1. DEFINITIONS AND APPLICABILITY
1.1. The following definitions apply in these terms and conditions:
“Brink” means Brink Towing Systems B.V. and each of its group companies as referred to in Section 2:24b of the Dutch Civil Code;
“Agreement” means the agreement to be concluded between Brink and a Other Party of sale, as well as the related agreements to perform of activities and services;
“Other Party” means a contractual counterparty of Brink;
1.2. These general terms and conditions apply to all to be concluded by Brink Agreements.
1.3. Deviation from these conditions can only be agreed in writing.
1.4. General terms and conditions, under whatever name, of the Other Party are not
Brink concluded purchase agreements apply.
2.1. Offers from Brink, as well as in catalogs and other documentation from Brink
included data such as prices, sizes, colors and other specifications, are without obligation and subject to change, unless the contrary is apparent from these documents.
2.2. If the Other Party does not accept an offer from Brink, it must accept the offer and immediately return all associated documentation to Brink.
2.3. Brink is authorized to pay the costs involved in (drawing up) an offer at the to charge the Other Party, provided that Brink informs the Other Party of this in advance informed in writing.
3.1. If a written order is placed by the Other Party as a result of a irrevocable offer from Brink, then the Agreement is concluded on the
the moment the order is received by Brink.
3.2. No offer from Brink precedes a written order from the Other Party or If an order follows a non-binding offer from Brink, the Agreement is concluded position if Brink confirms the order in writing or, in the absence of a such order confirmation, if Brink commences execution of the Agreement.
3.3. If and insofar as the procedure referred to in paragraphs 1 and 2 of this article takes place by means of EDI (Electronic Data Interchange), by email or fax, the EDI, e-mail and fax messages are considered equivalent to written documents.
3.4. The conclusion of an Agreement implies that the Other Party applicability of Brink's general terms and conditions and that the other party waives any applicability of its own general terms and conditions terms and conditions of the Agreement.
4.1. The prices stated by Brink are in Euros, exclusive of VAT and are based on the in delivery condition described in article 5 paragraph 2. So in these prices there are no costs for including transport or insurance of the goods.
4.2. If after the conclusion of the Agreement, but before the delivery of the sold goods, one or more price-determining factors such as purchase prices, material or parts prices, labor costs, levies, taxes, exchange rates, etc.
Brink is entitled to adjust the prices for the goods and any additional services adjust accordingly.
4.3. Brink will notify the Other Party in writing as soon as possible of the corresponding paragraph 2 of this article adjusted prices.
4.4. If the price increase is more than 10% of the original price, the other party has the right to cancel the to dissolve the agreement in writing, unless this is evident in view of the circumstances would be unreasonable. A dissolution pursuant to this paragraph does not entitle either party to compensation for any damage.
5.1. For the interpretation of the delivery conditions, the “Incoterms”, issued by the ICC (International Chamber of Commerce) as it stands today
are in force from the conclusion of the Agreement.
5.2. Delivery of the sold goods by Brink takes place “ex works”, location Brink, unless explicitly agreed otherwise.
5.3. An agreed delivery time can never be regarded as a strict deadline.
5.4. Brink will do everything that is reasonably possible to ensure delivery of the sold products goods before or at the agreed time of delivery. As soon as Brink is aware of facts and/or circumstances that affect the realization of the delivery before or on make the agreed time impossible, it will inform you of this as soon as possible message to the Other Party, stating the expected new delivery term.
5.5. If Brink provides information and/or documentation from the Other Party and/or third parties or if certain formalities have to be fulfilled, the delivery period first starts on the moment that all information and/or documentation is in the possession of Brink and/or all formalities have been completed.
5.6. Brink is authorized to make partial deliveries.
5.7. The Other Party is obliged to return the goods sold by Brink on the agreed date time to be received. If the Other Party accepts the goods sold by Brink does not take delivery at the agreed time, it shall be in breach of this obligation automatically in default without the need for a notice of default. It risk of the sold goods transfers from Brink to the Other Party at the moment that the Other Party is in default. Brink will sell the sold goods for a period of reasonable period calculated from the moment that the Other Party is in default for store and insure the account and risk of the Other Party.
6. RETENTION OF TITLE
6.1. The goods delivered by Brink to the Other Party remain the property of Brink, and the Other Party will hold these goods for Brink until the Other Party has fulfilled all has fulfilled the following obligations under all agreements concluded with Brink:
(a) its obligations in respect of the goods delivered or to be delivered;
(b) its obligations under the Agreement(s) by Brink services rendered or to be rendered;
(c) claims of Brink due to failure by the Other Party in the fulfillment of an obligation under the Agreement or other agreements.
6.2. The Other Party is not permitted by Brink to supply it under retention of title to alienate, encumber, or establish any limited right on the delivered goods or otherwise in violation of the retention of title, other than in the normal course of business.
6.3. On goods delivered that are the property of the Other Party through payment transferred and are still in the hands of the Other Party, Brink reserves the right to hereby already now for then the pledges for as referred to in art. 3:237 BW to additional security for claims that Brink for whatever reason on the the other party may have.
6.4. If the Other Party fails to fulfill an obligation under the In the agreement, it is in default by operation of law and Brink - without prejudice to the provisions
in article 14 - without further notice of default entitled all goods to which a to take back the retention of title. The Other Party is obliged to do this to cooperate on pain of a fine of 10% of the amount owed per day or part of a day that it fails to fulfill this obligation to fulfil.
7.1. Unless otherwise agreed, payment must be made ~by the Other Party within 30 days of the invoice date by transferring the amount due to the designated bank account of Brink.
7.2. Payments made by the Other Party first serve to settle the amount owed costs and interest and then of due and payable invoices that have been outstanding the longest, even if the Other Party states that the payment relates to a later invoice.
7.3. In the event of late payment, the Other Party is liable for its payment obligation of in default by operation of law without any notice of default on the part of Brink required and is obliged to pay the statutory commercial interest plus 2% on the amount due from the moment that the Other Party is in default.
7.4. All judicial and extrajudicial costs that Brink must incur to recover from its claim(s) against the Other Party are entirely for the account of the Other Party. The extrajudicial costs are set at at least 15% of the outstanding amount with a minimum of EUR 250. If Brink demonstrates that it has higher costs which were reasonably necessary for the recovery of its claim(s) the Other Party, the Other Party is obliged to pay these higher costs to Brink. Extrajudicial collection costs are also owed by the Other Party to Brink if: only a single reminder has been sent by or on behalf of Brink.
7.5. Brink has the right, in cases to be determined by it, as security for compliance of the obligations of the Other Party under the Agreement:
(a) to deliver goods only cash on delivery;
(b) demand full or partial prepayment;
(c) to require the Other Party to provide an irrevocable and unconditional has a bank guarantee issued by a credit institution acceptable to Brink or another security to be determined by Brink.
7.6. The costs to be incurred by Brink in connection with the provisions of paragraph 5 of this article are: at the expense of the Other Party.
7.7. The Other Party is not allowed any claims it has against Brink for whatever reason therefore to be set off against claims of Brink against it and/or the fulfillment of its obligations obligations towards Brink for whatever reason.
8.1. Budgets, catalogs, images, drawings, specifications and other documents, as well as all models,
moulds, dies, stamps, tools and other aids that Brink uses in the execution of the Agreement, including the aids that are specially be purchased by Brink for the purpose of delivery to the Other Party or manufactured, remain the property of Brink at all times.
8.2. The Other Party is obliged to provide documents and aids provided by Brink to its have been made available on its behalf:
(a) to be marked as recognizable property of Brink;
(b) keep in good condition;
(c) to insure against all risks as long as they as holder acts;
(d) to make it available to Brink on first request.
8.3. The Other Party is prohibited without Brink's prior written consent to reproduce or copy the aforesaid documents and aids to third parties to make them available for inspection or to hand over or otherwise by or for the benefit of to use or cause to be used by third parties or whether or not to transfer it to third parties as security.
9. TRANSFER OF RIGHTS AND OBLIGATIONS
Brink is entitled to for the fulfillment of its obligations under the Agreement to engage one or more third parties.
10. INDUSTRIAL AND INTELLECTUAL PROPERTy
10.1. If the Other Party has a specific construction, type of material or method prescribed, the Other Party will indemnify Brink against claims from third parties in this regard the use of such construction, type of material or method and the damage that Brink suffers as a result of this.
10.2. The sale and delivery of goods by Brink to the Other Party does not imply the transfer of intellectual and industrial property rights vested in those goods or related thereto. Brink reserves all intellectual and industrial property rights with regard to the documents described in article 8 paragraph 1 and auxiliary materials, as well as the goods delivered by it to the Other Party for, also if these goods have been developed in collaboration with the Other Party. If and for insofar as the Other Party is entitled, for whatever reason, to the aforementioned intellectual and industrial property rights, it will provide these at Brink's first request not transfer it to Brink and cooperate with the performance of all formalities necessary for this, including but not limited to the signing the deed intended for that purpose and the registration of this intellectual and industrial property rights in the appropriate registers.
11.1. The Other Party guarantees that it will observe the confidentiality of company information originating from Brink, who has come to or brought it to her knowledge in any way.
11.2. If Brink or the Other Party manufactures goods as a result of or in connection with taking into account a joint development thereof by Brink and the Other Party, the Other Party does not alienate or otherwise use these goods for the benefit of from third parties.
12.1. Brink guarantees that the goods and services delivered by it to the Other Party parts are free from defects for a period of 12 months after delivery that are the direct result of material, manufacturing and/or construction errors.
12.2. Notwithstanding the provisions of paragraph 1 of this article, the guarantee for goods that Brink has involved third parties or has had them developed and/or manufactured by third parties in terms of scope and duration are limited to the guarantee that Brink has obtained from these third parties.
12.3. Brink will only invoke the guarantee referred to in paragraph 1 of this article in treatment if this is either within 14 days after the discovery of the defect by the Other Party or within 14 days after the defect was reasonably the Other Party could have been discovered, has been submitted in writing to Brink. every right of the Other Party towards Brink with regard to the guarantee lapses if the Other Party not within this period to invoke the guarantee referred to in paragraph 1 of this article Brink submits in writing.
12.4. Furthermore, all warranty claims of the Other Party lapse if:
(a) these changes or repairs without Brink's prior consent has applied to the delivered goods or has had them done by third parties
(b) it has been misused and/or used for other purposes than the original, normal destination;
(c) the assembly or user manual has not been strictly followed;
(d) when mounting, other than the original (and supplied) Brink parts are used;
(e) the defect is the result of causes other than material, manufacturing and/or construction errors;
(f) delivery of used (2nd hand) materials, parts or items is agreed;
(g) it fails to perform any obligation under this Agreement;
(h) there is a question of provided or prescribed by the Other Party structures, materials or methods;
(i) there is no, incorrect or insufficient maintenance; - the lack of a is the result of normal wear and tear.
12.5. Minor deviations in size, colour, weight or number do not constitute grounds for an appeal on the guarantee referred to in paragraph 1 of this article.
12.6. The costs of repairs to the delivered goods that the Other Party without has performed prior permission from Brink itself or has had it done by third parties performance are not for the account of Brink.
12.7. Pursuant to its warranty obligations under paragraph 1 of this article, Brink is exclusively held to repair or replace, at its own expense and at its own discretion, goods or parts thereof delivered by it in the Netherlands. Brink is entitled to cover additional costs, such as travel, accommodation and wage costs and the costs of shipping and (dis)assembly, to be charged to the Other Party.
12.8. If Brink fulfills its warranty obligation as referred to in paragraph 1 of this article, redelivery goods or parts thereof, the replaced goods or parts owned by Brink at the time of replacement.
12.9. Returns are only accepted with prior written notice permission from Brink. Return shipment is at the expense and risk of theother party.
13.1. Brink's liability towards the Other Party and/or third parties is – irrespective of the legal ground on which the liability is based – limited as in this article determined.
13.2. Brink is solely liable for damage suffered by the Other Party and/or third parties if and insofar as the damage is the direct and immediate consequence of the execution of the Agreement.
13.3. Brink is in no way liable to the Other Party and/or third parties for any form of indirect damage, including (but not limited to) the
loss of profits or revenue, suffering loss including loss of production, costs of downtime or delay, fines or discounts and all payments to third parties.
13.4. Brink's liability is limited to a maximum of the amount for which the Brink's insurer pays out in the relevant case. If the insurer of
In any case, Brink does not pay out, Brink's liability is limited to the invoice amount relating to the delivery of goods to which theliability of Brink is based.
13.5. Brink is in no way liable for the delivery of products to the Other party that is directly or indirectly sold and/or used in the United States of America and/or Canada.
13.6. The Other Party indemnifies Brink against claims from third parties in connection with goods delivered to the Other Party, if and insofar as Brink towards these third parties would not have been liable under the Agreement and these general terms and conditions, if this third party(ies) themselves was/had been the Other Party.
13.7. The Other Party will inform Brink in writing as soon as possible of the claims for compensation as described in this article.
13.8. Brink is not liable for damage that:
(a) is the direct or indirect result of incorrect assembly of delivered goods, including the use of unsuitable tools and the use of installation methods and means other than those prescribed, or incorrect interpretation of this present mounting instruction;
(b) is caused by injudicious or careless use of the delivered goods;
(c) arose from use for a purpose other than that for which the goods are intended to be;
(d) damage that has arisen because Brink assumed that the Other Party provided incorrect information.
13.9. Any right of claim of the Other Party against Brink for whatever reason lapses after lapse of one year after the Other Party with the existence of this right of action has become known, unless the Other Party within this period with regard to this legal action has commenced legal proceedings against Brink.
13.10. The limitations of liability contained in these terms and conditions do not apply if the damage is caused by intentional or willfully reckless act of Brink.
14.1. Without prejudice to its legal rights and powers, Brink has the right to terminate the Agreement with immediate effect, without any notice of default or other formality is necessary and without this towards the other party must become liable for compensation in the following cases:
(a) the Other Party is declared bankrupt, or an application is made to that effect;
(b) the Other Party applies for a moratorium;
(c) the control over the Other Party changes;
(d) the Other Party terminates its business;
(e) the Other Party is dissolved.