GENERAL TERMS AND CONDITIONS
OTTO Sport International GmbH
A durable and permanent business connection is built on cooperation and mutual trust, not on delivery and payment terms. Nevertheless, some points that differ from or supplement the legal regulations need to be agreed on for all transactions with our customers.
1. Scope of the Terms and Conditions and Conclusion of Contracts
1.1 Vendor’s deliveries, services, and offers are performed based solely on these Terms and Conditions. Therefore, they also apply to all future business relations, even if they are not explicitly agreed on anew.
Any of Customer’s terms and conditions that diverge from or conflict with Vendor’s Terms and Conditions – for instance concerning counterconfirmation of Customer’s
terms and conditions or acquisition terms and conditions – are herewith refuted.
1.2 Vendor’s quotations are subject to confirmation and not binding. Declarations of acceptance and all orders have to be confirmed by Vendor in writing or by telex to become legally binding.
1.3 Oral agreements made preliminary to the contract do not persist or are only effective if they have been made in writing. Concerning side arrangements with employees, please cf. figure 11.
1.4 Vendor may also perform laying out work, installing or assembling building materials or components based on the German Construction Contract Procedures (Verdingungsordnung für Bauleistungen VOB). Vendor offers Customer an opportunity to view the contract terms ofthe VOB/B and the technical regulations of the VOB/C.
2. Prices and Price Calculation
2.1 1fthe order confirmation does not state otherwise, the prices are quoted ex-works, packaging excluded.
2.2 For contracts with an agreed delivery period exceeding 4 months, Vendor retains the right to increase prices according to cost increases occurring due to tariff contracts, augmented material prices, or other price developments beyond our control. 1fthe increase totals more the 10 % ofthe agreed price Customer is entitled to withdraw from the contract within the 14 days following announcement of the price rise.
2.3 The prices do not include value added tax.
3. Shipping and Transfer of Risk
3.1 The risk is transferred to Customer as soon as the consignment has been handed over to the party carrying out the transport or has left Vendor’s works for the purpose of shipment. 1fthe shipment is delayed at Customer’s request the risk is transferred to Customer at the moment when readiness for dispatch is indicated.
3.2 At Customer’s request, consignments can be insured in Customer’s name and cost.
3.3 Vendor will make an effort to consider Customer’s requests and interests concerning the dispatch mode and route. Additional costs ensued thereby – also for carriage-free delivery – will be charged to Customer.
4. Delivery Time and Performance
4.1 If Customer isa Consumer the Following Applies:
4.1.1 Cases of force majeure suspend the parties’ contractual obligation for the duration of the disorder and for the scope of its impact.
Unpredictable, inevitable, and extraordinary circumstances and occurrences, such as unexpected disruption of operations, resource shortages, or other occurrences that the party is not liable for fall under this description. 1f the resulting delays exceed a time period of six weeks, both parties are entitled to withdraw from the contract regarding the affected performance scope. No further claims exist.
4.1.2 1f Vendor is responsible for default on delivery, Customer must grant a two weeks period of additional respite starting from the moment when notice of respite is received by Vendor.
4.1.3 1fVendor provides packaging material or means oftransport of their own Vendor’s specific packaging terms apply. Vendor offers Customer an opportunity to view the packaging terms.
1f loading equipment or private tank cars and bulk cargo vehicles are returned belatedly, i.e. ifthe customary or agreed unloading periods are incommensurately exceeded, Vendor retains the right to charge Customer the ensued costs and rent.
4.1.4 Vendor’s compliance with the delivery and performance obligations is subject to prior timely and orderly fulfilment of Customer’s obligations.
4.2 If Customer isa Businessperson the Following Applies:
4.2.1 Cases of force majeure suspend the parties’ contractual obligations for the duration of the disorder and to its extent.
Unpredictable, inevitable, and extraordinary circumstances and occurrences, such as unexpected disruption of operations, resource shortages, or other occurrences that the party is not liable for fall under this description. They entitle Vendor to delay delivery or respectively the service for the duration of the impairment plus an appropriate start-up period or to entirely or partly
withdraw from the contract concerning the items whose delivery is pending.
4.2.2 1fthe impairment lasts for more than three months, after according appropriate additional respite, Customer is entitled to withdraw from the contract concerning the items whose delivery is pending. 1f the delivery period is prolonged or Vendor is released from his obligation, this does not entitle Customer to claim damages.
Vendor can only make claims based on the named circumstances ifthey immediately notify Customer.
4.2.3 1fVendor is liable for not meeting bindingly agreed deadlines, or appointments, or is in arrear, Customer is entitled to late delivery compensation of ‘/2% for every full week of delay, however, the total claim shall not exceed a maximum of 5 % ofthe invoice value of the concerned deliveries and services. Any claims beyond this are barred, unless Vendor has caused the delay by gross negligence.
4.2.4 Vendor is entitled to partially deliver or render partial performance at all times unless the partial delivery or partial performance is not acceptable to Customer.
4.2.5 Vendor’s compliance with the delivery and service obligations is subject to prior timely and orderly fulfilment of Customer’s obligations.
4.2.6 1f Customer defaults acceptance, Vendor is entitled to claim damage compensation; once acceptance is defaulted the risks of incidental deterioration and accidental loss are transferred to Customer.
4.2.7 1fVendor provides packing material or means of transport of their own, Vendor’s specific packaging terms apply. Vendor offers Customer an opportunity to view the packaging terms. 1f loading equipment or private tank cars and bulk cargo vehicles are returned belatedly, i.e. if the customary or agreed unloading periods are incommensurately exceeded, Vendor reserves the right to charge Customer the ensued costs and rent.
5.1 If Customer isa Consumer, the Following Applies:
5.1.1 Unless otherwise agreed, Vendor’s invoices are payable on the day of delivery or in all other cases on completion of the project.
5.1.2 Sales and technical staff are not entitled to collect cash payments with the exception of cash amounts of up to EUR 500,- against a cash receipt. Beyond this payments with discharging effect are payable to Vendor directly or to a bank or postal checking account specified by Vendor.
5.1.3 Vendor explicitly reserves the right to refuse bills of exchange and checks. Acceptance is only on account of payment. Discount and bill charges are charged to Customer and are immediately payable.
5.1.4 Notwithstanding contrary regulations Customer may have, Vendor is entitled to deduct older debts from Customer’s payments and will inform Customer about the
type of settlement performed. 1f expenses and interest have already been ensued, Vendor is entitled to balance payment against the expenses, then the interest, and then finally against the primary obligation.
5.1.5 Customer is only entitled to balance his claims against Vendor’s when the counterclaim is uncontested or legally established. However, Customer is also entitled to retention based on counterclaims from the same contractual relation.
5.2 If Customer isa Businessperson the Following Applies:
5.2.1 Unless otherwise agreed, Vendor’s invoices are payable on the day of delivery or in all other cases on completion of the project.
5.2.2 Notwithstanding Customer’s contrary regulations, Vendor is entitled to deduct payments from Customer’s older debts and will inform Customer about what the type of settlement was. 1f expenses and interest have already been ensued, Vendor is entitled to balance payment against the expenses, then the interest and then finally against the primary obligation.
5.2.3 Vendor explicitly reserves the right to refuse bills of exchange and checks. Acceptance is only on account of payment. Discount and bill expenses are charged to Customer and are immediately payable.
5.2.4 A payment is not considered settled until Vendor can dispose over the amount. Payment by check is not considered settled until the check has been successfully cashed in.
5.2.5 1f Customer is in arrear, Vendor is entitled to request interest of up to 8 percentage points above the basic interest rate as a flat charge for damages. 1t has to be decreased if Customer can substantiate a lower financial strain. 1t is admissible for Vendor to substantiate a higher damage claim.
5.2.6 1fVendor learns of circumstances that make Customer’s creditworthiness questionable, particularly if one of their checks is not accepted or payments are interrupted, or if Vendor learns of other circumstances that cast doubt on Customer’s creditworthiness, Vendor is entitled to call due the entire remaining debt, also if checks have been accepted. Beyond this, Vendor is also entitled to request advance payments or securities.
5.2.7 Customer is only entitled to balance, retain, or reduce payments ifthe counterclaims are uncontested or legally established, even if notices of defect or counterclaims are being enforced. However, Customer is also entitled to retention based on counterclaims from the same contractual relation.
6. Customer’s Claims Based on Defects
6.1 If Customer is a Consumer the Following Applies:
6.1.1 1fthe delivered item does not have the agreed nature or is not suitable for the use implied by the contract or for use in general or if it does not have the qualities that Customer can expect according to Vendor’s public statements, Vendor principally rectifies defects by supplementary delivery ofa defect-free article. Multiple supplementary deliveries are admissible. 1f defect rectification fails twice, Customer may choose between a reasonable reduction of the sales price or withdrawing from the contract.
6.1.2 The statutory limitation for the above claims is one year starting with delivery of the goods.
6.2 If Customer isa Businessperson the Following Applies:
6.2.1 The products are delivered free from manufacturing or material defects; the warranty claim period is one year starting delivery of the goods.
6.2.2 The claims arising from defect are relinquished ifVendor’s operating or maintenance instructions are not followed, modifications are made to the products, parts are exchanged, or consumables are used that do not comply with the original specifications, unless Customer can disprove the accordingly substantiated claim that it was one of these circumstances that led to the defect.
6.2.3 Customer must notify Vendor’s customer service management of defects in writing, immediately or within one week after receipt of the delivered item at the latest. Defects that cannot be discovered within this period even under thorough inspection have to be reported to Vendor immediately once they are discovered.
6.2.4 1f Customer notifies Vendor that the products are defect, Vendor may request at their discretion and cost that
a) the defect part or device is sent in to Vendor for repair and subsequent return shipment,
b) Customer has the defect part or device ready and one of the Vendor’s service technicians will be dispatched to Customer to do the repair work. 1f Customer requests that the rectification work is performed at a place of their choice, Vendor may fulfil this request. Exchanged parts will not be charged, however man-hours and travel costs will be charged at Vendor’s standard rates.
6.2.5 1fthe rectification fails after a reasonable period, Customer can claim reduction of the payment or withdraw from the contract at his discretion.
6.2.6 Liability for normal wear and tear is barred.
6.2.7 Only the immediate Customer is entitled to claims arising from defect against Vendor and they cannot be transferred.
7. Reservation of litle
7.1 If Customer isa Consumer the Following Applies:
7.1.1 Vendor reserves the title to the delivered goods (reserved goods) until all pending and future claims Vendor holds against Customer for any legal reason whatsoever are settled. Customer cannot dispose of these reserved goods.
7.1.2 1fthird parties – particularly marshals – access the reserved goods, Customershall point outVendor’s reservation oftitle and immediately notify Vendor so they can assert their title. 1f the third party is not able to reimburse the legal expenses or the extrajudicial costs ensued in this context, Customer becomes liable for these costs.
7.1.3 1f Customer acts contrary to the contract – particularly in case of delayed payment – Vendor is entitled to withdraw from the contract and request return of the reserved goods.
7.2 If Customer is a Businessperson the Following Applies:
7.2.1 Until Customer has settled all pending or future legal claims whatsoever (including all balance claims from open accounts), Vendor is granted the following securities, which Vendor will release at request at their discretion if the securities value lastingly exceeds the securing claims by more than 20 %.
7.2.2 The goods remain Vendor’s property. As the rule, processing and reorganization are carried out for Vendor as the manufacturer, however without any obligations on Vendor’s part. 1fVendor’s (co-) ownership ofthe goods expires due to conjunction, it is agreed in advance that Customer’s (co-) ownership ofthe conjoined item is transferred to Vendor according to the value proportion (invoice value). Customer keeps the conjoined item safe free of charge. Goods that Vendor has (co-) ownership of are designated reserved goods in the following.
7.2.3 Customer is entitled to process the reserved goods in the orderly course of business und to sell them if Customer is not in arrear. Pledging of the goods or transferring them as guarantees is not admissible. By way of security, Customer cedes the claims resulting from resale or other legal bases (insurance, unlawful acts) regarding the reserved goods (including balance claims from open accounts) to Vendor in advance. Vendor irrevocably authorizes Customer to collect the claims ceded to Vendor on Vendor’s account in Customer’s name. This authorization to collect claims can only be revoked if Customer fails to duly settle his payment obligations.
7.2.4 1f third parties, particularly in case of seizure, access the reserved goods, Customer shall point out Vendor’s reservation of title and immediately notify Vendor so Vendor can assert their title. 1f the third party is not able to reimburse the legal expenses or the extrajudicial costs ensued in this context, Customer becomes liable for these costs.
7.2.5 1f Customer acts in breach of this contract – particularly by falling into arrear on payment – Vendor is entitled to withdraw from the contract and claim back the reserved goods.
8.1 If Customer is a Consumer the Following Applies: 1n cases of slight negligence Vendor’s liability is limited to the predictable, contract-typical, direct, average damage. This also applies for slight breach of duty by legal agents orvicarious agents ofVendor.
8.2 If Customer is a Businessperson the Following Applies:
8.2.1 All damage claims are barred, irrespective of the type of breach of duty including unlawful acts, except for wilful acts and gross negligence.
8.2.2 Vendor is liable for any negligence if essential contractual obligations are violated, however only up to the predictable amount of claim. Compensation forloss of profit, expenses saved or for third parties’ claims for damages or for other direct and consequential losses cannot be claimed, unless a characteristic feature of an article which is guaranteed by Vendor has the explicit purpose of protecting Customer from this type of damage.
8.2.3 The liability limitations and disclaimers in numbers 9.2.1 and 9.2.2 do not apply to claims resulting from malicious acts on Vendor’s part, or where guaranteed essential features or the article’s character are warranted, or to claims based on the product liability law, or damages for violation ofthe right to live, bodily injury or violation of health.
8.2.4 All instances where Vendor’s liability is barred also apply to Vendor’s employees, workers, agents and vicarious agents.
9. Place of Fulfillment
Vendor’s registered office is the place of fulfilment. For other places of departure, the respective place of departure is the place of fulfilment.
10. If Customer is a Businessperson the Following Applies:
10.1 Structural modifications
Vendor reserves the right to carry out structural modifications at any time, however without any obligation to perform these modifications on products that have already been delivered.
10.2.1 Vendor indemnifies Customer and Customer’s customers from all claims based on breach of intellectual property rights, trademarks or patents, except in cases where Customer provides the concept of a del ivered product . Vendor’s indemnification obl igation is l imi ted to the predictable amount of damage. As an additional condition for this indemnification Vendor retains the right to carry out the according lawsuits, and the alleged breaches must concern the construction type of the delivered items only, not their conjunction or use with other products.
10.2.2 Vendor has the right, at his discretion, to acquit himself from the obligations taken on with 10.2.1 by either
a) purchasing the licenses required for the allegedly infringed patents
b) supplying Customer with a modified delivery item and/or parts thereof, which when exchanged for the infringing delivery item and/or its part, remedies the infringement claim regarding the delivered item.
Unless otherwise expressly agreed in writing, the information provided to Vendor in connection with orders is not considered confidential.
10.4 Applicable Law
These Terms and Conditions and all business relations between Vendor and Customer are governed by the law of the Federal Republic of Germany. The terms of the UN convention on Contracts do not apply.
10. 5 Place of Jurisdiction
1f Customer is a business person, legal public law entity or special public law funds, Hersbruck is the sole place ofjurisdiction for all disputes arising directly or indirectly from the contractual relationship.
10.6 Partial nullity
1f individual provisions of these terms and conditions or a provision in the framework of other agreements should be or become void, the validity of the remaining provisions and agreements shall remain unaffected.
11 Limitation of Power of Authority
Oral side agreements with employees without legally regulated representative authority are only effective if we confirm them in writing.