1. Scope, supplementary applicability of Braun-Maschinenbau GmbH terms and conditions of assembly
1.1. These General Terms and Conditions of Delivery (henceforth “GTCD”) apply in principle to all deliveries, services, and offers provided by Braun Maschinenbau GmbH, Albert-Einstein-Strasse 10, 76829 Landau, Germany (henceforth “Supplier”) unless they are amended or excluded expressly and in writing..
Different terms and conditions shall not be recognised and shall not form part of the contract, even without the express written objection of the Supplier.
1.2. If the Supplier carries out the assembly, his General Terms and Conditions for the Supply of Assembly Services (GTCSAS) shall apply in addition to these GTCD.
2. Conclusion of contract, documents, technical norms, prices, packing, transportation insurance
2.1. The contract shall be considered concluded when the orderer following an order receives a written declaration of acceptance or order confirmation, if applicable within the period set by him.
2.2. The documents relating to an offer along with pictures, drawings, weight and dimension information, performance descriptions and other descriptions of characteristics as well as other information about contractual products and services are binding only approximately.
Particular characteristics of the goods to be delivered shall be considered guaranteed only when these have been expressly agreed in writing. Any reference to standards or agreed specifications on its own shall serve only as a more detailed description of goods or services and shall not be considered a guarantee of characteristics.
3. Delivery
3.1. All prices are quoted ex works excluding shipping costs and packing, plus value-added tax at the respectively applicable rate.
3.2. Goods are shipped at the expense and risk of the orderer. The orderer shall take out transportation insurance.
3.3. Delivered machinery and auxiliary materials shall be assembled by the orderer.
3.4. Returns of goods only following prior agreement, less 20% return costs.
4. Delivery time, delay
4.1. Stated delivery dates are generally non-binding and shall be binding only if this is expressly agreed in writing.
The delivery period begins with the dispatch of the order confirmation, but not before the documents, drawings, approvals and other formalities to be provided by the orderer have been supplied or before the agreed advance payments have been made.
4.2. If the orderer is in default in respect of an essential obligation resulting from the contractual relationship, Supplier shall be entitled to extend the delivery period by the period of the delay. Section 5 applies mutatis mutandis.
5. Acceptance
Deliveries, even if they have defects, are to be received by the orderer regardless of his rights in respect of defects.
The orderer shall bear the costs of storage, insurance, protective measures etc. incurred as a result of any delayed acceptance.
Without further proof, he shall pay at least 0.5% of the order value per week of the delay, up to a maximum of 5%. The Supplier may set for the orderer an appropriate period for the acceptance, if the orderer does not accept the goods at the time of delivery. The Supplier’s right to demand payment of the purchase price remains unaffected. Upon expiry of this period, the Supplier may by written declaration cancel the contract in whole or in part and demand damages.
5.1. Custom-made products may not be exchanged or returned.
6. Payment
6.1. Unless agreed otherwise, all payments are to be made within 10 days of the invoice date with 2% discount or within 30 days of the invoice date net without deduction. All payments shall be made in euro free of transaction charges to the Supplier’s account.
In the case of customer-specific systems (custom-made products) or variants of the same, the Supplier in principle has the right to advance payment in the amount of two-thirds of the agreed purchase price.
6.2. If the orderer falls into default with any payment, the statutory provisions shall apply.
6.3. The orderer shall be entitled to set-off even if notices of defects or counterclaims are asserted only if the counterclaims are recognised by declaratory judgement, recognised by the Supplier, or undisputed.
The orderer shall be authorised to exercise a right of retention only if his counterclaim is based on the same contractual relationship.
7. Warranty/liability
7.1. Orderer’s claims for defects exist only if the orderer has duly fulfilled his duties to examine the goods and give notice of defects pursuant to section 377 of the German Commercial Code (Handelsgesetzbuch, HGB).
7.2. In so far as a defect in the goods exists for which the Supplier is responsible, Supplier shall be required – to the exclusion of the orderer’s rights to withdraw from the contract or reduce the purchase price – to make subsequent performance unless the Supplier is entitled based on statutory provisions to refuse subsequent performance.
The orderer shall grant the Supplier a reasonable period for subsequent performance. In the case of rectification of defects, Supplier shall bear the necessary expenses provided these do not increase because the subject matter of the contract is located at a place other than the place of fulfilment. If subsequent performance has failed, the orderer can optionally demand a reduction of the purchase price, or declare his withdrawal from the contract. Subsequent improvement shall be deemed to have failed with the second failed attempt unless based on the subject matter of the contract further attempts at subsequent improvement are reasonable and acceptable to the orderer. The orderer cannot assert claims for damages subject to the following conditions owing to the defect until subsequent performance has failed. The orderer’s right to assert further claims for damages subject to the following conditions remains unaffected hereby.er nach Wahl en.
7.3. Orderer’s warranty claims shall become statute-barred one year after delivery of the goods to the orderer, unless the Supplier has fraudulently concealed the defect; in this case the statutory provisions shall apply. The Supplier’s obligations under section 7.4. and section 7.5. remain unaffected hereby.
7.4. In accordance with the statutory provisions, the Supplier is required to take back the new goods or to reduce the purchase price even without the setting of a period that would otherwise be required, if the orderer’s customer as consumer of the sold new movable property (sale of consumer goods) owing to the defect in these goods was able to demand that the orderer take back the goods or reduce the purchase price, or if any such claim under a right of recourse that results from this is asserted against the orderer. The Supplier is furthermore required to reimburse orderer’s expenses, particularly transportation, travel, labour and material costs, which the orderer incurred in the relationship with the end consumer in connection with the subsequent performance owing to a defect in the goods that was present at the time of passing of risk from the Supplier to the orderer.
The claim shall be excluded if the Supplier has duly fulfilled his duties to examine the goods and give notice of defects pursuant to section 377 of the German Commercial Code (HGB).
7.5. The obligation under section 7.4. is excluded in so far as the defect is based on advertising statements or other contractual agreements which do not originate from the Supplier, or if the orderer has given a special guarantee to the end consumer. The obligation shall also be excluded if the orderer himself was not required on the basis of statutory provisions to fulfil warranty rights with respect to the end consumer or did not raise this objection to a claim made against him. This shall also apply if the orderer has undertaken a guarantee with respect to the end consumer that exceeds the statutory requirements.
7.6. The Supplier is liable without limitation in accordance with the statutory provisions for loss of life, personal injury and damage to health due to a negligent or intentional breach of duty by the Supplier, his legal representatives or his vicarious agents, as well as for damages which are covered by liability under the German Product Liability Act (Produkthaftungsgesetz). For damages which are not covered by sentence 1 and which are due to intentional or grossly negligent breaches of contract or fraudulent intent by the Supplier, his legal representatives or vicarious agents, the Supplier is liable in accordance with the statutory provisions. In this case, however, liability for damages shall be limited to foreseeable, typically occurring damage unless the Supplier, his legal representatives or vicarious agents have acted with intent. To the extent that the Supplier has given a guarantee concerning the quality and/or durability of the goods or parts of the same, the Supplier is also liable under this guarantee.
However, for damages due to the lack of the guaranteed quality or durability but which do not occur directly on the goods, the Supplier shall be liable only if the risk of any such damage is obviously included in the guarantee of quality and durability.
7.7. The Supplier is also liable for damages caused by simple negligence in so far as the negligence concerns such contractual obligations the fulfilment of which is of particular importance for achieving the purpose of the contract (cardinal obligations).
However, the Supplier is liable only in so far as the damages are typically associated with the contract and foreseeable.
7.8. Any further liability is excluded regardless of the legal nature of the asserted claim; this applies in particular to tortious claims or claims for wasted expenditures instead of performance; Supplier’s liability under sections 7.2. to section 7.5. of this contract remains unaffected hereby.
In so far as Supplier’s liability is excluded or limited, this also applies to the personal liability of the Supplier’s salaried employees, hourly workers, associates, representatives and vicarious agents.
7.9. Orderer’s claims for damages owing to a defect shall become statute-barred one year after delivery of the goods.
This does not apply in the event of loss of life, personal injury or damage to health caused by the Supplier, his legal representatives or his vicarious agents, or if the Supplier or his legal representatives have acted with intent or gross negligence, or if his simple vicarious agents have acted with intent.
8. Sales documents
8.1. The Supplier is entitled to dispose of tools made for special (customer-specific) parts as he sees fit within one year after carrying out the last order. This also applies in respect of any invoiced portion of tool costs.
8.2. All rights to tools, drawings, designs and plans produced by the Supplier, particularly patent rights, copyright and inventor’s rights, shall belong exclusively to him. All sales documents such as catalogues, sample books, price lists etc. which are made available to the orderer remain the property of the Supplier and are to be returned on request (cf. section 2.2.).
9. Reservation of title
9.1. Until settlement of all claims against the orderer including all current account balance claims to which the Supplier is entitled now or in the future, the delivered goods (goods subject to reservation of title) shall remain the property of the Supplier. In the event that the orderer acts contrary to the contract e.g. payment default, the Supplier after first setting an appropriate period has the right to take back the goods subject to reservation of title.
If the Supplier takes back the goods subject to reservation of title, this shall constitute a withdrawal from the contract. If the Supplier pledges the goods subject to reservation of title, this is a withdrawal from the contract. The Supplier is entitled to utilise the goods subject to reservation of title after taking them back. After deduction of a reasonable amount for the utilisation costs, the proceeds of utilisation shall be offset against the amounts owed by the orderer to the Supplier.
9.2. The orderer is to treat the goods subject to reservation of title with care and sufficiently insure them at his own expense against fire and water damage and theft. Maintenance and inspection work which becomes necessary is to be carried out by the orderer at his own expense.
9.3. The orderer is entitled to sell and/or to use the goods in the ordinary course of business, provided he is not in payment default. Pledging or transfer of ownership by way of security is not allowed.
DThe orderer already now as security assigns to the Supplier to their full extent the corresponding claims resulting from the resale or for any other legal reason (insurance, unlawful act) concerning the goods subject to reservation of title (including all current account balance claims); the Supplier hereby accepts the assignment. The Supplier revocably authorises the orderer to collect the claims assigned to Supplier for his account in his name.
The collection authorisation can be revoked at any time if the orderer does not properly fulfil his payment obligations. The orderer is not authorised to assign this claim, not even for the purpose of claim collection by way of factoring, unless at the same time the factor’s obligation is established to effect counter-performance in the amount of the claims directly to Supplier for as long as Supplier’s claims against the orderer still exist.
9.4. Any processing or transformation of the goods subject to reservation of title by the orderer shall be in every case performed for the Supplier.
If the goods subject to reservation of title are processed using other objects not belonging to the Supplier, Supplier shall acquire co-ownership of the new object in the ratio of the value of the goods subject to reservation of title (final invoice amount including VAT) to the other mixed objects at the time of mixing. If the orderer’s object in consequence of the mixing is regarded as the principal object, the orderer and Supplier agree that the orderer shall transfer co-ownership of this object to the Supplier on a proportionate basis; the Supplier hereby accepts the transfer.
The orderer shall keep for Supplier the sole or co-ownership of any object that thus arises.
9.5. In the event of third-party access to the goods subject to reservation of title, particularly seizures, the orderer shall point out the Supplier’s ownership and promptly notify the Supplier so that the Supplier can enforce his property rights. If the third party is unable to reimburse the Supplier’s court or out of court costs that arise in this connection, the orderer shall be liable herefor.
9.6. Supplier undertakes to release securities to which Supplier is entitled in so far as the realisable value of Supplier’s securities exceeds the claims being secured by more than 10%, although it is up to the Supplier to decide which securities to release.
9.7. Deliveries for field trials require our prior consent. Our payment terms are not suspended as a result. The field trial has to take place immediately after the beginning of the possible operating period. The testing shall last for no longer than 1 day. The trial may comprise only a part of the work at hand.
If the trial is not to the recipient’s satisfaction, the orderer shall inform us immediately and give us the opportunity within a reasonable period to carry out a new trial in the presence of our representative. If it functions correctly, the machinery shall be accepted. Machinery shall also be considered accepted if it is used by the recipient for longer than one day.
The orderer is entitled to return the machine to us only if it did not work properly during the trial. In this case, the machine is no longer usable and is to be transported back immediately.
Necessary refreshment costs shall be borne by the orderer if the wear is due to use over a period of more than one day.
10. Place of fulfilment, place of jurisdiction, applicable law
10.1. Place of fulfilment and place of jurisdiction for delivery and payments (including actions on cheques and bills of exchange) as well as all disputes arising between Braun Maschinenbau GmbH and the orderer from contracts entered into between Braun Maschinenbau GmbH and the orderer is the location of the registered office of Braun Maschinenbau GmbH. The Landesgericht (regional court) at the location of the head office of Braun Maschinenbau GmbH, and thus the Landesgericht at D-76892 Landau, Germany, shall have exclusive competence in the event of contractual disputes and disputes. However, Braun Maschinenbau GmbH is also entitled to bring an action against the orderer at his place of residence and/or place of business.
10.2. Relationships between the contracting parties shall be governed exclusively by applicable law in the Federal Republic of Germany. Application of the Convention on Contracts for the International Sale of Goods (CISG) as well as the Uniform Law on the International Sale of Goods (ULIS) and the Uniform Law on the Formation of Contracts for the International Sale of Goods (ULF) is excluded.
Warranty services may be performed only by authorised forms after prior consultation with us.