General Terms and Conditions of Sale and Delivery of Otto Brandes GmbH
§ 1 General; Scope
(1) These General Terms and Conditions of Sale and Delivery (hereinafter referred to as „GTC“) apply to all transactions between Otto Brandes GmbH Karnapp 25, 21079 Hamburg (hereinafter „OTTO BRANDES“), and their clients (hereinafter „customer“), ,also for future business, even if these GTC are not expressly agreed again. The version of these GTC valid at the time of the contract is concluded is decisive.
(2) Any deviating, conflicting or supplementary general terms and conditions of the customer shall not become part of the contract – even if OTTO BRANDES is aware of them – unless OTTO BRANDES expressly agrees to their application in writing. These General Terms and Conditions s h a l l apply even if OTTO BRANDES, having knowledge of deviating, conflicting or supplementary General Terms and Conditions of the Customer, carries out the delivery to the Customer without reservation. By placing an order (see § 2 para. 2), the customer expressly acknowledges that it waives any legal objections derived from its own GTC.
(3) These GTC apply exclusively to entrepreneurs within the meaning of § 14 BGB (German Civil Code), legal entities under public law and special funds under public law.
(4) Insofar as written form is required for individual declarations in the following, text form (fax or e-mail) shall also be sufficient f o r compliance therewith.
§ 2 Conclusion of the contract
(1) Contracts between OTTO BRANDES and the Customer shall be based on a written offer from OTTO BRANDES. These offers shall be non-binding and subject to change unless they are expressly marked as binding. They merely constitute an invitation to the customer to submit an offer (order).
(2) The Customer shall be bound by its written order placed on the basis of an offer made by OTTO BRANDES for one week after receipt by OTTO BRANDES.
(3) A contract is only formed when both parties sign a contract document or when OTTO BRANDES accepts the order placed by the customer in writing by means of an order confirmation.
(4) The subject matter of the delivery ordered by the customer, t h e remuneration and terms of payment payable in respect thereof, the term of t h e contract, if any, and the right of termination, etc. shall be set out in detail in the relevant contract document or the offer made by OTTO BRANDES (para. 1).
§ 3 Duties to cooperate; Requests for changes
(1) The customer shall be obliged to cooperate in the provision of OTTO BRANDES‘ services to the extent necessary and reasonable. The duty to cooperate
includes, in particular, the timely provision of any necessary information and data.
(2) The Customer shall inform OTTO BRANDES in good time, without being requested to do so, of all processes and circumstances which could be of recognisable importance for the execution of anorder.
(3) Subsequent requests by the Customer for changes to the scope of delivery originally ordered or other features of OTTO BRANDES‘ services need not be taken into account insofar as they constitute a significant deviation from the original content of the contract.
(4) OTTO BRANDES shall be free to take such changes into account in return for appropriate remuneration. OTTO BRANDES shall notify the Customer without undue delay, i.e. within five working days of receipt, whether it will take into account the Customer’s requests for changes and, if so, at the same time submit a corresponding offer.
§ 4 Delivery and execution deadlines; consequences of default
(1) Delivery and performance deadlines shall only be binding if OTTO BRANDES has specified them in its confirmation of the order (see § 2 para. 3). In the case of non-binding or approximate delivery dates, OTTO BRANDES shall use its best endeavours to comply with them.
(2) Delivery and performance periods shall commence with the conclusion of the contract (§ 2) as well as the full fulfilment of the customer’s duties to cooperate (see § 3) and the full payment of any agreed deposits or securities.
(3) The Customer shall be entitled to withdraw from the contract if OTTO BRANDES fails to meet the agreed delivery and performance deadlines, is responsible for the delay – otherwise the following paragraphs 4 and 5 shall apply – and a reasonable period of grace of at least three months set by the Customer has expired to no avail.
(4) Delivery and performance periods shall be reasonably extended if OTTO BRANDES is prevented from fulfilling its obligations through no fault of its own. Delays due to late delivery by OTTO BRANDES’s own suppliers, force majeure, strikes, lock-outs, official interventions, or other events shall be deemed to be without fault on the part of OTTO BRANDES. interventions by the authorities, hindrances to operations through no fault of OTTO BRANDES (e.g. due to fire, water or damage to machinery) and all other hindrances which , when viewed objectively, are not culpably caused by OTTO BRANDES. OTTO BRANDES shall notify the Customer of any such delays without delay. In this case, both parties shall only be entitled to withdraw from the contract after the delay has lasted for more than six months.
(5) Delivery and performance periods shall also be extended to a reasonable extent in the event of subsequent change requests by the Customer which are accepted by OTTO BRANDES (§ 3 para. 4).
(6) If the Customer is in default of acceptance or culpably breaches other duties to cooperate, OTTO BRANDES shall be entitled to demand compensation for the damage it has incurred in this respect, including any additional expenses, such as storage costs. OTTO BRANDES expressly reserves the right to assert further claims or rights.
(7) OTTO BRANDES shall be entitled to make partial deliveries in partial quantities which are reasonable for the Customer in the ordinary course of trade.
§ 5 Shipment; Transfer of Risk
(1) Unless otherwise agreed between the parties in writing, delivery will be made on the basis of the agreed INCOTERMS. If the goods are picked up or sent, the goods travel at the risk and expense of the customer.
(2) If the customer requests shipment to a different destination, OTTO BRANDES reserves the right to choose the route and means of transport. However, OTTO BRANDES shall endeavour to take into account any wishes the customer may have with regard to the mode and route of shipment, but the customer shall have no right to do so. Any additional costs incurred as a result – even in the case of agreed freight-free delivery – shall be borne by the customer, as shall the transport and insurance costs.
(3) The risk of accidental loss or accidental deterioration passes when the goods to be delivered are handed over to the customer if the collection obligation is agreed upon, or to the freight forwarder, the freight carrier or the other company designated to carry out the shipment if the shipping obligation is agreed upon, but at the latest when they leave our factory , our warehouse or our branch to the customer, unless a delivery obligation has been agreed. The above also applies if a separately agreed partial delivery or permissible in accordance with Section 4 Paragraph 7 is made.
(4) If the shipment is delayed because OTTO BRANDES exercises its right of retention as a result of the Customer’s default in payment in whole or in part or for any other reason for which the Customer i s responsible, the risk shall pass to the Customer at the latest from the date of receipt by the Customer of notification that the goods are ready for shipment and/or performance.
§ 6 Prices; Terms of Payment
(1) All prices shall be as set out in the relevant order confirmation from OTTO BRANDES, plus any statutory value-added tax and plus any country-specific duties in the case of delivery to countries other than the Federal Republic of Germany, plus customs duties and other fees and public charges for the delivery/service. These costs shall be added to the purchase price in the amount of the actual costs incurred, provided that OTTO BRANDES organises and/or performs the relevant services for the Customer.
(2) Unless otherwise agreed in writing between the parties, all invoices are due for payment immediately upon receipt and without deduction. The customer is in default without a separate reminder being required 14 days after the invoice date. During the delay, the claims of OTTO BRANDES are subject to interest at 9% pa above the base interest rate of the European Central Bank at the time the claim is due. OTTO BRANDES expressly reserves the right to prove greater damage.
(3) In the event of reasonable doubt as to the Customer’s ability to pay, in particular in the event of payment arrears, negative information from credit
agencies or similar, OTTO BRANDES shall be entitled to revoke payment terms granted and to demand immediate payment for goods already delivered as well as advance payment and/or sufficient security for further deliveries.
§ 7 Set-off; right of retention
(1) The customer is only entitled to set-off insofar as his claims are undisputed or have been legally established.
(2) The customer may only exercise a right of retention if his counterclaim is based on the same contractual relationship as the disputed claim.
§ 8 Defects; Warranty; Liability for material defects
(1) The customer shall notify OTTO BRANDES in writing of any recognisable material defects within a period of one week after collection in the event of delivery ex works or storage location, otherwise after delivery. If the involvement of an expert is indispensable in order to establish a defect, because the defect cannot be conclusively established on the basis of a commercial and sensory inspection, OTTO BRANDES must be informed of this within the aforementioned period and the expert must be instructed. Any result of the analysis which may be in favour of a defect, and hence the complaint, shall be notified to OTTO BRANDES no later than three days after receipt of the result by the customer, but no later than three weeks after the passing of risk of the goods. Hidden defects shall be notified to OTTO BRANDES without delay after their discovery, at the latest by the expiry of the warranty period in accordance with paragraph 6 below. If the customer fails to notify OTTO BRANDES of a defect within the time limit, all claims for defects shall lapse. This obligation shall apply to the customer for each individual partial delivery in the case of agreed partial deliveries or partial deliveries permitted under § 4 para. 7.
(2) OTTO BRANDES shall, within a reasonable period of time and at its own discretion, either remedy any defects in the subject matter of the contract or provide the defective service again free of defects (subsequent performance). OTTO BRANDES shall bear all expenses necessary for the purpose of supplementary performance, in particular transport costs. The costs of delivery, travel, labour and material shall be borne by us, unless they a r e increased by the fact that the item has been taken to a place other than the place of performance.
(3) If the supplementary performance fails, in particular because the defect is not remedied despite attempts to remedy it, the supplementary performance is unreasonably delayed or is unjustifiably refused, the customer may, at his option, withdraw from the contract or reduce the agreed remuneration. However, withdrawal is excluded insofar as the defects are insignificant.
(4) The customer shall not have any claims for defects as a result of faults caused by damage, incorrect use by the customer or third parties or by natural wear and tear. It shall likewise have no claims for defects if it has itself or through third parties altered the object of performance or attempted to remedy the alleged defect, unless it proves that the alteration does not significantly impede subsequent performance by OTTO BRANDES and that the defect was already present at the time of the transfer ofrisk.
(5) In the event of unjustified notifications of defects, the Customer shall reimburse OTTO BRANDES for all costs incurred by it as a result, insofar as the Customer has culpably failed to recognise the absence of the notified defect.
(6) The customer’s claims for defects shall become statute-barred within one year from the statutory commencement of the limitation period.
(7) In the event of material defects, OTTO BRANDES shall be liable in accordance with the statutory provisions insofar as the Customer asserts claims for damages based on intent or gross negligence on the part of its representatives or vicarious agents. Insofar as OTTO BRANDES has not committed an intentional breach of contract, liability for damages shall be limited to the foreseeable, typically occurring damage.
(8) OTTO BRANDES shall also be liable in accordance with the statutory provisions insofar as it has breached a material contractual obligation; in this case, however, liability for damages shall also be limited to the foreseeable, typically occurring damage.
(9) Liability for culpable injury to life, limb or health shall remain unaffected by the above limitations of liability; this shall also apply to mandatory liability under the Product Liability Act.
(10) Unless otherwise provided above, OTTO BRANDES shall not be liable.
§ 9 Joint and several liability
(1) Any further liability for damages than provided for in § 8 is excluded – regardless of the legal nature of the asserted claim. This applies in particular to claims for damages arising from negligence when concluding the contract, due to other breaches of duty or tortious claims for compensation for property damage.
(2) The limitation according to para. 1 shall also apply insofar as the customer demands the reimbursement of useless expenses instead of a claim for damages in lieu of performance.
(3) To the extent that liability for damages against OTTO BRANDES is excluded or limited, this shall also apply with regard to the personal liability for damages of OTTO BRANDES‘ employees, representatives and vicarious agents.
§ 10 Retention of title
(1) OTTO BRANDES shall retain title to all goods delivered under the Contract until all claims existing at the time of delivery or arising later under the business relationship have been satisfied.
(2) The customer shall treat the goods subject to retention of title with care. Any measures required to maintain the condition in accordance with the contract shall be carried out by the customer in good time at its own expense.
(3) In the event of access by third parties to the goods subject to retention of title, in particular seizure, the customer must expressly draw attention to OTTO BRANDES‘ ownership and notify OTTO BRANDES without delay so that it can enforce its ownership rights. Insofar as the third party is not in a position to reimburse
OTTO BRANDES for the judicial or extrajudicial costs incurred in this connection, the customer shall be liable for these.
(4) The Customer is obliged to notify OTTO BRANDES without delay of any damage to or destruction of the Retained Goods. The customer shall also notify OTTO BRANDES without delay of any change of ownership or change of its own place of business.
(5) The customer is entitled to sell and/or use the reserved goods properly in business transactions as long as he is not in default of payment. Pledges or collateral assignments are inadmissible. As security, the customer hereby assigns the claims arising from resale or any other legal reason (insurance, tort) relating to the reserved goods ( including all balance claims from current accounts) in full to OTTO BRANDES, who hereby accepts the assignment. OTTO BRANDES revocably authorises the customer to collect t h e claims assigned to it for its account in its own name. This authorisation to collect may b e revoked at any time if the customer fails to properly fulfil its payment obligations. The customer shall also not be authorised to assign this claim for the purpose of collecting claims by way of factoring, unless the factor is simultaneously obliged to effect counter-performance in the amount of the claims directly to OTTO BRANDES for as long as there are still claims against the customer.
(6) Any processing or transformation of the Retained Goods by the Customer shall in any event be carried out on behalf of OTTO BRANDES. If the Retained Goods are processed together with other items not belonging to OTTO BRANDES, OTTO BRANDES shall acquire co-ownership of the new item in proportion to the
value of the Retained Goods (final invoice amount including value added tax) to the other processed items at the time of processing. The same shall apply to the new item created by processing as to the goods subject to retention of title. In the event that the Retained Goods are inseparably mixed with other items not belonging to OTTO BRANDES, OTTO BRANDES shall acquire co-ownership of the new item in proportion to the value of the Retained Goods (final invoice amount including VAT) to the other mixed items at the time of mixing. If, as a result of the mixing, the Customer’s item is to be regarded as the main item, the Customer and OTTO BRANDES agree that the Customer shall transfer co-ownership of this item to OTTO BRANDES on a pro rata basis; OTTO BRANDES hereby accepts the transfer. The Customer shall hold the sole or co-ownership of OTTO BRANDES in an item thus created in safe custody for OTTO BRANDES.
(7) OTTO BRANDES is obliged to release the securities to which it is entitled to the extent that the realisable value of its securities exceeds the claims to be secured by more than 20%. In this respect, OTTO BRANDES shall be responsible for selecting the securities to be released.
§ 11 Possibility of return according to § 15 VerpG
Where the customer is a commercial end user and is supplied b y OTTO BRANDES as the final distributor with goods in transport packaging, sales packaging or outer packaging, the customer has the option under the Packaging Act (VerpG) to return the packaging to OTTO BRANDES free of charge at the place of actual handover or in its immediate vicinity. This takes into account the legislative goal of avoiding packaging waste and making a high proportion of raw materials available for recycling or reuse. This shall be without prejudice to the customer’s option to continue with the procedures practised to date and to recycle or reuse the packaging itself or to reach different agreements with OTTO BRANDES on the place of return and the cost arrangements. If necessary, the customer can/should contact OTTO BRANDES so that an agreement can be reached on return modalities or, if applicable, on deviating agreements.
§ 12 Other provisions
(1) Insofar as trade clauses according to the International Commercial Terms (INCOTERMS) are agreed, the version of the International Chamber of Commerce published at the time of conclusion of the contract shall apply.
(2) The law of the Federal Republic of Germany shall apply exclusively to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG). The prerequisites and effects of the retention of title pursuant to § 10 are subject to the law at the respective place of storage of the item, insofar as the choice of law made in favour of German law is inadmissible or ineffective thereafter.
(3) All agreements, concretisations, amendments or supplements to the contracts concluded between the parties as well as their termination must be in writing. This also applies to the waiver of this formal requirement itself.
(4) The place of performance for all contractual obligations, including any reversal thereof, shall be the registered office of OTTO BRANDES, currently Hamburg, with the exception of the case of the assumption of a debt to be discharged on delivery or any other agreement to the contrary.
(5) The place of jurisdiction for all disputes is Hamburg. OTTO BRANDES shall, however, also be entitled to sue the customer at its general place of jurisdiction.
AGB Stand 09.11.2023
