General Terms and Conditions of Delivery and Payment
of Johannes Ohlendorf GmbH & Ohlendorf Trading GmbH
I. Application / Conclusion of Contracts
1. These General Terms and Conditions of Delivery and Payment
shall apply to all present and future contracts with commercial buyers, with public legal entities as well as public trusts in regard to deliveries and other services.
The Buyer's purchase conditions shall not be binding even if we do not expressly object to them again after their receipt.
2. Our offers are open and subject to change. Oral agreements, promises, assurances and guaranties made or given by our sales staff before or at conclusion of the contract shall not be binding unless confirmed by us in text form.
3. Any trade terms shall, in cases of doubt, be interpreted according to the Incoterms as amended from time to time.
1. The prices are ex works or warehouse plus freight, packaging and VAT.
2. If duties or other external costs, included in the agreed price, change later than 4 weeks after conclusion of the contract or if they arise anew, we shall be entitled to change the price to the corresponding extent. Alloy surcharges are calculated according to the current market prices at the time of delivery.
3. We reserve the right to increase the agreed price for quantities not yet delivered if, due to a change in the raw material and/or economic situation, circumstances arise which make the manufacture and/or purchase of the product concerned significantly more expensive than at the time of the price agreements. In this case, the customer may cancel the orders affected by him within 4 weeks after notification of the price increase.
III. Payment and Set-Off
1. Unless otherwise agreed or stated in our invoices, payment shall be made without cash discounts immediately upon delivery and in such a manner that we can dispose of the sum on the due date. Any payment transfer costs shall be borne by the Buyer.
2. The Buyer may retain or set off any counterclaims only in so far as such claims are undisputed or have become legally binding.
3. Should the Buyer exceed the payment deadline or should he default in payment, we will debit him
with interests at 8 pct-points above the basic rate of interest, unless higher rates have been agreed upon.
We reserve the right to claim additional damage resulting from late payment.
4. Should it become evident after the conclusion of the contract, that payment is jeopardised by the Buyer’s lack in financial means, or should the Buyer be in default with a considerable portion of the amount due or should other circumstances arise which show a material deterioration in the Buyer's financial position after the conclusion of the contract, we shall be authorised to make use of rights under section 321 BGB. This also applies in case the performance of our contractual obligation is not yet due. In such cases, we are also authorized to make due any and all of our non statute-barred accounts receivable resulting from the same legal relationship.
5. Any agreed cash discount always relates to the invoiced value excluding freight and will only be granted if and in so far as the Buyer has completely paid all payables due at the time of the discount. Unless otherwise agreed to discount periods shall begin with the date of the invoice.
IV. Delivery Times
1. Our commitment to deliver is subject to our correct and timely self-delivery in accordance with our contract terms unless we are responsible for the deficient, late or non-conforming self-delivery. If self-delivery does not take place, the purchase contract shall be deemed not to have been concluded.
2. The supplier does not assume any procurement risk or any kind of guarantee, unless this has been expressly agreed in writing with the buyer.
3. Any confirmation as to delivery times shall be approximate only. Delivery times shall commence with the date of our order confirmation and are subject to the timely clarification of any details of the order as well as of the fulfilment of any of the Buyer’s obligations, e.g. to produce official certifications, to provide guarantees or to pay agreed instalments.
4. Any agreed delivery time shall be considered to be met if and in so far the goods have left the works or our warehouse at such time or date. If and in so far the goods fail to be despatched at the agreed time for reasons not attributable to us, the
agreed delivery time shall be considered to have been met at the day on which the goods are notified to be ready for dispatch.
5. If the delivery is delayed by our fault, the Buyer, after setting a reasonable grace period, may withdraw from the contract if and in so far as the goods have not been delivered by this date. Damage claims for delay and non-performance may be made in accordance with clause IX of these Conditions.
6. Events of force majeure entitle us to postpone delivery by the duration of the obstruction and an adequate lead time. This shall also apply if such events occur during a given case of default. Force majeure is equalled by measures in terms of monetary policy, trade policy and other sovereign measures, malfunctions which we are not to be blamed for (such as e.g. fire, machinery or roller breakdown, shortage of raw materials or energy), obstruction of routes, flooding or other extreme weather, pandemics, delays in imports / customs clearance as well as all other circumstances which considerably aggravate deliveries or render them impossible, with no fault of ours. It is irrelevant in this respect whether these circumstances arise at our premises, at the supplier’s works or at the premises of a pre-supplier. Delay or failure by a party to perform its obligations due to a Force Majeure event shall not constitute a breach of contract with the effect that the affected party is relieved from liability in damages and any other contractual remedy for breach of contract during the time the Force Majeure persists. The time for performance shall be extended by a period equivalent to the time the Force Majeure persists. If Force Majeure persists for more than three months, either party shall be entitled to terminate the Agreement in respect of Goods not yet delivered to the Buyer. In the event of such a termination, neither party will be entitled to any damages or other compensation.
V. Retention of title
1. All goods delivered by the supplier shall remain the property of the supplier until the purchase price has been paid in full and all claims resulting from the business relationship have been settled in full (extended reservation of title). Any disposition of the goods subject to retention of title by the buyer shall only be permitted in the course of the buyer's regular business transactions; under no circumstances, however, may the goods be assigned to third parties as security in the course of regular business transactions.
2. In the event of the sale of the goods in the regular course of business, the purchase price paid shall take the place of the goods. The buyer hereby assigns to the supplier all claims arising from any sale. The buyer is authorised to collect this claim as long as he meets his payment obligations towards the supplier. With regard to the extended retention of title (advance assignments of the respective purchase price claims), an assignment to third parties, in particular to a credit institution, is contrary to the contract and therefore inadmissible. The supplier shall be entitled at any time to examine the buyer's sales documents and to inform the buyer's customers of the assignment.
3. If the buyer's claim from the resale has been included in a current account, the buyer hereby also assigns to the supplier his claim from the current account against his customer. The assignment is made in the amount that the supplier had charged the buyer for the resold reserved goods.
4.In the event of a seizure of the goods at the buyer's, the supplier shall be informed immediately by sending a copy of the execution record and an affidavit that the seized goods are the goods delivered by the supplier and subject to retention of title.
5. If the value of the securities pursuant to the preceding paragraphs of this clause exceeds the amount of the outstanding claims secured thereby by more than 20% for the foreseeable future, the Buyer shall be entitled to demand the release of securities from the supplier to the extent that the excess exists.
6. The assertion of the supplier's rights from the retention of title does not release the buyer from his contractual obligations. The value of the goods at the time of repossession shall only be offset against the supplier's existing claims against the buyer.
VI. Grades, measures and weights 1. Grades and measures are determined pursuant to the DIN/EN standards and/or material data sheets, respectively, failing which, according to custom and usance. Reference to standards, industrial standards, material data sheets or inspection certificates as well as details as to grades, measures, weights and usability are no warranties or guarantees, nor are declarations of conformity, manufacturer’s declarations and marks to this effect such as CE and GS.
2. As regards the weights, those weights shall be decisive which have been established by us or by our pre-suppliers. The weights are evidenced by presentation of the respective weight note. As far as legally permissible, weights can be determined without weighing pursuant to standards. We are entitled to determine the weight without weighing according to standard (theoretical).
3. Any indications given in the delivery notes as to the number of pieces, bundles etc. are not binding, if and in so far as the goods are invoiced by weight. Where, in accordance with trade usage, the goods are not weighed piece by piece, the total weight of the delivery shall prevail. Any difference with regard to the calculated weight of the single pieces shall be proportionally allocated to them.
VII. Dispatch, Passing of Risk, Packaging, Partial Delivery
1. We shall be entitled to choose the route and mode of dispatch as well as the forwarding agent and the carrier.
2. The Buyer shall immediately request delivery of those goods which have been notified to him as ready for dispatch. Otherwise we are entitled, upon reminder, to ship such goods at the Buyer’s cost and risk or to store them at our discretion and to invoice them to the Buyer.
3. Can, by reasons not attributable to us, the goods not be shipped or will it become substantially difficult to ship the goods via the designated route or to the designated place within the designated time, we reserve the right to ship them via a different route or to a different place. Any additional costs will be borne by the Buyer. We will, in such cases, ask the Buyer for his prior comments.
4. In all transactions, including freight prepaid and freight-free deliveries, the risk of loss or damage to the goods shall pass to the Buyer at the time where we hand them over to the forwarding agent or to the carrier, at the latest with their departure from our warehouse. We will buy insurance only if requested by the Buyer and at his costs. The Buyer shall unload the goods at his costs.
5. We shall be entitled to make partial deliveries at reasonable quantities. Customary excess and short deliveries (up to +/-10 %) of the contracted quantity are permissible.
VIII. Liability for defects as to quality 1. Written notice of defects as to the quality of the goods is to be given immediately, no later than 7 days after taking delivery. Defects as to quality which cannot be detected within this period in spite of the most thorough inspection, shall be advised in writing – upon immediately stopping treatment and processing, if any – promptly after detection, but no later than before expiry of the agreed or legal period of limitation.
2. After an arranged acceptance of the goods by the buyer has been effected, claims on account of defects as to quality shall be ruled out, if they could have been ascertained during the type of acceptance agreed upon.
3. In the event that a claim is justified and was raised in time, we shall be at liberty to remedy the defect or to deliver a faultless product (supplementary performance). If supplementary performance fails or is refused, the buyer shall be allowed to depreciate the purchase price or to rescind the contract after an appropriate deadline has been fixed and expired without success. If the defect is of a minor nature, he shall only be entitled to the right of depreciation.
4. Should the buyer not immediately give us an opportunity to assure ourselves of the defect as to quality, in particular, should he not promptly put the claimed goods or samples of the claimed goods at our disposal, if so requested, all rights on account of the defect as to quality shall become void.
5. In the case of goods which had been sold as second-choice material, the buyer shall not be entitled to any rights resulting from defects as to quality with regard to the reasons stated for the material to be second-choice and further reasons which he usually has to take into account.
6. Expenses accrued in the context of supplementary performance shall only be borne by us if and as far as they are appropriate with regard to the individual case, especially in proportion to the purchase price of the goods. Expenses which were incurred by taking the sold goods to a destination other than the buyer’s head office or branch office, shall not be borne by us, unless this was in accordance with their contractual use.
7. The buyer’s rights of recourse pursuant to § 478 BGB (German Civil Code) shall remain unaffected.
IX. General limitation of liability and limitation
1. Our liability for breach of contractual or extra-contractual obligations, in particular for non-performed or deferred deliveries, for breach of duties prior to the contract (“Verschulden bei Vertragsanbahnung”) as well as for tortuous acts - including our responsibility for our managerial staff and any other person employed in performing our obligations - shall be restricted to damages caused by our wrongful intent or by our gross negligence and shall not, in cases of gross negligence, exceed the foreseeable losses and damages characteristic for the type of contract in question.
2. The aforesaid restriction shall not apply to such cases where we breach our fundamental contractual obligations and therefore the accomplishment of the purpose of the contract is at risk or where the non-fulfilment of the obligations the contracting party relies on renders the proper completion of the contract impossible. It shall neither pertain to damages to life, to the body or to health caused by our fault nor to any cases where we have guaranteed certain characteristics of the goods. Nor shall such clause affect our statutory liability laid down in the Product Liability Act (Produkthaftungsgesetz) of 15/12/89. Any statutory rules regarding the burden of proof shall remain unaffected by the aforesaid.
3. Unless otherwise agreed to any contractual claims which the Buyer is entitled to in connection with the delivery of the goods, including claims for damages for defective goods, shall fall under the statute of limitations within a period of one year after the goods have been delivered to the Buyer. This restriction shall not apply to our liability and to the limitation of claims resulting from the delivery of goods that have been used for a building and have resulted in the defectiveness of the building, as well as from breaches of contract caused by our wrongful intent or by our gross negligence; neither to damages to life, to the body and to health caused by our fault nor to any recourse claims under sections 478, 479 BGB. For these claims, the statutory limitation periods shall apply.
X. Place of fulfilment, place of jurisdiction and applicable law
1. The place of performance for our deliveries shall be the supplying work in cases of exwork deliveries, in all other cases it shall be our warehouse. The place of performance of the Buyer’s payments is our seat. The place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship shall be the registered office of the supplier.
2. All legal relationships between us and the Buyer shall be governed by the non-standardised laws of the Federal Republic of Germany supplementing these Conditions, especially the German BGB/HGB, excluding the provisions of the United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980 (CISG).