General Terms and Conditions of Business (GTC)
of the OTR-Performance GmbH, hereinafter OTR
Last updated: 01.02.2017
§ 1 General
- The following General Terms and Conditions of Business apply to all business relationships between OTR and the customer. The version current at the time of the conclusion of the contract is definitive.
- Customers within the meaning of these General Terms and Conditions of Business are exclusively consumers.
- Divergent, conflicting or supplementary General Terms and Conditions of Business shall not be considered part of the contract, even if already known, unless their applicability has been expressly agreed in writing.
§ 2 Conclusion of the Contract
- The Conditions for our goods are subject to change without notice and without obligation. Our presentation of goods in the Internet does not constitute an offer, but is a non-binding invitation to customers to place an order. Technical and other modification in form, colour or weight remain reserved within reasonable bounds.
- An on-line order of the customer is only an offer towards OTR for conclusion of a purchase contract. The confirmation of receipt of an order by e-mail does not constitute acceptance of the order, but only informs the customer that his order has been received by OTR. Receipt of a telephone order does not constitute a binding acceptance by OTR. The order is accepted by despatching the goods and/or by payment in advance in response to a demand for payment by e-mail.
- OTR is free to not accept on-line orders. OTR is entitled to accept within two weeks the contractual offer, which consists of the order. In the case of goods ordered by electronic means OTR is entitled to accept the order within three working days from receipt of the order by OTR.
- OTR is entitled to reduce the order to a household quantity.
- The contract is concluded under reservation of proper and correct delivery by our suppliers to us, if not, we are free to refuse contract performance in whole or partly. This shall only apply in case the failure to supply is not attributable to OTR.
- In the event of non-availability or of only partial availability of the goods the customer shall be notified without delay. The consideration shall be refunded without delay.
- The language of the contract is German.
§ 3 Delivery
The goods shall be delivered to the delivery address stated by the customer.
§ 4 Remuneration
- The price offered is binding. All prices are in Euros, and when the goods sold remain within the EU, the price includes the statutory Value Added Tax. In the case of sale by delivery to a place other than the place of performance there is an additional charge for shipping costs in accordance with § 5 of the General Terms and Conditions of Business.
- Payment will be at the discretion of the customer in advance, direct debit, via credit card, PayPal or by cash on delivery. OTR reserves the right to exclude certain types of payment. Deliveries abroad may be paid by payment in advance, PayPal or credit card. The credit card is charged on the date of order.
- There is minimum order value of 15,00€.
- Customers, who export the goods outside the EU, may be refunded the Value Added Tax. For this purpose the customer must submit the original copy of an export certificate, stamped by Customs and Excise in due and proper form. In the event of reimbursement to a foreign bank account, all transfer costs incurred shall be paid by the customer.
- The customer may arrange an agreement for instalment payment. We cooperate with Instalment Payment powered by PayPal. OTR delegates the Credit check and the application process to PayPal. The customer's credit-worthiness will be checked in real time by PayPal. The instalment payment agreement will be concluded between the customer and OTR. OTR will assign the pecuniary claim to PayPal and PayPal draws the debt in its own name. After signing the agreement for instalment payment, the purchase price is deferred and to be paid in instalments. Payments are scheduled on the payment plan, which is displayed to the customer by PayPal within the order flow. Further information about instalment payment powered by PayPal can be found by customer under: www.paypal.de/ratenzahlung
- Instalment business is offered to the customer only if the latter provides a SEPA direct debit mandate to PayPal or agrees any other payment method provided by PayPal. The customer shall not be granted an instalment payment agreement until his credit-worthiness has been checked.
- OTR has authorised PayPal to terminate the instalment payment business with the customer if the customer is in default with payment in whole or in part with at least two consecutive instalments and within at least 10% of the loan and more than 5% of the nominal amount of the loan of a term of the instalment agreement [g2] and PayPal has set the customer a two-week deadline for the payment of the outstanding amount with the declaration that if payment is not received within the deadline, payment of the remaining residual debt shall be demanded. In this case PayPal may require immediate payment of the whole sum for the transaction with immediate effect.
- The customer has the right to settle its liabilities arising from the instalment agreement at any time in full or in part. If the customer pays its debts in advance or the residual debt becomes due by termination prior to the agreed period, the total costs will be reduced by the amount of interest and other term-dependent costs, which cease in the case of graduated invoicing at the time subsequent to the due date for payment or early payment in full. The total costs include all the customer's financial obligations, which the latter must continue to bear, if the contract continues to run routinely subsequent to the repayment of the loan.
§ 5 Shipping costs
- The customer shall bear the costs of despatch from the location of the branch office of OTR.
- Shipping costs can be found under: www.off-the-road.de
- In the case of despatch by cash on delivery, there is a cash on delivery charge of € 2.00. The customer shall bear the costs of despatch from the location of the branch office of the OTR Company.
§ 8 Guaranty
- Consumers have the choice as to whether supplementary performance is performed by remedy or replacement. The OTR Company is entitled to refuse the selected method of supplementary performance, if is it possible only with disproportionate costs and the other method of supplementary performance remains without significant disadvantage for the consumer. In the case of companies the OTR Company offers a guarantee for defects in the goods in the first instance at their discretion by supplementary performance or replacement.
- If supplementary performance fails, the customer generally may at its discretion demand abatement of the price (reduction) or rescission of the contract (withdrawal) as well as compensation for damages. In the case of only minor defects the customer has no right of withdrawal. If the customer chooses compensation for damages, the limitations on liability according to § 10 of the GTC are applicable.
- Consumers must notify the OTR Company in writing of obvious defects within two months of receipt; otherwise enforcement of guarantee claims is excluded. Merchants must inspect the goods without delay with respect to variance in quality and quantity and must notify the OTR Company of visible defects within a period of one week from receipt of the goods, otherwise enforcement of claims under the guarantee is excluded. Hidden defects must be notified to the OTR Company within a period of one week from the discovery of the defect. Timely despatch is sufficient to meet the deadline. The merchant bears the full burden of proof for all conditions of entitlement, in particular for the defect itself, for the date on which the defect was identified and for the notice of defect in time.
- For consumers the guaranty period is two years from delivery of the goods. For merchants the warranty period is one year from delivery of the goods.
- The OTR Company gives no warrantees in the legal sense. Manufacturer's warrantees remain hereby unaffected.
§ 9 Return Rights for unused Goods
The OTR Company grants the customer independently of and in addition to the right of revocation arising from § 6 and § 7 the right to return goods within 14 days of delivery of the goods. This right to return only exists for goods not been taken into use. As far as the customer only has executed a "check on properties, condition and the mode of operation of the goods" in accordance with § 6 and § 7, this shall not be deemed taking the goods into use.
§ 10 Limitation of liability
In cases of slight negligent breaches of duty, liability of the OTR Company and their vicarious agents is limited to foreseeable, direct average damage, typical for this type of contract.
There is no liability of OTR and its vicarious agents for slight negligent breach of duties, not essential to the contract and not jeopardising the implementation of the contract.
The foregoing limitations on liability do not affect claims of the customer arising from product liability or warranty. Furthermore, the limitations on liability do not apply in the case of injury to the person or health of the customer or the loss of life of the customer.
§ 11 Retention of title
- Until payment has been received in full from the customer the goods supplied remain the property of the OTR Company.
- The customer shall be obliged to handle the goods with care during the existence of the retention of title. If servicing and inspection work is necessary, the customer must routinely perform these at his own cost. The customer must notify the OTR Company in writing without delay of any access by third parties to the goods, in particular actions of judicial execution, and of any damage to or destruction of the goods. A change of ownership in the goods and a change of address by the customer must be immediately notified by the customer. The Customer shall reimburse the Supplier for all damages and costs, which may arise due to an infringement of this duty or due to any necessary procedures of intervention against access by third parties.
- The OTR Company is entitled in the case of conduct contrary to the contract by the customer, in particular in the case of delay of payment, to withdraw from the contract and to reclaim the goods. In addition the OTR Company is entitled in the case of breach of a duty in accordance with paragraph 2 of the contract to withdraw from the contract and reclaim the goods, if it is no longer reasonable to adhere to the contract.
§12 Court of Jurisdiction and Applicable Law
- Applicable law is the law of the Federal Republic of Germany. For consumers, who have not concluded the contract for professional or commercial purposes, this choice of applicable law applies only insofar as the protection granted by mandatory provisions of the law of the state, in which the consumer has his habitual place of residence, has not [g1] been withdrawn. The provisions of the United Nations Convention on Contracts for the International Sale of Goods are excluded.
- If the customer is a merchant, a legal entity under public law or a special fund under public law, the sole Court of jurisdiction for all disputes arising from this contract is the registered office of the OTR Company. The same shall apply, if the customer has no general Court of jurisdiction in Germany or his domicile or normal place of residence is not known on the date on which the action is brought.
- Should provisions of the contract with the customer, including these General Terms and Conditions of Business, be or become invalid in whole or in part, the validity of the remaining provisions shall not be affected thereby.