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A superior parts quality, precise fit and the ongoing further development through our engineers - that's what distinguishes original FINK parts. We deliver precisely what is needed: quickly and to nearly every location around the globe, if necessary also special products and special solutions.

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Baumaschinen Fink GmbH - Terms & Conditions of Sale

1. Scope

1.1 The following terms and conditions of sale apply to all legal relationships between us and our contractual partners. They also apply to all future business transactions, even if they are not expressly agreed again. Differing conditions of the customer that we do not expressly acknowledge are not binding for us, even if we do not expressly reject them. The following terms and conditions of sale apply even if we are aware of conflicting or differing conditions of the customer, and fulfil the customer's order without reservation. Deviations from these Terms & Conditions of Sale are effective only if we have confirmed them in writing.

1.2 For deliveries associated with an assembly on site, our repair and assembly conditions shall apply additionally.

2. Offer and conclusion of contract

2.1 Our offers are subject to change and non-binding, unless we have expressly designated them as binding.

2.2 Documents associated with our offer, such as illustrations, drawings, details of weights and dimensions or other specifications are only approximations and not binding. They are only binding if this is expressly agreed in writing. Models and designs are subject to change.

2.3 We reserve our proprietary rights, copyrights and other rights to all illustrations, calculations, drawings and other documents. The customer may only make them available to third parties with our written consent, regardless of whether we have marked them as confidential.

2.4 Orders are binding for us only with our written order confirmation. This alone is decisive for our contractual obligations if it has not been objected to in writing. The same applies to amendments, modifications or ancillary agreements.

2.5 The delivery of the subject of the order or the request of a fitter in the establishment of the customer is considered placing the order to determine the measures necessary, for the implementation of test operations at the customer's risk, to carry out repair and maintenance and for the supply of necessary spare parts according to our best judgement. We are, however, only obliged to carry out the work agreed in writing.

2.6. Details we may provide regarding the time and duration of our work, the provision of assembly tools and equipment and the supply of spare parts are without obligation at all times, unless agreed by us as binding.

2.7. The respective customer's representative present on site who determines, delivers or collects the subject of the order or requests the fitter shall be considered to have authorization for preliminary discussions, order placement and acceptance. Our fitters are not authorized to represent the company and cannot make any binding statements.

3. Terms of payment

3.1 Our prices are ex our warehouse, unless otherwise specified in the order confirmation. Unless otherwise agreed, we adhere to the prices contained in our order confirmation 30 days from the date of issue. If the customer is a merchant, in the event of price changes after this period is over, the price in effect on the date of delivery shall apply. Our prices are exclusive of statutory VAT. We shall itemize this in the invoice separately in the statutory amount on the date of the invoice.

3.2 Additional costs such as packaging, loading, transport, installation and setup, fitters, insurance, finance charges, sale of collateral, storage, repairs etc. shall be borne by the customer.

3.3 Prices quoted by us for replacement parts assume that the complete defective old part to be replaced is immediately delivered to us carriage paid. This old part may only have defects due to natural wear and tear. Should the old part have other defects, in particular cracks, breaks or other irreparable damage, we are entitled to remedy such defects at the expense of the customer or to charge a higher price for new parts. Upon delivery of the old part our order number must be indicated.

3.4 In our invoices the prices of spare and replacement parts, tests, labor and special services will be itemized separately, unless a fixed total price was agreed.

3.5 Payment of the invoice amount for deliveries shall be made strictly net free Schnaittach in cash within 30 days of the invoice date or within 10 days of the invoice date with a 2% discount. Payment of the invoice amount for repairs shall be made free Schnaittach in full within 10 days. All payments shall only be considered effected on the posting date of our financial institution. We are entitled to demand a reasonable advance after the order is placed. We reserve the right to only make deliveries against prepayment or cash if we deem it advisable at the time of delivery. A discount is only permitted with a special written agreement between us and the customer. Payment of the purchase price is due net (without deduction) immediately upon receipt of the invoice at the customer unless there are any other payment terms deriving from the order confirmation. Payment shall only be deemed made when we can dispose of the amount. In the case of payment by check, payment is only deemed to have been made when the check is cashed. All discount and bill charges shall be borne by the customer.

3.6 If the customer is in default of payment, we are entitled to charge interest on arrears. The annual interest rate on arrears for transactions in which a consumer is not involved is eight percentage points above the base rate. The base rate changes every January 1st and July 1st each year by the percentage points by which the reference value has increased or decreased since the last change in the base rate. The reference value is the interest rate for the most recent main refinancing operation of the European Central Bank before the first calendar day of the relevant half year. The right to claim further damages is reserved. The customer is however entitled to prove that a lesser damage has been incurred as a result of the late payment.

3.7 Independent of the term of any bills of exchange accepted and credited, all our claims shall become due immediately if payment terms or contractual agreements are not met or if circumstances become known to us that are likely to reduce the creditworthiness of the customer. Furthermore, in this case we are entitled to demand advance payment or a security deposit.

3.8 Even if complaints or counterclaims are made valid, the customer is only entitled to offset if the counterclaims have been legally established, accepted by us or are undisputed. The customer is only entitled to exercise a right of retention if his counterclaim is based on the same contractual relationship. The customer is not entitled to offset, retention or reduction unless his counterclaims are either undisputed by us or legally established. This is also applies in the case of an assertion of claims for liability for defects.

4. Time of delivery and performance

4.1 Delivery dates or periods that have not been expressly agreed as binding are exclusively non-binding and are subject to proper and timely delivery on the part of our suppliers. The delivery period specified by us does not begin until any remaining technical issues have been clarified. Likewise, the customer must fulfil all his obligations properly and on time. If these conditions are not fulfilled properly in time, the delivery periods shall be extended accordingly, but at least by the time period of the delay; this does not apply if we alone are responsible for the delay.

4.2 The delivery deadline is met if the goods have left our warehouse before their expiry or if notification of readiness for dispatch has been given. If an acceptance is to be made – with the exception of justified refusal – the acceptance date is decisive, alternatively the notification of acceptance.

4.3 If a binding agreed delivery date is exceeded by four weeks, the customer may request us in writing to deliver within a reasonable time, otherwise after expiry of this deadline he will withdraw from the contract by written declaration. Fixed dates expressly agreed in writing entitle to immediate withdrawal by written declaration. A right of the customer to claim for damages for breach of contract or default is excluded for non-bindingly promised delivery dates, when expressly agreed in writing as fixed dates only admissible if we are guilty of willful misconduct or gross negligence. In this case, if he is a merchant, the customer’s claim for damages is limited to a maximum of 5% of the value of that part of the total delivery that can not be used in time or according to contract as a result of the delay. Any further claims for damages because of delay shall be excluded.

4.4 Force majeure shall entitle us to postpone delivery for the duration of the hindrance and for a reasonable start-up period, or to rescind the unfulfilled portion of the contract. On the same level as force majeure are strikes, lockouts, import and export restrictions and other circumstances which make delivery considerably more difficult for us or impossible, without us being responsible for these circumstances, regardless of whether they occur with us or at subcontractors.

4.5 We are entitled at any time to partial deliveries and partial performance to the extent reasonable for the customer.

4.6 Loading and transport shall be conducted at the expense and risk of the customer, unless we are required to deliver carriage free on account of an express written agreement.

4.7 As stipulated by the German Packaging Ordinance, we do not take back transport or any other packaging. The customer is responsible for disposal of the packaging at his own expense.

5. Transfer of risk and acceptance

5.1 Even if free delivery is agreed, the risk shall pass to the customer as soon as the shipment has been handed over to the person performing the transport, or has left our warehouse for the purpose of shipment. If shipment is delayed through no fault of our own or it becomes impossible through no fault of our own, the risk passes to the customer on notification of readiness for shipment. This also applies to partial deliveries or if we have assumed other services such as shipping costs or delivery and installation.

5.2 At the written request of the customer, at his expense we will insure the delivery with transport insurance.

5.3 Equipment to be repaired is stored with us at the customer's own risk.

5.4 If acceptance is to be made, it shall be decisive for the transfer of risk. Acceptance must be made without delay on the acceptance date, alternatively after our notification of readiness for acceptance. The customer shall not be entitled to refuse acceptance because of a minor defect. Upon request the customer must confirm the proper handover and contractual fulfilment in writing, otherwise he must notify us in writing of his complaints within the period specified in § 377 of the German Commercial Code. The representative who present with the customer's knowledge shall be regarded as his appointee, and is therefore a vicarious agent.

5.5 If the customer is in default of acceptance or of other obligations, we are entitled to demand compensation for damages incurred by us including any additional expenses.

6. Warranty/liability

6.1 Claims by the customer for defects shall only be valid if the customer has duly complied with his duties of inspection and compliance in accordance with § 377 of the German Commercial Code.

6.2 In the event of justified complaints, under exclusion of the rights of the customer to cancel the contract or reduce the purchase price (reduction), we are liable for supplementary performance, unless we are empowered under the statutory provisions to refuse supplementary performance. The customer shall grant us a reasonable time limit for the supplementary performance. At our discretion the supplementary performance can be delivered by remedying the defect (repair) or delivery of new goods. In the case of repair we shall bear the necessary expenses to the extent that these do not increase because the goods are at a place other than the place of performance. Should the defects not be successfully rectified, the customer shall set us a reasonable extension for further repair or replacement. If further remedial action fails, the customer may edit his discretion demand a reduction of the purchase price (reduction) or withdraw from the contract. After the second unsuccessful attempt the repair shall be deemed to have failed, except where further repair attempts appear appropriate in view of the object of the contract and can be reasonably considered to be acceptable to the customer. The customer can only assert claims for damages because of the defect under the following conditions if the supplementary performance is unsuccessful. The customer's right to claim further damages under the following conditions remains unaffected.

6.3 For used machines, any liability for material defects is excluded.

6.4 The customer's warranty claims shall expire one year after delivery of the goods to the customer, unless we have fraudulently concealed the defect; in this case, the statutory regulations apply.

6.5 Regardless of the preceding and following limitations of liability, we shall be liable under the statutory provisions for injury to life, body and health caused by a negligent or willful breach of duty by us, our legal representatives or our vicarious agents as well as for damages covered by the provisions of the German Product Liability Act. For damages that are not covered by clause 1 and are the result of willful misconduct or gross negligence or bad faith on our part or on the part of our legal representatives or our vicarious agents, we are liable under the statutory provisions. In this case, however, the liability for damages is limited to the foreseeable, typically occurring damage, as far as we, our legal representatives or our vicarious agents have not acted with intent.

A further liability for damages, in particular pecuniary loss, is excluded.

7. Retention of title

7.1 Until fulfilment of all claims, including all current account balance claims that we have against the customer, now or in the future, the delivered goods (reserved goods) shall remain our property. In case of a breach of contract by the customer, e.g. default of payment, after setting a reasonable deadline, we have the right to take back the reserved goods. If we take back the reserved goods, this represents a withdrawal from the contract. If we distrain the reserved goods, this shall be deemed as a withdrawal from the contract. We are entitled to dispose of the goods at our discretion after taking them back. After deduction of a reasonable sum for the costs of the sale, the proceeds shall be offset by us against the amounts owed to us by the customer.

7.2 The customer shall handle the reserved goods carefully and sufficiently insure them at his expense against fire, water damage and theft in the replacement value amount. Any maintenance and inspection work required shall be carried out by the customer in a timely manner at his own expense.

7.3 The customer shall be entitled to sell and/or use the reserved goods in the proper course of business, as long as he is not in default. Pledges or assignments as security are not permitted. The customer assigns to us now already any claims resulting from the resale or another legal reason (insurance, tort) with respect to the reserved goods (including all claims from current accounts) in full extent by way of security; we hereby accept the assignment. We revocably authorize the customer to collect the claims assigned to us on his own behalf. The collection authorization can be revoked at any time if the customer does not properly fulfil his payment obligations. The customer is not authorized to assign this claim, including for the purpose of collecting receivables through factoring, unless an obligation is simultaneously imposed on the factor to transfer the collected amounts directly to us for as long as we still have claims against the customer.

7.4 Any processing or transformation of the reserved goods by the customer will be conducted on our behalf. If the reserved goods are processed with items not belonging to us, we shall acquire co-ownership of the new item in the same proportion as the value of the reserved goods (final invoice amount including VAT) to the other processed items at the time of processing. The same applies to the new item resulting from the processing, as for the reserved goods. In the case of an inseparable mixture of reserved goods with other goods not belonging to us, we shall acquire co-ownership of the new item in the same proportion as the value of the reserved goods (final invoice amount including VAT) to the other mixed items at the time of mixing. If as a result of mixing the customer's item can be considered to be the main item, the customer and we are agreed that the customer shall transfer to us pro-rata co-ownership of this item; we hereby accept the transfer. The customer shall keep the resulting exclusively or co-owned property in custody for us.

7.5 If third parties seize the reserved goods, in particular by way of distraint, the customer shall immediately point out our ownership and inform us accordingly, to enable us to enforce our ownership rights. If the third party is unable to reimburse us the judicial or extrajudicial costs arising in this connection, the customer shall be liable to us for this.

We are obliged to release the securities due to us insofar as the realizable value of our securities exceeds the secured claims by more than 10%, it shall be at our discretion to select the securities to be released.

8. Place of performance, jurisdiction, applicable law

8.1 The place of performance and jurisdiction for deliveries and payments (including checks and bills of exchange) and all disputes arising between us and the customer from the sales contracts concluded between us and him shall be our place of business. We are, however, entitled to assert legal action against the customer at his place of residence and/or business.

8.2 The relations between the contracting parties shall be governed exclusively by the laws of the Federal Republic of Germany. The United Nations Convention on Contracts for the International Sale of Goods (CISG) shall not apply. If German law should refer to foreign law for the contractual relationship, the parties hereby disclaim any reference to the extent permitted by law. The parties aspire – to the extent permitted by law – to exclusively subject their interactions to the provisions of German law.

8.3 Only the German text of these terms and conditions of sale shall be legally binding for the contractual relationship.

8.4 If one or more provisions or parts of a provision of these terms and conditions of sale should be or become invalid or unenforceable, this shall not affect the validity of the remaining provisions. The contracting parties undertake to replace the invalid or unenforceable provision with a valid or enforceable provision which reflects the commercial intent of the provisions of these terms and conditions of sale as accurately as possible.

+49 (0)9153 / 970 970

Baumschinen Fink - a member of FINK Group

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