General Terms and Conditions of Otto Zimmermann GmbH
1.1 Unless expressly provided otherwise only our General Terms and Conditions shall apply as set forth herein for any supplies of goods and services provided to companies (Buyer).
1.2 Said terms shall also apply for future business relationships even if said terms were not expressly agreed upon again.
1.3 Any terms of Buyer diverging from or contradicting our General Terms and Conditions shall not be binding, even if we have not expressly objected to such terms.
2. Conclusion of contract
2.1 All quotes are non-binding unless expressly designated as binding in the written quote. The contract shall not come into effect unless we have confirmed the order in writing. Our written order confirmation shall determine content and scope of the contract.
2.2 We reserve ownership of and copyright in cost estimates, illustrations, drawings, and other documents; Buyer shall treat said documents confidentially and may not disclose them to third parties.
2.3 We may make changes in the design of the ordered goods, unless such changes modify the critical functions of such goods, or unless Buyer furnishes evidence that such change is intolerable.
2.4 No guarantee is provided for the quality or durability of an item, unless expressly guaranteed in our order confirmation or advertisements.
3. Delivery time & force majeure
3.1 Delivery times shall be non-binding, unless expressly designated as binding.
3.2 The delivery term specified by us shall commence only after the parties have agreed on all technical specifications.
3.3 Our compliance with delivery dates and times shall be subject to correct and timely deliveries made by our suppliers.
3.4 Should Buyer desire subsequent changes, or should circumstances beyond our control (more particularly, natural disasters and labor disputes affecting us or our sub-contractors) prevent us from making deliveries the delivery time shall be reasonably extended. In such case we will inform Buyer as soon as possible about the onset and the end of such circumstances. Even during a delay in delivery we hall not be liable for any business disruption caused through no fault of our own. We may cancel the contract if said reasons make meeting our commitments intolerable for us. Buyer shall not have any claim for damages against us due to such cancellation. We shall still have the right to cancel the contract even if we informed Buyer initially about an extended delivery time.
4. Passage of risk, insurance
4.1 The risk of accidental loss or damage to the goods and services passes to Buyer as soon as goods are prepared for shipment and Buyer has been notified that the goods are ready for shipment. This provision shall also apply if shipment is delayed due to circumstances beyond our control. Should we fail to notify Buyer that goods are ready for shipment, the risk shall pass to Buyer when goods are delivered to the carrier, or, at the latest, when goods leave our plant or warehouse. This provision shall also apply if we use our own transportation services, or if goods are sent carriage paid.
4.2 Buyer shall undertake to sufficiently insure goods as long as we retain title to goods. Nevertheless we may - but shall not be obliged to do so - arrange for transportation insurance for goods to be shipped to Buyer, and to charge Buyer with the costs incurred.
5. Prices, price changes
5.1 Unless otherwise provided, our prices shall apply ex works including unit packaging, but excluding shipping containers, freight, insurance and statutory value-added tax. Said items will be invoiced separately.
5.2 We reserve the right to reasonably adjust our prices in the event of cost reductions or increases after contract conclusion which may be due in particular to design changes under the terms of Clause 2.3, wage settlements, or material price variances. We will provide evidence for such adjustments at Buyer’s request.
5.3 Buyer may set off only such claims that have been recognized by us or by court in a final judgment.
6. Payment terms
6.1 Unless agreed otherwise with Buyer, payment of invoices shall be made in full within 30 days of the date of invoice. We grant a 2 % discount if payment is received within two weeks; such discount, however, will only be granted if all prior invoices have been paid. We do not accept any cheques or bills of exchange.
6.2 Should Buyer default in payment we may immediately declare due and payable all outstanding accounts arising from any previous business with Buyer. In such case any discount agreements, quantity discounts, rebates etc. shall be deemed forfeited. While defaulting in payment Buyer shall pay on the money owed a rate of interest at 8 per cent above the base interest rate.
6.3 We may demand prompt cash payment for all deliveries if Buyer fails to comply with said payment terms. Should we become aware of circumstances that raise doubts about Buyer’s creditworthiness (e.g. failure to comply with payment terms) we may make deliveries only upon payment in advance, cash on delivery, or on security, or we may cancel the contract and request damages. Furthermore, we may also prohibit any resale of goods delivered under retention of title and repossess the goods at Buyer's expense after we have cancelled the contract.
7. Retention of title
7.1 Deliveries are always made under retention of title. We retain title to the goods until Buyer makes full payment of all claims arising from the business relation with Buyer. In the case of an open account, retained title to the goods shall serve as security for the net receivables.
7.2 Buyer may resell the delivered goods subject to the above retention of title in its ordinary course of business. In this case Buyer shall assign to us the outstanding purchase price to the amount of the value of the retained goods. At our request, Buyer shall disclose the debtors of the assigned claim to us and notify said debtors about the assignment. Buyer may not pledge the retained goods or charge the same by way of security.
7.3 Processing of the retained goods shall be carried out at all times for us as manufacturers within the meaning of § 950 BGB (German Civil Code), however, without any obligations arising for us. Such processed goods shall be regarded as retained goods within the meaning of said provisions. Should the retained goods be inseparably mixed or joined with other items not owned by us, we shall acquire a co-owner’s interest in the new item based on the ratio of the invoice value of the retained goods to that of the other goods used at the time when the goods were processed or mixed. Within the meaning of these provisions, the resulting co-owner’s interests in the processed goods shall be deemed retained goods. Upon our request, Buyer shall be obliged to inform any purchasers of the retained goods about our title to said goods.
7.4 Buyer shall be authorized to collect any receivables arising from the resale of goods without prejudice to our authority to collect. Provided that Buyer meets its payment obligations, we will not assert any claims. At our request, Buyer shall disclose to us the debtors of the assigned claims and notify said debtors of the assignment. Our right to independently inform garnishees about said assignment shall not be affected. Buyer may neither assign to third parties any claims against garnishees nor agree with garnishees on a prohibition of assignments.
7.5 Buyer undertakes to advise us without delay and as soon as possible of any attachment or any other impairment of our security interests through third parties. Buyer undertakes to furnish all records that we require to protect our rights and to reimburse any expenses incurred by us due to any intervention that might be required.
7.6 Should the realizable value of the securities exceed our claims by more than 10%, we will select and release securities to this extent at Buyer’s request
8. Warranty, notice of defects, period of limitation
8.1 Buyer shall inspect goods for defects immediately on receipt. Buyer shall give notice of defect in writing either immediately or, at the latest, within 7 days after receipt of goods. The same period shall apply for hidden defects following discovery of any such defect. Failure to notify us in due time about any defects will result in Buyer's loss of warranty rights.
8.2 In the case of justified complaints we will, at our discretion, repair or replace any defective items. Should we fail to remedy the defect within a reasonable period of time, or fail to deliver a replacement, Buyer shall have the right to cancel the contract, or to demand a reduction in the purchase price. Buyer may not cancel the contract, if our breach of obligations was negligible.
8.3 With the exception of cases described under § 438 (1) and (2a and b) BGB (German Civil Code) the period of limitation for warranty claims shall be 1 year for any new goods delivered to business persons. Said period of limitation shall commence upon delivery of the item.
8.4 Warranty claims will not be considered for defects that occurred, after passage of risk, due to unsuitable or improper use, wrong assembly or start-up by Buyer or third parties, invalid mode of operation, and normal wear and tear.
9. Limitation of liability
9.1 We shall be held liable under the provisions of law in the event of any bodily injury of life, limb or health attributable to us, our legal representatives, or vicarious agents.
9.2 The following shall apply for any other damages:
a. We shall be liable under the provisions of law for any damages due to a willful or gross breach of duty committed by us, our legal representatives, or vicarious agents.
b. For any damages due to a material breach of contract caused by slight negligence by us, our legal representatives or vicarious agents, liability shall not exceed the foreseeable damage that may typically arise hereunder.
c. We shall not be liable for any claims or damages arising from a breach of collateral duties or non-essential duties caused by slight negligence.
9.3 Exclusion or limitation of liability shall not apply in the event of us having fraudulently concealed defects or assumed guarantee responsibilities for the quality of the item.
9.4 The Buyer’s claim to reimbursement of useless expenses in lieu of damages and liability pursuant to the Product Liability Act (Produkthaftungsgesetz) shall remain unaffected.
10. Liability for indirect damages
With the exception of willful intent or gross negligence we shall not be liable for any indirect damage due to defective deliveries, e.g. production disruptions, lost profits, and additional material use.
Buyer may not assign to third parties any rights arising from the contract concluded with us without our consent.
12. Applicable law, place of performance, place of jurisdiction
12.1 These General Terms and Conditions shall be governed by German law, to the exclusion of the CISG (United Nations Convention on Contracts for the International Sale of Goods.
12.2 The exclusive place of jurisdiction shall be Heidelberg. We may also bring charges against Buyer at its registered office.