Terms

General Terms and Conditions of Sale § 1 Application, General Information (1) These terms and conditions of sale shall apply exclusively. Deviating, conflicting or supplementary general terms and conditions of the buyer shall only become part of the contract if and to the extent that we have expressly agreed to their validity in writing. This requirement of consent shall apply in any case, for example even if we carry out the delivery to the buyer without reservation in the knowledge of the buyer’s general terms and conditions. (2) These General Terms and Conditions of Sale apply in particular to contracts for the sale and/or delivery of movable goods („goods“), irrespective of whether we manufacture the goods ourselves or purchase them from suppliers (§§ 433, 650 BGB). Unless otherwise agreed, these GTCS shall apply in the version valid at the time of the Buyer’s order or, in any case, in the version last notified to the Buyer in text form. (3) These terms and conditions of sale shall also govern all future transactions between the parties and shall also apply if we perform delivery without reservation despite our knowledge of differing or contrary terms. (4) These terms and conditions of sale shall only apply vis-à-vis entrepreneurs, governmental entities, or special governmental estates within the meaning of sec. 310 para. 1 BGB (German Civil Code). We do not conclude contracts with non-commercial consumers (B2C contracts). (5) Legally relevant declarations and notifications of the buyer with regard to the contract (e.g. setting of deadlines, notification of defects, withdrawal or reduction) must be made in writing, i.e. in written or text form (e.g. letter, e-mail, fax). Legal formal requirements and further proof, in particular in case of doubts about the legitimacy of the declarant, shall remain unaffected. (6) Any references to the application of statutory provisions are made for the purposes of clarification only. Therefore, the statutory regulations shall also apply without such a clarification insofar as they are not directly altered or are explicitly excluded in these GTCS.§ 2 Offer, Acceptance (1) Our offers are non-obligatory and non-binding. This also applies if we have handed over catalogues, technical documentation (e.g. drawings, plans, calculations, references to EN standards), other product descriptions or documents – also in an electronic form – to the buyer. (2) There is a minimum order value for all orders, the amount of which varies depending on the country to which the goods are to be dispatched. Our current order and freight conditions and the associated minimum order values can be found at the following link: https://shop.ootb.de/en/shippinginfo (3) The order of the goods by the buyer shall be deemed a binding offer of contract. Unless otherwise stated in the order, we are entitled to accept this contractual offer within a period of two weeks. The acceptance can either be declared in text form (e.g. by order confirmation) or by delivery of the goods to the buyer.§ 3 Prices, Payment (1) Unless otherwise agreed in individual cases, our current prices at the time of conclusion of the contract shall apply, ex warehouse, plus statutory VAT, excluding the costs of packaging and shipping. (2) In the event that, in the case of an item which we do not already have in stock, after acceptance by us of an order from the buyer, the cost price payable by us in procuring that item increases by at least 20% without us being at fault for that increase, the following shall apply: We shall be entitled, at our option, (a) to cancel the purchase contract with the customer in respect of that item or (b) to adjust the purchase price agreed with the customer by adding the increase in the cost price to the purchase price agreed with the customer without any margin mark-up. If we make use of the aforementioned option to adjust the price, the customer shall in turn have the right to cancel the purchase contract with us in respect of this item within five working days of receipt of our notification of the price adjustment. In the event of a cancellation in the aforementioned cases, further claims are excluded, in particular claims for compensation for loss of profit and/or for compensation for the customer’s additional costs in connection with the alternative procurement of the cancelled item. (3) In absence of a deviating statement from us, in the case of sale by dispatch the Customer shall bear the actual cost of transport ex warehouse and the cost of any transport insurance requested by the Customer. Any customs duties, fees, taxes and any other public levies shall be borne by the buyer. (4) The purchase price shall be due and payable within 14 days of invoicing. However, we are entitled at any time, even within the framework of an ongoing business relationship, to make a delivery in whole or in part only against advance payment. We shall declare a corresponding reservation at the latest with the order confirmation. (5) Upon expiry of the aforementioned payment deadline, the buyer shall be in default. During the period of default, an interest rate of 10% per year shall be charged on the purchase price. We reserve the right to assert further default damages. Our claim to the commercial due date interest ( § 353 HGB) remains unaffected vis-à-vis merchants. (6) If after conclusion of the contract it becomes apparent that our claim for payment of the purchase price is jeopardized by the Customer’s inability to pay (e.g. an application for commencement of insolvency proceedings) we are entitled to withhold performance in accordance with the statutory provisions of law and – if necessary after fixing a time limit – to withdraw from the contract (sec. 321 BGB). In the case of contracts for the manufacture of non-fungible goods (customised products) we are entitled to withdraw from the contract immediately; this shall not affect the statutory provisions concerning the dispensability of fixing a time limit.§ 4 Offset, Right of RetentionThe buyer shall only be entitled to rights of set-off or retention insofar as his claim has been legally established or is undisputed. In the event of defects in the delivery, the Buyer’s counter rights shall remain unaffected, in particular pursuant to § 8 para. 6 sentence 2 of these GTCS.§ 5 Delivery Deadline and Default in Delivery (1) The delivery period shall be agreed individually or stated by us with the acceptance of the order. If this is not the case, the delivery period is approximately four weeks from conclusion of contract. (2) Individually agreed delivery deadlines shall begin with the receipt of our order confirmation by the buyer, but in any event not before clarification of all details for the execution and the provision of necessary certificates by the buyer. Any changes or modifications to the to-be-delivered goods that are agreed after the start of the delivery deadline lead to a restart of the delivery deadline. The delivery deadline shall be deemed observed on the day we advise the buyer that the delivery is ready for dispatch. (3) The occurrence of default in delivery shall be determined by statutory provisions of law. However, a written reminder by the buyer shall be required in all cases. If we are in default of delivery the Customer may demand lump-sum compensation for the loss he has thus suffered. The lump sum for damages shall amount to 1% of the net price of the goods delivered late (delivery value) for each completed calendar week of the delay, but not more than 5% of the delivery value in total. We reserve the right to prove that the buyer has suffered no loss at all or only a substantially smaller loss than the above lump sum. (4) The rights of the buyer according to § 9 of the GTCS and our statutory rights, in particular the exclusion of the obligation to perform (e.g. impossibility of service and/or supplementary performance or if these are deemed unreasonable) remain unaffected.§ 6 Non-availability of the goods due to force majeure (1) If we are unable to meet binding delivery deadlines due to a case of force majeure, i.e. any unforeseeable, serious event, such as in particular war, terrorist conflict, epidemics or industrial disputes, which is beyond the control of one of the contracting parties and as a result of which we are prevented in whole or in part from fulfilling our obligations, including fire damage, floods, strikes as well as operational disruptions for which we are not responsible or official orders and lawful lockouts, we shall inform the buyer of this without delay and at the same time inform him/her of the expected new delivery period. We shall also inform the buyer immediately in the event that force majeure ceases to exist. We shall use our best endeavours to remedy the force majeure and to limit its effects as far as possible. (2) We undertake to adapt the contract to the changed circumstances in good faith. For the duration and to the extent of the direct and indirect effect, the contracting parties shall be released from their obligations under the purchase contract and shall not owe any damages in this respect.  If the service is also not available within the new delivery period, both contracting parties shall be entitled to withdraw from the contract in whole or in part; we shall immediately reimburse any consideration already paid by the buyer. (3) A case of non-availability of the service in this sense shall also be deemed to be the non-timely self-delivery by our supplier if we have concluded a congruent covering transaction, neither we nor our supplier are at fault or we are not obliged to procure in the individual case. § 7 Delivery, Passage of Risk, Shipment (1) Unless otherwise explicitly agreed in writing, the delivery is carried out ex warehouse Lilienthal, Germany, which is also the place of performance and the place of any potential supplementary performance. At the request and costs of the buyer the goods will be shipped to another destination (sale by dispatch), without any effect on the place of performance. Insofar as not otherwise agreed we are entitled to determine the type of shipment (in particular transport company, shipment route, packaging) at our discretion. (2) Delivery is conditioned upon timely and proper performance of all duties of the buyer. Defenses based on non-performance of the contract are reserved. (3) The risk of accidental loss and accidental deterioration of the goods shall pass to the buyer at the latest upon handover. In the case of sale by delivery to a place other than the place of performance, however, the risk of accidental loss and accidental deterioration of the goods as well as the risk of delay shall already pass upon delivery of the goods to the forwarding agent, the carrier or any other person or institution designated to carry out the shipment. If acceptance has been agreed, this shall be decisive for the transfer of risk. In all other respects, the statutory provisions of the law on contracts for work and services shall also apply mutatis mutandis to an agreed acceptance. The handover or acceptance shall be deemed to have taken place if the buyer is in default of acceptance or otherwise violates his obligations to cooperate. (4) In case of default in acceptance or other breach of duties to cooperate by the buyer we are entitled to claim any resulting damage including but not limited to additional expenses, if any. In this respect, we are entitled to charge a lump-sum compensation of 1% of the value of the goods per calendar week, starting with the delivery deadline or – in the absence of a delivery deadline – with the notification that the goods are ready for dispatch; however, a maximum of 5% of the value of the goods in the event of final non-acceptance. The proof of higher damages and our statutory claims (in particular reimbursement of additional expenses, reasonable compensation, withdrawal, termination) remain unaffected; the lump sum compensation is however to be offset against further monetary claims. The buyer remains entitled to prove that we did not suffer any damages at all or only substantially less damages than the aforementioned lump sum.§ 8 Retention of Title (1) We retain title to the sold goods until the full payment of all of our current and future claims due from the purchase contract and from a current business relationship (secured claims). (2) The goods subject to retention of title may neither be pledged to third parties, nor assigned as collateral before the full payment of the secured claims. As long as the purchase price has not been completely paid, the buyer shall immediately inform us in writing if the goods become subject to rights of third persons or other encumbrances. (3) In case of a conduct of the buyer which is in breach of the contract, in particular non-payment of the due purchase price, we are entitled to withdraw from the contract according to the statutory regulations and/or to demand that that the goods are handed over to us owing to the retention of title. Any demand for the return of the goods shall not be deemed to include a simultaneous declaration of withdrawal; rather, we shall be entitled to demand only the return of the goods subject to retention of title and to reserve the right to withdraw from the contract. If the buyer does not pay the due purchase price we may however only assert these rights if we have unsuccessfully set the buyer a reasonable deadline for payment or if setting such deadline is expendable under statutory provisions. (4) The buyer is entitled until further notice pursuant to subpara. (c) below to resell the goods subject to the above retention of title in the regular course of business. In this case, the following terms shall apply in addition:(a) The retention of title covers the products which are produced by processing, mixing or combination of our goods at their full value, whereby we are deemed the manufacturer. If the right of ownership of third parties continues to exist despite the processing, mixing or combination with goods of third parties, then we shall acquire co-ownership in the ratio of the invoice values of the processed, mixed or combined goods. Apart from that the same provisions that govern the goods delivered under retention of shall also apply to the newly created product.(b) The buyer hereby assigns to us the future claims against third parties, which arise from the resale of the goods or of the newly created product in total or in the amount of our co-ownership share, if any, as collateral according to the afore-mentioned paragraph. We hereby accept the assignment. The obligations of the buyer stated in para. 2 and 3 shall also apply in respect of the assigned claims.(c) Notwithstanding our right to claim direct payment the buyer shall remain authorized to collect the claim on the assigned claims. To this end, we agree to not demand payment on the assigned claims to the extent the buyer meets its payment obligations, is not in default of payment, no application has been filed for the opening of insolvency proceedings and we have not exercised our rights pursuant to para. 3 to invoke the retention of title. However, if this is the case we are entitled to request that the buyer informs us of the assigned claims and their debtors, provides all information which is necessary for the collection, hands over the relevant documents and informs the debtors (third parties) of the assignment. In this event we shall also be entitled to revoke the right of the buyer to resell or process the goods that are subject to our retention of title. (5) Insofar as the above securities exceed the secured claim by more than 10%, we are obligated, at our choice, to release such securities upon the buyer’s request. (6) If our retention of title ceases to be valid in the event of deliveries to foreign countries or for other reasons, the Customer must immediately provide to us collateral over the delivered goods or another form of security for our claims which is effective pursuant to the law of the country concerned and which is as close as possible to retention of title under German law.§ 9 Warranty (1)  The basis for our warranty is the properties of the goods that are agreed in writing with the buyer. All product specifications, which are binding subject of the particular contract, are deemed agreed properties. If there is no agreement on properties, statutory provisions shall apply in determining whether a good is defective or not. (2) Only such features of the goods are considered guaranteed features of the goods that are explicitly designated as such. This applies in particular to agreements on certifications of the goods or of our company, for which we do not assume an implied or conclusive warranty. (3) As a matter of principle, we are not liable for defects of which the buyer is aware at the time of conclusion of the contract or is not aware due to gross negligence ( § 442 BGB). Precondition for any warranty claim of the buyer is the buyer’s full compliance with all requirements regarding inspection and objection established by sec. 377 HGB (German Commercial Code). If a defect is determined during the inspection or subsequently, then this is to be reported to us immediately in writing. Irrespective of this obligation for inspection and reporting of defects the buyer must report obvious defects (including false and shortfall in delivery) within two weeks from delivery in writing. If the buyer fails to properly inspect the goods and/or give notice of defects, our liability for the defect not reported or not reported in time or not reported properly shall be excluded in accordance with the statutory provisions. (4) Warranty claims shall be time-barred after 12 months of the delivery. (5) In case of non-conformity of the goods we have the choice whether the supplementary performance is to be effected by remedying the defect (rectification) or by delivering an item which is free of defects (replacement). Our right to refuse the chosen type of supplementary performance under the statutory pre-requisites remains unaffected. If the supplementary performance has failed, the buyer is entitled to reduce the purchase price or to withdraw from the contract. However, in case of an insignificant defect the buyer shall not have a right to withdraw from the contract. (6) We are entitled to make the owed supplementary performance dependent on the buyer’s payment of the due purchase price. The buyer is, however, entitled to retain a part of the purchase price which is appropriate relative to the defect. (7) The buyer must give us the time and opportunity required for the subsequent performance owed, in particular to hand over the rejected goods for inspection purposes. In the event of a replacement delivery, the buyer must return the defective item to us in accordance with the statutory provisions. (8) We shall bear or reimburse the expenses required for the purpose of inspection and subsequent performance, in particular transport, travel, labour and material costs, in accordance with the statutory provisions if there is actually a defect. Otherwise, we may demand reimbursement from the buyer of the costs incurred as a result of the unjustified request to remedy the defect (in particular inspection and transport costs), unless the lack of defectiveness was not recognisable to the buyer. (9) In urgent cases, e.g. if operational safety is endangered or to prevent disproportionate damage, the buyer has the right to remedy the defect himself and to demand reimbursement from us of the expenses objectively necessary for this. We are to be informed immediately of such self-execution, if possible in advance. The right of self-execution does not exist if we would be entitled to refuse a corresponding subsequent performance in accordance with the statutory provisions. (10) In case of a defect, claims of the buyer for damages or reimbursement of fruitless expenses shall be limited according to § 9. Further claims are excluded.§ 10 Liability (1) We shall be liable for damages – irrespective of the legal grounds – within the scope of fault liability in the event of intent and gross negligence. In the event of simple negligence, we shall only be liable, subject to statutory limitations of liability (e.g. care in own affairs; insignificant breach of duty), fora) for damages resulting from injury to life, body or health,b) for damages arising from the breach of an essential contractual obligation (obligation, the fulfilment of which is a prerequisite for the proper execution of the contract and on the observance of which the contractual partner regularly relies and may rely); in this case, however, our liability shall be limited to compensation for the foreseeable, typically occurring damage. (2) The limitations of liability resulting from para. 1 also apply to third parties as well as to breaches of duty by persons (also in their favour) whose fault we are responsible for according to statutory provisions. They do not apply insofar as a defect has been fraudulently concealed or a guarantee for the quality of the goods has been assumed and for claims of the buyer under the Product Liability Act. (3) Our liability for culpable damage to life, body or health as well as our liability under the Product Liability Act shall remain unaffected. (4) Any liability not expressly provided for above shall be disclaimed. (5) The buyer can only withdraw from the contract due to a breach of an obligation not constituted by a defect in the goods, if we are in culpable breach. A free right of termination of the buyer (in particular according to §§ 650, 648 BGB) is excluded. Aside from that, the statutory preconditions and legal consequences are applicable. (6) Contractual penalties are not owed between the parties under any circumstances.§11Export and Import ControlIt is exclusively the buyer’s duty to observe the applicable import and export control regulations. It is incumbent exclusively on the buyer to assess whether a product requires an import or export license and is subject to export control provisions. The buyer must obtain all the required approvals in due time, at his own cost and responsibility and submit such approvals to us unrequested.§ 12 Applicable Law, Jurisdiction, Language (1) These GTCS and the contractual relationship between us and the buyer are solely governed by the substantive laws of the Federal Republic of Germany (excluding the Convention on Contracts for the International Sale of Goods). (2) Place of performance and exclusive place of jurisdiction for all disputes arising out of or in connection with the contractual relationship between us and the buyer shall be Lilienthal, Germany. We are however also entitled to file an action at the place of general jurisdiction of the buyer. Mandatory statutory regulations, in particular regarding exclusive jurisdictions, remain unaffected. (3) This text shall be construed in accordance with the laws of Germany. The list of terms attached as the annex entitled „List of Terms“ forms part of this text and shall have the same full force and effect as if expressly set out in the operative part of this text. If the meaning of any English term contained in the list of terms or in this text differs from the meaning of the respective German term, the meaning of the German term shall prevail.List of TermsPlace of acceptance(general) terms and conditions of saledefault in acceptanceoffsetretention of titledefence based on non-performance of the contractassistant in performanceplace of performancedue and payablepassage of riskcounterclaimstatutory VATwarrantygovernmental entitymerchantscommercial interest after due dateterminationdelivery deadlinedefault in deliveryreminderremedy of defectreduction of priceduty/obligation to cooperatesupplementary performance(course of) normal businessspecial governmental estateProduct Liability ActwithdrawalcollateralConvention on Contracts for the International Sale of Goods (CISG)Entrepreneurrequirements regarding inspection and objectionsale by dispatchdefault intereststay of paymentsright of retention