General Terms and Conditions
I. General Terms and Conditions
All goods and services shall be rendered on the basis of these terms and conditions as well as any other separate contractual agreements.
Terms and conditions of purchase of the Buyer that differ from these terms and conditions to hand are expressly rejected. They shall not become part of the contract even if an order is accepted and goods are supplied. Side agreements and amendments of these terms and conditions must be made in writing as well as being subject to the express written consent of the Supplier. They shall replace these general terms and conditions in so far as these terms and conditions become null and void. Offers by OTTO are subject to change without notice and are not binding, if they are not expressly marked in writing as being “binding”.
II. Sales, delivery and payment terms
1. Prices: Unless an agreement is made to the contrary, the prices shall apply ex Works excluding packing and plus value added tax at the rate in force at that time. Expenses incurred for the production of stereotypes, final drawings, printed documents and special tools shall be invoiced separately.
Significant changes to specific cost factors (in particular costs for wages, primary materials or freight) occurring within the first six weeks after the contract is signed shall not entitle the Supplier to amend an agreed fixed price. If there are significant changes in the cost factors once the named 6-week period has elapsed, the Supplier shall be entitled to amend his prices as appropriate. The same shall apply if the ordered goods are only to be supplied more than 4 months after the contract has been signed.
2. Dispatch: Risk shall pass over to the Buyer no later than when the consignment is dispatched. If dispatch is delayed as a result of reasons for which the Buyer is to blame, risk shall pass over to him on the day on which the goods are ready for dispatch. In this case the Supplier shall have to take out the insurance policies required at the request and cost of the Buyer.
3. Obligation to supply:
Delivery dates and delivery periods shall only count as approximations at all times, provided that they have not been expressly designated in writing as binding. They shall refer to the point in time at which the goods are dispatched and notification of readiness for dispatch constitutes compliance. All supply transactions shall be subject to the reservation of OTTO being supplied with the correct goods on time itself. The Supplier shall give notification of delays as soon as possible when they become apparent. Delivery periods shall only begin if agreement has been reached on all order details. If the Buyer requests a modification after the order has been confirmed, and if this request is accepted by OTTO, the delivery period shall only begin once the modification has been confirmed. Compliance with a delivery period shall assume the fulfilment of the Buyer’s contractual obligations. Delivery periods shall be extended by the period by which the fulfilment of the contractual obligations is delayed by the Buyer irrespective of the Supplier’s rights based on default. This shall not apply in so far as the Supplier is to blame for the delay.
If non-compliance with the delivery period is attributable to force majeure, to labour disputes or to other events beyond the Supplier’s control, the delivery period shall consequently be extended as appropriate. In addition to this, the Buyer may withdraw from the contract if it is impossible to supply part of an order and the Buyer has a justified interest in rejecting a part delivery. If this is not the case, the Buyer shall consequently have to pay the contract price attributable to the part delivery. The same shall apply if it is impossible for the Supplier to supply. Moreover the arrangement in Number V.2 shall apply.
If it becomes impossible within default in acceptance to supply the goods as ordered or if the Buyer is solely or predominantly responsible for the circumstances, he shall be obliged to render counter performance.
If the Supplier is in default and the Buyer accrues a loss as a result, the Buyer shall consequently be entitled to demand lump sum in compensation. For each week of the delay it shall amount to 0.5%, up to a maximum of 5% of the value of that part of the overall consignment which cannot be used on time or in accordance with the contract as a result of the delay.
If the Buyer, taking into consideration the statutory exceptions, sets the Supplier a reasonable period of time for performance after a delivery is due and the Supplier fails to deliver within this period, the Buyer shall be entitled to withdraw from the contract in line with the statutory regulations.
Other claims based on default in delivery shall only be determined by Section V.2 of these terms and conditions.
Reasonable part deliveries as well as discrepancies in deliveries from ordered quantities of up to + / – 10% are allowed, unless the Buyer is unable to reasonably use the part delivery.
4. Materials furnished by the Buyer: If materials are supplied by the Buyer they are consequently to be supplied in perfect condition on time and at his risk and cost with a reasonable quantity surplus of at least 5%. In the event of non-fulfilment of these requirements, the delivery period shall be extended as appropriate. Except in cases of force majeure, the Buyer shall bear the additional costs arising disruptions in production as well. All the goods furnished by the Buyer are to be insured by the Buyer.
5. Terms and conditions of payment:
1. Claims for payment shall become payable upon presentation of invoice and delivery. The Buyer shall be in default if he has not settled the claim for payment within a period of 14 days from the receipt of the performance and invoice. If the Buyer is in default with payment, interest shall be payable upon claims for payment at 8% above base rate. The Seller’s right to assert a claim for additional damages shall not be affected by the above claim.
2. Cheques shall only be accepted on account of fulfilment. Payments by drafts shall not be regarded as payment in cash. Drafts which can be discounted shall only be accepted by express agreement. All associated costs shall be for the Buyer’s account. Offsetting as well as the assertion of a right of retention on account of the Buyer’s counterclaims which are disputed by the Supplier and have not been declared final and absolute in a court of law is not allowed.
6. Transactions entered into and call-off orders are to be handled within the agreed period of time. If the call-off is not made on time the Supplier shall be entitled once a reasonable set period of time has expired unsuccessfully, at his choice to withdraw from his supply obligation, to invoice the remaining goods of which the Buyer has to take delivery or to demand compensation for damages on account of non-fulfilment.
III. Reservation of title
1. Consignments shall remain the property of the Supplier until all his accounts against the Buyer from the current business relationship have been fulfilled, even if the purchase price is paid towards a specifically marked account.
2. Processing and treatment by the Buyer shall be conducted on behalf of the Supplier without the Buyer acquiring title in accordance with § 950 of the German Civil Code [BGB]. The Supplier shall retain the title to the thing created as a result of processing and treatment which shall serve as goods subject to reservation of title as a security for the Seller’s claims in accordance with 1 above.
3. When the Supplier’s goods are processed (Combined / blended) together with other goods not belonging to the Buyer the provisions of § 947, § 948 of the German Civil Code [BGB] shall apply with the result that the Supplier’s co-ownership of the new thing is now goods subject to reservation of title within the meaning of these terms and conditions.
4. The Buyer is only allowed to resell the goods subject to reservation of title in normal business transactions subject to the condition that he likewise agrees a reservation of title with his buyers in accordance with 1 to 3. The Buyer is not entitled to dispose otherwise of the goods subject to reservation of title, in particular by means of pledging and assignment by bill of sale as a security. The Buyer’s authority to resell the goods subject to reservation of title shall lapse in so far as such goods are to be resold to buyers who have precluded or limited a claim for payment being asserted against them. Likewise the Buyer shall not be authorised to resell the goods subject to reservation if he has prevented the advance assignment of his claim against his customer by means of a protective clause in his general terms and conditions of business designed to exclude the terms and conditions of business of other parties from applying.
5. In the event that the goods subject to the reservation of title are resold, the Buyer shall assign here and now the accounts accruing to him from the resale and other accounts against his customers with all subsidiary claims to us until all our claims as Supplier have been fulfilled.
6. If the goods subject to reservation of title are resold by the Buyer after they have been processed in accordance with Number 2 and / or Number 3, or together with other goods not belonging to us as Supplier, the assignment of the claim to the purchase price, in accordance with Number 5 shall only apply for the amount of the invoiced value of the Supplier’s goods subject to reservation of title.
7. If the value of the securities existing for the Supplier exceeds his total claim by more than 20%, the Supplier shall consequently be obliged, upon request by the Buyer, to release securities at the Supplier’s choice.
8. Levies of execution or confiscations of the goods subject to reservation of title by third parties are to be notified to the Supplier straight away. The resultant costs of intervention are to be for the Buyer’s account in all cases.
9. If the Buyer is in breach of the contract, in particular if he is in default with payment, the Supplier shall be entitled to take back the items he supplied after having sent the Buyer a written warning. The Buyer shall be obliged to hand over the items supplied by the Supplier.
10. The Supplier may only demand that the items he has supplied are handed over to him on the basis of the reservation of title if he has withdrawn from the contract.
11. The application for the instigation of insolvency proceedings shall entitle the Supplier to withdraw from the contract and to demand the immediate return of the items supplied by him.
12. If the Supplier has stated his withdrawal from the contract and his statement is legally valid, and has received his goods back, his claim to the payment of the purchase price shall lapse. The title shall remain with the Supplier for once and for all. Any other claims the Supplier may have over and above this, to compensation for damages in particular shall not be affected as a result.
IV. Notification of defects
1. The Buyer shall have to inspect the goods straight away upon delivery by the Supplier, provided that this is possible in accordance with the proper course of business and if a defect is apparent, the Buyer shall have to notify the Supply straight away. If the Buyer fails to notify the Seller of defects, the goods shall be regarded as having been approved, unless the defect is a defect which could not have been identified with an inspection.
If such a defect should become manifest subsequently, it must be notified subsequently upon discovery, otherwise the goods shall be regarded as having been approved taking this defect into consideration. It shall suffice for the notification of the defect to have been sent to the Supplier in good time for the Buyer’s rights to be maintained. The Supplier cannot rely upon the above regulations if he has maliciously concealed the defect himself.
2. The Buyer must conduct an inspection straight away – if necessary by carrying out a test processing to verify whether the supplied goods are free of defect and suitable for the intended use. If he fails to conduct the test, the Supplier shall be exempted from any liability. Any complaints there may be are to be asserted stating the order data and the invoice and dispatch number.
3. If the Buyer sells or processes the goods having recognised that they are defective, the Supplier’s warranty liability shall lapse.
4. All those parts which turn out to be defective as a result of a fact or circumstance existing prior to the passing of risk are to be repaired or replaced free of charge as the Supplier chooses. Replaced parts shall become the property of the Supplier.
5. The Buyer shall have to reach an agreement with, and allow, the Supplier the necessary time and opportunity to carry out all the repairs appearing necessary to the Supplier. Otherwise the Supplier shall be exempted from liability for the consequences arising thereof. Only in urgent cases in which operational safety is jeopardised, or to avert damage on a disproportionately large scale, whereby the Supplier is to be notified straight away, will the Buyer be entitled to rectify the defect himself or to have it rectified by a third party and to demand the reimbursement from the Supplier of the necessary expenditure.
6. The Supplier shall bear the direct costs of the replacement part including dispatch incurred by the repair or the supply of a replacement part provided that the complaint turns out to be justified. Besides which he shall bear the costs of dismantling and installing the part as well as the costs, if necessary, of providing the necessary fitters and assistants including travelling expenses in so far as these do not constitute a disproportionately high cost for the Supplier.
7. The Buyer shall be entitled to withdraw from the contract in accordance with statutory regulations if the Supplier – taking into consideration the statutory exceptions – allows a reasonable period he has been set to carry out the repair or to supply a spare part on account of a quality defect to elapse unsuccessfully. If the defect is no more than minor, the Buyer shall be entitled to reduce the contract price. The right to reduce the contract price shall otherwise be excluded.
8. No warranty shall be furnished in the following cases in particular: improper and unsuitable use, improper assembly or start-up by the Buyer or third party, natural wear and tear, faulty or negligence operation, improper maintenance, unsuitable working materials, chemical, electronic or electrical factors – provided that the Supplier is not responsible for them.
9. If the Buyer of a third party carries out a repair improperly, the Supplier shall not have any liability for the consequences thereof. The same shall apply for the modifications carried out to the delivered item without the prior consent of the Supplier.
10. If the use of the delivered item results in a breach of industrial proprietary rights or copyrights in Germany, the Supplier shall, as a matter of principle, at his expense procure the Buyer the right of future use or modify the delivered item in a way reasonable for the Buyer so that the delivered item is no longer in breach of proprietary rights.
If this is not possible at reasonable economic terms or within a reasonable period or time, the Buyer shall be entitled to withdraw from the contract. Under the named preconditions the Supplier shall also be entitled to withdraw from the contract.
In addition to this, the Supplier shall exempt the Buyer from claims by the holder of the proprietary rights which are uncontested or from claims which are declared final and absolute in a court of law.
11. The Supplier’s obligations named in Section IV. 10 are final subject to Section V.2 in the event of a breach of proprietary rights or copyright. They shall only exist if the Buyer notifies the Supplier of asserted breaches of proprietary rights or copyrights straight away the Buyer supports the Supplier to a reasonable extent in warding off the asserted claims and makes it possible for the Supplier to carry out the modifications in accordance with Section IV. 10, the Supplier reserves the right to take all measures to avert claims a breach of proprietary rights or copyright including out-of-court arrangements, the legal defect is not based upon an instruction by the Buyer and the legal breach has not been caused as a result of the Buyer having modified the delivered item of his own accord or has used it in a way not in accordance with the contract.
If the delivered item cannot be used by the Buyer in accordance with the contract, as a result of the Supplier being to blame on account of him having failed to carry out proposals and advice given prior to or after the contract was signed or as a result of a breach of other contractual subsidiary obligations – in particular instructions for operating and maintaining the delivered item – the arrangements in Section IV and V2 shall apply accordingly subject to the exclusion of the any other claims by the Buyer.
Regardless of whatever legal reasons – the Supplier shall only be liable for damage not actually incurred on the delivered item itself in the event of intent, gross negligence on the part of the owner, the executive bodies or senior staff, in the event of a culpable loss of life, personal injury and physical harm, in the event of defects which the Supplier has maliciously concealed or the absence of which he has guaranteed, in the event of defects in the delivered item in so far as the Supplier is liable under the German Product Liability Act for personal injury or property damage to privately used items.
In the event of a culpable breach of important contractual duties the Supplier shall also be liable for gross negligence on the part of non-senior staff and in the event of ordinary negligence the Supplier’ liability shall be limited to reasonably foreseeable damage typical for the contract.
No other claims by the Buyer shall be accepted.
VI. Statutory limitation
All he Buyer’s claims – regardless of whatever legal reason upon which they are based – shall become time-barred in 12 months. The statutory periods shall apply for compensation claims asserted for damages in accordance with Section V2 a) – e).
VII. Applicable law
All legal relationships between the Supplier and the Buyer shall be governed without exception by the law of the Federal Republic of Germany governing legal relationships between German parties. The Viennese UN Convention on the International Sale of Goods dated 11.04.1980 (CISG) shall not apply.
The place of jurisdiction shall be the courts having jurisdiction where the Supplier is based. The Supplier shall, however, be entitled to take legal action against the Buyer at the courts having jurisdiction where the Buyer is based.