1. Area of application
1.1 These logistics terms and conditions apply to all logistics services that are not regulated and covered by the production terms and conditions of OK Logistics GmbH & Co.KG. The logistics services may include services for the principal or a third party named by the principal, e.g. order acceptance (call center), goods handling, goods inspection, goods assembly, country- and principal-specific product adaptation, assembly, repair, quality control, pricing, shelf servicing, installation or implementation of goods, products and activities relating to the planning, implementation, management and control of order, process, sales, returns, disposal, recycling and information management.
1.2 The principal is the contracting party that has instructed the contracting partner to provide logistics services on its behalf or on behalf of a third party.
1.3 The service provider is OK Logistics GmbH & Co. KG.
1.4 Insofar as the production terms and conditions are agreed, the logistics terms and conditions shall take precedence should individual clauses be contradictory, or where no contractual procedure applies to a specific situation.
1.5 The logistics terms and conditions shall not apply to contracts with end-users.
2. Electronic data exchange
2.1 Each party may create, send and exchange statements and notifications by electronic means (electronic data exchange), provided the transmitting party can be identified. The transmitting party shall assume the risk of any loss or accuracy of the data transmitted.
2.2 Should a link between the two data systems be installed by the service provider, i.e. a shared IT interface, the service provider shall be reimbursed for any expenses incurred for such. Both parties also undertake to implement the standard security and control procedures to protect the electronic data exchange from access by third parties and unauthorized persons and manipulation, loss or destruction of electronically transmitted data.
2.3 Each party shall nominate one or several contact persons to receive information, statements and requests associated with the contract implementation, and shall notify the other party of the names and contact details of such persons. Should one party fail to designate a contact person, the contact person shall be deemed the person who signed the contract on behalf of such party.
2.4 Documents created electronically or digitally shall be considered equivalent to written documents.
3. Confidentiality
3.1 Each party undertakes to treat all non-public data and information as confidential, and is to be used solely for the purpose intended. Data and information may only be forwarded to third parties (i.e. insurers, sub-contractors etc., where required in connection with the performance of the contract. The same principles shall apply to the confidentiality of electronic data and information.
3.2 The duty of confidentiality does not apply to data and information that must be disclosed to third parties, in particular public authorities, as required by law. In this event, the other party must be notified immediately.
4. Duties of the principal, protection of intellectual property
4.1 The principal, particularly if acting as a “system leader”, shall determine the procedure for which the service provider shall be engaged, and undertakes to provide any items, information and authorizations required to perform the logistics services and to provide the appropriate assistance. In particular, the principal undertakes to provide (primary) products and materials, to inform the service provider regarding specific characteristics of goods and procedures and any legal, regulatory or professional, industry provisions and, where appropriate, to train its staff, and to develop and update specifications, descriptions of procedures and materials (assembly instructions, construction and plans) and to monitor the service provider’s adherence to such. These provisions and the participation must be carried out in a timely manner and in full. This also includes any information required for optimal capacity scheduling.
4.2 The documents provided in para 4.1 shall remain the intellectual property of the principal.
5. Duties of the service provider
5.1 The service provider shall provide services in accordance with the provisions of the principal set out in para 4, and is entitled, but not obliged to, monitor such provisions.
5.2 The service provider supplying the logistics services within the operational structure of the principal, or as instructed by the principal within the operational structure of a third party (e.g. shelf servicing), shall provide such services as instructed by the principal and at the principal’s risk.
5.3 The service provider undertakes to immediately inform the principal of any objections or irregularities arising in the execution of the contract, and to document such.
6. Hindrances, force majeure
6.1 Any hindrances that are beyond the control of a contracting party, shall release such contracting parties from their contractual obligations for the duration of the disturbance and the extent of its consequences. Hindrances may be considered as strikes and lock-outs, force majeure, civil unrest, acts of war or terrorism, measures taken by public authorities and any other unforeseeable, unavoidable and serious events.
6.2 In the case of exemption in accordance with para 6.1, each contracting party shall inform the other party immediately and shall, as far as reasonably possible, minimize the negative consequences for the other party.
7. Amendments to the contract
7.1 Any agreements regarding pricing and services shall always refer solely to the specifically named services based on a generally stable volume of goods and services or quantities. They shall assume unchanged requirements for data processing, quality agreements and procedural instructions and stable energy and personnel costs and public taxes or levies.
7.2 Should the conditions described in para 7.1 change, the service provider may request negotiations to amend the contract with effect from the first day of the month following the month in which such request was made, unless such changes were known at the time of signing the contract. The contract amendment must relate to the demonstrable changes.
7.3 Should the contracting parties fail to reach an agreement within one month after the request for a contract amendment, the service provider may terminate the contract with a notice period of one month if the term of the contract is valid for up to one year, or a notice period of three months if the term of the contract is for a longer period. Such termination may only be declared within one month after failure to amend the contract.
8. Transfer of ownership
Should a transfer of ownership affect the contract or the execution of such in accordance with § 613a BGB (German Civil Code), the parties shall agree to settle the economic consequences of such, taking into account the duration of the contract.
9. Settlement, retention
The right of settlement against existing payments due, or retention arising from a contract for logistics services in accordance with para 1.1 and any other non-contractual demands, may only be exercised if no objection has been made on justifiable grounds.
10. Right of seizure and retention, ownership
10.1 The service provider may exercise a right of seizure and retention against the principal for any payments due and that have not yet fallen due to it in connection with its services to the principal in accordance with 1.1, for any goods or other assets at its disposal.
10.2 The service provider may only exercise a right of seizure or retention in connection with any payments arising from any other contracts signed with the principal for logistics services in accordance with para 1.1, if such payment claims are undisputed.
10.3 The principal may prohibit the exercise of the right of seizure if it can provide the service provider with an equivalent security (e.g. a liable bank guarantee).
10.4 Para 4.2 shall remain unaffected.
10.5 Should the service provider also transfer ownership to the principal during the provision of the logistics services in accordance with para 1.1, ownership shall remain with the service provider until payment has been made in full.
11. Acceptance, deficiencies and delays
11.1 Should an acceptance of the logistics services be required by the principal owing to the cooperative nature of logistics services, such acceptance may take place through use, resale, further processing, delivery and shipment to the principal or the third party named by him. Should acceptance of the logistics services not be possible, completion shall be considered as acceptance of such.
11.2 The principal shall notify the service provider of any visible defects at the time of acceptance. Such notification must be made in writing or electronically (see para 2). The timely sending of the notification shall suffice to comply with the notice period, provided the service provider received such notification. In the event of doubt, the duty of notification of such defect shall remain with the principal.
11.3 Should the principal fail to send such defect notification, the logistics service shall be deemed to have been executed in accordance with the contract unless the service provider had maliciously concealed such defect.
11.4 Claims for any delays in the performance of the service shall become null and void should the principal fail to notify such to the service provider within twenty-one days after the performance of such service.
12. Deficiency claims by the principal
12.1 The deficiency of a logistics service depends on the content of the contract and the legal provisions. Any guarantees regarding quality or durability can only be given by the service provider if such have been specifically stated in the contract.
12.2 Should the logistics services be defective, the principal may claim a subsequent performance of such. In any event, the right to choose between removal of the deficiency and re-delivery or new provision shall remain that of the service provider. Should subsequent performance also fail to uphold the contractual obligation, the principal may again demand subsequent performance of the contract. No further claims for subsequent performance may be made.
12.3. Should two attempts at subsequent performance prove unsuccessful or if this is not possible owing to the nature of the service, the principal may exercise its rights to reimbursement, cancelation and compensation as follows:
12.3.1 Should the principal claim valid reimbursement, this shall be limited to the remuneration of the agreed payment for such specific defective logistics service.
12.3.2 Should the principal exercise its right of cancelation, this shall only relate to the specific defective logistics service. In addition, under the stipulations of para 13, the principal may also use its option of termination without notice in lieu of its right of cancelation.
12.3.3 Under the stipulations of para 14, the principal may also demand compensation in lieu of the performance of the service.
12.3.4 Should the principal perform the service himself, any compensation claims shall be limited to 10,000 Euros.
13. Right of cancelation
13.1 Should one of the parties commit two violations of any substantial contractual obligations resulting in a substantial disruption to operations, the other party reserves the right to terminate the contract within a reasonable period of notice, having allowed the infringing party the opportunity in writing to remedy such contractual violations and, this notice period having expired, without the party having performed its obligations.
13.2 The right to extraordinary termination on serious grounds remains unaffected.
14. Liability of the service provider
14.1 The service provider shall only be liable should it be fully responsible for the damage caused. The service provider’s resulting legal and contractual liability shall be limited to the extent of damages that are typical and foreseeable for this type of contract, and
14.1.1 to 10,000 Euros per claim for damages.
14.1.2 should more than four claims arise from the same source (e.g. assembly error), or the production/delivery of goods have an identical defect (serial damage), this shall be limited to 50,000 Euros regardless of the number of claims arising from such source. This limitation of liability is also applied where discrepancies exist between the target and current stock of the goods delivered to the service provider, and such discrepancies shall be offset against each other in the event of surpluses and shortages,
14.1.3 limited to 100,000 Euros for all claims within one year.
14.2 The above exemptions and liability limitations also apply to extra-contractual claims against the service provider, its personnel and any other of the service provider’s agents.
14.3 The above exemptions and limitations do not apply to
14.3.1 fatal injury, physical injury or damage to health,
14.3.2 mandatory legal stipulations regarding liability, e.g. any legislation regarding product liability.
14.4 The parties may agree to pay a liability surcharge to substitute the above maximum amounts with other sums.
15. Qualified responsibility
The above exemptions and limitations of liability shall not apply
15.1 to grossly negligent or deliberate breaches of significant contractual obligations by the service provider, its management personnel or agents, or a breach of other duties by the service provider or its management personnel.
15.2 if the service provider had maliciously withheld information regarding damages or provided a guarantee regarding of the quality of the logistics service.
16. Right of indemnity of the service provider
The principal shall protect the service provider and its agents from any third party claims arising from product liability legislation and other regulations designed to protect third parties, unless such third party claim had arisen owing to gross negligence or malicious intent on the part of the service provider or its agents.
17. Limitation period
17.1 Any claims relating to a contract in accordance with para 1.1 shall expire after one year.
17.2 For all claims such limitation period shall commence the day after the delivery, and for contractual services the day after acceptance in accordance with para 11.1.
17.3 The above limitation periods do not apply in the cases described in para 15, for fatal injury, physical injury or damage to health, or should legislation regarding the limitation period override such limitation period.
18. Liability insurance of the service provider
18.1 The service provider undertakes to organize and maintain liability insurance at current market rates with an insurer of its choice that will be sufficient to cover its liability obligations in accordance with para 14.
18.2 The parties may agree a maximum sum of compensation per claim and year, and also agree a contribution from the service provider.
19. Place of execution, place of jurisdiction and applicable law
19.1 The place of performance for all participants shall be the location of the service provider’s branch office that received the instruction.
19.2 The place of jurisdiction for any disputes arising from the contractual relationship or in connection with such shall, for all parties, except private persons, be the location of the service provider’s branch office that received the instruction, and shall be the exclusive place of jurisdiction for any claims against the service provider.
19.3 German legislation shall apply, with the exception of the UN Purchase Laws, in relation to any legal relationship between the service provider and the principal or its legal successors.
20. Final provisions
20.1 When determining the amount of the compensation claims to be paid by the service provider, the service provider’s economic circumstances, the type, scope and duration of the business relationship, any cause and/or debt contributions of the principal in accordance with § 254 BGB (German Civil Code) and the level of supervision and control of procedures in favor of the service provider must be taken into account. In particular, the compensation payments, costs and expenses to be borne by the service provider shall be in reasonable proportion to the service provider’s revenue from the services it provided to the principal.
20.2 Should a contracting party cease to meet its financial obligations, or should insolvency procedures be initiated against its assets, or a legal, out-of-court conciliation procedure be filed, the other party may withdraw from the section of the contract that has not been performed.
20.3 Should any provision in these logistics general terms and in any additional agreements that may be transacted be or become invalid, the validity of the remainder of the contract shall remain unaffected. The contracting partners undertake to replace the ineffective provision with one that comes as close as possible to the legal and economic intention as the original provision.