General Terms and Conditions (AGB)

1. General

1.1 The following General Terms and Conditions (hereinafter referred to as AGB) apply exclusively. This also applies if we provide our services without reservation in the knowledge of conflicting conditions. Other conditions only become part of the contract if we have agreed to their validity in writing beforehand.

1.2 All legal relations between OTTER Messer GmbH and its contractual partners are subject exclusively to the law of the Federal Republic of Germany, even if the contracting party has its registered office abroad. The UN Convention on Contracts for the International Sale of Goods does not apply. The language of the contract is German.


2. Offers

2.1 All information in our catalogs and price lists, especially the performance descriptions contained therein, are non-binding.

2.2 We expressly reserve ownership rights to all offer items, such as calculations, drawings, and samples; they may not be made accessible to third parties. By handing them over, no right of use is granted to any existing copyrights or other intellectual property rights. If an order is not placed with us, all items must be returned to us immediately. The exercise of a right of retention regarding these items is excluded.

2.3 The customer is solely responsible for the accuracy of the documents provided by them and the data contained therein, such as drawings, samples, and models. We do not guarantee their feasibility and suitability. We also do not take responsibility for their loss or damage. Upon request of the customer, we will, however, arrange for appropriate insurance. In this case, our liability is limited to the extent of the existing insurance coverage. As far as necessary for the provision of our services, we are entitled to make the items and information provided to us accessible to third parties.

2.4 The customer assumes liability for the legal usability of all documents, drawings, and models provided by them. They guarantee that the use of these materials does not infringe the rights of third parties. Should we be held accountable by third parties due to the violation of intellectual property rights, the customer is obligated to bear all necessary legal costs on our behalf and indemnify us from all resulting claims and expenses.


3. Contract Content / Delivery Object

3.1 The details in our written order confirmation are decisive for the content and scope of our delivery obligations. We expressly reserve the right to make technical changes due to ongoing development; and/or minor weight, quantity, color, shape, design, and dimension deviations; and/or commercial deviations due to the components and materials used.

3.2 Subsequent changes are only effective after written confirmation by us. The acceptance of additional services is based on additional offers.

3.3 Partial deliveries are permissible and cannot be rejected by the customer unless they would be unreasonable considering the scope of the total delivery.


4. Prices / Payment / Default in Payment

4.1 Unless otherwise stated in the order confirmation, our prices are "ex works" excluding packaging and value-added tax. The latter is separately indicated at the statutory rate applicable on the day of service provision.

4.2 We reserve the right to pass on any increases in manufacturing costs, especially due to wage agreements, changes in material prices, unforeseeable public levies, fees, and our prices accordingly. Upon request, we will provide appropriate evidence.

4.3 If the customer is in default of payment, we are entitled to demand default interest at a rate of 4% per annum above the respective discount rate of the Deutsche Bundesbank or the corresponding key interest rate of the European Central Bank, but at least 8%. This does not affect our right to claim further damages due to default.

4.4 The customer is only entitled to set-off claims if their counterclaims are undisputed or have been legally established. In this respect, they are also not entitled to exercise a right of retention. The right to reject a claim due to defects under Section 478 of the German Civil Code (BGB) is also excluded unless there are doubts about the validity of the defect complaint.


5. Delivery / Delivery Time / Default in Delivery

5.1 Our delivery time begins at the earliest on the day of dispatch of the order confirmation. The day on which the delivery items have left our warehouse or the availability notification has been sent to the customer is decisive for the compliance with the delivery deadline.

5.2 Any delivery or completion deadline loses its validity with later, more than just minor modifications to the contract. In such a case, we are entitled to set a new, reasonable delivery or completion date in the confirmation of changes.

5.3 The fulfillment of our delivery and completion obligations requires timely and proper fulfillment of all cooperation obligations of the customer. This includes, among other things, the timely provision of all necessary documents for order processing, the complete clarification of any technical questions, compliance with agreed advances, and the provision of necessary licenses or other official approvals.

5.4 If the customer is in default in meeting their cooperation obligations, and a deadline set by us elapses without results, we are entitled to withdraw from the contract and claim damages for non-performance in the amount of at least 60% of the net invoice value of the delivery as lost profit, if the customer proves a higher proportion of saved expenses. The customer's obligation to fully reimburse already provided services remains unaffected. This includes in particular the reimbursement of costs for manufactured tools and samples.

5.5 In the event of force majeure or unforeseeable extraordinary events that have a significant impact on the provision of our services and that we could not prevent despite reasonable care in the circumstances, any resulting delays are not our responsibility even in the case of binding deadlines or dates. This includes, in particular, official interventions, operational disruptions, measures in the context of labor disputes, such as strikes or lockouts, even if they occur during the delivery of auxiliary materials or components from suppliers or subcontractors. The delivery and completion deadline is extended by the duration of the hindrance.

5.6 If we are in default for reasons we are not responsible for, our liability for damages, excluding any further claims, is limited to a default compensation of 0.5% per full week of delay, but in total not exceeding 5% of the net invoice value of the delivery.

5.7 If we are in delay with delivery, the customer can set us a reasonable grace period for performance with the statement that they will reject the performance after the deadline expires. After the fruitless expiration of the grace period, they are entitled to withdraw from the contract. No grace period is required in the case of a commercial fixed transaction or if the customer can prove that their interest in the contract has ceased due to the delay for which we are responsible.

5.8 In the event of partial delivery delays or partial impossibility of performance for which we are responsible, the customer is not entitled to withdraw from the entire contract unless they can demonstrate that they have no interest in the partial delivery already made.

5.9 The customer's claim for damages for non-performance is excluded unless the non-performance is due to intent or gross negligence of one of our executive employees.

5.10 If the customer is delayed in the acceptance or receipt of the respective delivery at the place of performance, does not call for the delivery as agreed, or delays the delivery for other reasons that are their responsibility, especially if they do not fulfill the cooperation obligations mentioned in Clause 5.3, we are entitled to claim the damages incurred by us, including any additional costs. In particular, we are entitled to store the affected delivery items at the expense and risk of the customer, whereby a flat rate of 0.5% of the gross order sum of the delivery can be charged per month begun for the storage.

5.11 If the customer is delayed in the acceptance and lets a deadline set by us expire without results, along with a statement that we will reject acceptance after the deadline, we are entitled to withdraw from the contract and claim damages for non-performance.


6. Retention of Title

6.1 We reserve ownership of the delivery items until receipt of all payments from the business relationship with the customer. Open claims also include conditional claims. In the event of the customer's contractual breach, especially in case of payment default, we are entitled to repossess the delivery item. The repossession, as well as the seizure of the goods delivered with retention of title by us, shall not be considered as withdrawal from the contract. If such a withdrawal is declared by us, we are authorized to use otherwise. The proceeds from the sale are to be offset against the customer's liabilities - minus reasonable selling costs.

6.2 The customer undertakes to insure the delivered goods at their own expense against fire, water, and theft damages up to the replacement value during the period of retention of title. They hereby assign all resulting insurance claims regarding the goods delivered under reservation of title to us.

6.3 In case of seizure or other interventions by third parties, the customer must immediately notify us in writing so that we can file a claim according to Section 771 of the German Code of Civil Procedure. The customer shall be liable for the court and out-of-court costs of the intervention.

6.4 Subject to our explicit consent, the customer is entitled to resell the delivery items in the ordinary course of business. They hereby assign to us all claims up to the final invoice amount (including value-added tax) resulting from the resale to their customers or third parties, regardless of whether the items are resold without or after being processed. The customer remains authorized to collect these claims after the assignment. Our authority to collect the claim ourselves remains unaffected. However, we undertake not to collect the claims as long as the customer meets their payment obligations from the proceeds received, does not default, and especially as long as no insolvency proceedings have been filed against the customer's assets or payment has been suspended. If that occurs, we may request the customer to disclose the assigned debts and the debtor(s), provide all information necessary for the collection, hand over the related documentation, and disclose the assignment to the debtors (third parties).

6.5 The processing of the contract items by the customer is always carried out on our behalf. If they are connected to other items not belonging to us, we acquire co-ownership of the new item in proportion to the value of the item to the other processed items at the time of processing. The same applies to the items produced through processing as for the goods delivered under retention of title.

6.6 The value of the goods subject to retention of title or our share within the meaning of the above provisions is our invoice value including value added tax, unless a higher value is calculated from the above provisions. We undertake to release the securities owed to us upon the customer's request if their value exceeds 20%; the choice of the securities to be released rests with us.

6.7 The customer is required to make further agreements regarding retention of title with us in individual cases if and to the extent that our claims can only be secured in this way.

6.8 The pledging or assignment of the reservation items still in our ownership or the claims from the resale without our explicit consent is prohibited to the customer. If the customer acts contrary to this condition, they are obliged to compensate us for the resulting damage.

6.9 The above retention of title and assignment obligations apply exclusively and are expressly acknowledged by the customer, regardless of any contrary provisions in other states. As a precaution, the security corresponding to the retention of title or assignment according to the respective foreign law in which our reserved delivery is located is considered agreed upon. The customer is obliged to take all necessary steps to establish and maintain such rights, to the extent that their cooperation is required.


7. Warranty / Liability

7.1 All items purchased from our shop come with legal warranty rights.

7.2 If the delivery is preceded by a sample approval, the approval of the samples is considered acceptance, thereby excluding any warranty claims for defects already recognizable in the samples.

7.3 If the delivery items are manufactured according to plans, models, or other technical specifications provided by the customer, any claims for design flaws are excluded.

7.4 In case of a defect for which we are responsible, we are entitled to remedy the defect or provide a replacement at our discretion. The customer must support us to the best of their ability in our rectification work and make the affected goods available promptly with a detailed description of the defect.

7.5 If we do not rectify the defect or provide a replacement within a reasonable period or if this has failed multiple times, the customer can set us another reasonable deadline with a statement that they will refuse further rectification after the fruitless expiration. After this deadline, the customer is entitled to a reduction or withdrawal from the contract. If only a part of the delivery is defective, the customer is not entitled to withdraw from the entire contract.

7.6 Additional claims of the customer, especially for damages not arising from the delivery item itself, are excluded. This limitation of liability does not apply in cases of intent or gross negligence of one of our executive employees and only in cases where liability is stipulated by the Product Liability Act for defects of the delivery item causing personal injury or property damage to privately used items. It also does not apply in case of defects in assured properties that were specifically intended to protect the customer against damage outside of the delivery item.


8. Jurisdiction / Place of Fulfillment

The place of jurisdiction and performance for all obligations arising from the contractual relationship is the headquarters of the company, Solingen, provided that the customer is considered a businessman. However, we are entitled to sue the customer at any other legally justified place of jurisdiction.