General Terms and Conditions/Terms of Delivery for Deliveries by Otto Cosmetic GmbH
I. General Terms and Conditions
All deliveries and services are based on these terms and conditions and, with priority, on any separate contractual agreements. Any deviating terms and conditions of purchase of the Customer are expressly rejected: they shall not become part of the contract even through acceptance of the order and delivery. Collateral agreements and amendments to these terms and conditions must be in writing and must be expressly confirmed in writing by the Supplier. They shall replace the present General Terms and Conditions to the extent that they become invalid. Offers made by OTTO shall be subject to change and non-binding unless they are expressly marked as “binding” in writing.
II. Terms of sale, delivery, and payment
1. Prices: Unless otherwise agreed, the prices are ex works exclusively packaging and plus VAT in the statutory amount. Expenses for the creation of clichés, final artworks, printing documents and special tools will be invoiced separately.
Significant changes to certain cost factors (in particular costs for wages, materials or freight) occurring within the first six weeks after conclusion of the contract do not entitle the supplier to amend an agreed fixed price. If significant changes in cost factors occur after the expiry of the 6-week period, the supplier is entitled to change the price accordingly. The same applies if the ordered goods are to be delivered only after the expiry of 4 months after the conclusion of the contract.
2. Shipping: Unless otherwise agreed by INCOTERMS clauses, the risk shall pass to the customer at the latest upon dispatch of the delivery. If the dispatch or collection of the goods is delayed due to circumstances for which the customer is responsible, the risk shall pass to the customer from the date of readiness for dispatch. At the request and expense of the customer, the supplier shall in this case take out the desired insurance policies.
3. Delivery obligation: Delivery periods and delivery dates communicated by Otto Cosmetic GmbH are always considered approximate unless they have been expressly and in writing designated as binding. They refer to the time of dispatch and are complied with with notification of readiness for dispatch. All delivery transactions are subject to the right and timely self-delivery. The supplier shall notify any impending delays as soon as possible.
Delivery periods do not start until all the details of the order have been agreed. If the buyer requests a change after the order confirmation and this request is accepted by OTTO, the delivery period begins only with the confirmation of the change. Adherence to the delivery period presupposes, that the customer has fulfilled the contractual obligations until then. Delivery periods shall be extended – without prejudice to the rights of the supplier as a delay in acceptance – by the period by which the fulfilment of the contractual obligations by the customer has also been delayed. This does not apply if the supplier is responsible for the delay.
If the non-compliance with the delivery time is due to force majeure, industrial disputes or other events beyond the supplier’s control, the delivery time shall be extended appropriately. The supplier will inform the customer of the beginning and end of such circumstances as soon aspossible. The customer may withdraw from the contract if the execution of part of the delivery becomes impossible in the case of an order and he has a legitimate interest in rejecting the partial delivery. If this is not the case, the customer must pay the contract price attributable to the partial delivery. The same applies in the event of inability of the supplier.
If the impossibility or inability occurs during the delay in acceptance or if the customer is solely or largely responsible for the circumstances, he remains obligated to pay in return. If the supplier is in default and the customer suffers damage as a result, the buyer shall be entitled to demand a flat-rate compensation for default. It shall amount to 0.5 % for each week of delay, but in total not more than 5 % of the value of that part of the total delivery which cannot be used on time or in accordance with the contract due to the delay. The customer can only claim further damages if the delay is due to intent or gross negligence on the part of the supplier.
If the customer – under consideration of the legal exceptions – sets a reasonable period of time for performance after the due date, and if the deadline is not met, the customer is entitled to withdraw from the contract within the scope of the statutoryprovisions. Appropriate partial deliveries as well as deviations from order quantities up to +/- 10 % are permitted unless the customer cannot use the partial delivery in a reasonable manner.
Except in cases of force majeure, the customer shall bear the additional costs incurred for production interruptions, which the supplier is not responsible for.
4. Material supplies: If materials are supplied by the customer, they must be delivered at his expense and risk with a reasonable quantity surcharge of at least 5% in good time and in perfect quality. In the event of non-compliance with these conditions, the delivery time shall be extended appropriately. All goods provided by the customer must be insured by the customer.
5. Terms of payment: Renumeration Claims are due upon invoicing and delivery. The customer shall be in default if he has not paid the claim for remuneration within a period of 14 days after receipt of the service and invoicing. If the customer is in default of payment, interest claims are 8% above the German base interest rate. The assertion of further damage remains unaffected. Cheques are accepted only for performance. Payments by bill of exchange are not considered as cash payments. Discountable bills of exchange will only be accepted on account of payment if expressly agreed. All associated costs shall be borne by the customer. Offsetting and assertion of a right of retention on account of counterclaims of the customer which are disputed by the supplier and have not been legally established shall not be permitted.
6. Agreed pick-ups and call-off orders: must be processed within the agreed time. If the collection or the call-off is not carried out in time, the supplier is entitled, after setting a reasonable and fruitless deadline, to withdraw from the delivery obligation, to invoice the remaining goods to be collected or to claim damages for non-performance.
III. Retention of title
1. Deliveries remain the property of the supplier until all his claims against the customer arising from the current business relationship have been settled, even if the purchase price is paid on a specially marked claim.
2. Any treatment and processing by the Buyer shall be carried out on behalf of the Supplier to the exclusion of the acquisition of ownership in accordance with § 950 BGB (German Civil Code); the Supplier shall remain the owner of the item thus created, which shall serve as reserved goods to secure the Seller’s claims in accordance with 1.
3. In the event of processing (combination/mixing) by the Buyer with other goods not belonging to the Supplier, the provisions of §§ 947, 948 BGB (German Civil Code) shall apply with the consequence that the Supplier’s co-ownership of the new item is now reserved goods within the meaning of these terms and conditions.
4. The customer is only permitted to resell the reserved goods in the normal course of business under the condition that he also agrees a retention of title with his customers in accordance with 1 to 3. The customer shall not be entitled to dispose of the reserved goods in any other way, in particular to pledge them or assign them by way of security. The authorization to resell shall not apply if the resale is to be made to buyers who have excluded or limited the assignment of the payment claim against them. Similarly, there is no resale authorization if the buyer has prevented the advance assignment of the customer claim by a defense clause in his general terms and conditions of business.
5. In the event of resale, the Buyer hereby resigns to the Supplier, with immediate effect and until all claims of the Supplier have been satisfied, all claims and other claims against its customers arising from the resale, including all ancillary rights. At the request of the Supplier, the customer shall be obliged to provide the Supplier with all information and documents required to assert his rights against the customers of the customer.
6. If the reserved goods are resold by the customer after processing in accordance with clause 2. and/or clause 3. or together with other goods not belonging to us, the assignment of the purchase price claim in accordance with item 5. shall only apply to the amount of the invoice value of the reserved goods of the supplier.
7. If the value of the securities existing for the supplier exceeds the total claim by more than 20%, the supplier shall be obliged to release security at the supplier’s discretion at the request of the customer.
8. The supplier must be notified immediately of any seizure or confiscation of the reserved goods by third parties. Any intervention costs arising from this shall in any case be borne by the customer.
9. If the customer acts in breach of contract, in particular in case of default of payment, the supplier shall be entitled to take back the delivery item after a fruitless reminder and the customer shall be obliged to hand it over.
10. Due to the retention of title, the supplier can only demand the return of the delivery item if he has withdrawn from the contract.
11. An application for the opening of insolvency proceedings against the assets of the customer entitles the supplier to withdraw from the contract and to demand the immediate return of the delivery item.
12. If the supplier has effectively declared his withdrawal and withheld the goods, the purchase price claim shall not apply. The property remains finally with the supplier. Further claims of the supplier, in particular for damages, remain unaffected.
IV. Notification of defects, subsequent performance, and rights of defects of the customer
1. The customer shall examine the goods immediately after delivery by the supplier, insofar as this is possible in the ordinary course of business, and if a defect is found, the customer shall notify the supplier immediately. If the customer fails to notify the supplier, the goods shall be deemed to have been approved, unless the defect is a defect that could not be detected during the inspection. If such a defect appears later, the notification must be made immediately after its discovery, otherwise the goods shall be deemed to be approved with regard to this defect. The timely dispatch of the notification to the supplier shall be sufficient to preserve the rights of the customer. The Supplier may not invoke the above provisions if he himself has fraudulently concealed the defect.
2. In the case of refill bags, leaks cannot be completely excluded technically (Industrial Standard) and in the case of fluctuations up to a maximum of 0.6% per order do not entitle the customer to claim damages and/or other defect rights due to material damage including consequential damage against Otto Cosmetic GmbH or its suppliers.
3. The customer must immediately check – if necessary by means of a test processing – whether the delivered goods are faultless and suitable for the intended purpose. If he fails to carry out the test, any liability of the supplier shall lapse. Any complaints must be made in text form, stating the order data and the invoice and dispatch number.
4. If the customer sells goods, the defectiveness of which he has recognized, or if he processes them further, any liability of the supplier for defects shall lapse.
5. All those parts which prove to be defective as a result of a circumstance prior to the transfer of risk shall be repaired or replaced free of charge at the discretion of the Supplier. Replaced parts become the property of the supplier.
6. After consultation with the supplier, the customer shall give the supplier the necessary time and opportunity to carry out all the repairs or replacement deliveries which the supplier deems necessary. Otherwise, the supplier shall be released from liability for any consequences arising therefrom. Only in urgent cases of danger to operational safety or to prevent disproportionately large damage, in which case the supplier must be informed immediately, does the customer have the right to remedy the defect himself or have it remedied by third parties and to demand reimbursement of the necessary expenses from the supplier.
7. Of the direct costs arising from the repair or replacement delivery, the supplier shall bear the costs of the replacement part including shipping – insofar as the complaint proves to be justified. In addition, the supplier shall bear the costs of dismantling and installation as well as the costs of any necessary provision of the necessary fitters and assistants including travel expenses, provided that this does not result in a disproportionate burden on the supplier.
8. The customer shall be entitled to withdraw from the contract within the framework of the statutory provisions if the supplier – taking into account the statutory exceptions – allows a reasonable period of time set for him for the repair or replacement delivery due to a material defect to elapse fruitlessly. If the defect is only insignificant, the customer shall only be entitled to a reduction of the contract price. The right to reduce the contract price shall otherwise be excluded.
9. No guarantee is given in the following cases in particular: Improper and unsuitable use, faulty assembly or commissioning by the customer or third parties, natural wear and tear, faulty or negligent handling, improper maintenance, unsuitable equipment, chemical, electronic or electrical influences – insofar as the supplier is not responsible for them.
10. If the customer or a third party carries out improper repairs, the supplier shall not be liable for the resulting consequences. The same shall apply to modifications to the delivery item carried out without the prior consent of the supplier.
11. If the use of the delivery item leads to an infringement of industrial property rights or copyrights in Germany, the supplier shall, at its own expense, generally procure the right of further use for the customer or modify the delivery item in a manner reasonable for the customer in such a way that the infringement of the property rights no longer exists. If this is not possible under economically reasonable conditions or within a reasonable period of time, the customer shall be entitled to withdraw from the contract. Under the aforementioned conditions, the supplier shall also be entitled to withdraw from the contract. In addition, the supplier shall indemnify the customer against undisputed or legally established claims of the holders of the industrial property rights concerned.
12. The obligations of the supplier mentioned in Section IV.10. are, subject to Section V., conclusive in the event of infringement of industrial property rights or copyrights. They shall only exist if the customer informs the supplier without delay of asserted infringements of industrial property rights or copyrights, the customer supports the supplier to a reasonable extent in defending the asserted claims or enables the supplier to carry out the modification measures in accordance with Section IV.10, the supplier reserves the right to all defensive measures including out-of-court settlements, the defect of title is not based on an instruction of the customer and the infringement of rights was not caused by the customer having modified the delivery item without authorization or having used it in a manner not in accordance with the contract.
V. Liability
If the delivery item cannot be used by the customer in accordance with the contract due to the fault of the supplier as a result of omitted or faulty execution of suggestions and advice given before or after conclusion of the contract or due to the breach of other secondary contractual obligations – in particular instructions for operation and maintenance of the delivery item – the provisions of Section IV. shall apply accordingly.
The supplier is only liable for damage not occurring to the delivery item itself – for whatever legal reasons – in the event of intent and gross negligence on the part of the owner/the executive bodies or senior employees. In the case of culpable injury to life, body and/or health, in the case of defects which he has fraudulently concealed or the absence of which he has guaranteed, as well as in the case of personal injury or damage to privately used objects, the supplier shall be liable in accordance with statutory provisions. In the event of culpable violation of essential contractual obligations, the supplier shall also be liable without limitation in the event of gross negligence on the part of non-executive employees and in the event of slight negligence, in the latter case limited to reasonably foreseeable damage typical for the contract. Further claims are excluded.
VI. Limitation period
All contractual claims of the Customer – on whatever legal grounds – shall become statute-barred after 12 months. The statutory periods shall apply to claims for damages.
VII. Applicable law
All legal relations between the Supplier and the Customer shall be governed exclusively by the law of the Federal Republic of Germany applicable to the legal relations between domestic parties, including the Vienna UN Convention on Contracts for the International Sale of Goods of 11 April 1980 (CISG) in the case of cross-border deliveries of goods. Place of jurisdiction is the court responsible for the supplier’s registered office. However, the supplier shall be entitled to bring an action at the customer’s place of business.