General Terms and Conditions (GTC) of Tacke + Lindemann GmbH

I. Conclusion of contract

  1. These General Terms and Conditions of Sale and Delivery shall apply to all our contracts, deliveries and services, including consulting services, information, etc. Any terms and conditions of the Buyer are hereby expressly rejected. They shall not be binding upon us even if we do not expressly reject them again after receipt
  2. Our offers shall be subject to change and non-binding. Contracts and other agreements shall become binding only upon our written confirmation.
  3. Oral agreements and assurances, including those made by our salespersons or representatives, shall require our written confirmation in order to be effective.

II Prices

All prices shall be ex works or ex base, or in case of delivery from warehouse ex warehouse, plus freight, packaging and assembly, if applicable. Our prices shall be subject to change and non-binding. The quantity determined at the supplier’s plant or at the base or in our warehouse shall be binding for price calculation.

III Payment

  1. Unless the invoice states otherwise, the payment shall be made by the 15th day of the month following ex works or ex base or ex warehouse delivery, without deduction. Unless there is an undisputed or legally recognised claim against us, the offsetting of claims and exercising of rights of retention or other rights to withhold performance shall be excluded.
  2. We accept cheques and discountable and properly taxed bills of exchange only after express agreement and only on account of performance. Bills of exchange shall only be accepted without guarantee for correct presentation and protest. Credit notes shall be made in this respect with the value of the day on which we may dispose of the equivalent value without reservation, less expenses.
  3. In the event of any overdue payment, we shall have the right to charge 5% interest from the due date. Interest on arrears shall be charged at 5% above the respective discount rate of Deutsche Bundesbank, the German central bank.
  4. If the terms of payment are not complied with or if the Buyer's financial situation deteriorates significantly, all our claims shall become immediately due, irrespective of the term of any cheques and/or bills of exchange accepted or credited. We shall also have the right to carry out the still outstanding deliveries only against advance payment or to demand appropriate securities or to withdraw from the contract after a reasonable extension of time or to demand damages for non-performance. Furthermore, we may also prohibit the resale and processing of the delivered goods and demand their return or the transfer of indirect ownership of the delivered goods at the Buyer's expense, and revoke the direct debit authorisation in accordance with VI. 6. The Buyer hereby authorises us to enter its premises in the cases as mentioned above and to take possession of the delivered goods.

IV. Delivery periods and dates

  1. Delivery periods and dates shall be deemed approximate, unless special agreements have been made. The delivery periods shall commence at the date of our written order confirmation, but not before complete clarification of all execution details and the provision of any necessary certificates by the Buyer. Delivery periods and dates refer to the time of dispatch ex works, ex base or ex warehouse; they are deemed to have been complied with upon notification of readiness for dispatch if the goods may not be dispatched on time through no fault of our own or through no fault of the supplier. Without prejudice to our rights arising from the Buyer’s default, the delivery periods shall be extended by the period by which the Buyer is in default with its obligations arising from this or other contracts. This shall apply accordingly to delivery dates.
  2. If the delivery may not be carried out due to an inability of our suppliers, the Buyer and we may withdraw from the contract, provided that the agreed delivery date is exceeded by three (3) months.
  3. The expiry of certain delivery periods and dates does not release the Buyer who wishes to withdraw from the contract or claim damages for non-performance from setting a reasonable extension of time for the performance of the service and the declaration that the Buyer will reject the service after expiry of the period. This shall not apply if we have expressly determined a period or a date in writing as binding.
  4. In the event of force majeure or other unforeseeable, extraordinary circumstances beyond our control - e.g. difficulties in the supply of materials, breakdowns, strikes, lockouts, lack of means of transport, government interventions, difficulties in energy supply, etc. - even if they occur at the upstream suppliers, if this prevents us from meeting our obligations in due time, the delivery period shall be reasonably extended. If delivery or service become impossible or unreasonable due to the above-mentioned circumstances, we shall be released from our obligation to deliver. If the delay in delivery lasts more than two (2) months, the Buyer shall have the right to withdraw from the contract. If the delivery period is extended or if we are released from our obligation to deliver, the Buyer may not claim any damages on this account. We may invoke these circumstances only if we notify the Buyer immediately.
  5. If acceptance and/or inspection has been agreed, it may only take place at the supplier’s plant, base or warehouse immediately after the notification of acceptance or readiness for inspection. Any costs of the appointment of experts shall be borne by the Buyer. If the Buyer refrains from the acceptance or inspection, or unwillingly delays or resigns from such acceptance or inspection, we shall have the right to dispatch the material without acceptance or inspection or to store it at the expense and risk of the Buyer. The goods shall be deemed to have been delivered under the contract once they have been dispatched or placed in storage.

V. Dispatch, delivery, transfer of risk

  1. Unless agreed otherwise, the material shall be delivered without packaging and without antirust protection. If there is such a commercial practice, we deliver goods packed. We shall arrange packaging, protective and/or transport aids, based on our experience, at the Buyer’s expense, and under exclusion of our liability.
  2. In the absence of a special agreement, the dispatch route and means of transport shall be at our discretion. If we act as a freight forwarder, the German Freight Forwarders' General Terms and Conditions shall apply. We shall have the right, but no obligation, to insure deliveries in the name and for the account of the Buyer.
  3. Risk (including confiscation of material) shall pass in all cases to the Buyer, including FOB and CIF transactions, as soon as the shipment is handed over to the person carrying out the transport or as soon as it leaves the Seller's plant for dispatch, regardless of whether the shipment is sent from the place of performance and who bears the freight costs. If the goods are ready for dispatch and if the dispatch or acceptance is delayed due to reasons for which we are not responsible, the risk shall pass to the Buyer upon receipt of notification of readiness for dispatch 
  4. We shall have the right to make partial deliveries as well as to increase or decrease the agreed quantity of goods or services, according to the commercial practice; each partial delivery shall be considered as an independent transaction.
  5. In case of continuous delivery contracts, we shall receive call-off purchase orders and assortment types for approximately equal monthly quantities. If individual call-off purchase orders of the Buyer exceed the contractual quantity, we shall have the right, but no obligation, to deliver the excess quantity. We may also charge the surplus at the prices in force at the time of delivery.

VI Retention of ownership

  1. All delivered goods shall remain our property until all our receivables - irrespective of their legal grounds - have been paid, in particular the respective balance claims, including future or contingent claims. The same shall also apply if payments are made for specifically designated claims. If we receive bills of exchange and/or cheques within the scope of payment, fulfilment shall only take place if we are able to dispose of the equivalent amount without reservation. In case of current accounts, the reserved property shall be considered as security for our balance claim.
  2. Any handling or processing of the reserved goods shall be carried out on our behalf free of charge and without any obligation for us in such a way that we are regarded as a manufacturer under § 950 BGB (German Civil Code), id est we retain the ownership of the goods at any time and stage of processing.
  3. If the Buyer processes other goods which do not belong to us, we shall have the co-ownership right to the new item according to the proportion of the invoice value of the reserved goods to the other processed goods at the time of processing. The same shall apply to the new item resulting from processing as to the reserved goods; they shall be considered as reserved goods within the meaning of these Terms and Conditions
  4. The Buyer’s claims from resale of the reserved goods shall be assigned to us in advance as security for all our claims from the business relationship, whether the reserved goods have been resold without or after processing and whether they have been resold to one or more customers.
  5. The Buyer shall be entitled and authorised to resell the reserved goods on the basis of a purchase contract, contract for work and services, contract for labour and materials or a similar contract only if the claim from the resale is transferred to us. The Buyer shall not be authorised to dispose of the reserved goods in any other way.
  6. The Buyer shall be authorised to collect the assigned claim. In the event of cessation of payment, filing an application for or commencing bankruptcy proceedings, judicial or extrajudicial composition proceedings or any other sharp decline of the Buyer’s assets, we may require the Buyer to notify us of the assigned claims and the debtors, to provide all information necessary for collection, to provide the related documents and to notify the debtor of the assignment.
  7. If the value of the security established for us exceeds the value of our claim by more than 20% in total, we shall be obliged to release the security of our choice at the request of the Buyer or a third party affected by our excessive security
  8. The Buyer shall be obliged to store and mark the reserved goods separately, to insure them against fire and theft and to provide us, upon request, with evidence of the insurance policy.

VII Defects, delivery of non-contractual goods

We shall be liable for defects, including the lack of guaranteed properties, as follows:

  1. The Buyer shall check the received goods immediately upon arrival for defects, condition and guaranteed properties. Obvious defects shall be reported to us in writing within one (1) week.
  2. In the event of justified complaints, the defective goods shall be repaired or replaced at our discretion.
  3. The Buyer shall, at its reasonable discretion, provide us with the time and opportunity to rectify the defect or make a replacement delivery, in particular to make the faulty goods available; otherwise the warranty shall be invalid.
  4. If we fail to meet a reasonable deadline, extended for us, for rectification or replacement delivery, or if the rectification or replacement is not possible or if we refuse to carry out the rectification or replacement, the Buyer shall have the right, at its own discretion, to demand cancellation of the contract (redhibition) or a reduction in the purchase price (reduction).
  5. We shall not be liable for any improper modifications and/or repair works possibly carried out by the Buyer or third parties and/or their consequences.
  6. The warranty period for defect rectification, replacement deliveries and replacement services is valid for six (6) months, at least until the expiry of the original warranty period for the delivery item or as long as and to the extent to which the Seller is entitled to appropriate warranty claims against the Seller’s upstream suppliers. The period of liability for defects shall be extended by the period of the interruptions in operation caused by the fact that rectification, replacement deliveries or replacement services become necessary for those parts that cannot be operated properly due to the interruption.
  7. If the goods sold do not have guaranteed features at the time of the risk transfer, the Buyer shall have the right to withdraw from the contract. The Buyer may claim damages for non-performance of the contract only if the purpose of the provision was to protect it against it.
  8. Any further claims, in particular claims for compensation for damage not caused to the goods themselves, shall be excluded, if and when this is permitted by law.
  9. The aforesaid provisions shall also apply to the delivery of goods other than the contractual goods.

VIII. General limitations of liability

The Seller's liability shall be governed exclusively by the agreements made in the preceding section. The Buyer's claims for damages arising from culpa in contrahendo, breach of secondary contractual obligations and tort shall be excluded, unless they are based on intent, gross negligence on our part or on part of one of our agents; this limitation of liability shall apply to the Buyer, accordingly. These claims shall expire half a year after receiving the goods by the Buyer.

IX. Place of performance, place of jurisdiction, applicable law

  1. The place of performance of our services shall be the supplier’s plant in case of ex works delivery, the base in case of ex base delivery, the warehouse in case of ex warehouse delivery.
  2. The place of jurisdiction shall be Dortmund. This shall also apply to legal actions in connection with bills of exchange and cheques. We shall also have the right to sue the customer at any other justified place of jurisdiction.
  3. The law of the Federal Republic of Germany shall apply. The application of the Hague Convention relating to a Uniform Law on the International Sale of Goods shall be excluded.

X. Severability

Should individual provisions of these Terms and Conditions of Sale and Delivery be or become ineffective in whole or in part, the remaining provisions of these Terms and Conditions shall remain fully effective. The ineffective provisions shall be replaced by provisions that come closest to the economic purpose of the ineffective provisions and adequately safeguard both parties’ interests.