General terms and conditions
Terms of contract within the framework of purchase contracts concluded via the webshop platform "www.otara.de"
otara GmbH - hereinafter referred to as "Provider", Mastholter Straße 168, 59558 Lippstadt, Tel. +49 2941 256 05 0, Mail firstname.lastname@example.org, registered in the Commercial Register of the Local Court of Paderborn under HRB 12006, represented by the Managing Directors Guy-Tasso Städtler and Vincent Hanke, VAT identification number: DE 300441812 - hereinafter referred to as "Provider" -
the Customer designated in § 3 of the contract - hereinafter referred to as the "Customer".
§ 1 Scope
(1) The following General Terms and Conditions shall apply exclusively to the business relationship between the web shop Provider and the Customer in the version valid at the time of conclusion of the contract.
(2) Deviating general terms and conditions of the Customer shall not be recognized unless the Supplier expressly agrees to their validity in writing.
(3) The offer of the Provider is exclusively directed at entrepreneurs and merchants. According to § 14 BGB (German Civil Code), an entrepreneur is a natural or legal person or a partnership with legal capacity that acts in the exercise of its commercial or independent professional activity when concluding a legal transaction. The merchant status is governed by §§ 1-7 HGB.
(4) All agreements made between the Provider and the Customer in connection with the purchase contract result in particular from these Terms and Conditions of Sale, the written order confirmation and the Provider's declaration of acceptance.
(5) Contract language is German. The complete text of the contract is not stored by the Provider. Before sending the order via the online shopping cart system, the contract data can be printed out or electronically saved using the browser's print function. After receipt of the order by the Provider, the Customer will receive the order data, any legally required information and these terms and conditions again by e-mail.
§ 2 Registration, Customer data
(1) Before placing an order for the first time, the Customer must register in the webshop under the menu item "Registration" and create a Customer account. The mandatory information to be provided here is marked accordingly.
(2) Within the scope of registration, the Customer is obliged to provide the Provider with a copy of a current and valid trade license as proof of its merchant status.
(3) The Customer guarantees that the information provided by it within the scope of registration and the documents provided are true and valid. The Customer undertakes to keep his Customer account up to date and to notify any changes occurring at a later date without delay.
(4) With regard to the handling and processing of the data provided by the Customer, the provisions of the data protection declaration provided separately by the Provider shall apply.
§ 3 Conclusion of the contract
(1) The Customer may select from the Provider's assortment, which is directed in particular to the sale of goods. The details, in particular the essential characteristics of the goods, can be found in the item description, the ordering process and the supplementary information in the web store of the Provider.
(2) The presentation and advertising of articles in the web store do not constitute a binding offer to conclude a purchase contract.
(3) The Customer can submit a binding purchase offer (order) via the online shopping cart system. For this purpose, the desired products must be selected and placed in the shopping cart using the "Shopping Cart" button. Using the corresponding button in the navigation bar, the Customer can call up the "shopping cart" and make changes there at any time. After calling up the "Checkout" page and entering the personal data as well as the payment and shipping conditions, all order data is finally displayed again on the order overview page. By clicking the button "continue" the Customer will be redirected to the order overview page. Before submitting the order, the Customer has the opportunity to review all information, change or cancel the purchase. By confirming the inclusion of the General Terms and Conditions by means of the corresponding button and sending the order via the button "order subject to payment", the Customer submits a binding offer for the goods in the shopping cart to the Provider.
(4) The Provider shall then send the Customer an automatic acknowledgement of receipt by e-mail in which the Customer's order is listed again. The automatic confirmation of receipt merely documents that the Provider has received the Customer's order and does not constitute acceptance of the application.
(5) In addition, the registered Customer, who has already made at least three successful purchases via the online store, can also declare a binding purchase offer by e-mail, fax, SMS, WhatsApp message, Skype as well as by telephone to a sales representative of the Provider. If the Customer makes use of one of these ordering options, he accepts the inclusion of the GTC in the currently valid version by submitting the offer.
(6) The acceptance of the offer (and thus the conclusion of the contract) by the Provider takes place either expressly by confirmation in text form (e.g. e-mail), in which the processing of the order or delivery of the goods is confirmed to the Customer, or impliedly by sending the goods.
(7) The processing of the order and transmission of all information required in connection with the conclusion of the contract shall be carried out by email and partly automated. The Customer must therefore ensure that the email address he has provided to the Provider is correct, that the receipt of emails is technically ensured and, in particular, that it is not prevented by SPAM filters.
§ 4 Availability of goods
(1) If the Customer has not received an order confirmation or notification of delivery or no goods within 5 days after submitting the offer, he is no longer bound to his application (order). In this case, any services already provided will be refunded immediately.
(2) If, contrary to expectations, a product ordered by the Customer is not available despite the timely conclusion of an adequate covering transaction for a reason for which the Provider is not responsible, the Customer shall be informed immediately of the unavailability and, in the event of withdrawal, any payments already made shall be refunded without delay.
§ 5 Prices, shipping costs
(1) The prices stated in the respective offers represent net prices. Taxes or possibly applicable customs duties are not included in the price.
(2) In the event of an order with a net value of less than € 25.00, the Supplier shall charge a surcharge for small quantities in the amount of € 3.00 net.
(3) The shipping costs incurred are not included in the purchase price. They are available on the page (Delivery information & shipping costs | otara GmbH - think quality!), are shown separately in the course of the ordering process and are to be borne additionally by the Customer, unless free shipping has been promised. From an order value of EUR 250.00, delivery within Germany is free of shipping costs.
(4) The Customer shall receive an invoice in pdf format by e-mail with VAT shown, unless the goods are subject to differential taxation. In such a case, the sales tax shall be included in the purchase price, but shall not be shown in accordance with the relevant provisions of the Sales Tax Act. A copy of the invoice is available for download in the customer account/customer login.
§ 6 Payment methods
(1) The Provider offers the following payment methods: Direct debit (SEPA direct debit), prepayment, cash on delivery, purchase on account, SOFORT Überweisung (sofort.com), credit card, Paypal.
(2) The payment method "purchase on account" is only offered after successful completion of three purchases. Further details can be found in the online store under the button "Payment methods".
(3) Unless otherwise specified in the individual payment methods, the payment claims arising from the concluded contract shall be due for payment immediately.
§ 7 Terms of payment
(1) In the case of purchase on account, the purchase price and the shipping costs shall be due and payable within the period specifically specified by the Supplier in the invoice.
(2) The Customer shall not be entitled to set off any claims against the Provider's claims unless its counterclaims have been legally established or are undisputed.
(3) In the event of default in payment, the Customer shall owe the Provider default interest at the statutory rate (Section 288 (2) BGB). The Customer's obligation to pay default interest does not preclude the Provider from asserting further damages caused by default.
§ 8 Retention of title
(1) The goods remain the property of the supplier until full payment of the purchase price.
(2) The supplier also retains ownership of the goods until all claims arising from the current business relationship have been settled in full.
(3) The Customer may resell the goods in the ordinary course of business. In this case, he already now assigns all claims in the amount of the invoice amount, which accrue to him from the resale, to the supplier accepting the assignment. The Customer is further authorized to collect the claim. Insofar as he does not properly meet his payment obligations, however, the Provider reserves the right to collect the claim himself.
(4) In the event of combination and mixing of the reserved goods, the Supplier shall acquire co-ownership of the new item in the ratio of the invoice value of the reserved goods to the other processed items at the time of processing. If the reserved goods are further processed or transformed and a new item is created as a result, the supplier shall be deemed to be the manufacturer of this item.
(5) The Provider undertakes to release the securities to which it is entitled at the Customer's request to the extent that the realizable value of the securities of the Provider exceeds the claim to be secured by more than 10%. The selection of the securities to be released shall be incumbent upon the Provider.
§ 9 Delivery conditions
(1) The Supplier shall be entitled to make partial deliveries to the extent that this is reasonable for the Customer.
(2) The delivery period shall be approximately five (5) working days (Monday to Friday, excluding public holidays), unless otherwise agreed. It begins - subject to the provision in para. 3 - with the conclusion of the contract.
(3) In the case of orders from Customers with their place of business abroad or in the case of justified indications of a risk of non-payment, the Provider reserves the right to deliver only after receipt of the purchase price plus shipping costs (advance payment reservation). If the Provider makes use of the advance payment reservation, he will inform the Customer immediately. In this case, the delivery period begins with payment of the purchase price and shipping costs.
(4) Upon handover of the goods to the transport company, the risk of deterioration and/or loss shall pass to the Customer.
(5) The place of performance for any obligations arising from the contractual relationship shall be the registered office of the Provider, unless otherwise specified.
(6) If the Customer is in default of acceptance (for example, due to non-arrival by the shipping service Provider three times or refusal of acceptance), the Customer must reimburse the additional expenses incurred as a result. This includes in particular the costs of the outward and return shipment of the goods. This also applies if the costs of shipping to the Customer were waived because the minimum order value was reached.
§ 10 Right of retention
(1) The Customer may only exercise a right of retention insofar as it concerns claims from the same contractual relationship.
(2) In the event of § 9 para. 6 GTC, the Supplier shall be entitled to a right of retention of the goods until the additional expenses have been compensated.
(3) The Provider undertakes to release the securities to which it is entitled at the Customer's request to the extent that the realizable value of the securities of the Provider exceeds the claim to be secured by more than 10%. The selection of the securities to be released shall be incumbent upon the Provider.
§ 11 Warranty and other liability
(1) The warranty period shall be 12 months from delivery. Insofar as acceptance has been agreed, the warranty period shall commence upon acceptance. The shortening of the statutory warranty period shall not apply to the claims specified in § 11 para. 9 GTC.
(2) The delivered items shall be carefully inspected immediately after delivery to the Customer or to the third party designated by the Customer. They shall be deemed to have been approved if the Provider has not received a written notice of defect with regard to obvious defects or other defects that were identifiable during an immediate, careful inspection within six (6) working days after delivery of the delivery item or otherwise within six (6) working days after discovery of the defect or any earlier point in time at which the defect was identifiable for the Customer during normal use of the delivery item without closer inspection. Upon request of the Supplier, the delivery item complained about shall be returned to the Supplier freight prepaid. In the event of a justified complaint, the Supplier shall reimburse the costs of the most favorable shipping route; this shall not apply if the costs increase because the delivery item is located at a place other than the place of intended use.
(3) In the event of material defects in the delivered items, the Supplier shall initially be obliged and entitled to rectify the defect or to make a replacement delivery at its discretion within a reasonable period of time. The supplementary performance does not include the removal of the defective item or the re-installation if the supplier was not originally obliged to install it. In case of failure, i.e. impossibility, unreasonableness, refusal or unreasonable delay of the rectification or replacement delivery, the Customer may withdraw from the contract or reasonably reduce the purchase price. In the case of an insignificant defect, however, there is no right of withdrawal.
(4) The expenses necessary for the purpose of inspection and subsequent performance, in particular transport, travel, labor and material costs (not: removal and installation costs), shall be borne by the Provider if a defect is actually present. However, if a request by the Customer to remedy a defect turns out to be unjustified, the Provider shall be entitled to demand reimbursement of the resulting costs from the Customer.
(5) In urgent cases, e.g. if operational safety is endangered or to prevent disproportionate damage, the Customer shall have the right to remedy the defect itself and to demand reimbursement from the Provider of the expenses objectively necessary for this purpose. The Provider is to be informed immediately of such a self-execution, if possible in advance. The right of self-execution does not exist if the Provider would be entitled to refuse a corresponding subsequent performance according to the statutory provisions.
(6) The warranty shall not apply if the Customer modifies the delivery item or has it modified by a third party without the consent of the Supplier and the rectification of defects is thereby rendered impossible or unreasonably difficult. In any case, the Customer shall bear the additional costs of the defect removal resulting from the modification.
(7) Any delivery of used items agreed with the Customer in individual cases shall be made to the exclusion of any warranty for material defects. This does not apply to the claims mentioned in para. 9.
(8) The Provider shall only be liable for damages - regardless of the legal grounds - in the event of intent and gross negligence. This does not apply to the claims mentioned in paragraph 9.
(9) In the event of simple negligence, the Provider shall only be liable for claims for damages by the Customer arising from injury to life, limb, health or from the breach of essential contractual obligations (cardinal obligations). Material contractual obligations are those whose fulfillment is necessary to achieve the goal of the contract.
(10) In the event of a breach of material contractual obligations, the Provider shall only be liable for the foreseeable damage typical for the contract if such damage was caused by simple negligence, unless the Customer's claims for damages are based on injury to life, body or health.
(11) Paragraphs 7 to 10 shall also apply in favor of the Provider's legal representatives and vicarious agents if claims are asserted directly against them.
(12) The provisions of the Product Liability Act shall remain unaffected.
(13) The Customer may only rescind or terminate the contract due to a breach of duty that does not consist of a defect if the Provider is responsible for the breach of duty or if the Customer cannot reasonably be expected to adhere to the contract or circumstances exist that justify immediate rescission, taking into account the interests of both parties. A free right of termination of the Customer (in particular according to § 648a German Civil Code (BGB)) is excluded. In all other respects, the statutory requirements and legal consequences shall apply.
(14) Data communication via the Internet cannot be guaranteed to be error-free and/or available at all times according to the current state of the art. In this respect, the Provider is liable neither for the constant nor uninterrupted availability of the website and the service offered there.
§ 12 Limitation
(1) Notwithstanding Section 438 (1) No. 3 of the German Civil Code (BGB), the general limitation period for claims arising from material defects and defects of title shall be 12 months from delivery. Insofar as acceptance has been agreed, the limitation period shall commence upon acceptance. This does not apply to the claims mentioned under § 11 para. 9 GTC.
(2) The above limitation periods of the law on sales shall also apply to contractual and non-contractual claims for damages of the Customer based on a defect of the goods, unless the application of the regular statutory limitation period (§§ 195, 199 German Civil Code (BGB)) would lead to a shorter limitation period in individual cases. This does not apply to the claims mentioned under § 11 para. 9 GTC.
(3) The above reductions in the statute of limitations shall not apply to cases in which the Supplier has fraudulently concealed the defect or to liability under the Product Liability Act.
§ 13 Final provisions
(1) Contracts between the Provider and the Customers shall be governed by the laws of the Federal Republic of Germany, excluding the UN Convention on Contracts for the International Sale of Goods.
(2) If the Customer as a merchant has its registered office in Germany at the time of the order, the exclusive place of jurisdiction shall be the registered office of the Provider. Otherwise, the applicable statutory provisions shall apply to the local and international jurisdiction.
(3) The contract shall remain binding in its remaining parts even if individual points are legally invalid. The invalid points shall be replaced by the statutory provisions, if any. Insofar as this would represent an unreasonable hardship for one of the contracting parties, however, the contract as a whole shall become invalid.
As set 01.12.2022