These General Terms & Conditions and all legal relations between the parties shall be governed by the law of the Federal Republic of Germany to the exclusion of international uniform law, in particular the United Nations CISG Convention.
An order of goods by the customer is deemed to be a binding offer of a contract. Except where otherwise stated in the order, we shall be entitled to accept such contract offer within seven days after receipt by us. Our acceptance may be declared either via an order confirmation or via delivery of the goods themselves to the customer.
The customer’s conditions of purchase which are in conflict with these Terms & Conditions shall not be binding on us even if the customer has placed his order subject to his own conditions and we have not expressly rejected the content thereof.
2. SCOPE OF DELIVERY OBLIGATION
Offers are made without obligation and subject to prior sale. The scope of the delivery shall be determined by the content of our written confirmation. The goods ordered shall be delivered in the customary state and condition. The right is reserved to effect technical modifications. Software products shall be subject to the terms of the particular licensing agreements of the manufacturer.
All prices are quoted strictly net ex warehouse Mainz-Kastel and are subject to confirmation. Invoicing shall be subject to the price valid on the day of delivery, plus the value added tax applicable at the time of delivery.
Terms of payment: direct debit or COD. Agreements on other terms of payment are possible after a check on credit standing by Creditreform. If the customer defaults on payment, interest on default will be charged as from the invoice date. If facts become known which indicate that the customer is in financial difficulty, outstanding invoices shall become payable immediately. Representatives and authorised persons shall only be entitled to collect debts with written power of attorney. Payments shall be credited to the most long-standing account payable. Cheques will only be accepted for payment subject to deduction of the usual collection and discounting expenses and subject to the customary reservations. In the event of repeated failure to observe payment periods we reserve the right to make further deliveries subject to payment in advance.
If reciprocal business relations exist between the contracting parties, OpenStorage shall be entitled to set off due claims against each other without any need of a separate agreement thereon.
5. PACKAGING AND SHIPPING
Goods are as a basic rule shipped ex warehouse for the account and at the risk of the customer. The minimum order value is 200.00 euros. Where the order value is less, OpenStorage charges a flatrate service fee of 5.00 euros for packing, shipping and order processing. We charge 7.50 euros per shipment for COD deliveries; pallet shipments and deliveries outside Germany will be charged at cost.
The transport insurance cover is 750.00 euros per parcel. Transport insurance for a higher amount will only be taken out on the express instruction and at the expense of the customer.
6. DELIVERY TIME
Delivery possibilities shall in every case be subject to confirmation. Part-deliveries can be effected on request. Orders without statement of delivery time will be delivered as soon as possible. Occurrence of delay in delivery shall be subject to the relevant statutory provisions. A reminder from the customer shall however be necessary in every case. If we default on delivery the customer may require flatrate compensation for the resulting damage or loss. The flatrate compensation shall amount to 0.5% of the net price (delivery value) for each completed calendar week but a maximum of 5% of the delivery value of the goods delivered late. We reserve the right to demonstrate that the customer has incurred no damage or loss or significantly less than the above-stated compensation amount.
Cases of force majeure, e.g. strikes and lockouts etc. and disruptions to production and operations, transport disruptions – irrespective of whether in our company or at a supplier – shall in every instance release us from an obligation to adhere to a delivery date and shall entitle us to withdraw from the contract.
Returns shall only be accepted on the basis of express prior agreement and the issue of an RMA number. In this case the transport costs must be borne by the customer. The credit item for the returned goods shall be subject to deduction of the costs incurred by us.
8. COMPLAINTS ABOUT DEFECTS
The customer must notify us within a reasonable period of time of defects in the goods which he has found or should have found by inspection after delivery in the course of correct business operations.
If the customer fails to notify as above, he can no longer assert claims under warranty or for damages on grounds of the defect itself or resulting from a misapprehension as to whether the object was free of defects.
If such defect materialises at a later date, notification must also be given within a reasonable period of time; otherwise the customer may no longer, even in consideration of the defect, assert the claims specified in the second paragraph above.
To observe the rights of the customer it shall suffice to dispatch the notification in due time; this shall also apply if the notification does not reach OpenStorage.
OpenStorage may not invoke this provision if the customer proves that OpenStorage caused the defect by wilful intent or gross negligence or concealed it (the defect).
9. WARRANTY AND DELIVERY OF REPLACEMENTS
We warrant that our products do not contain defects, including defects in the sense of the absence of warranted characteristics. In departure from section 438 (1) no.3 BGB (German Civil Code), the general period of limitation for claims on grounds of defects of quality and title shall be one year as from delivery date.
The above-stated limitation period under commercial law shall also apply to contractual and extra-contractual claims for damages by the customer on grounds of a defect in the goods unless the application of the standard statutory period of limitation (under sections 195 and 199 BGB) results in a shorter limitation period in an individual case. This shall in any case be without prejudice to the limitation periods laid down in the product liability act. In other cases the customer’s claims for damages shall be governed exclusively by the statutory limitation periods.
Our warranty obligation for defective deliveries or services shall be limited, at our option, to rectification or the delivery of replacements. Our warranty obligation for goods which we have not manufactured shall be limited to the assignment of our warranty claims against the manufacturer. Replaced parts shall become our property.
The expenses necessary for the purpose of testing and after performance, in particular transport, travel, work and material costs (not installation and de-installation costs), shall be borne by OpenStorage, if there is in fact a defect present. If however a demand by the customer for the remedying of defects proves to be unjustified, OpenStorage may require reimbursement by the customer of the costs thus incurred.
Every warranty obligation shall lapse if rectification or other work is done on the defective products without our consent. We provide no warranty for defects which are due to normal wear and tear. Rectification work and replacement deliveries shall be covered by the same warranty as that for the original delivery or service, but only until expiry of the warranty period applicable thereto. If the remedying of the defects by rectification or replacement delivery is unsuccessful, the customer may require an appropriate reduction of the purchase price. If no agreement is reached on the reduction amount, the customer may also cancel the contract. OpenStorage may be liable for payment of damages – on whatever legal grounds – in case of wilful intent and gross negligence. In case of minor negligence OpenStorage shall be liable for damage or loss resulting from injury to life, the person or health or from the breach of a cardinal contractual obligation; in this case, however, our liability shall be limited to compensation for predictable damage or loss which may typically occur.
The thus resulting limitations of liability shall not apply if OpenStorage has fraudulently concealed a defect or has undertaken a warranty for the properties and condition of the goods. The same shall apply to claims on OpenStorage under the product liability act.
The customer may only withdraw from or terminate the contract on grounds of a breach of obligation which does not consist in a defect if OpenStorage is responsible for the breach of obligation. A free right of termination by the customer is hereby excluded. In other respects the statutory prerequisites and legal consequences shall apply.
10. RETENTION OF TITLE
Delivery shall be made subject to retention of title. Claims resulting from resale shall be deemed assigned to us (extended retention of title). In case of combination with other goods or processing, the customer shall assign his retention of title or shared title to us. The customer must give immediate notice of attempted access by third parties to the assigned claims or rights. In case of current account the retained title and all the goods delivered by us and in the possession of the customer shall be deemed security for our claim to any outstanding balance.
11. CALL-OFF ORDERS
We allow a period of 12 months as from the order date for call-off orders except where expressly agreed otherwise. Once the acceptance period has expired, we shall be entitled to the option of either delivering the goods and invoicing for them or withdrawing from the contract or requiring damages on grounds of non-performance.
12. OTHER AGREEMENTS
Oral agreements shall not be effective in law.
By ordering or accepting the goods delivered by us, the customer acknowledges the binding effect of our terms and conditions of sale and delivery.
Individual and separately concluded agreements with the customer (including supplementary agreements, addenda and amendments) shall in every case prevail over the GTC. The content of such agreements shall only be effective on the basis of a written contract or a written confirmation by OpenStorage.
Legally relevant declarations and notices which the customer needs to submit to OpenStorage after conclusion of a contract (e.g. setting deadlines, notification of defects, declaration of withdrawal or reduced payment) shall only be effective if in written form.
13. PLACE OF PERFORMANCE AND JURISDICTION
The place of performance is our place of business in
55252 Mainz-Kastel, Peter-Sander-Strasse 13.
If the customer is a merchant within the meaning of the German Commercial Code (HGB), a legal person under public law or a special fund under public law, the exclusive place of jurisdiction – including at international level – for all disputes directly or indirectly arising from the contractual relationship shall be our place of business in Mainz-Kastel.
We shall however also be entitled to file a suit at the customer’s general place of jurisdiction.