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Terms of Payment and Delivery

I. General

The following conditions are valid exclusively for all - including any future - deliveries if not explicitly agreed otherwise in writing.

II. Offer and Contract

Our offers are non-binding and subject to confirmation. Acceptances and all orders are only legally effective upon out written confirmation, by letter or by telex. This does also apply to amendments, modifications or side agreements as well as the cancellation of this clause.

III. Prices and Payment 

  1. Our prices are quoted ex factory net without VAT, packing, freight, postage and insurance. The prices are given on the basis of the current common and valid calculation factors.
  2. Due to the overproportionally high administrative and handling costs, an additional lump sum of 75,- EURO will be charged for small orders up to 150,- EURO.
  3. The customer may only compensate and claim a right of retention to such extent as the counterclaim is legally established, accepted by us or unquestioned.

IV. Shipment and Insurance

Prices are based on shipment ex factory or field warehouse. Shipment is made at the expense and at the risk of the customer. For all shipments a transport insurance will be arranged at the expense of the customer, unless the customer explicitly assumes all transport risks in writing. The seller is not responsible for any difficulties during transport. Delays in transit do not effect the maturity of the purchase price.

V. Delivery

  1. The stated delivery dates are non-binding. The delivery time may extend in case of unpredictable events, e.g. breakdowns, strikes, labour disputes of all kinds we are not responsible for, and governmental measures. Claims for damages are excluded in the aforesaid cases.
  2. In cases where we are responsible for delayed delivery, and where we also are responsible for not delivering within the period of grace, the customer may withdraw from the contract. Claims for damages due to non-fulfilment can only be made when the cause of damage is based on intent or gross negligence.
  3. Basically, the right of part delivery and early delivery are reserved.

VI. Transfer of Risk

The risk is transferred to the buyer when the goods are handed over to the person carrying through the transport or when the goods leave the seller's warehouse for shipment. If shipment is not possible through no fault of the seller, the risk is transferred to the buyer on the day of shipment readiness.

VII. Default of Acceptance

  1. If the customer refuses the acceptance of the purchased goods after an adequate grace or if the customer states expressively that he won't accept the goods, we have the right to withdraw from the contract or demand damages for non-fulfilment.
  2. If the default of acceptance takes more than one month we have the right to demand 3 % of the order value for every commenced month. However, the customer has the right to prove that these costs did not incur or did not incur in that amount. In this case the customer must only pay the proven costs.
  3. We have the right to demand 25 % of the order value as damages for non-fulfilment, as long as the customer does not prove that no damage has occurred or that the damage is less than this lump sum.
  4. We explicitly reserve the right to claim a higher proven damage. 
  5. Apart from cases of a default of acceptance, we have the right to withdraw if we have an objectively justified reason. Such a reason can be assumed when the breach of contract is based on force majeure or on other reasons we cannot be blamed for.

VIII. Responsibility for Defects

  1. We guarantee that our products are free from manufacturing and material defects as well as defects of title. The warranty period is 12 months and begins with the transfer of risk.
  2. The warranty voids if our operating or maintenance instructions are not observed, products are modified, parts are replaced, consumables other than specified are used or products are stressed excessively.
  3. The warranty does not include wearing parts.
  4. Product performance specifications in catalogues, operating instructions or files are not subject to warranty.
  5. The buyer's warranty rights assume that the buyer has met his inspection and notification obligations according to § 377 HGB. The delivered goods must be inspected for defects, quality and quantity immediately upon receipt. Complaints must be submitted in writing within eight days upon receipt of the goods, stating explicitly the reason for the complaint. Defects occurring at a later date must also be reported in writing within the same period, starting with the date of detection. Deficits and visible damages must be reported immediately to the carrier.
  6. As far as the object of purchase has a defect we are obliged to rework the object of purchase or to deliver compensation goods at our opinion. In case of rework we decide on the basis of the letter of complaint if the fault can be remedied at the customer's place or at our plant. We pay all expenses for the guarantee, especially such expenses related to transportation, work and material, up to the purchase price.
  7. If the defects are not remedied, the buyer may withdraw from the contract or demand abatement of the purchase price, at his opinion. 
  8. We are liable for defects according to the provisions of law as far as the buyer has claimed for damages based on intent or gross negligence, including intent or gross negligence of our representatives or agents. As far as permitted by law, our liability for damages is limited to the foreseeable, typical damage. 
  9. Liability for culpable injury of life, body or health is not affected by this provision. This also applies for the obligatory liability according to the product liability law.
  10. If not otherwise regulated above, any liability is excluded. 

IX. Joint Liability

  1. Any liability for damages exceeding the provisions in paragraph VIII. is excluded, regardless of the legal status of the respective claim. This especially applies to claims for damages resulting from faults at contract formation, other breaches of duty or tort claims for material damages according to § 823 BGB.
  2. The liability is also limited when the buyer claims for compensation for abortive expenditure instead of replacing the damage. 
  3. As far as liability for damages is excluded or limited towards us, this exclusion or limitation is also valid towards personal liability for damages of our staff, employees, assistants, representatives and agents. 

X. Retention of Title

  1. All goods delivered shall remain our property until the customer has completely fulfilled all present and future claims arising from the business relation.
  2. The customer has the right to process, mix, blend and alienate the goods within his proper and usual business routine as long as he is not in arrears with his obligations. Pledging and assignment as security are not permitted.
  3. The processing of goods subject to retention of title does not create any obligations for us. We become direct proprietor of the goods created by processing or transformation. When goods subject to retention of title are processed, mixed or blended with other goods which are not our property, we acquire a co-ownership share of the new goods at the rate of the invoice value of the goods delivered by us compared to the invoice value of the other goods, according to §§ 947, 948 BGB.
  4. For backing our claims, the customer right now completely assigns to us his claims arising from reselling the goods subject to retention of title or other legal reasons with regard to such goods. If the goods subject to retention of title are resold together with other goods without agreeing on a separate price for the goods subject to retention of title, the customer assigns to us a part of the total claim, made up of the invoice value of the goods subject to retention of title plus a surcharge of 10 %. The same practice applies when the customer alienates the goods subject to retention of title after processing, mixing or blending them with other goods.
  5. The customer has the right to collect debts from reselling the goods; however, we reserve the right of rescission. The customer is obliged to deliver all information and documents we need for claiming the assigned rights, especially the names of the debtors of the assigned debts, and to inform the debtors about the assignment to us. We are authorised to inform the debtors about the assignment in the name of the customer.
  6. If our securities exceed the claims to be secured by more than 20 % at the moment of contract formation, we will release the securities upon the customer's demand.
  7. If a third party should seize the goods or if another intervention should endanger our rights or disposal possibilities, the customer has to inform us immediately. If the customer should endanger the fulfilment, collection or backing of our claims by breaching the mentioned duties or by filing for insolvency, we have the right to withdraw from the contract or to take the goods back and to hold them in safe custody at the customer's risk and costs until our claims are completely fulfilled, even without withdrawal from the contract.

XI. Place of Fulfilment and Jurisdiction

  1. The place of fulfilment for all obligations arising from this contract is our site in Barntrup.
  2. As far as permitted by law, the exclusive place of jurisdiction for all disputes directly or indirectly arising from the contractual relationship is Blomberg. In cases where we act as complainant we alternatively have the right to proceed against the obligor at his general place of jurisdiction.

XII. Applicable Law

For these conditions of sales and all legal relations between the seller and the buyer German law applies. The applicability of the Uniform Law for the International Sale of Goods and the UN Convention on Contracts for the International Sale of Goods is excluded.

 

Contact

Karl E. Brinkmann GmbH
Försterweg 36 - 38
D-32683 Barntrup

Fon:+49(0)5263 401-0
Fax: +49(0)5263 401-116

E-Mail: infokeb.de