediments within the meaning of sub-clause (a) include, inter alia, wars, civil wars, uprisings, acts of terrorism, piracy, currency and trade restrictions, embargoes, sanctions, governmental measures and orders, expropriations, supply bottlenecks and material shortages, in particular shortages of energy or raw materials, epidemics, pandemics, natural disasters, fire or unauthorised strikes, as well as governmental orders based thereon, unless the non-affected party proves otherwise.
2. Provided that the conditions set out in paragraph 1 above are met, the affected party shall be released from its contractual obligations and from any liability for breach thereof from the time at which the impediment causes the inability to perform, and to the extent that the impediment prevents performance, provided that it notifies the other party without delay. If the notification is not made without delay, the exemption shall only take effect from the time at which the notification is received by the other party. The other party may suspend the performance of its obligations, where applicable, from the time of notification.
3. If the effect of the claimed impediment or event is temporary, paragraph 2 shall apply only for as long as the claimed impediment prevents the affected party from fulfilling its contractual obligation. The affected party must notify the other party as soon as the impediment in question no longer exists.
4. The affected party is obliged to remedy the force majeure to the extent possible and to limit its effects as far as possible.
5. Notwithstanding the foregoing, both parties shall be entitled to withdraw from the contract in whole or in part if the force majeure persists for more than 4 weeks from the agreed delivery date.
V. Partial deliveries, partial delay, partial impossibility
1. Partial deliveries are permitted and may be invoiced separately, provided this is reasonable for the customer and they have an objective interest in the partial delivery.
2. In the event of partial delay or partial impossibility, the customer may only withdraw from the entire contract or claim damages for non-performance of the entire obligation if the partial performance of the contract is of no interest to them.
3. In all other respects, the provisions of Section III above shall apply mutatis mutandis to partial delay.
VI. Delivery, Transfer of Risk
1. Delivery and the transfer of risk shall be governed by EXW (Incoterms 2020) from our warehouse in Backnang or, in the case of drop shipping, from our supplier’s warehouse. The risk shall pass to the customer under EXW even if we bear the shipping costs in individual cases.
2. Packaging shall be charged at cost when shipped via a forwarding agent, with a minimum charge of €10.
3. If dispatch is delayed due to circumstances for which we are not responsible, or at the purchaser’s request, the risk shall pass to the purchaser from the date of notification that the goods are ready for dispatch; however, we are obliged, at the purchaser’s request and expense, to arrange the insurance required by the purchaser.
4. If dispatch is delayed at the purchaser’s request, monthly storage costs amounting to 0.1% of the price of the goods sold shall be charged to the purchaser, commencing one month after notification that the goods are ready for dispatch.
5. If the goods are dispatched at the purchaser’s request, we shall choose the route and means of dispatch, without undertaking to provide the cheapest freight charges.
6. For orders involving shipment to third parties, a surcharge of €25 is currently applied; the minimum order value of €250 remains unaffected by this.
VII. Prices, Price Adjustments
1. All prices are quoted in euros plus applicable VAT ex-works Backnang, plus packaging and delivery costs.
2. We reserve the right to adjust our prices at our reasonable discretion in line with changes in external, unforeseeable costs beyond our control that are relevant to the calculation of prices. A price increase may be considered and shall be implemented if, for example, the costs of procuring raw materials (e.g. brass or packaging material costs), the costs of procuring energy (e.g. electricity or gas), or costs arising from government regulations (e.g. changes to tax measures and environmental levies or government market regulations such as the setting of new minimum prices) and the effects of force majeure (e.g. pandemics, epidemics, war, strikes, etc.) lead to a changed cost situation. Increases in these external cost factors shall be used to justify a price increase to a reasonable extent, in particular taking into account the respective relationship between performance and consideration and the interests of the customer. The customer retains the right to provide evidence of lower increases in external cost factors and price reductions based on the same parameters.
VIII. Terms of Payment
1. Payments are due net within 30 days at the Supplier’s place of payment. We grant a 2% discount for payments made within 10 days of the invoice date.
2. Set-off against counterclaims is only permitted if these are based on the same contractual relationship or have been legally established or are undisputed.
3. The customer is only entitled to withhold payments on the basis of valid and due counterclaims arising from the same contractual relationship.
IX. Retention of Title
1. We reserve title to the goods until all claims – including future claims – arising from the business relationship with the customer (including all ancillary claims such as financing costs and interest) have been settled in full. If a current account agreement has been concluded with the customer, the retention of title shall remain in force until the recognised current account balance has been settled in full.
2. The customer is obliged to treat the goods subject to retention of title with due care, in particular to insure them at their own expense against fire, water and theft damage at replacement value.
3. If the goods subject to retention of title are combined with other goods by the purchaser, we shall be entitled to co-ownership of the new item in the ratio of the invoice value of the goods subject to retention of title to the invoice value of the other goods, plus the processing value. If our ownership expires as a result of combination, mixing or processing, the customer shall, at the time of such combination, mixing or processing, transfer to us the ownership rights to which they are entitled in the new item to the extent of the invoice value of the goods subject to retention of title and shall hold them in safekeeping for us free of charge. The rights of ownership to which we are thereby entitled shall be deemed to be goods subject to retention of title within the meaning of paragraph 1 above.
4. The customer hereby assigns to us, in advance, all claims arising from the resale or further processing or any other legal basis (e.g. in the event of an insurance claim or in the case of tortious acts relating to the goods subject to retention of title, including purchase price, remuneration for work or other claims, as well as the acknowledged balance under a current account agreement) in the amount of the invoice value of the goods subject to retention of title; we accept the assignment. The assignment of claims pursuant to sentence 1 serves to secure all claims – including future claims – arising from the business relationship with the customer.
5. The purchaser is entitled to collect claims arising from the resale on our behalf in their own name on a revocable basis. This authorisation to collect may only be revoked if the customer fails to meet their payment obligations properly. At our request, the purchaser must, in such a case, provide the information necessary for collection regarding the assigned claims, make the relevant documents available and notify the debtor of the assignment.
6. In the event of attachment, seizure, damage and/or loss of the delivered goods, the purchaser must inform us immediately; a breach of this obligation entitles us to withdraw from the contract. The purchaser shall bear all costs incurred, in particular in the context of a third-party objection action, for the successful lifting of an attachment and, where applicable, for the successful recovery of the delivered goods, insofar as these cannot be recovered from third parties.
7. If we have validly withdrawn from the contract, we shall be entitled to take back the goods subject to retention of title, provided that notice of such repossession has been given with reasonable notice. The costs arising from the exercise of the right of repossession, in particular for transport, shall be borne by the customer. We are entitled to realise the value of the goods subject to retention of title that have been taken back and to satisfy our claims from the proceeds thereof, provided that the realisation was previously threatened with reasonable notice. Should the proceeds exceed the outstanding claims arising from the contractual relationship, this surplus shall be returned to the customer.
8. We undertake to release the securities to which we are entitled at the purchaser’s request to the extent that the realisable value of the securities exceeds the claims to be secured by more than 10%, and not merely temporarily. The aforementioned coverage limit of 110% shall be increased by the amount of VAT incurred by us upon the realisation of the security, arising from a VAT-liable supply by the customer to us, to the extent that we are liable for VAT on the realisation of the security. The customer is also entitled to demand the release of security if the estimated value of the goods transferred as security exceeds 150% of the claims to be secured. The selection of the security to be released is at our discretion.
9. In the event that cash payment or payment in advance has been agreed, ownership shall pass in full to the customer upon delivery. Insofar as we agree to a deferral of payment with the customer or deliver to them despite being aware of payment difficulties, we waive the extended and prolonged retention of title and deliver subject to simple retention of title.
X. Notice of defects, rights in the event of material defects
1. The customer must inspect the goods immediately upon receipt and give notice of all apparent defects in writing without delay, but at the latest within 7 working days (Saturdays do not count as working days); otherwise, the goods shall be deemed to have been accepted. Hidden defects must be reported in writing immediately upon discovery, at the latest within seven working days (Saturdays do not count as working days); otherwise, the goods shall be deemed to have been accepted, including with regard to these hidden defects.
2. Insofar as the goods are defective, we may, at our discretion, remedy the defect (repair) or deliver goods free from defects (replacement) as a remedy for non-performance. In all other respects, the customer is entitled to the statutory rights in respect of material defects.
3. Complaints regarding partial deliveries do not entitle the customer to reject the remaining deliveries, unless the customer is entitled to withdraw from the entire contract due to the defective partial delivery.
4. Claims arising from supplier recourse are governed by law. Such claims are excluded if the defective goods have been further processed by the customer or another business, e.g. by incorporation into another product.
5. The customer must grant us the time and opportunity necessary for the required subsequent performance, in particular to hand over the goods subject to complaint for inspection purposes. In the event of a replacement delivery, the customer must return the defective goods to us in accordance with statutory provisions.
6. Insofar as the customer asserts claims for damages, we shall be liable only subject to the provisions of Section XI below.
XI. Scope of Liability
1. We shall be liable without limitation for damage resulting from injury to life, limb or health arising from a negligent breach of duty on our part or from an intentional or negligent breach of duty by our legal representative or vicarious agent, and in cases of statutory strict liability, in particular under the Product Liability Act and in the event of warranty liability.
2. We shall be liable for other damages resulting from an intentional or grossly negligent breach of duty on our part or from an intentional or grossly negligent breach of duty by our legal representative or vicarious agent. In this case, liability shall be limited to the damage that was foreseeable at the time the contract was concluded and that typically occurs.
3. In the event of an intentional or negligent breach of a material contractual obligation, we shall be liable only for damage that was foreseeable at the time the contract was concluded and that typically occurs. An essential contractual obligation is an obligation which is essential for the proper performance of the contract concluded with the customer, on which the customer has relied and was entitled to rely, and the culpable non-performance of which jeopardises the achievement of the purpose of the contract.
4. In all other cases, our liability is excluded.
5. Insofar as our liability is excluded or limited, this shall also apply to our employees, representatives and vicarious agents.
XII. Limitation period
1. In the case of supplier recourse within the supply chain of a sale of consumer goods, in the case of statutory strict liability, in particular under the Product Liability Act, and in the case of warranty liability, the statutory limitation period shall apply.
2. In the case of damage resulting from injury to life, limb or health arising from a negligent breach of duty on our part or an intentional or negligent breach of duty by our legal representative or vicarious agent, in the case of other damage resulting from an intentional or grossly negligent breach of duty by us or an intentional or grossly negligent breach of duty by our legal representative or vicarious agent, as well as in the case of damage resulting from an intentional or negligent breach of material contractual obligations under the relevant contract by us or our legal representative or vicarious agent, the statutory warranty period shall also apply.
3. In the case of a structure and an item which, in accordance with its normal use, has been used for a structure and has caused its defectiveness, as well as in the case of a project whose outcome consists of the provision of planning or supervision services for a structure, the limitation period shall be five years.
4. In all other cases, the warranty period is one year.
XIII. Intellectual Property Rights
1. In the case of the delivery of goods which we manufacture in accordance with drawings, models or other specifications provided by the customer, we shall not be liable for any infringement of third-party intellectual property rights. The customer shall indemnify us against any claims by third parties.
2. Under no circumstances shall we compensate the customer for loss of profit arising from the infringement of third-party intellectual property rights.
XIV. Deterioration of financial position or creditworthiness
1. If the customer’s financial position deteriorates after the conclusion of the contract, we shall be entitled to carry out any outstanding deliveries and services only against the provision of security. If the customer is unable to provide the required security within a reasonable period, we shall be entitled to withdraw from the contract.
2. The same shall apply if, after the conclusion of the contract, we become aware of facts that give rise to reasonable doubts as to the customer’s solvency or creditworthiness, unless the customer can prove that we were already aware of these facts at the time the contract was concluded or should have been aware of them had we exercised due diligence.
3. Furthermore, in the above cases, we are entitled, on the basis of the retention of title agreed in Clause VII, to prohibit the further processing and resale of the delivered goods and to revoke the authorisation to collect payment in accordance with Clause VII(5).
XV. Place of performance, place of jurisdiction
1. The place of performance for deliveries and payments is Backnang.
2. If the customer is a merchant, a legal entity under public law or a special fund under public law, the exclusive place of jurisdiction for all disputes arising from the contractual relationship shall be Stuttgart. The same applies if the customer has no general place of jurisdiction within Germany, relocates their registered office, place of residence or habitual residence outside Germany after conclusion of the contract, or if their registered office, place of residence or habitual residence is unknown at the time the action is brought. However, we may also assert claims at the customer’s statutory place of jurisdiction.
KARASTO Armaturenfabrik Oehler GmbH
Backnang, December 2022
Export.
I. Scope.
1. These Terms and Conditions of Delivery and Payment for Exports (Export T&CP) apply to all contracts between KARASTO Armaturenfabrik Oehler GmbH and customers whose registered office or the branch office dealing with the contract is located outside the territory of the Federal Republic of Germany. The relevant branch office is the one that concludes the contract in its own name.
2. These Export T&C shall not apply if the customer purchases the goods for personal use or for use within the family or household and we were aware of this or should have been aware of this at the time the contract was concluded.
3. These Export General Terms and Conditions apply to all our quotations and deliveries. They also apply to all future contracts with the customer, provided that our quotation refers to these Export General Terms and Conditions.
4. Any provisions in the purchaser’s terms and conditions that conflict with or deviate from the provisions of these Export General Terms and Conditions shall only apply insofar as we expressly agree to their validity.
5. If provisions deviating from individual terms of these Export GTC are agreed between us and the Customer, this shall not affect the validity of the remaining provisions of these Export GTC.
II. Conclusion of Contract, Minimum Order Value and Subject Matter of the Contract
1. Our quotation is non-binding.
2. We reserve the right to make changes and correct errors regarding the illustrations and drawings of our goods in brochures, advertising material and price lists, as well as the data contained therein, e.g. regarding material, dimensions and shape, unless they are expressly designated as binding. They shall only become legally binding parts of the contract if the contract expressly refers to them.
3. The customer is obliged to inform us prior to the conclusion of the contract if the goods to be delivered are intended solely for normal use, or if they are to be used under unusual conditions or conditions posing a particular health, safety or environmental risk, or requiring increased stress, or if the contract may involve atypical possibilities of damage or unusual levels of damage of which the customer is aware or ought to be aware.
4. The documents accompanying the quotation do not constitute a guarantee of quality or durability. Orders with a net goods value of less than €500, or €1,000 in the case of a first order from a new customer, with the exception of spare parts, will not be accepted.
5. The customer is bound by an order for two weeks from the date of receipt by us.
6. The contract is concluded either upon dispatch of our written order confirmation or upon fulfilment of the order, whichever occurs first.
7. The content of the contract is governed by the order confirmation or the documents expressly referred to in the order confirmation.
III. Delivery times and unavailability of the service
1. Information regarding delivery times is always non-binding, unless it has been designated as binding.
2. Subject to clause 3 below, the binding delivery period commences upon our dispatch of the order confirmation.
3. If the customer is obliged to procure certain documents themselves, such as permits, approvals, etc., or to make a down payment, the binding delivery period shall commence at the earliest on the date on which we have received all documents to be procured by the customer or have received any down payment due.
4. The binding delivery period shall be deemed to have been met if, by the time it expires – depending on the agreed method of delivery – the goods have left the factory or the goods have been made available to the customer and the customer has been notified that they are ready for dispatch.
5. If we are unable to meet binding delivery deadlines, either in full or in respect of part of the goods to be delivered, for reasons beyond our control which we could not foresee at the time of concluding the contract or which we cannot avoid or overcome (hindrance), we shall inform the customer of this without delay and at the same time notify them of the expected new delivery deadline. If we are still prevented from performing within the new delivery period, we shall be entitled to rescind the contract in whole or in part; we shall immediately refund any consideration already paid by the customer. A force majeure event in this sense shall include, in particular
a) failure by our supplier to deliver to us on time despite a timely order, or where neither we nor our supplier have any influence over the impediment;
b) force majeure in accordance with Clause IV; or
c) virus attacks and other attacks by third parties on our IT system, insofar as these occurred despite the exercise of due care in complying with standard protective measures.
6. In any event, a claim for damages by the Customer on account of late delivery presupposes that the Customer has set us a reasonable grace period and we have not delivered within that period.
7. The Customer’s statutory rights remain unaffected in all other respects; however, we shall only be liable if we are responsible for the delay and only within the scope of Section XIII below of these Export General Terms and Conditions of Business. In particular, we shall not be responsible for any failure by our supplier to deliver to us on time.
IV. Force Majeure
1. “Force majeure” means the occurrence of an event or circumstance that prevents a party from fulfilling a contractual obligation, if and to the extent that the party affected by the hindrance (hereinafter “the affected party”) proves (a) that such an impediment is beyond its reasonable control and (b) that the effects of the impediment could not reasonably have been avoided or overcome by the affected party. Impediments within the meaning of sub-clause (a) include, inter alia, wars, civil wars, uprisings, acts of terrorism, piracy, currency and trade restrictions, embargoes, sanctions, governmental measures and orders, expropriations, supply bottlenecks and material shortages, in particular shortages of energy or raw materials, epidemics, pandemics, natural disasters, fire or unauthorised strikes, as well as governmental orders based thereon, unless the non-affected party proves otherwise.
2. Provided that the conditions set out in paragraph 1 above are met, the affected party shall be released from its contractual obligations and from any liability for breach thereof from the time at which the impediment causes the inability to perform, and to the extent that the impediment prevents performance, provided that it notifies the other party without delay. If the notification is not made without delay, the exemption shall only take effect from the time the notification is received by the other party. The other party may suspend the performance of its obligations, where applicable, from the time of notification.
3. If the effect of the claimed impediment or event is temporary, paragraph 2 shall apply only for as long as the claimed impediment prevents the affected party from fulfilling its contractual obligation. The affected party must notify the other party as soon as the impediment in question ceases to exist.
4. The affected party is obliged to remedy the force majeure to the extent possible and to limit its effects as far as possible.
5. Notwithstanding the foregoing, both parties shall be entitled to terminate the contract in whole or in part if the force majeure persists for more than 4 weeks from the agreed delivery date.
V. Partial deliveries, partial delays, partial impossibility
1. Partial deliveries are permitted and may be invoiced separately.
2. In the event of a partial delay in delivery or partial impossibility of performance, the customer may only terminate the entire contract and claim damages if the partial non-performance constitutes a material breach of contract.
3. In all other respects, the provisions of Section III above shall apply mutatis mutandis to breaches of contract resulting from partial delays in delivery.
VI. Delivery and transfer of risk
1. Delivery and transfer of risk shall be governed by EXW (Incoterms 2010) from our warehouse in Backnang. Risk shall pass to the customer under EXW even if we bear the shipping costs in individual cases, unless a special delivery clause has been agreed.
2. Packaging costs will be charged at cost when goods are dispatched via a forwarding agent, with a minimum charge of €10.
3. If a different delivery clause has been agreed and dispatch is delayed due to circumstances beyond our control, in particular at the purchaser’s request, the risk shall pass to the purchaser upon the goods being made available and receipt of notification that the goods are ready for dispatch; however, we are obliged, at the purchaser’s request and expense, to arrange the insurance required by the purchaser.
4. If dispatch is delayed at the purchaser’s request, monthly storage costs amounting to 0.1% of the price of the goods sold shall be charged to the purchaser, commencing one month after notification that the goods are ready for dispatch.
5. If the goods are dispatched at the customer’s request, we shall choose the route and means of dispatch, without undertaking to provide the cheapest freight option.
6. For orders with delivery to third parties, a handling fee of €25 will be charged; the minimum order value of €1,000 remains unaffected by this.
VII. Prices
1. All prices are quoted in euros plus applicable VAT ex-works Backnang, plus packaging and shipping costs.
2. The customer must check all invoices for accuracy and completeness immediately upon receipt. Any objections to invoices must be raised in writing within one month of receipt. Failure to raise objections in good time shall be deemed to constitute acceptance of the invoice.
3. We reserve the right to adjust our prices at our reasonable discretion in line with developments in external, unforeseeable costs beyond our control that are relevant to the calculation of prices. A price increase may be considered and shall be implemented if, for example, the costs of procuring raw materials (e.g. brass or packaging material costs), the costs of procuring energy (e.g. electricity or gas), or costs arising from government regulations (e.g. changes to tax measures and environmental levies or government market regulations such as the setting of new minimum prices) and the effects of force majeure (e.g. pandemics, epidemics, war, strikes, etc.) lead to a changed cost situation. Increases in these external cost factors shall be used to justify a price increase to a reasonable extent, in particular taking into account the respective relationship between performance and consideration and the interests of the customer. The customer retains the right to provide evidence of lower increases in external cost factors and price reductions based on the same parameters.
VIII. Prices and Terms of Payment
1. Payments are due net within 30 days, free of charges to the Supplier’s paying agent. We grant a 2% discount for payments made within 10 days of the invoice date. The timely payment by the Customer shall be deemed to have been made upon receipt of the credit entry in the account specified on the invoice for payment. All additional costs arising from the choice of payment method shall be borne by the Customer.
2. If the customer fails to pay the purchase price on time, we shall be entitled, without prejudice to other legal remedies, to charge default interest at a rate of 9 percentage points above the respective base rate of the European Central Bank. We reserve the right to claim further damages.
3. Set-off or netting is only permitted against counterclaims arising from the same contractual relationship or which have been legally established or are undisputed.
4. The customer is only entitled to withhold payments on the basis of valid and due counterclaims arising from the same contractual relationship.
IX. Purchase Price Security, Retention of Title
1. In the event that cash payment or payment in advance has been agreed, ownership shall pass in full to the customer upon delivery.
2. Insofar as a retention of title does not exist at the place of delivery in accordance with the following provisions, the customer must provide us with another functionally equivalent security (e.g. letter of credit or bank guarantee).
3. Insofar as a retention of title is recognised at the place of delivery, we reserve title to the goods until the purchase price has been paid in full in accordance with clauses 4 to 6 below (hereinafter “goods subject to retention of title”), provided that our claim to the purchase price is not secured by other means.
4. The customer is obliged to treat the goods subject to retention of title with due care, in particular to insure them at their own expense against fire, water and theft damage at replacement value.
5. In the event of attachment, seizure or similar measures, as well as in the event of damage to and/or loss of the delivered goods, the customer must inform us immediately; a breach of this obligation entitles us to rescind the contract. The customer shall bear all costs incurred, in particular in the context of a third-party objection action, for the successful lifting of a seizure and, where applicable, for the successful recovery of the delivered goods, insofar as these cannot be recovered from third parties.
6. If we have validly terminated the contract, we shall be entitled to take back the goods subject to retention of title, provided that notice of such repossession has been given with reasonable notice. The costs arising from the exercise of the right of repossession, in particular for transport, shall be borne by the customer. We are entitled to realise the value of the goods subject to retention of title that have been taken back and to satisfy our claims from the proceeds thereof, provided that the realisation of the value was previously threatened with reasonable notice. Should the proceeds exceed the outstanding claims arising from the contractual relationship, this surplus shall be returned to the customer.
X. Duty to Inspect and Give Notice of Defects
1. The customer must inspect the goods properly or have them inspected immediately upon receipt.
2. Our liability for any breach of contract relating to the goods shall lapse, without the customer being entitled to invoke any excuse in this regard, if the customer fails to notify us in writing of such breach within 7 working days (Saturday does not count as a working day) of discovering it or of when they should have discovered it, specifying the nature of the breach in detail. The Customer’s written notice of defects must have been dispatched by the Customer within the aforementioned period; furthermore, it is essential that the notice of defects, dispatched within the time limit, has actually been received by us.
3. If, following a notification of defects by the customer, no breach of contract regarding the goods can be established, the customer shall reimburse us for the costs incurred in connection with the inspection of the goods.
4. In any event, the customer shall lose the right to rely on the non-conformity of the goods if they do not notify us of such non-conformity within 12 months at the latest after the goods have actually been delivered to them, unless we have granted them a longer warranty period.
XI. Goods in breach of contract or with legal defects
1. If the non-conformity of the goods is proven, we shall be entitled, even after the agreed delivery period has expired, to first, at our discretion, either rectify the defect or – in the event of a material breach of contract – provide a replacement delivery. The right to refuse performance under the statutory conditions remains unaffected.
2. Claims arising from statutory supplier recourse are excluded.
3. If the customer has set us a reasonable grace period for rectification or replacement and the rectification or replacement has not taken place within this period or is refused by us, the customer shall be entitled to reduce the purchase price or to demand the cancellation of the contract in accordance with the statutory provisions.
4. The reduction in the purchase price shall be limited in amount to the loss suffered by the customer.
5. Replacement delivery or rectification shall not result in the period specified in Clause X.4 starting to run anew.
6. The warranty period pursuant to Clause XIII shall only recommence for replaced or repaired parts of the goods.
7. We shall only be liable for damage resulting from the goods being in breach of contract in accordance with Clause XII below.
XII. Liability
1. We shall be liable without limitation for damage resulting from injury to life, limb or health arising from an intentional or negligent breach of duty on our part or from an intentional or negligent breach of duty by our legal representative or vicarious agent.
2. We shall be liable in accordance with the principles of product liability law and where we have assumed a specific guarantee.
3. Otherwise, we shall only be liable in the event of an intentional or negligent breach of a material contractual obligation and only for direct damage that was foreseeable at the time the contract was concluded and that typically occurs. An essential contractual obligation is an obligation which is essential for the proper performance of the contract concluded with the customer, on which the customer has relied and was entitled to rely, and the culpable non-performance of which jeopardises the achievement of the purpose of the contract.
4. In all other cases, in particular for indirect and consequential damages (including loss of profit, loss of goodwill, business interruption losses and wasted expenditure), our liability is excluded, unless the customer has expressly drawn our attention to this possibility of damage prior to the conclusion of the contract in accordance with Clause II.3.
5. Insofar as our liability is excluded or limited, this shall also apply to our employees, representatives and vicarious agents.
XIII. Limitation Period
1. In the case of statutory strict liability, in particular under the Product Liability Act, and in the case of warranty liability, the statutory limitation period shall apply.
2. In the case of damage resulting from injury to life, limb or health arising from a negligent breach of duty on our part or an intentional or negligent breach of duty by our legal representative or vicarious agent, in the case of other damage resulting from an intentional or grossly negligent breach of duty by us or an intentional or grossly negligent breach of duty by our legal representative or vicarious agent, as well as in the case of damage resulting from an intentional or negligent breach of material contractual obligations under the relevant contract by us or our legal representative or vicarious agent, the statutory warranty period shall also apply.
3. In the case of a structure and an item which, in accordance with its normal use, has been used for a structure and has caused its defectiveness, as well as in the case of a project whose success consists in the provision of planning or supervision services for a structure, the limitation period shall be five years.
4. In all other cases, the limitation period or liability period for defects shall be one year.
XIV. Intellectual Property Rights
1. In the case of the delivery of goods which we manufacture in accordance with drawings, models or other specifications provided by the Customer, we shall not be liable for any infringement of third-party intellectual property rights. The Customer shall indemnify us against any claims by third parties.
2. Under no circumstances shall we compensate the customer for loss of profit arising from the infringement of third-party intellectual property rights.
XV. Deterioration of financial position or creditworthiness
1. If the purchaser’s financial position deteriorates after the conclusion of the contract, the provisions of the UN Convention on Contracts for the International Sale of Goods shall apply without restriction.
2. The same shall apply if, after the conclusion of the contract, we become aware of facts that give rise to reasonable doubts as to the purchaser’s solvency or creditworthiness, unless the purchaser can prove that we were already aware of these facts at the time the contract was concluded.
XVI. Place of performance, applicable law and jurisdiction
1. The place of performance for deliveries and payments is Backnang.
2. The legal relationship with the purchaser shall be governed by the United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980 (UN Convention on Contracts for the International Sale of Goods/CISG) in its English-language version. Legal issues not covered by this Convention or which cannot be resolved in accordance with its principles shall be governed by German law.
3. The exclusive place of jurisdiction for all disputes arising from the contract is Stuttgart. However, we may also bring claims in the purchaser’s place of jurisdiction as provided by law.
KARASTO Armaturenfabrik Oehler GmbH
Backnang, December 2022