BRINKO GmbH General Terms and Conditions of Business and Delivery
1 General/ provisions/Scope
1.1 These BRINKO GmbH (hereinafter referred to as “BRINKO”) General Terms of Business and Delivery apply exclusively. Terms and conditions of a BRINKO contractual partner (hereinafter referred to as a “Customer”) that contradict or deviate from these Terms and Conditions of Sale and Delivery will not be recognised unless BRINKO has expressly agreed in writing to the applicability of such deviating terms and conditions. These Terms and Conditions of Business and Delivery shall also apply if BRINKO makes a delivery to a Customer without reservation with knowledge that the Customer‘s terms and conditions conflict with or deviate from these Terms and Conditions of Business and Delivery.
1.2 These Terms and Conditions of Business and Delivery also apply to all future transactions with the Customer.
1.3 These Terms and Conditions of Business and Delivery only apply in dealings with business enterprises.
2 Offer and acceptance
2.1 All offers from BRINKO are subject to confirmation. This is subject to reservation of the right to discontinue articles and to make price changes. The scope of BRINKO’s delivery obligation is determined by its order confirmation or offer. Verbal and telephonic agreements only become effective upon written confirmation.
2.2 If an order qualifies as an offer according to section 145 German Civil Code (BGB), BRINKO may accept such an offer within four weeks. A contract is concluded at the latest upon dispatch of the order confirmation, shipment of ordered goods or, in the case of partial delivery, upon shipment of the first delivery.
2.3 Documents, drawings, weight and measurement data, samples, etc. contained in offers are only approximate information and do not represent guaranteed characteristics. BRINKO is entitled to deviate from descriptions in an offer, provided that such deviations are not of a fundamental or essential nature and do not impair the contractually intended use.
2.4 If parts are manufactured by BRINKO according to Customer drawings, drawings prepared by BRINKO and approved by the Customer are deemed to be authoritative. Deviations from approved drawings must be agreed separately and any additional costs incurred as a result must be reimbursed.
2.5 If the Customer requests customised cost estimates, any associated expenses must be reimbursed. If an order is placed, any respective expenses in this regard will be offset against the purchase price.
3 Intellectual property rights
3.1 BRINKO reserves ownership and copyright to all illustrations, drawings, calculations and other documents. Without limitation, this applies to written documents that are designated as “confidential”. They may only be disclosed to third parties by the Customer with the prior written consent of BRINKO.
3.2 If supplies of goods and services are made on the basis of drawings or other information provided by the Customer, and if third-party industrial property rights are asserted in this regard, as between the parties, the Customer shall indemnify BRINKO against all such claims.
4 Delivery/Delay in delivery
4.1 Delivery periods and delivery dates shall only be deemed to have been agreed as binding if they are expressly agreed in writing in the offer. BRINKO shall not be bound by the delivery date or the delivery period if the Customer does not fulfil its obligations (instalment payments, provision of necessary documents, etc.) on a timely basis. The right to assert the defence of non-performance of the contract remains reserved.
4.2 Delivery periods shall commence on the day on which the contract was concluded in writing at the earliest. The commencement of such period presupposes clarification of all technical questions.
4.3 In the event of subsequent changes requested by the Customer, BRINKO is released from the obligation to comply with the delivery date or delivery period.
4.4 The delivery period shall be deemed to have been complied with if the delivery item has left BRINKO’s works, or BRINKO has provided notice that goods are ready for dispatch, by the end of the delivery period.
4.5 The Customer cannot assert any claims due to delays in delivery which are not due to intent or gross negligence on the part of BRINKO. This applies in particular to delays in delivery due to a force majeure event. In such cases, the agreed delivery date or delivery period shall be postponed in accordance with the duration of the respective impediment to delivery.
4.6 Returns can only be made with the express prior consent of BRINKO. Parts from the current delivery programme must be returned in their original packaging free of defects and in salable condition. Returns must be carriage paid and at the risk of the sender with deduction of a 20% return fee. Processing fees will be deducted on a time and materials basis. Such costs may include recoding, cleaning and repackaging expenses.
4.7 If the Customer is in default of acceptance or violates other duties to cooperate, BRINKO is entitled to demand compensation for damages incurred in this respect, including any additional expenses. BRINKO is also entitled to set a reasonable acceptance period for the Customer and to withdraw from the contract after its expiry without success and may claim damages in lieu of performance.
4.8 In the case of special articles, BRINKO reserves the right to make over or underdeliveries of up to 10%.
5 Passage of risk/Packaging
5.1 Risk shall pass to the Customer upon dispatch of the goods at the latest, even if partial deliveries are made.
5.2 Deliveries are made ex works. BRINKO will insure the goods against insurable risks at the expense of the Customer only on the Customer’s express request.
5.3 Transport packaging and all other packaging in accordance with the Packaging Ordinance shall not be taken back. The Customer is obliged to arrange for the disposal of such packaging at its own expense.
6 Prices/Payment terms
6.1 Unless otherwise stated in the order confirmation, prices quoted are ex works in all cases, excluding packaging, which shall be charged separately.
6.2 Quoted prices are net prices; statutory value added tax will be added at the applicable rate.
6.3 BRINKO may charge the Customer for any additional costs incurred as a result of subsequent change requests.
6.4 Invoices are due for payment within 30 days of the invoice date without deduction. Discounts shall only be deemed agreed if expressly confirmed in writing by BRINKO.
6.5 BRINKO is entitled, even in the event of conflicting payment terms of the Customer, to apply payment first to the oldest obligation not yet reduced to judgement. If costs or interest have already been incurred, BRINKO is entitled to set off payments first against the costs, then against interest and finally against the principal obligation.
6.6 BRINKO is entitled to assign claims within the HAUPA Group.
6.7 The Customer is only entitled to apply a set-off if and insofar as its counterclaims have been reduced to final judgement, are undisputed or have been acknowledged in writing by BRINKO. The Customer’s right of retention is limited to claims arising from the contractual relationship.
7.1 BRINKO is not liable for damages caused by improper handling, wear, storage or other actions of the Customer or third parties.
7.2 Statutory claims arising from liability for material defects shall become time-barred 24 months after delivery of the goods. This does not constitute a guarantee of liability. Batteries are excluded from this limitations period. For supplies of batteries, we only recognise a period of six months from delivery. This does not constitute a guarantee of durability.
7.3 The Customer is obliged to comply with its duty of inspection according to section 377 German Commercial Code (HGB) even if the goods are resold.
7.4 BRINKO has the right to choose between repair or replacement.
7.5 BRINKO shall not bear expenses required for the purpose of tracking if such expenses are increased by the fact that the goods were taken to a place other than the Customer’s place of business after delivery. This does not apply if moving the product conforms to its intended use.
7.6 The Customer’s right of recourse against BRINKO on account of claims arising from liability for material defects asserted against the Customer by its customers is excluded if the Customer has not fulfilled its obligation to inspect and give notice of defects or if the goods have been modified by means of processing.
7.7 BRINKO’s liability for damages according to applicable statutory provisions is unlimited if a breach of duty attributable to BRINKO is based on intent or gross negligence. To the extent that the respective breach of duty attributable to BRINKO is due to ordinary negligence, and an essential contractual obligation has been culpably breached, liability for damages is limited to foreseeable damages typically occurring in comparable cases. Liability is excluded all other cases.
7.8 This is without prejudice to liability according to the provisions of the Product Liability Act. This is likewise without prejudice to liability for injury to life, limb and health.
8 Retention of title
8.1 BRINKO retains title to all parts that have been delivered until receipt of all payments under the delivery contract. If the Customer is in breach of contract, in particular by being in default of payment, BRINKO is entitled to repossess the goods.
8.2 The Customer is obliged to treat all goods delivered to it with care and to insure them, at its own expense, against any form of destruction at their replacement value for the period during which title is retained.
8.3 Costs for maintenance and inspection work shall also be borne by the Customer during the period during which title is retained even if such work carried out by BRINKO.
8.4 In the event of seizures or other forms of attachment by third parties, the Customer must inform BRINKO immediately in writing so that BRINKO may intervene as a third party. In the event that a third party is not in a position to reimburse the judicial and extrajudicial costs of such an action, the Customer shall be liable for such costs.
8.5 The Customer is entitled to resell purchased items in the ordinary course of business. However, the Customer hereby assigns to BRINKO all claims that accrue to it from resales to their customers or third parties in the amount of BRINKO’s final invoice amount (including VAT), irrespective of whether the object of sale has been resold without or after processing. The Customer remains entitled to collect such claim even after delivery. This is without prejudice to BRINKO’s authority to collect such claims itself. However, BRINKO undertakes not to collect such claims as long as the Customer meets its payment obligations from the proceeds collected, is not in default of payment and, in particular, no petition for the opening of insolvency proceedings has been filed or payments have not been suspended.
8.6 If delivered goods are inseparably mixed or combined with other objects not belonging to BRINKO, BRINKO shall acquire co-ownership of the new or combined object in the ratio of the value of the delivered goods (final invoice amount including value added tax) to the other object(s) at the time of mixing or combining. The Customer shall safeguard sole ownership or co-ownership thus created on behalf of BRINKO.
8.7 Payment of cost allocations for tools do not entitle the Customer to such tools; they remain the sole property of BRINKO.
9 Prohibition of assignment
No claims of the Customer against BRINKO arising from the contractual relationship may be assigned.
10 Product liability
10.1 The Customer may only use the goods as intended and must ensure that such goods are resold only to persons familiar with the product hazards and risks.
110.2 When using the goods as raw materials and component products for its own products, the Customer is likewise obliged to comply with its warning obligation with regard to goods delivered by BRINKO when placing the end product on the market. As between the parties, the Customer shall, upon first request, indemnify and hold BRINKO harmless against the assertion of claims in the event of a breach of this obligation.
11 Miscellaneous/Final provisions
11.1 The place of performance is the location of BRINKO’s registered office.
11.2 The place of jurisdiction for all disputes arising under or in connection with this contract is the location of BRINKO’s registered office. However, BRINKO is also entitled to sue the Customer at the court located at the location of the registered office the Customer with general jurisdiction over the Customer or at the place where the Customer has a branch office.
11.3 The domestic law of the country in which BRINKO has its registered applies exclusively to the exclusion of the UN Convention on Contracts for the International Sale of Goods.
Last updated: January 2020