Terms and conditions of delivery and payment of
KARASTO Armaturenfabrik Oehler GmbH
– export –
I. Scope of application
- 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.
- 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.
- These Export Terms apply to all our offers and deliveries. They also apply to all future contracts with the buyer if reference is made in our offer to these Export Terms.
- 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.
- 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
- Our offer is non-binding.
- 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.
- 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 associated 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.
- The documents belonging to the offer do not constitute a guarantee of quality or durability.
- Orders below a net value of EUR 500.00 (respectively in the event of a first order by a new buyer EUR 1,000.00) with the exception of spare parts will not be accepted.
- The buyer is bound to an order for two weeks from receipt by us.
- 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.
- The content of the contract shall be governed by the order confirmation or the documents expressly referred to in the order confirmation.
III. Delivery times and non-availability of the performance
- Information about delivery time is always non-binding unless such delivery time has been described as binding.
- The delivery time promised as binding commences with the sending of the order confirmation by us, subject to Clause 3 below.
- 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.
- The delivery time promised as binding is complied with if by the time of its expiry – depending on the agreed method of delivery – the goods have left the factory or we have made the goods available to the buyer and notified the buyer of their readiness for dispatch.
- If we are unable to comply with binding delivery time entirely or with regard to some of the goods to be delivered for reasons that are beyond our control and that we have not been able to foresee at the time of the conclusion of the contract, or which we have not been able to avoid or overcome (“Obstacle”), we will notify the buyer immediately of this and at the same time give notification of the new delivery time. If we are also prevented from rendering performance within the new delivery period, we are entitled to declare the contract avoided in its entirety or in part; we will reimburse without delay any respective consideration of the buyer that has already been performed. The following shall in particular be deemed to be an Obstacle in this sense
a) the failure of our supplier to deliver to us in a timely manner, despite we having placed an order in due time, or if neither we nor our supplier have any influence on the reason for the impediment;
b) force majeure according to Clause. IV below; or
c) viruses and other attacks by third parties on our IT system, insofar as such attacks occurred despite compliance with the customary care required for appropriate protective measures.
- 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.
- 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 XIII of these Export Terms below. In particular, we are not responsible for the non-timely self-delivery by our supplier.
IV. Force Majeure
- “Force Majeure » means the occurrence of an event or circumstance which prevents a party from performing a contractual obligation if and to the extent that the party affected by the impediment (« Affected Party ») proves (a) that such 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. For the purposes of lit. (a), an obstacle shall include, but is not limited to, wars, civil wars, riots, acts of terrorism, piracy, currency and trade restrictions, embargoes, sanctions, supply shortages, official measures and orders, expropriation, epidemic, pandemic, natural disasters, fire, unless the non-affected party proves otherwise.
- To the extent that para. 1 has been fulfilled, the Affected Party shall be released from the contractual obligation and from any liability for its breach from the time when the impediment causes the inability to perform and to the extent that the impediment prevents performance, provided that it notifies the other party without un-due delay. If such notification is not given without undue delay, the relief shall only be-come effective from the time when the notification is received by the other party. The other party may, if applicable, suspend performance of its obligations from the date of notification.
- If the effect of the impediment or event claimed is temporary, para. 2 shall apply only as long as the impediment claimed prevents the Affected Party from performing its obligations under the Contract. The Affected Party shall notify the other party as soon as the obstacle concerned no longer exists.
- The Affected Party shall be obliged to remedy the Force Majeure as far as possible and to limit its effects as far as possible.
- Notwithstanding the foregoing, both parties shall be entitled to declare the contract avoided in whole or in part if the Force Majeure lasts for more than 4 weeks from the agreed delivery date.
V. Partial deliveries, partial delays, partial impossibilities
- Partial deliveries are permissible and can be invoiced independently.
- In the event of a partial delay in delivery or a partial impossibility of delivery, the buyer may declare the entire contract avoided and claim damages on that account only if the partial non-performance is a fundamental breach of the contract.
- In all other respects, the provisions of Clause III above shall apply mutatis mutandis to breach of contract due to partial delay in delivery.
VI. Delivery and passing of risk
- 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.
- Packaging will be invoiced at cost, if shipped via a forwarding agent, however at least with € 10,-.
- If a different delivery clause of Incoterms 2020 has been agreed and the dispatch is delayed due to circumstances for which we are not responsible, in particular at the buyer’s request, risk will pass to the buyer with upon the provision of the goods and the receipt of the notification regarding readiness for dispatch; we shall, however, be obliged, at the request and expense of the buyer, to effect such insurance as the buyer may require.
- 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.
- 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.
- 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.
- All prices are in EUR plus applicable VAT ex stock Backnang, exclusive of packaging and dispatch costs.
- 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.
- We reserve the right to adjust our prices at our reasonable discretion to the development of external costs for which we are not responsible and which are not foreseeable and which are decisive for the price calculation. A price increase is possible and must be made if, for example, the costs for the procurement of raw materials (e.g. measuring or packaging material costs), the costs for the procurement of energy (e.g. electricity or gas) or the costs due to government regulations (e.g. changes in tax measures and environmental regulations) increase. changes in 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 change in the cost situation. Increases in these external cost factors shall be used for a price increase to a reasonable extent, in particular taking into account the respective relationship between performance and counter-performance and taking into account the interests of the buyer. The buyer shall have the right to provide evidence of lower increases in external cost factors and price concessions according to the same parameters.
VIII. Terms and conditions of payment
- 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 payment 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.
- 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.
- 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.
- The buyer is only entitled to retain payments due to effective and due counter-claims arising from the same contractual relationship.
IX. Securities, Retention of title
- In the event that cash payment or advance payment has been agreed, ownership shall pass to the buyer in full upon delivery.
- In the event that a retention of title shall not exist at the place of destination of the delivery in accordance with the following provisions, the buyer shall provide us with another functionally equivalent means of security (e.g. letter of credit or bank guarantee).
- In so far as a retention of title is recognized at the destination of the delivery, we shall retain title to the goods until the purchase price has been paid in full in accordance with para. 4 through 6 below („Reserved Goods“), unless the purchase price is otherwise secured.
- 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.
- 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.
- 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.
X. Obligation of examination and notification of defects
- The buyer must examine the goods properly immediately on receipt, or have them examined.
- 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.
- 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.
- 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.
XI. Goods in breach of contract
- 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 – in the event of a material breach of contract – replacement delivery at our discretion. The right to refuse performance under the statutory conditions shall remain unaffected.
- Claims from legal supplier recourse for consumer purchases are excluded.
- 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.
- Replacement delivery or subsequent improvement does not result in the deadline pursuant to Clause X.4 starting to run anew.
- The liability period for defects according to Clause XIII shall recommence only for replaced or repaired parts of the goods.
- We shall be liable for damages on account of non-conformity of the goods only according to the following Clause XII.
- 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.
- We are liable pursuant to the principles of product liability law and when a special guarantee is assumed.
- 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.
- 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.
- If our liability is excluded or restricted, this also applies to our employees, representatives and vicarious agents.
XIII. Limitation Period
- In the case of statutory strict liability, in particular under the Product Liability Act and in the case of express special guarantee, the statutory limitation period shall apply.
- In the case of damages arising from injury to life, body or health, which are based on a negligent breach of duty by us or on an intentional or negligent breach of duty by our legal representative or vicarious agent, in the case of other damages, which are based upon an intentional or grossly negligent breach of duty by us or upon an intentional or grossly negligent breach of duty by our legal representative or vicarious agent, as well as in the case of damages which are based upon an intentional or negligent breach of essential contractual duties arising from the respective contract by us or our legal representative or vicarious agent, the statutory warranty period shall likewise apply.
- In the case of a building and an item that has been used for a building in accordance with its customary use and has caused its defectiveness, as well as in the case of a work the success of which consists in the provision of planning or supervisory services for a building, the limitation period shall be five years.
- In all other cases, the warranty period shall be one year from the transfer of risk.
XIV. Intellectual property rights
- 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.
- On no account, we will reimburse the buyer for lost earnings, if third-party intellectual property rights are being breached.
XV. Financial Deterioration
- If the buyer’s assets deteriorate after the conclusion of the contract, the provisions of the UN Convention on Contracts for the International Sale of Goods shall apply without restriction.
- The same shall apply in the event that, after the conclusion of the contract, we should become aware of facts that give rise to justified doubts as to the solvency or creditworthiness of the buyer, unless the buyer can prove that these facts were already known to us at the time of the conclusion of the contract.
XVI. Place of performance, applicable law and place of jurisdiction
- The place of performance for deliveries and payments is Backnang.
- 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.
- 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, December 2022