Terms and Conditions of Sale Otto Kind GmbH & Co.
1. general – scope of application
1.1 Our Terms and Conditions of Sale shall apply exclusively; we do not recognize any terms and conditions of the customer (buyer or ordering party) that conflict with or deviate from our Terms and Conditions of Sale unless we have expressly agreed to their validity. Our Terms and Conditions of Sale shall also apply to all future transactions between the parties and also if we carry out the delivery to the customer without reservation in the knowledge that the customer’s terms and conditions conflict with or deviate from our Terms and Conditions of Sale.
1.2 All agreements made between us and the customer for the purpose of executing a contract must be recorded in the contract or otherwise in writing.
1.3 Our Terms and Conditions of Sale shall only apply to companies, legal entities under public law and special funds within the meaning of Section 310 (1) of the German Civil Code (BGB).
2. offer – offer documents – conclusion of contract
2.1 Our offers and cost estimates are non-binding, unless expressly stated otherwise. They are to be understood as an invitation to the customer to place an order. The customer is bound to his order for three weeks – calculated from the date of receipt of the order. A contract is concluded when we have confirmed the order in writing within this period (order confirmation). If a change in state or official import conditions prevents delivery, we are entitled to withdraw from the contract. In such a case, we shall, at the customer’s request, conclude a new contract with the customer adapted to the changed conditions.
2.2 Our order confirmation is generated automatically and does not require a signature to be valid.
2.3 We reserve ownership rights and copyrights to illustrations, drawings, calculations and other documents. This shall also apply to such written documents which are designated as “confidential”. The customer requires our express written consent before passing them on to third parties. The drawings and other documents must be returned immediately upon request if a contract is not concluded.
Sentences 1 to 3 shall apply accordingly to the customer’s documents; however, these may be made accessible to third parties to whom we have permissibly transferred deliveries or services.
2.4 The documents belonging to our offer, such as samples, illustrations and drawings, are only approximate unless they are expressly designated as binding.
2.5 Changes to orders and deadlines by the customer can only be considered free of charge within 2 days of receipt of the order confirmation.
Changes after this deadline affect the production process; we check and confirm the possibility of such changes on a case-by-case basis. If changes are still possible, we charge according to the following key:
Standard articles:
up to 5 days after order confirmation 5 % of the order value, at least 75.00 euros
from 6 days after order confirmation 15 % of the order value, at least 150.00 euros
Special items:
up to 5 days after order confirmation 5% of the order value, minimum 100 euros
from 6 days after order confirmation 15% of the order value, minimum 200 euros
2.6 We are entitled to assign our claims against the customer to a third party.
3. prices – terms of payment
3.1 Our prices apply from a net order value of € 1000. Statutory VAT is not included in our prices (including those stated in these Terms and Conditions of Sale). It will be shown separately on the invoice at the statutory rate on the day of invoicing.
3.2 Unless otherwise agreed, our prices are “ex works” excluding packaging, transport costs/freight, any transport insurance requested by the customer as well as assembly and operating materials and customs duties; these shall be invoiced separately. If prices are agreed free domicile or free place of use (“unloading point”), they shall include packaging and transport costs/freight as well as assembly and operating materials, but exclude any transport insurance and customs duties requested by the customer.
3.3 Flat rates and minimum quantity surcharge
If the net order value is less than € 1000, we charge an additional flat rate of € 30 per unloading point for delivery by a forwarding agent. If the shipment is made by parcel service, the flat-rate charge is reduced to €12.
For small orders with a net value of less than €100, we charge a minimum quantity surcharge of €50 in addition to the above-mentioned flat rate.
3.4 Delivery by forwarding agent – General:
Impeccable access to the unloading point, immediate unloading by the customer and a dry and swept-clean installation site are assumed. The local conditions must be known to us prior to delivery. For this purpose, the customer must complete a transportation questionnaire prepared by us and return it to us no later than 1 week before delivery.
The unloading point must be freely accessible with the product and accessible for 1 person using the usual means of transportation. If delivery free unloading point is not possible with 1 person, the end customer must provide the necessary additional helpers.
A truck without a lifting platform is always scheduled. If it is not possible to unload on site without a lifting platform, the lifting platform option can be booked on request and for a flat fee. A written order for this is required from the customer.
If requested and if the contact details are available, our logistics partners will notify the customer by telephone 1 – 3 days before delivery. The notification is a delivery announcement. It is no longer possible to change or subsequently fix delivery dates once the goods have been handed over to the respective carrier.
For deliveries, we assume acceptance of the goods on a working day (Monday to Friday) of the specified calendar week between 07:00 and 17:00.
A period of 2 hours is allowed for loading/unloading a complete truck, proportionately less for smaller loads.
3.5 Delivery by forwarding agent – prices:
We charge the customer for the actual costs incurred by the carrier. Special conditions apply for delivery to islands, which we will be happy to provide on request.
We charge an additional fee for all of the following flat rates:
We charge a flat rate of €7 for the provision of a delivery note.
We charge a flat rate of €12.50 for the notification.
Truck with lifting platform: flat rate € 95.
For the return transportation of undeliverable or refused shipments, as well as unsuccessful journeys, we charge the shipping costs and a processing fee of € 25.
We charge a flat rate of €50 for deliveries with a value of less than €2000.
We charge a flat rate of €75 for deliveries at a fixed time.
For general cargo deliveries on the following day we charge: € 30.00
For deliveries up to 12:00 noon: € 45.00
For deliveries up to 10:00 a.m.: € 60.00
For loading/unloading (over 2 hours) we charge € 120.00 per hour or part thereof.
In the event of a change of delivery address, we will charge an additional lump sum of €150 and the additional freight costs charged by the carrier.
3.6 Return of goods:
The return of goods is generally only possible after prior consultation and approval on our part and is generally associated with costs. No return of custom-made products.
Pro-rata outward and return freight costs as well as individual handling and restocking costs on request. 30% inspection and restocking fee.
3.7 We reserve the right to change our prices appropriately if cost reductions or cost increases occur after conclusion of the contract, in particular due to collective wage agreements or changes in the price of materials.
3.8 Unless otherwise agreed, the purchase price shall be paid net (without deduction) within 30 days of the invoice date. If the customer is in default of payment, we shall be entitled to claim default interest of 9 percentage points per annum above the base interest rate (§§ 247, 288 para. 2 BGB). If we are able to prove a higher damage caused by default, we are entitled to claim this. However, the customer is entitled to prove to us that we have suffered no or significantly less damage as a result of the delay in payment.
3.9 The customer shall only be entitled to set-off rights if his counterclaims have been legally established, are undisputed or have been recognized by us. The customer shall only be entitled to assert rights of retention on the basis of counterclaims arising from the same legal relationship.
3.10 We accept bills of exchange, checks and other payment orders only by agreement and only on account of performance. The costs of collection, bank interest and charges shall be borne by the customer. Discount charges of 9 percentage points per annum above the base interest rate (§§ 247, 288 para. 2 BGB) shall be charged for bills of exchange.
3.11 If the customer defaults on its payment obligation to us under this or any other contract or if we become aware of circumstances which indicate the risk of the customer’s inability to pay, we shall be entitled to declare all claims under this and other contracts due and payable immediately. In such cases, we shall also be entitled, without prejudice to further claims, to demand advance payment or security for the invoice amount prior to delivery.
If the residual claim due is not paid immediately by the customer, his right to use the contractual goods shall expire. We shall then be entitled to demand immediate surrender – excluding any right of retention. The customer shall bear all costs incurred as a result. We shall be entitled to realize the contractual goods in the best possible way by private sale in order to meet the customer’s payment obligation. The proceeds shall be set off against the total claim against the customer after deduction of the costs and any excess proceeds shall be paid out to the customer.
3.12 The customer shall bear all fees, costs and expenses incurred in connection with any successful legal action against him outside Germany.
4. delivery time – partial deliveries
4.1 The start of the delivery period stated by us presupposes that all technical questions have been clarified.
4.2 Compliance with our delivery obligation also presupposes the timely and proper fulfillment of the customer’s obligations. We reserve the right to plead non-performance of the contract.
4.3 If the customer is in default of acceptance or violates other obligations to cooperate, we shall be entitled to demand compensation for the damage incurred by us in this respect, including any additional expenses. We reserve the right to assert further claims.
4.4 Insofar as the requirements of Clause 4.3 are met, the risk of accidental loss or accidental deterioration of the contractual goods shall pass to the customer at the point in time at which the customer is in default of acceptance or debtor’s delay.
4.5 We shall be liable in accordance with the statutory provisions insofar as the underlying purchase contract is a transaction for delivery by a fixed date in accordance with § 376 HGB (German Commercial Code). We shall also be liable in accordance with the statutory provisions if, as a result of a delay in delivery for which we are responsible, the customer is entitled to assert that his interest in the further performance of the contract has ceased to exist.
4.6 We shall also be liable in accordance with the statutory provisions if the delay in delivery is due to an intentional or grossly negligent breach of contract for which we are responsible; fault on the part of our representatives or vicarious agents shall be attributed to us. If the delay in delivery is not due to an intentional or grossly negligent breach of contract for which we are responsible, our liability for damages shall be limited to the foreseeable, typically occurring damage.
4.7 We shall also be liable in accordance with the statutory provisions insofar as the delay in delivery for which we are responsible is due to the culpable breach of a material contractual obligation; in this case, however, the liability for damages shall also be limited to the foreseeable, typically occurring damage.
4.8 If the delay in delivery is merely due to a slightly negligent breach of a non-material contractual obligation, our liability for damages shall be excluded.
4.9 If a delay in delivery is due to a breach of duty for which we are not responsible and which does not consist of a defect in the contractual goods, the customer shall not be entitled to withdraw from the contract.
4.10 We are entitled to make partial deliveries to be invoiced separately.
5. transfer of risk – packaging
5.1 Unless otherwise agreed, delivery “ex works” is agreed. The risk of accidental loss or accidental deterioration shall pass to the customer upon provision for collection, at the latest upon loading onto the means of transport.
5.2 Transport packaging and all other packaging in accordance with the German Packaging Act shall not be taken back, with the exception of reusable packaging. The customer shall dispose of the packaging at his own expense.
5.3 The amount of packaging is reduced to a minimum for reasons of environmental protection. As far as technically possible, the goods are delivered unpacked.
5.4 If and to the extent requested by the customer, we shall take out transport insurance to cover the delivery; the costs incurred in this respect shall be borne by the customer.
6. claims for defects of the customer, standard of fault and liability regulation
6.1 The rights of the customer in the event of defects presuppose that the customer has properly fulfilled its obligations to inspect the goods and give notice of defects in accordance with § 377 HGB (German Commercial Code).
6.2 The information in our product and service descriptions, in our catalogs and other advertising statements shall only constitute a quality pursuant to Section 434 (1) sentence 3 BGB insofar as they relate to our contractual goods and reflect their characteristics.
6.3 We shall bear the expenses necessary for the purpose of subsequent performance, in particular transport, travel, labor and material costs, insofar as these are not increased by the fact that the contractual goods have been taken to a place other than the place of performance.
6.4 If the subsequent performance demanded by the customer in accordance with § 439 BGB fails without the existence of an intentional or grossly negligent breach of duty for which we are responsible, the customer shall be entitled, at his discretion, to withdraw from the contract or to claim a corresponding reduction of the purchase price (reduction).
6.5 We shall be liable in accordance with the statutory provisions if the customer asserts claims for damages based on intent or gross negligence, including intent or gross negligence on the part of our representatives or vicarious agents, or the assumption of a guarantee or a procurement risk. We shall also be liable in accordance with the statutory provisions for injury to life, limb or health. Furthermore, we are liable in accordance with the mandatory provisions of the Product Liability Act.
6.6 In the event of merely slightly negligent breach of material obligations, our liability for damages shall be limited to the foreseeable, typically occurring damage.
6.7 Otherwise, our liability for damages is excluded, regardless of the legal nature of the asserted claim.
6.8 Insofar as our liability for damages is excluded or limited, this shall also apply with regard to the personal liability for damages of our employees, workers, staff, representatives and vicarious agents.
6.9 The customer’s claims for subsequent performance (rectification of the defect or delivery of a defect-free item), reduction (reduction of the purchase price) and withdrawal from the contract in the event of defects in the contractual goods shall become time-barred 12 months after the transfer of risk, but no later than the delivery of the contractual goods. Claims for damages on the part of the customer shall become time-barred after 24 months. Otherwise, the regular limitation period of § 195 BGB shall apply.
7. retention of title
7.1 We reserve title to the contractual goods until receipt of all payments from the purchase contract with the customer. Insofar as we agree payment of the purchase price debt with the customer on the basis of the check/bill of exchange procedure, the reservation shall also extend to the redemption of the bills of exchange accepted by us by the customer and shall not expire when the checks received are credited to us. In the event of breach of contract by the customer, in particular default of payment, we shall be entitled to take back the contractual goods. Our taking back the contractual goods does not constitute a withdrawal from the contract unless we have expressly declared this in writing. The seizure of the contractual goods by us shall always constitute a withdrawal from the contract. After taking back the contractual goods, we are authorized to sell them. The proceeds of the sale shall be set off against the customer’s liabilities – less reasonable costs of sale.
7.2 The customer is obliged to treat the contractual goods with care; in particular, he is obliged to insure them adequately at his own expense against fire, water damage and theft at replacement value. If maintenance and inspection work is required, the customer must carry this out in good time at his own expense.
7.3 In the event of seizures or other interventions by third parties, the customer must inform us immediately in writing so that we can file an action in accordance with Section 771 of the German Code of Civil Procedure (ZPO). If the third party is not in a position to reimburse us for the judicial and extrajudicial costs of an action pursuant to § 771 ZPO, the customer shall be liable for the loss incurred by us.
7.4 The customer is entitled to resell the contract goods in the ordinary course of business; however, he hereby assigns to us all claims in the amount of the final invoice amount (including VAT) of our claim which accrue to him from the resale against his customers or third parties, irrespective of whether the contract goods have been resold without or after processing. The customer shall remain authorized to collect this claim until revoked, even after the assignment. Our authorization to collect the claim ourselves remains unaffected by this. However, we undertake not to collect the claim as long as the customer meets his payment obligations from the proceeds received, is not in default of payment and, in particular, no application for the opening of insolvency proceedings has been filed and payments have not been suspended. If this is the case, however, we can demand that the customer informs us of the assigned claims and their debtors, provides all information necessary for collection, hands over the relevant documents and informs the debtors (third parties) of the assignment.
7.5 The processing or transformation of the contract goods by the customer shall always be carried out on our behalf. If the contract goods are processed with other items not belonging to us, we shall acquire co-ownership of the new item in the ratio of the value of the contract goods (final invoice amount including VAT) to the other processed items at the time of processing. In all other respects, the same shall apply to the item created by processing as to the contract goods delivered under reservation of title.
7.6 If the contractual goods are inseparably mixed with other items not belonging to us, we shall acquire co-ownership of the new item in the ratio of the value of the contractual goods (final invoice amount including VAT) to the other mixed items at the time of mixing. If the mixing takes place in such a way that the customer’s item is to be regarded as the main item, it is agreed that the customer shall transfer co-ownership to us on a pro rata basis. The customer shall hold the resulting sole ownership or co-ownership for us.
7.7 The customer shall also assign to us the claims to secure our claims against him which arise against a third party through the connection of the contract goods with a property.
7.8 We undertake to release the securities to which we are entitled at the request of the customer to the extent that the realizable value of our securities exceeds the claims to be secured by more than 10%; we shall be responsible for selecting the securities to be released.
8. data processing
8.1 We are entitled to use the data about the customer received in connection with the business relationship for our business purposes within the meaning of the General Data Protection Regulation.
9. applicable law – written form – severability clause
9.1 The law of the Federal Republic of Germany shall apply exclusively. The application of the UN Convention on Contracts for the International Sale of Goods (CISG) is excluded.
9.2 All contractual agreements and amendments to these terms and conditions must be made in writing to be effective.
9.3 Should individual provisions of these terms and conditions or of accompanying agreements be invalid in whole or in part, this shall not affect the validity of the remaining provisions or the remaining agreements.
10. place of jurisdiction – place of performance
10.1 If the customer is a registered trader, our place of business shall be the place of jurisdiction. However, we are also entitled to sue the customer at the court responsible for his place of business.
10.2 Unless otherwise stated in our order confirmation, our registered office shall be the place of performance.
Gummersbach, 25.10.2022
