General Terms of Sale and Delivery
I. Conclusion of the Contract
(1) These General Terms of Sale and Delivery apply for all our contracts, deliveries and services including consulting services, information etc. We hereby expressly object to conditions of the buyer. These will not be binding for us, even if we do no expressly object to them after we have received them.
(2) Our offers shall be free and non-binding. Conclusions and other agreements shall become only binding when we have confirmed them in writing.
(3) Oral agreements and assurances including those made by our sales staff or representatives shall require our written confirmation to become effective.
All prices are ex works or ex base or in case of delivery from the warehouse ex stock, plus shipping, packaging and, if applicable assembly. Our prices shall remain free. For calculation, the quantity established at the delivering factory or base or in our warehouse shall be decisive.
III. Payment(1) Unless stated otherwise on the invoice, payment is made by the 15th of the month following the month of the delivery ex works or ex base or ex stock without discount. Where no undisputed or legally ascertained claim exists against us, offsetting and ascertaining rights of retention or other rights to refuse performance shall be excluded.
(2) We accept cheques and discountable and correctly taxed bills of exchange where this has been explicitly agreed beforehand and only on account of performance. Bills of exchange are only accepted without any guarantee of proper presentment and protest. Credit notes against are issued subject at the value on the day on which we are able to access the exchange without reservation value minus disbursements.
(3) If payment terms are not met, we shall be entitled to bill interest in the amount of 5% from due date. We are charging past-due interest of 5% above the respective discount rate of the German Federal Bank.
(4) All our claims shall be due immediately independent of the period of any accepted or credited cheques and/or bills of exchange if payment conditions are not observed or a substantial deterioration of the buyer’s financial circumstances occurs. We shall be entitled in this case to execute outstanding deliveries only against pre-payment or to demand securities at our discretion or to withdraw from the contract after a reasonable period of grace or to claim damage due to default. Furthermore, we may prohibit further sale and processing of the delivered goods and request their return or transfer of direct ownership of the delivered goods at the expense of the buyer and to revoke direct debit authorisation according to clause VI. 6. The buyer authorises us even now to access his company in the above cases and to assume possession of the delivered goods.
IV. Delivery Times and Dates(1) Delivery times and dates shall only apply approximately unless agreed otherwise. Delivery times begin on the date of our written order confirmation, however, not before all execution details have been fully clarified and all required confirmations have been submitted by the buyer. Delivery times and dates refer to the time of shipping ex works, ex base or ex stock; they are considered observed with notification of ready-for-shipping if the goods cannot be dispatched in time due to circumstances beyond our or the carrier’s control. Delivery times shall then be extended regardless of our rights arising from the default of the buyer by the time that the buyer is in default with his obligations arising from this or other contracts. This applies accordingly to delivery dates.
(2) If delivery is impossible and the impossibility is caused by incapacity on the part of our suppliers, the buyer and we may withdraw from the contract, if the agreed delivery date has been exceeded by three months.
(3) Expiration of certain delivery times and dates shall not exempt the buyer who intends to withdraw from the contract or claim damage because of default from setting an adequate period of grace for rendering the service and stating that he will reject the service upon expiration of that period. This shall not apply if we have declared a delivery time or a date as explicitly and in writing as binding.
(4) In the event of force majeure or other unforeseeable, extraordinary circumstances and circumstances beyond our control – e.g. in case of difficulties to acquire material, operational disruptions, labour action, lock-out, lack of means of transportation, interventions by the authorities, difficulties with energy supply etc. – even if these occur to our pre-supplier delivery time shall be extended adequately if we are facing impediments in timely fulfilment of our obligations. If the delivery or the service becomes impossible or unreasonable due to the above circumstances, we shall be relieved of our obligation to deliver. In the event that the delivery delay takes more than tow months, the buyer shall be entitled to withdraw from the contract. If delivery time is extended or if we are relived from our obligation to deliver, the buyer shall not derive any claim for damage from this. We shall only invoke the above circumstances, if we inform the buyer immediately.
(5) If acceptance and/or viewing have been agreed, this may only take place in the delivering factory, the base or the warehouse immediately upon notification of acceptance or readiness for viewing. The cost of any expert consulted shall be borne by the buyer. If he omits acceptance or viewing, or if he delays it or waives it, we shall be entitled to ship the material without acceptance or viewing or store it at the cost and risk of the buyer. The goods shall be deemed delivered according to contract upon shipping or storing.
V. Shipping, Delivery, Transfer of Risk
(2) Unless agreed otherwise, delivery routes and means shall be at our discretion. If we are acting as the shipping agent, the German General Terms for Shippers apply. We shall be entitled but not obliged to ensure deliveries in the name and at the cost of the buyer.
(3) The risk (incl. confiscation of the material) shall be transferred to the buyer in any case, e.g. including fob and cif deals as soon as the shipment has been transferred to the person effecting the transport or has left the seller’s factory for the purpose of shipping, independent of whether shipping is effected from the place of fulfilment or who is bearing the shipping costs. If the goods are ready for shipping and shipping or acceptance is delayed for reasons outside our responsibility the risk shall be transferred to the customer upon receipt of the announcement that the goods are ready to ship.
(4) We shall be entitled to partial deliveries as well as over- and under-supply of the agreed quantity; each partial delivery shall constitute an independent deal.
(5) In case of contracts with continuous delivery, call-ups and classifications for approximately equal monthly quantities shall be given to us. If the contractual quantity is exceeded by individual call-ups of the buyer, we shall be entitled by not obliged to deliver the excess quantity. We shall invoice the excess quantity at the prices valid for the shipment.
VI. Reservation of Property Rights(1) All delivered goods shall remain our property until all our claims have been paid – irrespective of what legal grounds -, in particular including balance claims including claims arising or caused in the future. This shall also apply if payments for particularly labelled claims are made. If we have received bills of exchange and/or cheques are given as payment, fulfilment shall only occur as soon as we can use the value unconditionally. In the event of current accounts, the reserved property shall be considered security for our outstanding balance claim.
(2) Treatment or processing of the reserved property shall be done on our behalf and without cost and without obligation on our part in a way that we are considered manufacturer according to section 950 BGB (German Civil Code), i.e. we retain property of the products at any time and any degree of processing.
(3) If the goods are processed by the buyer together with other goods that are not our property, we shall be entitled to joint ownership to the new object in the relation of the invoice value of the retained goods to the other processed goods at the time of processing. The new object generated from the processing shall otherwise be subject to the same provisions as the retained goods. It shall be deemed retained goods in the sense of these terms and conditions.
(4) The claims of the buyer from further sale of the retained goods shall be ceded to us even now as security for all our claims arising from the business relation, irrespective of whether the retained goods are sold with or after processing or whether it is sold to one or several buyers.
(5) The buyer shall only be entitled and authorised for further sale of the retained goods on the basis of a contract of purchase, service, of work and materials or a similar contract if the claim arising from the further sale is transferred to us. The buyer shall not be entitled to any other disposition of the retained goods.
(6) The buyer is entitled to collect the ceded claims. In the event of discontinuation of payment, application for or opening of insolvency proceedings, of opening of settlement proceedings - in or outside of court or other financial collapse of the buyer we shall be entitled to demand that the buyer announces the claims and their debtors to us, hands over all information necessary for collection and informs the debtor on the cession.
(7) If the value of the security at our disposal exceeds our claim by more than 20 %, we shall be entitled at the request of the buyer or of a third party encumbered by our over-security to release securities at our discretion.
(8) The buyer shall be obliged to store the retained goods separately and to label it, to insure it against fire and theft and, at our request, proof conclusion of the insurance to us.
VII. Defects, Delivery of Non-Contractual Goods
We shall be liable for defects including lack of assured properties as follows:
VIII. General Limitations of Liability
Liability of the seller is only subject to the agreements stipulated in the above section. Claims for damage of the buyer arising from default at the point of conclusion of the Contract, infringement of main and ancillary contractual obligations, impermissible act shall be excluded unless they are based on intent, gross fault on our part or one of our vicarious agents; this limitation of liability shall apply accordingly for the buyer. These claims shall expire half a year after receipt of the goods by the buyer.
IX. Place of Fulfilment, Court of Jurisdiction, Applicable Law(1) Place of fulfilment for our services is the delivery factory for delivery ex works, the base for delivery ex base and the warehouse for deliveries ex stock.
(2) Court of jurisdiction is Dortmund. This shall also apply for any legal action in assertion of a claim concerning payment of a cheque or bill of exchange. We shall also have the right to seek legal action at any other reasonable court of justice.
(3) The law of the Federal Republic of Germany applies. Application of the Hague Convention and the Uniform Law on the International Sale of Goods shall be excluded.
X. Partial Invalidity
If individual provisions of these Terms of Sale and Delivery are entirely or partially ineffective or become ineffective, these provisions shall remain otherwise fully effective. The invalid provisions shall be replaced by such provisions that are as close as possible to the economic purpose of the invalid provisions with adequate consideration of mutual interests.
Tacke + Lindemann Baubeschlag- und Metallhandel GmbH + Co. KG