Conditions of Sale, Delivery and Payment
Sales by BRINKO are made exclusively on the basis of the following General Terms and Conditions of Business.
Deviating General Terms and Conditions of Business of customers are hereby not recognised. We will be subject to them only if we have acknowledged them in writing. In issuing an order or accepting goods delivered by us, the customer implicitly confirms his acceptance of our conditions.
Our offers, provided they are not limited, will remain unconditional at all times; written confirmation of our orders and delivery notes will be the determining factor. Orders will be deemed to have been accepted if the customer has received conformation of the order or delivery has been carried out. Ancillary agreements and alterations will not become binding until confirmed in writing. We reserve the right to alter the construction and weight of the goods we deliver if this does not entail any disadvantage for the customer. Obvious mistakes, errors of printing, miscalculations, spelling or computational errors will not be binding for us and constitute no claim to fulfilment or compensatory damages. Deviations in the goods delivered from offers, samples, plans, drawings, trial or advance deliveries will be
permitted pursuant to the standard of the respectively applicable DIN norms or other applicable technical norms provided this does not result in any disadvantage to the customer.
III. Prices and Payment
Prices will apply ex our plant and will include the cost of packaging, loading but not freight. Orders worth less than 50.00 € net will attract a minimum order charge of
10.00 €. Orders worth more than 300.00 € net will be delivered free of freight and packaging charges. Orders will not include the value added tax applying on the day of delivery. If the bases of calculation change, we reserve the right to alter our price-list or quotes for goods or services that were delivered or performed four months after the sales contract was signed.
Our conditions of payment are:
within 8 days: 2% discount, within 30 days: in full.
If this deadline is exceeded, the interest on arrears for transactions in which a consumer is not involved will be eight percentage points above the base lending rate. We reserve the right to claim higher damages caused by delay or default under the terms of Paragraph 288 Section 4 of the German Civil Code (BGB). If payment for partial deliveries has not been made by an appropriate deadline set by us, we reserve the right to withdraw from the contract. If we are required to comply with the Packaging Regulations and to take back packaging used to transport the goods, the client will bear the costs of taking back the packaging used of. The packaging used will be disposed of in accordance with legislative requirements. We have disposal contracts with Interseroh Isd Cologne, Contract No. 83212 and Ara Vienna, Contract No. F 90207 The offsetting of any counter-claims will only be permitted in the case of undisputed or legally valid counter-claims. Retention of payment will not be permitted if we have already received part payment for any defective or faulty service equal to the value or our service.
IV. Delivery Periods
Delivery will be made immediately from our goods in stock. Firm delivery deadlines will only be the determining factor if we have confirmed them in writing. However, this will apply only if all technical and commercial details have been clarified at that time. The delivery deadline will be deemed to have been adhered to if, by the time it has expired, the goods delivered has left our premises or if we have advised the customer that the goods are ready for delivery. If this deadline has been exceeded due to simple negligence on the part of BRINKO or its our upstream suppliers, damages claims due to lateness, covering purchases or other damages claims of the customer will not be accepted if material obligations have not been breached. The delivery deadline will be extended if hindrances occur due to Acts of God. These include such things as strikes, lockouts – including at/by upstream suppliers. Compliance with delivery deadlines presupposes the fulfilment of contractual obligations by the customer. If shipment is delayed at the wish of the customer, we will be entitled to set the customer an appropriate deadline and, after this deadline has been exceeded without the goods being accepted or delivered, to dispose of or to deliver the goods after a correspondingly later deadline and to charge any storage costs that may have arisen.
V. Transfer of Risk and Acceptance
Risk will transfer to the customer on shipment, even in the case of partial deliveries. If shipment is delayed by circumstances for which the customer is responsible or for which BRINKO is not responsible, risk will transfer to the customer from the day on which the goods are ready for shipment. Damage in transit is to be notified to the carrying company and we are to be informed of the facts of the matter. If the customer wishes, we will take out an insurance policy for the shipment against theft, breakage, transport, fire or water damage and other insurable risks at the customer‘s expense. Negligible defects will not entitle the customer to refuse acceptance, regardless of his guarantee claims. Partial deliveries will be permitted if the customer suffers no disadvantage as a result.
VI. Reservation of Title
The delivered goods will remain our property until full payment of all existing and future debts and claims arising out of the business relationship with the customer, regardless of the legal reason. Claims in respect of our reservation of title are not to be regarded as our withdrawal from the contract. Besides our claim to the return of our property, we also have rights arising from the sales agreement, in particular to compensation for damage and loss of profits. The customer has the revocable right to on-sell the goods delivered as part of the normal course of business. The customer assigns to us as soon as he places his order, all debts and claims – including subsidiary rights – to which he is entitled, to the invoice value of the reserved goods. The debts and claims so assigned will secure our claims. On being called upon to do so by us, the customer will be obliged to notify us of any assignment to third parties for the purpose of payment and to give us the information and hand over the documentation necessary to prosecute our claims. We undertake to release that amount of collateral owing to us which exceeds 15% of the value of the unsettled claims in order to secure our claims. The customer will not be authorised to dispose over any other goods than the above-mentioned reserved goods. In particular he will not be authorised to pledge goods or to assign them as collateral. He will inform us immediately of every infringement of our rights to the items still in our ownership. If the customer falls into arrears with his payment obligations or infringes one of the obligations arising from the agreed reservation of title, the entire remainder of the debt in the current account will be due immediately. In this case we will be entitled to demand the handingover of the goods and to collect them from the party who ordered them. In this case, the party who ordered them will have no right of title.
We will be liable for defects or faults in our goods and services supplied, including the
absence of any warranted characteristics, as follows:
We reserve the right to subsequent fulfilment of all defective parts or services free of charge or to make substitute deliveries. The guarantee will expire one year after the transfer of risk. The discovery of such defects is to be reported to us immediately and in writing 14 days at the latest after receipt of the goods. Concealed defects are to be reported within 14 days after discovery. Paragraph 478 of the German Civil Code (BGB) will remain unaffected by this provision. If the complaint is justified, we will bear the cost of the replacement part and shipment thereof. The customer must give us the necessary time and opportunity for substitute delivery or replacement. The customer will only be entitled to withdraw from the contract or to a reduction in price if subsequent fulfilment or replacement delivery have not been made on time or have irreparably failed. Further claims by the customer, especially claims to repair of damage but not to the item delivered itself (consequential damage or harm caused by a defect), will not be recognised if the damage is not the result of a grossly negligent breach of duty on the part of BRINKO or the result of a grossly negligent breach of duty on the part of its legal representatives or agents. Liability for warranted characteristics and under the terms of the Product Liability Act will remain unaffected by this provision. We accept liability for outside products only if the efforts by the customer to enforce our guarantee claims against the supplier of the outside product, which we hereby assign, remain unsuccessful. Neither will we accept any liability for damage caused by improper handling or use or normal wear and tear.
VIII. Impossibility of Performance, Arrears, Alterations to the Amendment
The customer may withdraw from the contract if we cannot make full delivery before the transfer of risk. The customer is also entitled to withdraw from the contract if we cannot make partial delivery of an order of similar items and the customer has a justifiable reason for refusing to accept the partial delivery. If this is not the case, the customer may reduce payment correspondingly. Claims for compensatory damages due to impossibility of performance will not be accepted if we have made delivery impossible through our gross negligence or criminal intent and impossible delivery was not due to the infringement of material obligations. If we are in arrears under the terms of No. IV and if the customer grants us an appropriate deadline extension to which we have not adhered, the customer will be entitled to withdraw from the contract. If impossibility of performance or arrears occur through the fault of the party ordering the goods, he will still be required to make payment.
If the customer suffers damages caused by delay on our part, he will be entitled to demand compensation for arrears. For every full week of delay, compensation due to lateness will exclude all further claims and will be 0.05% up to a maximum of 5% of that part of the full delivery which cannot be used on time or used as contractually agreed. This limited liability will not apply if the customer can prove that we have acted in a grossly negligent fashion or with criminal intent or if our breach of the contract is due to a breach of material obligations. In the case of unforeseen events as defined by No. IV, provided these are of commercial significance or alter the nature or content of the service or affect our operations or if retrospective impossibility of performance becomes apparent, the contract will be amended as appropriate. If commercially justifiable, we will be entitled to withdraw wholly or in part from the contract.
IX. Damages Claims
If these General Conditions do not expressly state otherwise, the following will apply
with respect to claims for compensatory damages:
a) We will be liable for death, impairments to human health or for bodily injury according to law if these are due to the negligent breach of duty on the part of our company, our legal representatives or our agents.
b) We will also be liable for subsequent damage or harm caused by a defect and other damage only if these are due to the negligent breach of duty on the part of our company our legal representatives or our agents. Liability for warranted characteristics and under the terms of the Product Liability Act will remain unaffected by this provision.
X. Legal Venue and Place of Fulfilment
Legal venue and place of fulfilment for deliveries and payment is Remscheid. These conditions will be governed solely by German law unless compulsory provisions of the law of the European Union provide otherwise.