General terms and conditions
Preamble
Sales and services are provided exclusively under the following terms and conditions. They shall also apply to all future transactions (deliveries and/or services), even if we do not refer to these terms and conditions in individual cases. Subsidiary agreements and amendments require our written confirmation. The Buyer’s terms and conditions of purchase shall not become part of the contract even if we do not expressly object to them; our terms and conditions shall be deemed accepted at the latest upon acceptance of the goods.
1. Offer
All offers are made in writing and are subject to change.
2. Prices
2.1 Unless otherwise agreed, the prices for delivery shall apply ex works.
2.2 If a price change occurs between the placing of the order and the date of delivery, we shall be entitled to adjust the agreed prices accordingly if there are more than 6 weeks between the conclusion of the contract and the agreed delivery date. This applies in particular in the event of a change in the cost of raw materials and supplies, work in progress and finished goods, personnel, packaging, freight, taxes and other duties, as well as other manufacturing, selling and administrative expenses. The Buyer shall only be entitled to withdraw from the contract if the price increase does not insignificantly exceed the increase in the general cost of living between order and delivery.
2.3 For orders for which no prices have been agreed, we shall charge our prices applicable on the day of delivery.
2.4 Prices are always exclusive of value added tax at the rate applicable at the time of delivery or performance of the service.
2.5 If we have assumed responsibility for installation or assembly and unless otherwise agreed, the Buyer shall bear, in addition to the agreed remuneration, all necessary ancillary costs such as travel expenses, costs for the transport of tools and personal luggage as well as allowances.
2.6 The processing fee for submitted repairs and complaints is:
a) EUR 50 for articles with a gross list price lower than EUR 250
b) EUR 100 for items with a gross list price equal to and greater than EUR 250
The processing fee will be taken into account when the invoice is issued and will be credited to the invoice price. In case of collective delivery, the above-mentioned handling fee will be charged per item sent. If during the processing of the repair or complaint it turns out that the order is not feasible or its execution is not necessary, the processing fee will be charged to the client and the goods will be returned at the client’s expense.
3. Terms of payment
3.1 The terms of payment stated in the order confirmation shall apply.
3.2 Checks shall only be accepted on account of performance; bills of exchange shall not be accepted.
3.3 In the event of late payment, we shall charge interest on arrears in the amount of 10 percentage points above the respective base interest rate. We reserve the right to assert a higher damage claim. Advance payments do not accrue interest. Expenses of any kind whatsoever shall be borne by the buyer.
3.4 If, after conclusion of the contract, circumstances become known which are likely to reduce the creditworthiness of the Buyer, we shall be entitled to demand immediate payment or sufficient security or to withdraw from the contract, even without any obligation to pay damages, and to postpone the performance of orders still to be executed. In the event of cessation of payments or insolvency of the purchaser, all outstanding invoices are due immediately.
3.5 Offsetting shall only be permissible with undisputed or legally established counterclaims. The retention of payments due to any counterclaims not recognized by us or legally established is not permitted, nor is offsetting against such.
3.6 Partial deliveries at the request of the Buyer shall be invoiced separately.
4. Retention of title
4.1 The delivered goods shall remain our property until payment of all claims, including future claims, arising from the business relationship, irrespective of the legal basis on which they may be based. In the case of a current account, the retention of title shall serve as security for our balance claim.
4.2 The Buyer may resell the goods subject to retention of title in the ordinary course of business, but only against payment in cash or subject to retention of title and on condition that its claim from the sale is transferred to us. The purchaser is not entitled to make any other dispositions, in particular to pledge or assign the goods as security.
4.3 The Buyer hereby assigns to us all claims against third parties arising from contracts, dispositions or other legal acts with regard to the reserved goods, including its trade margin. If the merchandise is resold together with items not belonging to us at a total price or if the claim arising from the resale also relates to other services rendered by the Buyer, only the partial amount corresponding to the invoice value of the goods delivered by us shall be assigned to us with priority over the remaining claim.
4.4 The processing of the delivered goods shall be carried out for us without any obligations arising for us from this. In the event that our goods are processed and combined with other goods not belonging to us by the buyer, we shall be entitled to co-ownership of the new item in the ratio of the value of the reserved goods to the other goods at the time of processing or combination. In the event that the Buyer has already established an expectant right prior to the processing of the item, the Buyer and the Seller hereby agree that an equivalent expectant right shall arise in the item newly created by the processing.
4.5 Despite the assignment, the Buyer shall remain authorized to collect the claims arising from the contracts, dispositions or other legal acts pursuant to section 4.3. Our right to collect remains unaffected by that of the buyer. However, we shall not collect the claims as long as there is no delay in payment, insolvency, insolvency or any other threat to the security interest of the seller on the part of the buyer. We may demand from him at any time the information necessary for the assertion of our claims.
4.6 The Buyer shall notify us without undue delay of any imminent or completed access by third parties to the goods subject to our retention of title or to the claims assigned to us, as well as of any other impairments, in particular due to global assignments. The Buyer shall bear the costs of a defense against interventions by third parties if he fails to notify the Seller or fails to notify the Seller in time, as well as in case of a successful intervention if the enforcement of the costs has been attempted in vain with the defendant as the party liable for the costs.
4.7 We shall be entitled to demand the surrender of the goods owned by us if the Buyer is in default of payment or if he violates the obligations incumbent upon him; Clause 8 shall apply accordingly. A right of retention may not be asserted against this claim for surrender. In the event of default in payment, insolvency, inability to pay or any other threat to the Seller’s security interest, we may revoke the authorization to resell or collect the receivables assigned to us. The assertion of the claim for return and the seizure by us of goods which are our property shall not be deemed to be a withdrawal from the contract.
4.8 At the Buyer’s request, we shall release the securities to which we are entitled hereunder to the extent that their value exceeds the secured claim by 20 percent or more.
5. Packaging, shipping and transfer of risk
5.1 The goods shall be packed at the Buyer’s expense. Disposable packaging will not be taken back.
5.2 The risk shall pass to the Buyer as follows, even in the case of carriage paid delivery:
a) in the case of deliveries without installation or assembly, when they have been brought for dispatch or picked up. Deliveries are insured by us against the usual transport risks.
b) in the case of deliveries with installation or assembly, on the day of takeover in our own works or, if agreed, after a faultless trial run.
5.3 We shall only take out transport insurance at the express request of the Buyer for the Buyer’s account.
5.4 Any losses and damages must be reported to the railroad, the truck driver or the parcel service driver immediately upon receipt of the goods – if possible before unloading. In this case, the buyer must have the complaints certified on the consignment note or the negotiation record otherwise provided for this purpose and send it to us within 2 days.
6. Delivery periods and obstacles to delivery
6.1 The delivery period shall commence upon notification by the Purchaser of all circumstances essential for the execution of the order and compliance with the agreed terms of payment. It shall be deemed to have been complied with if readiness for dispatch has been notified or the goods have left the factory by the time it expires.
6.2 Agreed delivery periods are only approximate; minor overruns shall be accepted as being in accordance with the contract.
6.3 If we or our supplier are prevented from timely delivery due to unforeseen events which he or we cannot avert even if we exercise reasonable care, such as e.g. shortage of energy or materials, interruption of operations, strike and lockout in our industry or at our supplier, we shall be entitled, at our discretion, to extend the delivery periods by the corresponding duration or, in the event of an impediment of more than a short duration, to withdraw from the contract in whole or in part.
6.4 Penalties for delay and liability for damage caused by slight negligence to non-essential legal assets, in particular health, body and life, are expressly rejected without prejudice to a statutory right of rescission.
6.5 If, after we have already defaulted for reasons other than those set out in Clause 6.3, the Purchaser sets us a reasonable grace period in writing, the Purchaser shall be entitled to rescind the contract after the fruitless expiry of such period. The Buyer shall only be entitled to damages in lieu of performance if the delay is due to intent or gross negligence; the amount of such damages shall be limited to the foreseeable damage.
6.6 The exclusion of liability pursuant to 6.4 and the limitation of liability pursuant to 6.5 shall not apply if a commercial fixed-date transaction has been agreed in writing and we are responsible for the delay in delivery.
6.7 We shall be entitled to partial performance insofar as this is reasonable for the Buyer.
6.8 If dispatch or delivery is delayed at the Purchaser’s request by more than one month after notification of readiness for dispatch, the Purchaser may be charged storage costs of 0.5 per cent of the price of the items of the Supplies for each month commenced, but in no case more than a total of 5 per cent. The contracting parties shall be free to prove higher or lower storage costs.
7. Installation and assembly
Unless otherwise agreed in writing, the following provisions shall apply to installation and assembly:
7.1 The Buyer shall take over at its own expense and provide in due time:
a) the commodities and materials required for assembly and commissioning, such as scaffolding, lifting equipment and other devices, fuels and lubricants, as well as for all ancillary work outside the industry,
b) energy and water at the point of use, including connections, heating and lighting,
c) sufficiently large, suitable, dry and lockable rooms at the assembly site for the storage of materials, tools, etc. and adequate working and recreation rooms for the assembly personnel; in all other respects, the Purchaser shall take the measures it would take to protect its own property to protect the property of the Supplier and the assembly personnel at the construction site,
d) protective clothing and protective devices required as a result of special circumstances at the assembly site.
7.2 Prior to the start of the installation work, the Buyer shall provide, without being requested to do so, the necessary information on the location of concealed electricity, gas, water lines or similar installations as well as the required structural data. He must ensure that the installation and commissioning are not disturbed by mobile means of communication.
7.3 Prior to the start of installation or assembly, the materials and objects required for the start of the work must be available at the installation or assembly site and all preparatory work must have progressed to such an extent prior to the start of assembly that the installation or assembly can be started as agreed and carried out without interruption.
7.4 If assembly, erection or commissioning is delayed due to circumstances for which the Supplier is not responsible, the Purchaser shall certify to a reasonable extent the costs incurred for waiting time and additional necessary travel of the Supplier or the erection personnel.
7.5 The Buyer shall immediately certify to us on a weekly basis the duration of the working time of the assembly personnel as well as the completion of the installation, assembly or commissioning.
7.6 If we demand acceptance of the delivery after completion, the Buyer shall carry this out within two weeks. If this does not happen, acceptance shall be deemed to have taken place. Acceptance shall likewise be deemed to have taken place when the delivery has been put into use – if applicable, after completion of an agreed test phase.
8. Liability for material defects
8.1 We shall be liable to the Buyer in accordance with the following provisions for any damage caused to the Buyer by the Buyer’s own use of the delivery item and as a result of the Buyer being liable for any damage arising from the resale. We are not liable if our assembly and operating instructions have not been observed and the defect is caused by this or if the delivery item is disturbed by mobile means of communication.
8.2 For the goods delivered by us, we warrant for flawless material, professional design and manufacture. The warranty also extends to the fact that we have complied with the relevant DIN standards, construction and testing principles, DVGW marks, official test certificates and test reports valid at the time of manufacture, provided that we have referred to them in our sales documents. Furthermore, we shall be liable for any damage caused if our assembly and operating instructions enclosed with the product are incorrect, provided that we are at fault in accordance with 8.10.
8.3 The information and descriptions given in our catalogs and brochures shall only be authoritative unless deviations are expressly indicated. Should there be changes in dimensions and weights stated in the catalogs and brochures due to production or other reasons, the Buyer shall be informed of the relevant changes in a binding offer. If the purchaser accepts this offer by written declaration, only the amended performance specifications shall be binding. This offer shall be deemed to have been accepted if the purchaser does not declare rejection within 2 weeks of receipt of the amended offer. Subject to deviating individual agreements, in particular the guarantee of certain properties, minor production-related deviations, in particular with regard to the surface quality as well as the color shades within the scope of the tolerances customary in the trade, shall be deemed to correspond to the agreed quality if they do not unreasonably impair the overall impression and the functionality of the delivery item. The same applies to minor deviations from illustrations, dimensions and weight specifications in our catalogs, brochures, offers and written confirmations.
8.4 The Buyer is obliged to inspect the goods immediately upon receipt. Complaints about the delivery, in particular all defects that are externally visible upon careful inspection, must be received by us in writing before assembly and within 2 weeks after receipt of the goods. Other defects and any consequential damage must be reported to us immediately, at the latest, however, within 2 weeks after they were discovered or could have been discovered. The buyer must ensure that all necessary measures to mitigate the damage are taken without delay. We shall be given the opportunity to inspect the defective parts and the damage on site in unaltered condition. Any additional costs incurred due to a delayed notification of defects shall be borne by the Buyer. § Section 377 of the German Commercial Code (HGB) shall remain unaffected. Only in urgent cases of endangerment of safety and to avert disproportionate damage or if we are in default with the repair or expressly agree to it, the Buyer shall have the right to remedy the defect in the delivery item itself or have it remedied by third parties. If these obligations are not observed, our warranty or liability shall not apply.
8.5 Claims for material defects shall become statute-barred after 12 months. This shall not apply insofar as longer periods are prescribed by law pursuant to Sec. 438 para. 1 No. 2 (buildings and things used for a building), Sec. 479 para. 1 (right of recourse) and Sec. 634 a ABs. 1 No. 2 (defects of a building) German Civil Code (“BGB”) as well as in cases of injury of life, body or health, in case of intentional or grossly negligent breach of duty by the Supplier and in case of fraudulent concealment of a defect. The statutory provisions on suspension of expiry, suspension and recommencement of time limits shall remain unaffected.
8.6 Insofar as we provide a warranty in accordance with the above provisions, we may, at our discretion, either replace the defective parts free of charge or repair them ourselves or have them repaired by third parties. Insofar as the Buyer and the skilled craftsman are entitled to remedy the defect themselves or have it remedied by third parties in accordance with 8.4, we shall also reimburse the necessary removal and installation costs.
8.7 If we are not prepared or not in a position to provide subsequent performance, in particular if this is delayed beyond a reasonable period or if it fails in any other way, the Buyer shall be entitled to demand, at its option, that the contract be rescinded, that the purchase price be reduced accordingly or that damages be paid in accordance with the following provisions.
8.8 Claims of the Buyer for expenses incurred for the purpose of supplementary performance, in particular transport, travel, labor and material costs, shall be excluded to the extent that expenses are increased because the subject matter of the delivery has subsequently been brought to a place other than the Buyer’s place of business, unless the transfer is in accordance with its intended use.
8.9 The Buyer’s right of recourse against us pursuant to § 478 of the German Civil Code (recourse of the entrepreneur) shall only exist to the extent that the Buyer has not entered into any agreements with its customer exceeding the statutory claims for defects. Furthermore, No. 8 shall apply mutatis mutandis to the scope of the Buyer’s right of recourse against us pursuant to Section 478 (2) BGB.
8.10 We shall be liable for our own breach of duty as well as for such of our vicarious agents in case of slight negligence only in case of breach of our duties under 8.2, limited to damages up to a maximum amount of € 1 million per damage event. Any liability beyond this is excluded. Excluded from this limitation is liability for injury to life, limb and health.
9. Warranty
Standard products are guaranteed for 24 months from the date of delivery. For microphones the warranty is 12 months from the date of delivery, for headphones and batteries 6 months from the date of delivery.
10. Taking back of goods
As a matter of principle, defect-free goods delivered by us will not be taken back. If, in individual cases and after prior written agreement, we exceptionally agree to do so, we shall credit the Buyer with the invoice amount less 20 percent for inspection and handling costs and for lost profits. Necessary reconditioning costs will be charged additionally. The transport risk and the transport costs are borne by the buyer.
11. taking back of old equipment
As a manufacturer, Brähler Systems GmbH is obligated to take back waste electrical and electronic equipment of the same assortment Old equipment of the same assortment from the following categories will be taken back:
Category 2:
Screens, monitors and devices containing screens with a surface area greater than 100 square centimeters.
Category 6:
small devices of information and telecommunication technology, where none of the external dimensions is more than 50 centimeters.
Before returning any old equipment, please always contact our service center.
Contact and return address:
Brähler Systems GmbH
– Service Center –
Auf der Alten Burg 6
53639 Königwinter
Germany
Phone: +49 2244 84144
E-Mail: service@braehler-systems.com
12. Property rights
12.1 Sofern nicht anders vereinbart, sind wir verpflichtet, die Lieferung lediglich im Land des Lieferorts frei von gewerblichen Schutzrechten und Urheberrechten Dritter (im Folgenden: Schutzrechte) zu erbringen. If a third party asserts justified claims against the Buyer due to the infringement of property rights by deliveries made by us and used in accordance with the contract, we shall be liable to the Buyer within the period stipulated in 8.5 as follows:
a) We shall, at our discretion and at our expense, either obtain a right of use for the Supplies concerned, modify them so that the IPR is not infringed, or replace them. If this is not possible for us under reasonable conditions, the purchaser shall be entitled to the statutory rights of withdrawal or reduction.
b) The aforementioned obligations of us shall only exist insofar as the Buyer notifies us immediately in writing of the claims asserted by the third party, does not acknowledge an infringement and all defensive measures and settlement negotiations remain reserved for us. If the Purchaser ceases to use the Supplies in order to mitigate damages or for other good cause, it shall be obliged to point out to the third party that such cessation of use does not constitute an acknowledgement of any infringement of the IPR.
12.2 Claims of the Buyer shall be excluded insofar as the Buyer is responsible for the infringement of the property right.
12.3 Claims of the Buyer shall also be excluded if the infringement of property rights is caused by special specifications of the Buyer, by an application not foreseeable by us or by the fact that the delivery is modified by the Buyer or used together with products not supplied by us.
12.4 In the event of infringements of property rights, the provisions of No. 8 shall apply mutatis mutandis to the claims of the Buyer regulated in No. 12.1 a).
12.5 In the event of other defects of title, the provisions of No. 8 shall apply accordingly.
12.6 Further or other claims of the Buyer against us and our vicarious agents due to a defect of title than those regulated in this paragraph are excluded.
13. rights of use
The marks AUTOMIC; AUTOMIC-plus; DIGIMIC; DIGIVOTE, CONGRESS DATA SYSTEM; CDSVAN Virtual Audio Network; MULTICOM and INFRACOM in combination with other mark components are registered trademarks of Brähler ICS Konferenztechnik AG. The latter is the owner of the exclusive rights of use of the programs and products made available by it. The purchaser is not entitled to duplicate and/or have duplicated the aforementioned programs and products in part or in full without our prior written consent.
14 Place of performance, place of jurisdiction, choice of law
13.1 The place of performance for delivery shall be the respective place of dispatch, for payments our registered office.
13.2 The exclusive place of jurisdiction, also for actions on checks and bills of exchange, shall be Königswinter.
13.3 German law shall apply exclusively. The UN Convention on Contracts for the International Sale of Goods of 11.04.1980 (CISG) does not apply.