Terms and conditions

 

Delivery and Payment Terms
CORSO / Otto (GmbH & Co KG) - hereinafter referred to as - CORSO



  1. General information / scope of application


    These terms apply exclusively; save for express written approval, conditions deviating from or opposing these terms are not recognized. These terms further apply if delivery is made unconditionally. The delivery terms apply only in relations with businesses.

  2. Acceptance


    The Purchaser is obligated to accept any goods ordered (Principal Duty). In the event that the Purchaser defaults on its duty to accept goods, CORSO is entitled, following the lapse of an adequate grace period, to claim damages based on non-performance and rescind the agreement. In the event that the Purchaser defaults on its duty to accept ordered goods, CORSO is entitled, notwithstanding the foregoing paragraph and any other right afforded by law, to demand that the Purchaser declare within a three-week period whether or not it releases the goods, thus clearing them for alternative uses. In the event that CORSO does not receive such notice within the above-referenced three-week period, the Purchaser’s release is deemed to have been issued. CORSO is obligated, at the onset of such period, to advise the Purchaser in writing as to the intended significance of its conduct and any resulting legal consequences. In the event that ordered goods are cleared for alternative uses by CORSO, they are sold privately, with the proceeds, as adjusted by associated costs, being credited against the Purchaser’s liability for damages and expenses.

  3. Delivery


    Delivery is made “ex works” (Incoterms 2000) and is neither insured nor free. Shipping and handling costs are borne by the Purchaser (or other recipient), with any associated risks passing to the Purchaser upon the goods’ drop-off at the shipping address provided by CORSO.

  4. Payment


    If payment is to be made in advance, the goods are not released until payment has been received. Otherwise, payment (net cash only) is due immediately upon invoice receipt, provided the goods have been received. Transfers must be made using CORSO’s account with Commerzbank Hamburg (IBAN: DE67200400000632111100 BIC: COBADEFFXXX), and stating CORSO’s invoice number and date. In the event of payment default, CORSO is entitled to charge a reminder fee in the amount of EUR 2.00 per notice as well as default interest in the amount of eight percentage points above the prime rate published by the European Central Bank. CORSO reserves the right to insist on automatic payment (direct debit) for any supplies to the Purchaser, in which case a SEPA direct debit mandat must be granted for an account with a German credit institution. In case of direct debit payments CORSO claims the right to shorten the deadline for the preliminary announcement (so-called pre-notifiaction) at initial debits up to 5 banking days and recurring debits up to 2 banking days. In the event that the credit institution in question charges a fee, CORSO reserves the right to pass such fee on. The Purchaser holds a right of set-off only with respect to claims that are undisputed or have been effectively established.

  5. Warranty for defects, liability


    The Purchaser and/or its authorized agents may inspect the goods in advance. The goods then ordered are compiled and shipped based on availability, and neither party may derive any claims from instances of deviation between quantities ordered and shipped of less than 10%. For instances of deviation amounting to more than 10%, written complaints may be filed with CORSO within ten days of receipt, the date of CORSO’s receipt being the critical factor. The goods are entirely drawn from excess inventory, which is why they are sold “as is” – to the exclusion of defect-based claims unless CORSO maliciously concealed the underlying defect or breached its warranties; the same is true for legal defects. Any defect-based claim asserted by the Purchaser must be preceded by proper notices in accordance with Sec. 377 of the commercial code (HGB). Defect-based claims for damages are subject to the terms below, and this is true as well for claims derived from the consequences of defects. Insofar as, in keeping with legal requirements, CORSO bears liability for damages for other reasons, (i) the defect must be attributable to intentional misconduct, gross negligence or the negligent breach of principal contractual duties, or (ii) CORSO is liable under the product liability act. CORSO’s liability for damages to life, body and health is unlimited. Defect-based claims, if any, expire six months from the time risk was transferred. Such period of limitation also applies to claims for damages derived from the consequences of defects or culpa in contrahendo, but not to claims from tortious product liability or under the product liability act. The Purchaser’s rights of recourse, if any, are excluded on account of the goods’ nature as excess inventory. Insofar as rights of recourse are being asserted, the Purchaser waives such other claims as may accrue to it pursuant to Sec. 478 of the civil code (BGB). Specifically, it waives all rights of recourse based on its agreements with customers that exceed the scope of legally mandated warranties.

  6. Marks of origin


    The goods may only be sold free of any marks identifying them as merchandise of Otto (GmbH & Co KG) or any of the Otto Group divisions (including but not limited to APART International GmbH, Heinrich Heine GmbH). For this purpose, all labels, price stickers, article IDs, etc. must be removed. Cardboard boxes, user manuals, care instructions, etc. must be destroyed and reprinted at the Purchaser’s expense if the marks of origin cannot be obscured by overprinting. For resales to retailers (chains), the Purchaser must impose on its buyers the obligation to “neutralize” – and accept responsibility for “neutralizing” – the goods if and to the extent that it cannot “neutralize” the goods itself. Catalogs and/or photos provided to the Purchaser, as well as website contents and images of Otto Group divisions (such as Otto (GmbH & Co KG) Josef Witt GmbH, Heinrich Heine GmbH) must not be used for advertising and marketing purposes without CORSO’s express prior written consent. Likewise, downloading or copying contents from the websites of Otto Group divisions (such as Otto (GmbH & Co KG, Josef Witt GmbH, Heinrich Heine GmbH) is prohibited without express written consent and may be punishable by copyright law. In the event that the Seller [sic] violates the obligations under this paragraph, CORSO is entitled, notwithstanding any other right to terminate for good cause, to charge a contractual penalty in the amount of EUR 5,000.00 for each instance of violation. The right to assert claims for other damages is not affected.

  7. Retention of title


    CORSO retains the title to any goods supplied until the Purchaser has discharged its contractual payment obligations in full. In the event that the Purchaser commits a breach of contract, CORSO is entitled to rescind the agreement and take possession of any goods supplied. Applicable provisions of the insolvency code (InsO) are not affected. The Purchaser is entitled to resell the goods in the ordinary course of business. However, it hereby already assigns to CORSO such claims against consumers or other third parties as may accrue to it as a result of resale in the full invoice amount (including VAT) of CORSO’s claims. The Purchaser remains entitled to collect such claims even beyond their assignment. CORSO, however, is authorized to pursue their collection itself if and to the extent that the Purchaser fails to use the proceeds to discharge its payment obligations, defaults on payments due, becomes subject to an application for the institution of insolvency, composition or comparable proceedings or suspends payments, in which case the Purchaser is obligated (i) to furnish CORSO with a detailed list of the claims to which CORSO is entitled, including names and addresses of consumer, claim amounts and invoice dates, (ii) to further provide CORSO with such information as the latter may require to assert the assigned claims and (iii) to give notice of the assignment to any debtor (third party). In the event of the Purchaser’s insolvency, the provisions of InsO are not affected.

  8. Credit check


    Customer contract details (surname, first name, street/house number, postcode/location) are used by our partner Bürgel Wirtschaftsinformationen GmbH & Co. KG, Hamburg, Germany, to calculate a customer creditworthiness score. Based on address information, amongst other details, statistical probabilities are calculated to support our decision on the justification for, acceptance or termination of the contractual relationship.

  9. Miscellaneous


    Cancellations of as well as changes and amendments to these Delivery and Payment Terms must be made writing. The place of performance is Hamburg – as is the legal venue, provided the Purchaser is a merchant (Kaufmann). Jurisdiction is the headquarter of Otto (GmbH & Co KG). However, CORSO may also appeal to any court with geographic jurisdiction over the location of the Purchaser’s registered offices. The legal relations between the parties hereto are exclusively subject to German law, to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG).


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