Sales Conditions O&K Antriebstechnik GmbH
I. Area of Validity
The following Sales and Delivery Conditions apply to all contracts for the delivery of products
of the seller concluded between the buyer and the seller insofar as they are not
changed by express written agreements between the contractual parties.
The offer, offer acceptance, order confirmation, and the sale of all products are subject to
the following conditions. All conditions or provisions of the buyer that change the contract
are contradicted. They are only valid against the seller if the seller agrees to these provisions
and/or changes in writing.
These provisions are the basis for every future individual purchase transaction between
the buyer and seller and exclude agreements with other terms. Any errors caused by mistakes
in brochures, price lists, offer documents, or other documents of the seller may be
corrected by the seller without being made responsible for damages caused by these errors.
All agreements made between the seller and the buyer in conjunction with the contracts
for purchase are written down in the contract for purchase, these conditions, and
the order confirmation of the seller.
II. Order and Offer Documents
Orders presented by the buyer are only considered to have been accepted by the seller if
– unless otherwise agreed – they are accepted in writing by the seller or its representative/
agent within 4 weeks of presentation.
Amount, quality, description, and other specifications of the goods traded correspond to
the offer of the seller (if it is accepted by buyer) or the order of the buyer (if it is accepted by
The ordering party bears responsibility for the exactness of the order. The ordering party is
responsible for giving the seller all necessary information regarding the ordered trade
goods so that the order can be processed in a manner pursuant to the contract.
The seller retains the right to change the description of goods with regard to the specifications
to the extent that legal requirements are to be taken into account insofar as this change
does not worsen the order with regard to quality and usability.
III. Handed Over Documents
We retain our ownership and copyrights to all documents left with the ordering party in
conjunction with the awarding of the order, such as calculations, drawings, etc. No part of
these documents may be disclosed to third parties unless we provide the ordering party
with our express written approval. Insofar as we do not accept the offer of the ordering party
within the period named in §2, these documents are to be returned to us without delay.
IV. Purchase Price
The purchase price should be the price named by the seller. If the seller does not name the
price individually, the price listed in the current price list of the seller as valid at the time of
the order is agreed.
The seller retains the right to increase the price of the goods after timely disclosure to the
buyer and before the goods are delivered to the extent made necessary by the general development
of prices outside of the control of the seller (such as exchange rate swings, currency
rules, changes to customs, a significant increase in the costs of materials or production)
or on account of changes in the prices of suppliers.
Insofar as nothing else is listed in the offer or sales price lists or something else is agreed
in writing between the seller and the buyer, all prices named by the seller are ex works. Insofar
as the seller is willing to deliver the goods to other places, the buyer is to bear the expenses
for transport, packaging, and insurance.
Prices are excluding value-added tax, which the buyer must pay in the amount valid on the
day of delivery. The value-added tax will be listed separately.
V. Payment Conditions
The buyer is to pay the purchase price within the payment period agreed with the seller after
the invoice date. Authoritative for timely payment is the date the amount is credited to
the account of the seller.
Payments may only be made by bank transfer; bills of exchange and cheques will not be
recognised as fulfilment of the duty to pay. In the event that the buyer does not comply
with its duty to pay at the due date, the seller may charge the buyer interest on the amount
not paid without prejudice to other rights and claims to which it is entitled in the amount of
8 points above the respective base rate of the European Central Bank until the claim has
been paid in full in a final manner. The right of the seller to terminate the contract or suspend
additional deliveries to the buyer remains unaffected by this.
Refusals to pay of the buyer or an insufficient creditworthiness report entitles the seller to
demand pre-payments for outstanding deliveries from all open orders.
The buyer is only entitled to set-off, even if notices of defects or counterclaims are made, if
the counterclaims have been established by court of law or are recognised by the seller or
The buyer is only allowed to exercise a right of retention if its counterclaim is based on the
exact same contract for purchase.
VI. Supply and Delivery Period
Delivery dates or periods that are not expressly listed as binding are exclusively non-binding
information. Should a fixed deliver date or an exact delivery period be agreed without
any reservation, then the delivery date is considered adhered to if the subject of delivery
has left the plant by that date or readiness to deliver has been announced. The delivery
period is prolonged for a reasonable period in the event of measures in the scope of labour
disputes, in particular strikes and lock-outs as well as in the event of unforeseen hindrances
that are outside of the volition of the seller insofar as such hindrances have a verifiably
significance influence on the finishing or delivery of the subject of delivery.
This also applies if such circumstances arise at subcontractors. The seller is also not culpable for
the circumstances named above if they arise during a delay that is already at hand. The
beginning and end of such hindrances will be announced to the buyer by the seller in importance
cases. If damages arise for the buyer on account of a delay that arises on account
of intention or gross negligence on the part of the seller, then it is entitled to demand
reimbursement for delay to the exclusion of other claims. This amounts to 0.5% of the value
as a whole per week of delay but a maximum of 4% of the value of that part of the total
delivery that cannot be used in a timely or contractual manner on account of the delay.
The fulfilment of the contractual obligations by the buyer is a prerequisite for the adherence
to the period of delivery. The seller is entitled to make partial deliveries and performances
at any time insofar as this is reasonable for the buyer.
VII. Transfer of Risk/Shipping/Packaging
Loading and shipping are done – unless otherwise agreed – uninsured at the risk of the
buyer. The seller will make an effort to take the desires and interests of the buyer into
account with regard to the method and route of shipping; thereby arising additional expenses
are to be borne by the buyer, even in the event of carriage paid delivery.
If the shipping is delayed upon the request or on account of the buyer, the seller shall store
the goods at the expense and risk of the buyer. In this case, the notice of readiness to
ship has the same effect as shipment.
VIII. Retention of Title
Without regard to the delivery and the transfer of risk or other provisions of these Conditions
of Delivery, ownership of the subject of the contract is not transferred to the buyer until
the entire purchase price has been paid.
After any withdrawal from the contract, the seller has the right to demand return of the
goods, to sell them in another manner, or otherwise dispose of them. As long as the subject
of delivery has not been completely paid for, the buyer must hold the goods in a fiduciary
manner for the seller and keep the goods separately from its property and that of third
parties as well as store, secure, and insure the goods subject to retention of title in an orderly
manner and label them as property of the seller.
Until complete payment, the buyer may use or sell the goods in regular business operations,
but it must manage any remuneration (including any insurance payment) for the seller in a
fiduciary manner and keep the money separate from its assets and those of third parties.
If the subjects of delivery are subject to further processing and the further processing is
done with parts to which the seller with retention of title does not have ownership, then the
seller with retention of title attains partial ownership in the corresponding manner. The same
applies in the event of the mixture of goods of the seller with those of third parties.
Buyer is to inform the seller in writing immediately in the event of pledging or any other
intervention of third parties to enable the seller to file suit pursuant to section 771 German
Code of Civil Procedure [ZPO]. Insofar as the buyer does not comply with this duty it is liable
for the arising damages. The buyer now assigns all claims from the further sale of the
goods subject to retention of title to the seller which accepts the assignment.
IX. Warranty and Exclusion of Liability
The buyer must inspect the subject of delivery within the meaning of section 377 of the
German Commercial Code [HGB] and provide notification of defects if applicable. The
seller is not obligated to provide a warranty if the buyer does not provide notice of obvious
defects in a timely manner in writing. Regardless of this, – unless otherwise agreed – we
grant a warranty for the quality of the delivered parts for 12 months to a maximum of 1500
operational hours calculated from the day of dispatch of the parts from our warehouse.
Insofar as there are defects for which the seller is responsible in the delivered parts and
timely notice of defects was provided by the buyer, the seller - to the exclusion of the rights
of the buyer to withdraw from the contract or reduce the purchase price - is obligated to
subsequent improvement unless the seller is entitled to refuse subsequent improvement
on the basis of legal regulations. The seller is to grant the buyer a reasonable period for
subsequent improvement for each individual defect.
The subsequent improvement can be done by means of rectification of the defect or the
delivery of new goods according to the choice of the buyer. The seller is entitled to refuse
subsequent improvement if it is only in conjunction with unreasonably high expenses. During
the subsequent improvement, reduction of the purchase price or withdrawal from the
contract by the buyer is excluded.
A subsequent improvement is considered to have failed after the second fruitless attempt.
If the subsequent improvement has failed or the seller has entirely refused subsequent improvement,
the buyer can declare a reduction in the purchase price or withdrawal from the
contract according to its choice.
Claims for damages on account of a defect can only be made by the buyer pursuant to the
following conditions if the subsequent improvement has failed or the seller has refused
subsequent improvement. The right of the buyer to make additional claims for damages
pursuant to the following conditions remains unaffected by this.
Without prejudice to the regulations in section VI of these Conditions of Sale and Delivery
and the following limitations of liability, the seller is liable without limitation for damages to
life, limb, or health as well as those based on a grossly negligent or intentional breach of
duty on its part or that of its legal representatives or agents, as well as for damages that are
in the scope of the German Product Liability Act [Produkthaftungsgesetz] and damages
based on grossly negligent breaches of duty and bad faith on the part of the seller, its legal
representatives or its agents. Insofar as the seller has made a guarantee for the characteristics
and/or durability for goods or parts thereof, it is also liable in the scope of this guarantee.
However, the seller is only liable for damages related to the lack of a guaranteed
characteristic or durability that do not arise directly on the goods if the risk of such damages
is clearly included in the guarantee for characteristics and durability.
Additional liability is excluded irrespective the legal nature of the claim asserted. Insofar as
the liability of the seller is excluded or limited, this also applies to the personal liability of
the employees, representatives, and agents.
X. Final Provisions, Applicable Law
The relationships between the contractual parties are governed solely by the laws of the
Federal Republic of Germany. The application of the standardised law on the international
sale of movable goods and the law on the conclusion of international sales contracts for
moveable goods is excluded.
The text of the German Conditions of Sale and Delivery are authoritative in the event of
questions of interpretation.
Hattingen/Ruhr/NRW, Germany is the place of performance for the obligation of the seller
to perform . Hattingen is agreed as the legal venue for any disputes arising from the contractual
Should one or more provisions of these General Terms of Delivery and Payment be or become
invalid or infeasible, this shall not affect the validity of the rest of the General Terms of
Delivery and Payment. The invalid or infeasible clause should be replaced by a regulation
that comes as close as possible to the meaning of these Sales and Delivery Conditions.