General Terms and Conditions of Sale and Delivery of brainchild GmbH

The basis of a lasting and enduring business relationship is not delivery and payment conditions, but cooperation and mutual trust. Reliability and trust requires defined rules:

 

§ 1 Validity of the general terms and conditions of sale and delivery

(1) The supplier’s offers, the acceptance of orders and all deliveries are made exclusively on the basis of the following “General Terms and Conditions of Sale and Delivery”. Deviating general terms and conditions or purchasing conditions of the customer are hereby expressly rejected; they do not bind the supplier even if he does not object again upon conclusion of the contract.

 

(2) The offers are exclusively addressed to buyers who are over the age of 18, and are to be regarded as entrepreneurs within the meaning of § 14 para. 1 BGB.

 

§ 2 Offer and conclusion of contract

(1) The Supplier’s offers are subject to change without notice, and subject to the Supplier’s written confirmation, unless otherwise expressly agreed upon in writing. Documents belonging to an offer, such as illustrations, drawings and weight specifications, as well as more detailed descriptions, are only approximate and serve to describe and specify the delivery item more precisely. The same applies to performance and consumption details. These details do not constitute a guarantee for the quality or durability of the delivery item. The supplier reserves the right to change the dimensions and weights of the delivery item until delivery.

 

(2) The purchase contract between the supplier and the customer is only concluded by a declaration of acceptance by the supplier. This takes place either on the basis of a written acceptance of order, or on the earlier of the following two dates, either sending of the goods or sending of a shipping confirmation by e-mail. The confirmation of receipt of an order does not constitute a declaration of acceptance in the aforementioned sense.

 

§ 3 Consent

If the supplier commissions a sub-supplier (e.g. parcel service) for the shipment of goods, the customer agrees that the e-mail address provided by the customer is transmitted by the supplier to the sub-supplier and may be used by the latter in the context of the delivery. This consent can be revoked by the customer at any time. The customer should note that in the event of revocation, he will no longer have the opportunity to directly influence the delivery of the goods being shipped. Any revocation is to be sent to the address: info@brain-child.de.

 

§ 4 Resale

The commercial resale, rental, hiring, leasing, licensing of the object of purchase requires the express consent of the supplier.

 

§ 5 Prices and payments

(1) Prices are ex works without packaging and transport and do not apply to repeat orders.

 

(2) Prices are based on the prime costs at the time of the supplier’s written confirmation. If these prime costs increase up to the time of delivery due to an increase in taxes, the prices of raw materials, auxiliary materials, energy, freight or wages, the supplier is entitled to adjust the agreed upon price accordingly. The individual cost elements and their increase must be weighted appropriately when the new price is formed. If individual cost elements increase while others decrease, this must also be taken into account when forming the new price. Such a price increase does not entitle the customer to withdraw from the contract.

 

(3) If, on a delivery date which is 4 months after the conclusion of the contract, changes occur in the price basis, as described above under b), the Supplier shall be entitled to a corresponding price adjustment after informing the Purchaser.
Here too, the individual cost elements and their increase must be weighted appropriately when the new price is formed. If individual cost elements increase while others decrease, this must also be taken into account when the new price is formed.
Such a price increase does not entitle the customer to withdraw from the contract.

 

(4) The agreed upon delivery price plus statutory value-added tax is due for payment upon receipt of the invoice, notwithstanding any other agreement. Payments to travelers or representatives of the supplier are not permitted without written authority to collect. Packaging, transport and assembly costs are due for payment net immediately after receipt of the invoice.

 

(5) Invoices are provided exclusively electronically. Electronic invoices will be made available by e-mail or, if applicable, in the customer account of the website.

 

§ 6 Delivery outside the European Union

(1) Deliveries outside the European Union may be subject to import duties and taxes which are levied once the delivery reaches the specified destination. Any additional charges for customs clearance must be borne by the purchaser.

 

(2) The purchaser is considered the importer. Therefore, he must comply with all laws and regulations of the country into which the Supply is to be imported. Cross-border shipments can be opened and inspected by the competent authorities if necessary.

 

§ 7 Set-off and right of retention

(1) Offsetting against counterclaims is only permissible with undisputed, legally established or recognized claims, as well as those based on the same contractual relationship.

 

(2) The exercise of a right of retention is only permissible with undisputed, legally established or recognized counterclaims, as well as those based on the same contractual relationship.

 

§ 8 Default

(1) If the payment deadlines are exceeded, or in the event of subsequent deferment, statutory interest shall be charged at a rate of 9 percentage points above the base rate. In addition, there is a claim to payment of a lump sum for expenses in the amount of 65 Euros. We also reserve the right to claim further damages.

 

(2) If the customer does not honor a check or bill of exchange, or if the supplier becomes aware of a significant deterioration in the customer’s circumstances which jeopardizes the claim for payment, the entire remaining debt shall become due, even if bills of exchange with a later due date are in circulation. If the entire remaining debt is not paid immediately, the customer’s right to use the delivery item expires. The supplier is entitled either to take back the delivery item without waiving his claims until they are satisfied, or to withdraw from the contract. If the delivery item is taken away, all costs shall be borne by the customer. In the event of withdrawal, in addition to compensation for the use of the delivery item, the customer shall compensate the supplier for any reduction in value, even if not at fault, and for lost profit.

 

(3) If the customer does not meet his payment obligations in other respects either, after a reminder with a reasonable deadline for payment, the supplier is entitled to take back the delivery item or to withdraw from the contract.

 

§ 9 Delivery time

(1) The delivery period shall commence on the date of dispatch of the order confirmation and shall be deemed to have been complied with if the goods have left the factory by the end of the delivery period.

 

(2) If the Supplier does not receive deliveries or services from its subcontractors or subcontractors for reasons for which it is not responsible, despite proper congruent procurement (i.e. in quantity and quality in accordance with the delivery agreed with the Customer), or does not receive them correctly or in time, or if events of force majeure, i.e. impediments to performance through no fault of its own with a duration of more than 14 calendar days occur, the Supplier shall inform the Customer in writing in good time. In this case, the Supplier shall be entitled to postpone the delivery or performance for the duration of the impediment, or to withdraw from the contract in whole or in part on account of the unfulfilled part of the contract, provided that the Supplier has complied with its above obligation to provide information and has not assumed the procurement risk or manufacturing risk and the impediment to performance is not of a temporary nature. Force majeure shall include strikes, lock-outs, official interventions, shortages of energy and raw materials, transport bottlenecks through no fault of our own, operational hindrances through no fault of our own, for example due to fire, water and machine damage, and all other hindrances which, from an objective point of view, have not been caused by our fault.

 

(3) If a delivery or service date, or a delivery or service period, has been bindingly agreed upon and if the agreed upon delivery or service date, or the agreed upon delivery or service period, is exceeded by more than four weeks as a result of events in accordance with the above § 6 (1), or if in the case of a non-binding service date it is objectively unreasonable for the purchaser to adhere to the contract, the purchaser shall be entitled to withdraw from the contract in respect of the part not yet fulfilled. Further rights of the buyer, especially claims for damages, do not exist in this case.

 

(4) The above-mentioned circumstances are also not the responsibility of the supplier if they occur during an already existing delay.
If the purchaser suffers damage due to a delay which is the fault of the supplier, the purchaser is entitled to claim compensation for delay to the exclusion of further claims. For each full week of the delay, this compensation shall amount to 0.5%, but in total not more than 5% of the value of that part of the total delivery which cannot be used on time or in accordance with the contract due to the delay.
The contracting parties are at liberty to prove higher or lower storage costs. Compliance with the delivery period is subject to the fulfillment of the contractual obligations of the purchaser.

 

§ 10 Transfer of risk and acceptance

(1) The risk shall pass to the customer at the latest when the delivery item is dispatched, even if partial deliveries are made or the supplier has assumed other services. At the request of the customer, the supplier will insure the consignment against theft, breakage, transport, fire and water damage and other insurable risks at the customer’s expense.

 

(2) If dispatch, which can be carried out by rail or forwarding agent at the supplier’s discretion, is delayed due to circumstances for which the purchaser is responsible, the risk shall pass to the purchaser on the day of readiness for dispatch; however, the supplier shall be obliged to take out the insurance policies requested by the purchaser at the latter’s request and expense. Delivered items, even if they have minor defects, shall be accepted by the Purchaser without prejudice to the rights under Clause 9.

 

(3) Partial deliveries are permissible.

 

§ 11 Liability

(1) The Supplier shall be liable without limitation for damages resulting from injury to life, body or health due to a negligent or intentional breach of duty by the Supplier, or also due to an intentional or negligent breach of duty by a legal representative or vicarious agent.

 

(2) Furthermore, the Supplier shall be liable without limitation for other damages based on a grossly negligent breach of duty by the Supplier, or an intentional or grossly negligent breach of duty by a legal representative or vicarious agent.

 

(3) The supplier is also liable if the law makes this mandatory, such as the Product Liability Act.

 

(4) In the case of other property damage and financial losses caused by negligence, the Supplier shall also be liable for legal representatives and vicarious agents only in the event of a breach of an essential contractual obligation; essential contractual obligations are those whose fulfillment characterizes the contract, and on which the Customer may rely.

 

(5) In the case of liability for essential contractual obligations, the amount of damage is limited to the damage foreseeable and typical for the contract at the time of conclusion of the contract.

 

(6) In all other respects, liability – regardless of the legal basis – is excluded; the above provisions also apply to claims arising from fault at the time of conclusion of the contract.

 

§ 12  Liability for defects of the delivery

(1) Warranty claims of the customer presuppose that the customer has properly fulfilled his obligations to examine and give notice of defects in accordance with § 377 BGB (German Civil Code).

 

(2) Insofar as the goods are defective, they will be repaired or replaced at the discretion of the supplier; replaced parts become the property of the supplier.

 

(3)  No warranty is assumed for damages caused by improper installation, improper care, improper connection, natural wear and tear or replacement materials.

 

(4) In the case of warranty, i.e. repair or new delivery, the supplier shall bear all expenses necessary for the purpose of remedying the defect, in particular transport, travel, labor and material costs, provided that these are not increased by the fact that the goods have been taken to a place other than the place of performance.

 

(5) If the subsequent performance fails, the customer may, at his discretion, demand a reduction in price or withdrawal from the contract and, if the conditions are met, also claim damages or reimbursement of futile expenses.

 

(6) A period for subsequent performance need not be set if the Supplier seriously and finally refuses performance, if the Supplier has not effected performance on the date and within a certain period of time specified in the contract and the Purchaser has bound the continuation of the interest in performance to the timeliness of the performance. The Buyer shall also be entitled to the above rights if the Supplier refuses subsequent performance or if such subsequent performance is unreasonable for the Buyer.

 

§ 13 Limitation period

(1) Warranty claims shall become statute-barred one year after the transfer of risk, but the statutory period shall apply, when the law prescribes a longer period for claims for material defects in buildings and for items for buildings, as well as for the purchaser’s right of recourse according to § 478, 479 BGB.

 

(2) The statutory limitation period shall further apply in cases of injury to life, body or health as well as in cases of intentional or grossly negligent breach of duty by the Supplier and fraudulent concealment of a defect.

 

§ 14 Retention of title

(1)The supplier retains title to the goods until all payments under the contract have been received. The Buyer is obliged to treat the goods with care, in particular to insure them at his own expense against fire, water and theft at replacement value. Any maintenance and inspection work must be carried out by the Buyer in good time and with due care at his own expense.

 

(2) In the event of seizure, confiscation or other access by third parties, the customer must inform the supplier immediately in writing in order to enable the supplier to exercise its rights arising from the reservation of title. In the event of a breach of this provision, the Purchaser shall be liable for any loss incurred by the Supplier.

 

(3) The Purchaser shall be entitled to resell the goods in the ordinary course of business, however, the Purchaser hereby assigns to the Supplier all claims in the amount of the gross purchase price of the Supplier’s claim to which it is entitled from the resale of the goods. This is independent of whether the goods are resold without or after processing.
The customer shall remain entitled to collect the claims even after the assignment, the supplier’s authority to disclose the assignment of claims and to collect the claims itself shall remain unaffected. This shall not be done as long as the customer meets his payment obligations, is not in default of payment and no application is made for the opening of composition or insolvency proceedings. In this case, the manufacturer is obliged to immediately provide the supplier with all necessary information about the purchaser and to hand over the necessary documents and to enable the supplier to disclose the assignment.

 

(4) Any processing or transformation of the Goods by the Purchaser shall always be carried out for the Supplier. If the goods are processed with other objects not belonging to the supplier, the supplier shall acquire co-ownership of the new object in the ratio of the value of his own claim to the other processed objects at the time of processing. The retention of title shall continue to apply in full to the object created by processing. The purchaser is authorized to resell the goods subject to retention of title within the scope of his business operations. The purchaser hereby assigns to the seller his claims from a resale of these goods subject to retention of title, irrespective of whether the goods subject to retention of title are resold unprocessed or processed.

 

(5) If the delivered goods are inseparably mixed with other items not belonging to the supplier, the supplier shall acquire ownership of the new item again in the ratio of the value of the purchased item to the other mixed items at the time of mixing. If the mixing is carried out in such a way that the object of the customer is to be regarded as the main object, the customer shall transfer proportionate co-ownership to the supplier, the customer shall keep the sole or co-ownership of the supplier for the supplier.

 

(6) If the delivered goods or objects or items manufactured from them are resold by the purchaser or installed directly or after modification in a property of a third party in such a way that they become essential components of the property of the third party, the purchaser’s claims against his customer or third party replacing these objects or items shall be transferred to the supplier to secure his claims without the need for a special declaration of assignment.

 

(7) The Supplier shall release securities to which it is entitled at the request of the Purchaser to the extent that the realizable value of the securities exceeds the claims to be secured by more than 10%; the choice of the securities to be released is at the discretion of the Supplier.

 

§ 15 Other

(1) The contract remains binding in its remaining parts even if individual provisions are legally ineffective; the ineffective provision is replaced by one that comes closest to the economic intention.

 

(2) If the customer is a merchant within the meaning of the law, the place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship shall be the supplier’s registered office; the supplier shall, however, be at liberty to bring an action at the customer’s registered office.

 

(3) Legal relations in connection with this contract shall be governed by German substantive law, excluding the United Nations Convention on Contracts for the International Sale of Goods (CISG).

 

(4) All other possible agreements outside the order confirmation must be agreed in writing between the Contractor and the Customer; this also applies to amendments and/or collateral agreements before or after the conclusion of the contract or the order confirmation.

 

(5)This also applies to the cancellation of this written form requirement.
Even if individual provisions of the contract are invalid, the remainder of the contract shall remain valid; the invalid provision shall be replaced by a provision which comes as close as possible to the economic intention.