General Terms and Conditions (GTCs)

Ralf Brinkmann GmbH
Alfred-Nobel Str. 13
D-41515 Grevenbroich

A. General

1. We deliver solely on the terms of our sales, delivery and payment conditions, set out below, even where no reference is subsequently expressly made in the case of ongoing business relations. Conflicting conditions on the part of the customer shall have no validity for us. Failure to respond to order confirmations that indicate the customer’s terms and conditions shall not be regarded as agreement. By accepting a delivery from us, the customer is deemed to declare irrefutable agreement to the exclusive validity of our sales, delivery and payment conditions.

2. All offers issued by us are subject to confirmation. Orders are not considered to be accepted until they are confirmed by us in writing. Our acceptance of the order shall be decisive for the contents of the contract unless we receive a written objection within 14 days of the date of our order confirmation.

3. Side agreements reached before or at the time of the conclusion of the contract shall in all cases require our express written agreement in order to be effective.

4. If INCOTERMS are agreed for foreign business, then the definitions that are defined and published from time to time by the International Chamber of Commerce in Paris shall apply.

B. Prices and payments

1. Except where otherwise defined in the order confirmation, our prices are quoted ex works and exclude packaging, freight and insurance. For domestic sales, the agreed prices shall be subject to VAT at the rate currently stated by law.

2. Unless otherwise agreed in the order confirmation, our invoices must be paid strictly net within 30 days of the invoice date. For payments made within 14 days we will apply a 2% discount.

3. The customer shall not be entitled to exercise the right of retention in respect of our claims or to offset counterclaims unless they have been expressly recognised by us or have been established by final judgement.

C. Delivery, transfer of risk and acceptance of goods

1. The cost and risks of delivery shall always be borne by the customer. Deliveries will only be insured against damage in transport at the express wish of the customer and at his expense.

2. The risk in the goods shall pass to the customer when the goods leave our factory, and this shall also apply in the case of partial deliveries. Where the customer collects the goods, the risk shall pass to him on notification that the goods are ready for dispatch.

D. Cancellations

In the event that the customer withdraws from the contract without authorisation, we shall be entitled to demand up to 20% of the sale price as compensation for the expenses incurred in processing the order. This shall not affect our entitlement in certain circumstances to demand a verified higher compensation. The customer shall be free to demonstrate in individual cases that the processing costs incurred are lower than the fixed rate of 20%. Special components that have already been manufactured cannot be cancelled and must accordingly be fully accepted by the customer.

E. Delivery times

1. Binding deadlines for deliveries or the provision of services (delivery deadlines) must be expressly agreed as such in writing. An agreed period for deliveries or services (delivery period) shall begin with the receipt by the customer of our order confirmation, but not before the technical information required from the customer has been provided. Any changes agreed after conclusion of the contract or additions to the scope of the original order shall respectively extend or delay the delivery period or deadline to a reasonable extent.

2. Binding deadlines for deliveries or the provision of services (delivery deadlines) must be expressly agreed as such in writing. An agreed period for deliveries or services (delivery period) shall begin with the receipt by the customer of our order confirmation, but not before the technical information required from the customer has been provided. Any changes agreed after conclusion of the contract or additions to the scope of the original order shall respectively extend or delay the delivery period or deadline to a reasonable extent.

3. The customer is entitled, two weeks after a non-binding delivery deadline or non-binding delivery period has been overrun, to demand in writing that delivery be made within a reasonable period. With this reminder we shall be in default. If we should default, the customer shall be obliged to set us a reasonable grace period in writing and to link this with a threat to refuse services. Should the grace period end without delivery, the customer shall be entitled to withdraw from the contract.

4. Impairments to delivery or performance due to force majeure or as a result of labour disputes, interventions by authorities, interruption of operations, difficulties in obtaining material or energy supply or any other unforeseeable exceptional circumstances for which we are not responsible, regardless in each case whether these circumstances occur in our company or at our subcontractors, will extend the delivery time by the duration of the hindrance. This provision shall not apply in cases in which we entered into our obligation regarding the delivery time although these circumstances were foreseeable or we did not take possible and reasonable actions in order to avoid or prevent the impairment of performance or in which we are ourselves responsible. In accordance with the above-mentioned provisions, the circumstances mentioned shall also not be our responsibility if they occur during an already existing delay. We may invoke these provisions only if we notify the customer of the occurrence and prospective continuance of such failure without undue delay.

5. Where the customer incurs damages as a result of a delay for which we are responsible, he shall be entitled to compensation for the damage. The amount of compensation shall be limited to 1% for each full week of delay, with single days calculated proportionately - and to a maximum of 5% of the order value.

F. Retention of title

1. The goods delivered shall remain our property remain property (reserved goods) until full settlement of all claims resulting from the contractual relationship, even where the individual goods have been paid for. In the case of current accounts, the reserved goods shall serve as security for our payment balance claim.

2. Until transfer of ownership the customer must insure the reserved goods against theft, breakage and fire, water and other damage. The customer shall hereby transfer to us all rights from the insurance contracts and his claims against his insurer. We shall accept the assignment.

3. The customer may neither pledge the reserved goods nor assign them by way of security. In the event of attachments, seizures or other third party dispositions the client shall inform us immediately.

4. Should the customer not adhere to a term of payment or fall wholly or partly into default in payment of due bills or cheques, or act in breach of the contract in another way, we shall be entitled to take back the reserved goods after a reminder has been issued. This shall also apply if the customer is overindebted or has ceased payments, if an application has been made for a settlement or insolvency proceedings over his assets or if there is a material deterioration in his economic circumstances. Assertion of the retention of title or the seizure of the reserved goods by us shall not be deemed a termination of the contract.

5. If the customer resells the reserved goods on a commercial basis, he shall be entitled to resell the reserved goods in the ordinary course of business on his normal conditions so long as he is not in default of payment. In the event that the reserved goods are resold, the claim from the corresponding legal transaction shall be assigned to us herewith to the amount of our invoice. We hereby accept the declaration of assignment. The customer shall be authorised to collect these claims even after assignment until our revocation, which may be permitted at any time. Our authorisation to collect the receivables ourselves shall remain unaffected by this; however, we undertake not to collect the receivables so long as the customer continues to meet his payment obligations in an orderly manner.

We may demand at any time that the customer disclose to us the assigned claims and their respective debtors provide us with all the information required for collection, hands us the associated documents and notifies the debtors of the assignment.

6. If the reserved goods are sold by the customer together with other goods that are not our property, the claim of the customer from his buyer shall now be assigned to us to the amount of the delivery price agreed between ourselves and the customer. Any processing or transformation of the reserved goods shall always be for us, without our assuming any obligation. In the case of further processing or combination with items supplied by a third party, our joint ownership of the new object shall remain in proportion to the fraction of value constituted by the goods supplied by us.

7. We undertake to release the securities due to us where their worth exceeds the value of the receivables by more than 20%.

G. Installation and assembly

Where installation and assembly are included in the scope of delivery, the following terms shall apply:

1. The orderer shall provide, promptly and at his own expense:
a) all earthworks, building work and other subsidiary works that fall outside the scope of the supplier’s trade, including all associated specialist and ancillary labour, materials and tools, b) the equipment required for installation and assembly, such as scaffolding, hoisting equipment and other general tools and the requisite items and materials such as scaffolding timbers, wedges, supports, cement, plaster and sealing materials, fuels and lubricants, c) power and water to the point of use, including connection points, heating and lighting, d) appropriate, dry and lockable rooms of adequate size in direct proximity to the assembly site for the storage of machine parts, apparatus, materials, tools, etc., and suitable, lockable work and recreation rooms including heating, lighting and sanitary facilities for the installation personnel; furthermore, the orderer shall take such measures for the protection of the supplier’s property and that of the installation personnel on the assembly site as he would for his own property, e) auxiliary personnel such as manual labourers and, if necessary, bricklayers, carpenters, welders, electricians or other skilled workers in the quantity deemed necessary by the supplier. The auxiliary personnel shall remain available to the project manager for the entire duration of installation work and shall act by his instructions, f) protective clothes and devices that are required due to particular conditions prevailing on the assembly site.

2. Prior to commencement of the assembly work, the orderer shall provide all necessary information concerning the locations of concealed electricity, gas and water supply cables and pipes or similar installations as well as the required structural load data, without being specifically requested. Prior to commencement of assembly or installation works, the supplies and equipment necessary for the work to start must be available on the assembly or installation site and any preparatory work must have advanced to such a degree that the assembly or installation can be started as agreed and carried out without interruption. Approach routes and the assembly or installation site must be level and cleared. In the case of indoor installations the walls and ceiling must be fully plastered, doors and windows fitted and any wall apertures specified by the supplier for the delivery of larger installation components must be provided.

3. If assembly, installation or commissioning is delayed due to circumstances for which the supplier is not responsible, the orderer shall bear the reasonable costs incurred for waiting time and for any additional travelling expenses incurred by the supplier or of the installation personnel.

4. The orderer shall attest to the supplier on a weekly basis the hours worked by the installation personnel and the materials required for the installation work; the orderer shall also promptly certify the completion of the assembly, installation or commissioning work.

5. If, after completion of works, the supplier requests formal acceptance of the delivered work, the orderer shall comply with this request within two weeks. If this does not occur, acceptance shall be deemed to have been given. Acceptance shall also be deemed given if the supplied items have been put to work (following any agreed test phase).

6. Where installation is included in the total price or a fixed installation price is agreed, delays and other costs for which the orderer is responsible shall be charged at the rates given in the currently applicable installation price lists.

H. Warranty and notice of defects

1. The customer shall carefully examine the delivered goods on receipt and shall assert any notice of defect to us in writing immediately after it is detected.

2. In the case of faulty delivery or performance the customer shall be entitled, at our option, to remedial works or to the supply of a replacement at no cost (supplementary performance). In this case we shall bear the expenses incurred for the purpose of the supplementary performance (in particular, transport, travel, labour and materials costs). Should the supplementary performance or replacement delivery itself fail, the customer may, at his option, demand a reduction of the purchase price or compensation for work (reduction) or withdraw from the contract. Withdrawal from the contract is excluded if the defect reduces the value or suitability of the purchased goods or work to only an insignificant degree. A supplementary performance is generally deemed to have failed after two unsuccessful attempts.

If we default in providing the supplementary performance or replacement delivery, the customer may, after the expiry of a grace period set out in writing, assert the same rights. Article 440 of the German Civil Code (BGB) and our liability under section G points 2 and 3 of these sales, delivery and payment conditions are not affected.

3. A guarantee for the quality of the purchased goods or work as defined by § 443 of the German Civil Code (BGB) shall only prevail if it is assumed explicitly by us in writing, unless it relates to a purchase of consumable goods.

4. A warranty shall be eliminated where our reserved goods have been modified without our permission, in particular by the addition of foreign parts, and it cannot be excluded that the defect is attributable to that fact.

5. The period of warranty shall be 1 year from delivery of the reserved goods or, for work done, from formal acceptance. This shall not apply where the goods have been used for their usual purposes for a built structure and have caused a fault to occur in that structure.

6. We may refuse to remedy the defects while the customer is in default over his obligations. This shall not affect a right of retention for any defects of delivery up to double the cost of the supplementary performance.

I. Liability

1. Claims for damages for all breaches of duties under the debt relationship and unauthorised actions are excluded - in particular regarding consequential damages.

2. This does not affect our liability for damages resulting from injury to life, bodily injury, damage to health, intent or gross negligence, for claims under product liability law, for express written guarantees and in all cases in which we are guilty of intent or gross negligence.

3. For any culpable breach of material contractual duties under article 307 para. 2 sentence 2 of the German Civil Code (BGB) we are also liable in cases of slight negligence, but only for foreseeable and typically occurring damage and only up to the amount insured by our liability insurance.

J. Place of performance, place of jurisdiction and applicable law

1. The exclusive place of performance for both contractual parties shall be our company headquarters at 41515 Grevenbroich.

2. All legal relationships with our customers shall be subject to the Law of the Federal Republic of Germany, with the exception of the laws on the international sale of goods.

K. Amendments and invalidity clause

1. Amendments to these conditions of sale, delivery and payment or other contractual agreements must be made in writing.

2. Should any part of these conditions of sale become ineffective through law or a separate contract, the effectiveness of the remaining conditions shall not be affected.