General Terms of Sale and Delivery

I. Conclusion of contract

These General Terms of Sale and Delivery apply for all of our contracts, goods and services, including consulting services, information and similar. Conditions of the Purchaser are hereby expressly revoked. These shall also not be binding upon us where they are not expressly contradicted on receipt by us.
Our offers are subject to confirmation. Contract conclusions and other agreements shall only become binding with our written confirmation.
Verbal agreements or assurances, including of our sales employees or representatives, require our written confirmation for their effectiveness.

II. Prices

All prices are ex works, respectively ex base or, in the case of delivery from warehouse, ex warehouse, plus freight, packaging and, where applicable, assembly. Our prices are subject to confirmation. The quantity determined at the delivery plant, base or at our warehouse is definitive for invoicing.

III. Payment

Unless otherwise stated on the invoice, payment is to be effected by the 15th of the month following ex works, ex base or ex warehouse delivery, without deduction. Where no undisputed or legally ascertained claim exists against us, offsetting and application of rights of retention or other rights to refuse performance are excluded.
We accept cheques discountable and orderly taxed bills of exchange following express agreement only, and only on account of performance. Bills of exchange shall only be accepted without guarantee of correct presentation and protest. Any credit shall be assigned with the value determined on the day on which we are able to dispose of the counter value without reservation, minus the expenses.
In the event of failure to meet payment targets we are entitled to charge interest of 5 % from the due date. Default shall be charged at 5% above the respective discount rate of the Deutsche Bundesbank.
Regardless of the duration of any cheques and/or bills of exchange received or credited, all of our claims shall immediately fall payable if the Terms of Payment fail to be met or where a significant deterioration in the asset circumstances of the Purchaser occurs. In this case, we shall also be entitled to only conduct outstanding deliveries in return for advance payment or to request suitable security or to withdraw from the contract following a reasonable period of respite, or to claim compensation for non-performance. Moreover, we may also forbid the selling on and processing of the delivered goods and request the return or assignment of direct possession of the delivered goods at the cost of the Purchaser and revoke the collection authorisation pursuant to fig. VI. 6. The Purchaser authorises us at this point to enter his premises and take possession of the goods delivered in such cases as those named.

IV. Delivery periods and dates

Delivery periods and dates are only approximate, where no separate agreements are made. The delivery periods commence with the date of our written order confirmation, however, not before complete clarification of all specifications and the provision of all necessary certification by the Purchaser. Delivery periods and dates refer to the time point of shipping ex works, ex base or ex warehouse; they are deemed to be met with the reporting of readiness for shipping if the goods are unable to be sent in good time without our culpability or the culpability of the supplier. The delivery period shall be extended irrespective of our rights from the default of the Purchaser by the period in which the Purchaser is in default with his obligations from this or other contracts. The same also applies for delivery dates.
If delivery is frustrated, and if this frustration is due to incapacity on the part of our suppliers, then the Purchaser and ourselves may withdraw from the contract, so long as the agreed delivery date is exceeded by three months.
The cancelling of specific delivery periods and dates does not release the Purchaser who wishes to withdraw from the contract or claim compensation for non-fulfilment from the setting of a reasonable period of respite for the provision of the performance and the declaration that he will refuse the performance following the lapsing of that period. This shall not apply where we have defined a period or a date as binding expressly and in writing.
In cases of force majeur or other unforeseeable and unusual circumstances and circumstances for which no fault exists - e.g. material procurement difficulties, disruption of operations, strike, lock out, transport defects, intervention of authorities, energy supply difficulties etc. - also where these occur with upstream suppliers, the delivery period shall be extended by a reasonable amount if we are hindered in the timely fulfilment of our obligations. If the delivery or performance is rendered impossible or unreasonably difficult, this shall release us from the duty to deliver. Should the delivery delay last longer than two months, the Purchaser shall be entitled to withdraw from the contract. If the delivery period is extended, or if we are released from the duty to deliver, the Purchaser cannot derive a claim for compensation from this. We may only plead the named circumstances if we inform the Purchaser of these without delay.
If an acceptance and/or viewing is arranged, this may only take place at the delivery plant, the base or the warehouse immediately after the reporting of readiness for acceptance or viewing. The costs of any expert appointed shall be borne by the Purchaser. In the event of him forbearing the acceptance or viewing, delaying them aversely or waiving them, we shall be entitled to send the material without acceptance or viewing or to store it at the risk and cost of the Purchaser. The goods shall be deemed to be delivered as per contract with the sending or storage.

V. Shipping, delivery, transfer of risk

Unless otherwise agreed, the material will be delivered unpacked and not protected against rust. We shall deliver packed where this is standard practice. We shall provide packaging, protection and/or handling aids in keeping with our experience, at the cost of the Purchaser and with exclusion of our liability.
Shipping route and form shall be of our choosing where no separate agreement is made. The German Forwarders' Standard Terms and Conditions (ADSp) shall apply where we act as freight forwarder. We are entitled but not obliged to insure shipments in the name of and on account of the Purchaser.
Risk (including the confiscation of the material) is transferred to the Purchaser - even in FOB and CIF transactions - as soon as the shipment is transferred to the person conducting the transport assignment or has left the plant of the Vendor for shipment, irrespective of whether or not the shipping is undertaken from the place of performance and who bears the freight costs. If the goods are ready for shipping and shipping or acceptance is delayed for reasons for which we are not responsible, then the risk shall be transferred to the Purchaser with the receipt of notice of readiness for shipping.
We are entitled to partial delivery and standard increased/decreased performance for the quantity concluded; each partial delivery shall be deemed to be an independent transaction.
In the case of contracts with ongoing deliveries we are to be provided with call orders and article disposition for approximately equal monthly quantities. If the contractual quantity is exceeded by the individual call orders of the Purchaser, then we shall be entitled to deliver the excess, but not obliged to do so. We may also invoice the excess at the prices valid at the time of shipping.

VI. Retention of title

All delivered goods remain our property until payment of all our claims - regardless of the legal basis -, in particular also the respective current account balance claims, including claims arising in the future. This also applies where payments are made for specifically indicated claims. If we receive bills of exchange and/or cheques in payment, then fulfilment shall only occur when we are able to dispose of the counter value without limitation. In the case of current accounts the retained title is security for our current account balance claims.
Any processing, working or alteration of privileged goods subject to retention of title is undertaken on our behalf, free of charge and with no obligation on our part that we be viewed as manufacturer pursuant to the terms of § 950 German Civil Code, that is, that we retain ownership of the products at all points in time and degrees of processing.
In the event of processing of the privileged goods with other goods that do not belong to us by the purchaser, we shall acquire joint ownership of the new goods to the relationship of the invoice value of the privileged goods to the invoice value of the other goods at the time of processing. The same shall apply to the new articles arising from the processing as to the privileged goods, they shall be deemed privileged goods as determined by these conditions.
The claims of the Purchaser from the disposal of the privileged goods are assigned to us at this point as security for all of our claims from the business relationship, regardless of whether the privileged goods are processed or unprocessed and they are sold to one or more customers.
The Purchaser is only entitled and authorised to sell on the privileged goods on the basis of a contract of sale, contract for services, contract for work and materials or similar contract if the claims arising from the selling on are assigned to us. The Purchaser is not entitled to dispose over the privileged goods in any other way.
The Purchaser is authorised to collect the assigned claim. In the event of cessation of payment or the petitioning or initiation of bankruptcy proceedings, court or out-of-court insolvency proceedings or other dwindling of assets on the part of the Purchaser we may demand that the Purchaser informs us of the assigned claims and their debtors, provides us with all details necessary for collection, transfers to us the accompanying documents and informs the debtor of the assignment.
In the event of the value of the security exceeding our claim by more than 20 % we shall be obliged to release security of our choice at the request of the Purchaser or a third party inhibited by our excess security.
The Purchaser is obliged to store and label the privileged goods separately, to insure them against fire and theft and to furnish us with proof of this insurance cover on request.

VII. Defects, delivery of goods not as specified in the contract

We are liable for defects, including the lack of guaranteed characteristics, as follows:

The Purchaser shall inspect the received goods for defects, condition and guaranteed characteristics immediately after their arrival. He shall inform us of apparent defects in writing within one week.
In the case of justified complaints we may undertake the rectification of defective goods or replacement delivery, at our choice.
The Purchaser shall grant us time and opportunity at equitable discretion to undertake rectification of defects or replacement delivery, in particular to make available the item of complaint, otherwise the guarantee shall lapse.
If we allow a set, reasonable period of respite to lapse without rectifying the defect or delivering a replacement, or if the rectification or replacement delivery is not possible or refused by us, then the Purchaser may demand either cancellation of the contract (redhibition) or lowering of the purchase price (reduction).
We shall not be liable for any inexpert alteration and/or maintenance work undertaken by the Purchaser or a third party and/or consequences of this.
The guarantee period for rectification, replacement delivery and replacement performance is six months. This runs at least until the lapsing of the original guarantee period for the object of delivery or as long and to the extent that the Vendor himself is entitled to corresponding guarantee claims against his upstream suppliers. The period of liability for defects shall be extended by the duration of the interruption of operations that occurs as a result of the requirement for rectification, replacement delivery or replacement performance, for those parts that cannot be operated as foreseen as a result of the interruption.
Should the sold goods be lacking a guaranteed characteristic at the time of transfer of risk, then the Purchaser shall be entitled to withdraw from the contract. He may only claim compensation for non-fulfilment where the guarantee served the purpose of insuring him against this.
Further claims, in particular a claim to replacement of loss not caused to the goods themselves, are excluded, to the extent that this is legally permissible.
The above terms shall also apply for the delivery of goods other than contractually agreed goods.

VIII. General limitations of liability

The liability of the Vendor is exclusively aligned with the terms stated in the above section. Claims for compensation of the Purchaser arising from culpa in contrahendo, breach of subsidiary obligations from this contract and unauthorised action are excluded, unless these are based upon intent, gross negligence by us or one of our agents; this limitation of liability shall also apply accordingly for the Purchaser. These claims shall lapse six months after receipt of the goods by the Purchaser.

IX. Place of performance, jurisdiction, applicable law

Place of performance for our services is the delivery plant in the case of ex works delivery, the base in the case of ex base delivery and the warehouse in the case of ex warehouse delivery.
Jurisdiction is Dortmund. This also applies for actions regarding the bill of exchange and cheque process. We are also entitled to take action against the customer in any other justified jurisdiction.
The law of the Federal Republic of Germany applies. The application of the Hague Convention on the International Sale of Goods and the United Nations Convention on Contracts for the International Sale of Goods is excluded.

X. Partial invalidity

Should individual terms of these General Terms of Sale and Delivery prove wholly or partially invalid, or become so, this shall not affect the validity of the remainder of the terms. The invalid conditions shall be replaced by terms that represent the economic purpose of the invalid conditions as closely as possible whilst reasonably reflecting the interests of both parties.

Tacke + Lindemann Baubeschlag- und Metallhandel GmbH + Co. KG