General terms and conductions of business
1.1 The following general terms and conditions of business shall apply exclusively. This is also the case if we provide our services without reservation in the knowledge of conflicting terms and conditions. Other terms and conditions shall only then become part of the contract if we have agreed to their applicability in advance in writing.
1.2 All legal relationships between OTTER-Messer GmbH and its customers are subject exclusively to the law of the Federal Republic of Germany, even if the customer maintains its place of business abroad. The United Nations Convention governing the International Sale of Goods does not apply. The contractual language is German.
2.1 All statements in our catalogues and price lists, in particular the service descriptions contained therein are non-binding.
2.2 We reserve ownership rights in relation to all objects connected to our offers, such as calculations, drawings and samples; these may not be made accessible to third parties. The handover of these will not give rise to a right of use in relation to any existing copyright or other ancillary copyright. Should we not be issued with an order, all objects must be returned to us immediately. The exercising of a right of retention in relation to the said objects is excluded.
2.3 The customer shall incur sole responsibility for the correctness of the documents which are provided and the data contained therein, such as drawings, samples and models. We do not provide any guarantee that these can be implemented or that these are suitable. We are also unable to accept any responsibility for loss or damage. However if requested by the customer, we will take out relevant insurance. In such a case, our liability will be limited to the sum insured. If necessary in order to provide our service, we are entitled to also make the objects and information provided to us accessible to third parties.
2.4 The customer shall assume liability for the legal usability of all documents, drawings and models which are provided by it. The customer hereby guarantees that no third party rights are infringed by means of their use. However, should a claim be brought against us by third parties due to a breach of property rights, the customer shall be obliged to take all necessary legal steps for us at its own expense and to release us from all resulting claims and costs.
3. Contractual content/object of delivery
3.1 The information in our written order confirmation is decisive in relation to the content and scope of our delivery obligation. Also following this time, we expressly reserve the right to make: technical alterations due to constant further development; and/or minor and insignificant weight, quantity, colour, form, design and measurement deviations; and/or deviations due to the components and materials used which are customary in the trade.
3.2 Subsequent alterations will not become effective until our written confirmation. The provision of additional services takes place on the basis of additional offers.
3.3 Partial deliveries are permitted and cannot be rejected by the customer, unless these would be unreasonable in view of the scope of the whole delivery.
4. Prices/payment/payment default
4.1 Unless otherwise stated in the order confirmation, our prices apply “ex-works” exclusive of packaging and value added tax. The latter is stated separately to the statutory amount on the day of the service provision.
4.2 We reserve the right to pass on increases in production costs which arise following conclusion of the contract, in particular due to collective agreements, material price changes and unforeseeable public duties and fees and to increase our prices accordingly. Following a request, we will provide corresponding proof.
4.3 Should the customer enter payment default, we are entitled to charge default interest at 4% per annum above the respective discount rate of the German Bundesbank and/or the relevant key interest rate of the European Central Bank, however as a minimum 8%. The assertion of further claims due to default shall remain unaffected thereby.
4.4 The customer shall only have rights of set off if its counterclaims are undisputed or have been recognised by a court. To this extent, the customer is also not entitled to exercise a right of retention. The defect plea under §478 of the German Civil Code (BGB) is also excluded, unless doubts exist concerning whether the defect claim is justified.
5. Delivery/delivery time/delivery delay
5.1 Our delivery time will commence at the earliest on the day of sending the order confirmation. In relation to compliance with the delivery deadline, the day on which the objects of delivery left our warehouse or the readiness for supply notification was sent to the customer shall be decisive.
5.2 All delivery and completion deadlines shall cease to be valid in case of subsequent, major alterations to the contract. In such a case, we shall be entitled to state a new, reasonable delivery or completion date in the order confirmation.
5.3 Compliance with our delivery and completion undertakings is subject to the timely and proper fulfilment of all co-operation obligations on the part of the customer. Amongst others, these include the timely provision of all documents which are necessary for the performance of the order, full clarification of any outstanding technical queries, compliance with agreed deposit payments and the provision of the necessary licences or other official permits.
5.4 Should the customer enter default with the fulfilment of its co-operation obligations and should a period of grace set by us expire fruitlessly, we are entitled to rescind the contract and to claim damages due to non-performance to a minimum sum of 60% of the net invoice value of the delivery as lost profit, should the customer provide proof of a higher share of saved expenses. The obligation of the customer to provide full remuneration in relation to services which have already been provided shall remain unaffected thereby. In particular, this includes the reimbursement of the costs for work tools and samples which have been created.
5.5 In case of the occurrence of force majeure or other extraordinary events which are unforeseeable which significantly affect the provision of our services and which we cannot defend against despite reasonable care according to the circumstances of the individual case, we will not be responsible for any delays which occur, also in case of binding deadlines or dates. In particular this includes interventions by the authorities, operational disruptions, measures in the course of labour disputes, such as strikes or blockades, also if these occur in relation to the delivery of aids or accessory parts or on the part of sub-suppliers. The delivery and completion deadline will be extended by the duration of the hindrance.
5.6 Should we enter default for reasons for which we are not responsible, then to the exclusion of all further claims, our liability to pay damages will be limited to compensation for delay which amounts to 0.5% of the net invoice value for each full week of delay, however to a maximum total of 5% of the net invoice value.
5.7 Should we enter default in relation to the delivery, the customer can set us a reasonable period of grace to provide performance with the declaration that it will reject the acceptance of the delivery following the expiry of the deadline which has been set. Following the fruitless expiry of the period of grace, the customer is entitled to rescind the contract. It is not necessary to set a period of grace in the case of a commercial fixed transaction, if the customer can provide proof that its interest in the fulfilment of the contract no longer exists due to the delay for which we are responsible.
5.8 In case of partial delivery delay or partial impossibility of performance for which we are responsible, the customer is not entitled to rescind the whole contract, unless it provides proof that it has no interest in the partial delivery which has already been provided.
5.9 Any damages claims of the customer due to non-fulfilment shall be excluded, unless the non-fulfilment is due intent or gross negligence on the part of one of our management employees.
5.10 Should the customer enter default in relation to the acceptance of the respective delivery at the place of performance, should the customer call up the delivery in a manner which is not in accordance with the agreement or should the delivery be delayed in other ways for reasons for which the customer is responsible, in particular due to the customer not fulfilling the co-operation obligations named in number 5.3, we are entitled to claim the losses incurred by us, including any additional expenses. In particular, we are entitled to store the objects of delivery concerned at the expense and risk of the customer, whereby a fixed fee of 0.5% of the gross order sum of the delivery can be charged per month commenced for the storage.
We are entitled to pass on price increases to the customer which occur prior to acceptance or taking receipt by it.
As compensation for each commenced month, we can claim a fixed sum of 1% of the gross order sum of the delivery, unless the customer provides proof that no loss was incurred or that the loss which occurred was lower than this sum. The bringing of further damages claims shall remain unaffected.
5.11 Should the customer enter acceptance default and should a period of grace set by us with the declaration that we will reject acceptance following the expiry of the deadline expire fruitlessly, we are entitled to rescind the contract and to claim damages due to non-performance.
6. Reservation of ownership
6.1 We reserve ownership of the objects of delivery until receipt of all payments under the business relationship with the customer. Contingent claims are also deemed to be open claims in this respect. In case of behaviour on the part of the customer which is in breach of contract, in particular in case of payment default, we are entitled to retake possession of the object of delivery. The retaking of possession by us, such as the attachment of the items delivered under reservation of ownership, does not represent rescission of the contract. Should such a rescission be declared by us, we are entitled to use the object of delivery elsewhere. The proceeds of use shall be set off against the liabilities of the customer, minus reasonable costs connected to use.
6.2 The customer shall be obliged to sufficiently insure the delivered goods for the duration of the reservation of ownership at its own expense against fire and water damage and theft to the replacement value. The customer hereby now assigns to us all resulting insurance claims in relation to the goods delivered under reservation of ownership.
6.3 In case of attachments or other third party attacks, the customer must immediately inform us in writing, so that we can bring a lawsuit in accordance with § 771 of the German Code of Civil Procedure (ZPO). The customer shall incur liability for the court costs and out of court costs of the intervention.
6.4 In reservation of our express consent, the customer is entitled to sell on the objects of delivery in the course of ordinary business dealings. The customer hereby now assigns to us all claims to the sum of the final invoice amount (including value added tax) to which it is entitled against its consumers or third parties in connection with the resale, regardless of whether the objects have been resold without processing or following processing. The customer shall remain entitled to collect this claim, also following assignment. Our entitlement to collect the claim ourselves shall remain unaffected thereby. However, we shall be obliged not to collect the claims, provided that the customer complies with its payment obligations in relation to the revenues received, does not enter payment default and, in particular, provided that no application for the opening of insolvency proceedings has been filed against the assets of the customer and that the customer has not suspended its payments. However, should this be the case, we can request that the customer notifies us of the assigned claims and/or the debtor(s), provides all necessary information for the collection, hands over the associated documents and notifies the debtors (third parties) of the assignment.
6.5 The processing of the contractual objects by the customer will always be carried out for us. Should these be combined with other objects which do not belong to us, we will acquire co-ownership in the new item to the relationship of the value of the item to the other processed objects at the time of processing. Otherwise, the same applies to the items created by the processing as to the goods delivered under reservation of ownership.
6.6 The value of the items which are subject to reservation of ownership or our share in accordance with the provisions above is our invoice sum including value added tax, unless a higher value is calculated in accordance with the provisions above. We are obliged to release the securities to which we are entitled following a request by the customer, to the extent that the value exceeds 20%; we are responsible for selecting the securities to be released.
6.7 The customer is obliged to conclude additional agreements with us concerning the reservation of ownership in an individual case, if this is the only way of safeguarding our claims.
6.8 The pledging by the customer or providing the objects under reservation of ownership which are still owned by us or the claims under the resale to which we are entitled as security is prohibited without our express consent. Should the customer breach the above provision, it shall be obliged to reimburse the losses incurred by us as a result.
6.9 The above reservation of ownership and assignment obligations shall apply exclusively irrespective of any conflicting provisions of other countries and are hereby being expressly acknowledged by the customer. As a precaution, the security under the respective foreign legislation which corresponds to the reservation of ownership or the assignment in whose jurisdiction our delivery under reservation of ownership is located is hereby deemed to be agreed. The customer shall be obliged to take all actions which are necessary in order to claim and maintain such rights, should its co-operation be necessary.
7. Warranty /liability
7.1 Statutory warranty rights apply to all goods from our shop.
7.2 Should sampling precede the delivery, the approval of the samples shall be deemed to represent acceptance, so that all warranty claims in relation to defects which are already observed in the samples will be excluded.
7.3 Should the objects of delivery be manufactured according to plans, models or constructive instructions of the customer, all claims due to construction errors will be excluded.
7.4 Should a defect for which we are responsible be present, we are entitled to choose between correcting the defect or providing a replacement delivery. The customer must support us as best as possible during our improvement work and immediately make the goods concerned available to us with a detailed description of the defect.
7.5 Should we not carry out the defect correction/replacement delivery within a reasonable deadline or should this have already failed several times, the customer can set us a further reasonable deadline with the declaration that it will reject further improvement after the fruitless expiry of the said deadline. Following the expiry of this deadline, the customer is entitled to either reduce the purchase price or rescind the contract. Should only one part of the delivery be defective, the customer is not entitled to rescind the contract as a whole.
7.6 Further claims of the customer, in particular the reimbursement of losses which did not arise in relation to the object of delivery itself, shall be excluded. The above exclusion of liability does not apply in case of intent or gross negligence on the part of one of our management employees and not in cases where liability is incurred under the German Product Liability Act (Produkthaftungsgesetz) for personal injury and property damage in relation to privately used items due to errors on the part of the object of delivery. It also does not apply in relation to defects concerning guaranteed properties which are intended to cover the customer against losses which do not relate to the object of delivery.
8. Place of jurisdiction /place of performance
The place of jurisdiction and place of performance for all obligations under the contractual relationship is the place of business of the company in Solingen, provided that the customer is considered to be an entrepreneur. However, we are entitled to bring a lawsuit against the customer at any other legally permitted place of jurisdiction.