General implementation provisions
Our deliveries, services and offers are provided or created exclusively on the basis of these General Terms and Conditions. This also applies to all future business relationships, even if they are not expressly agreed again. General terms and conditions of the contractual partner of Brandt GmbH or terms and conditions of sale that deviate from our terms and conditions will not be recognised unless we have expressly agreed to their validity. All contractual agreements between the contracting parties must be made in writing. Deviations from and additions to these terms and conditions shall only be valid if they are expressly confirmed in writing by Brandt GmbH.
Offers and conclusion of contract – written form
Our offers – whether verbal, written or electronic – are always subject to change and non-binding. Orders only become legally binding once they have been confirmed in writing within a reasonable period of time. Electronic confirmation is not sufficient. Side agreements and amendments to the contract always require our written confirmation. This also applies to the cancellation of this agreement. The same applies to any commitments, advice and statements made by our employees. Objections based on the order confirmation must be raised immediately upon receipt – in any case before the client commences work. Objections raised at a later date cannot be taken into account. Drawings, illustrations, dimensions and weights as well as quality are only binding if expressly agreed in writing. Assured properties and quality guarantees as such must be expressly agreed in writing. Our offers, advice and technical information are provided to the best of our knowledge. We only accept liability for this, including with regard to any building regulations and other approvals, in cases of intent and gross negligence. Official and other approvals must be obtained exclusively by the client.
Prices and payment
In the event of a price increase compared to the calculation valid at the time of order acceptance, we shall be entitled to adjust fixed prices accordingly, taking into account the proven increase in wages, raw materials or other production costs, as well as increases in taxes or other levies. Fixed prices are only valid if they are recognised as such in writing and agreed in conjunction with a time agreement for the commencement and completion of the work. If overtime, night, Sunday and public holiday hours are incurred during the execution of the order, the client shall bear the corresponding surcharges. The date of delivery by Brandt GmbH shall be decisive for invoicing. The invoice amount is due without any deductions upon delivery, unless the client has been granted special payment terms. Payment is only deemed to have been made on time if Brandt GmbH has access to the equivalent value on the due date stated on the invoice. In the event of late payment, interest on arrears of 8% p.a. above the base rate shall be payable. The client may only offset claims that are undisputed or have been legally established. The client is only entitled to exercise a right of retention if their counterclaim is based on the same contractual relationship.
Production time and delivery time
Delivery dates or delivery periods must always be confirmed in writing for the sake of clarity. The delivery period shall be deemed to have been met if, by the end of the delivery period, the delivery item has left the premises of Brandt GmbH or notification has been given that it is ready for dispatch. Brandt GmbH is entitled to make partial deliveries and provide partial services. When a date or period is promised, the client must set Brandt GmbH a reasonable grace period in writing in the event of delay. After the grace period has expired without result, the client may withdraw from the contract for those quantities or services that were not reported as ready for dispatch by the end of the grace period. If Brandt GmbH is guilty of gross negligence with regard to the failure to deliver or delayed delivery, claims for damages shall be limited to the damage that was foreseeable at the time the contract was concluded. Claims for consequential damage due to defects are excluded in all cases. Furthermore, compensation for damages shall in all cases be limited to the value of the goods.
Transfer of risk
The risk of accidental loss or accidental deterioration of the delivery item shall pass to the customer upon delivery "free to the construction site". This shall also apply if partial deliveries are made or if Brandt GmbH has also undertaken the assembly. At the customer's request and expense, the respective shipment can be insured against breakage, transport, fire and water damage. In any case, a corresponding agreement must be made in writing. If delivery is delayed due to circumstances for which Brandt GmbH is not responsible, the risk of accidental loss or accidental deterioration shall pass to the customer on the day of notification of readiness for dispatch. However, Brandt GmbH is obliged to take out the insurance requested by the customer at the customer's request and expense. The items delivered by Brandt GmbH must be accepted by the customer even if they have minor defects. The customer's further rights remain unaffected by this, provided that the customer has fulfilled their obligations under Sections 377 and 378 of the German Commercial Code (HGB).
Retention of title
Brandt GmbH retains ownership of the delivery item until all claims arising in connection with the delivery and associated repairs, spare parts deliveries or other claims arising in connection with the original service have been settled. If the client's business involves the operation of a commercial enterprise and the client is a merchant, the retention of title extends to all claims of Brandt GmbH arising from and in connection with the business relationship with the respective client, both for claims already incurred and future claims.
The client is entitled to sell the delivery item to third parties in the ordinary course of business. In this case, however, he is obliged to assign to Brandt GmbH any claims against third parties arising from the sale of the delivery item. The assignment is hereby made to Brandt GmbH, which hereby accepts it. The client remains entitled to collect the claims as long as it is not in default of payment to Brandt GmbH. If the client is in default of payment to Brandt GmbH, the latter is entitled to revoke the authorisation to sell and collect. In this case, the client is obliged to disclose the names of its buyers to Brandt GmbH and to hand over all documents, in particular invoices, order confirmations, etc., which are necessary for the appropriate legal prosecution; in particular, the client is obliged to disclose the assignment to its buyers. The client is prohibited from transferring ownership of the delivery item to third parties as security or from pledging it; in particular, the client is obliged to refrain from any disposal of the delivery item, except for the authorisation to sell granted to him.
Brandt GmbH must be notified immediately of any enforcement measures affecting the delivery item belonging to Brandt GmbH; the client is obliged to bring an action to oppose third-party claims within the meaning of Section 771 of the German Code of Civil Procedure (ZPO) at its own expense on the basis of the authorisation granted herein. Any processing of the delivery item subject to retention of title shall always be carried out on behalf of Brandt GmbH. Insofar as a permanent connection with land occurs, the client hereby assigns its claims against the owner as security. If the security to which Brandt GmbH is entitled under these provisions exceeds the value of the goods subject to retention of title by more than 20%, Brandt GmbH shall be obliged to release the excess security at the client's request. The retention of title referred to in paragraph 1 shall expire definitively upon settlement of the account between Brandt GmbH and the client.
Warranty/liability for defects
All deliveries and services must be inspected immediately by our client for defects, completeness and contractual conformity. The client is obliged to fulfil its inspection and notification obligations in accordance with Sections 377, 378 and 381 of the German Commercial Code (HGB) immediately in writing. If Brandt GmbH is liable under warranty due to a written complaint from the client, it has the right to fulfil its liability for defects by repair or replacement. The client reserves the right to demand a reduction in payment (abatement) or, at its discretion, to withdraw from the contract if the repair or replacement delivery fails. In the case of construction work, the client cannot demand withdrawal from the contract. Brandt GmbH shall only pay damages if it or one of its vicarious agents is guilty of intent or gross negligence; in the event of injury to life, limb or health, Brandt GmbH shall pay damages in all cases of fault. All work performed, deliveries and services are covered by a one-year warranty, calculated from the date of acceptance. No warranty is provided for the delivery of used goods or replacement parts. The client must give Brandt GmbH the necessary time and opportunity to fulfil its warranty obligations. All further claims by the client are excluded; this applies in particular to claims for compensation for damage that has not occurred to the delivery item itself. Furthermore, other or further warranty claims are excluded to the extent permitted by law. The client does not receive any guarantees in the legal sense from Brandt GmbH. Manufacturer's guarantees remain unaffected by this. The warranty does not cover parts that are subject to natural wear and tear or mere wear and tear. It shall expire if installation and operating instructions are not followed and the operating materials prescribed and supplied by Brandt GmbH are not used. It shall also expire if changes are made to the system without the written consent of Brandt GmbH.
The client shall take all necessary measures to ensure the safety of the work in accordance with all legal, police and accident prevention regulations, under its own full responsibility, or shall arrange for such measures to be taken. It shall be liable for all damages incurred by the client and third parties as a result of the omission of such measures.
Returns
Returns of materials or equipment shall be at the expense of the customer and shall only be accepted by Brandt GmbH if they are in mint condition and with prior written consent. In this case, a proportionate material value minus a 15% flat-rate return fee shall be reimbursed. Brandt GmbH may also demand compensation for lost profits, if applicable. There is no right of return if materials or equipment were manufactured to customer specifications or clearly tailored to personal requirements.
Liability (exclusion)
In all cases in which Brandt GmbH is obliged to pay damages and reimburse expenses in deviation from the above conditions on the basis of contractual or statutory claims, it shall only be liable insofar as it, its executive employees or vicarious agents are guilty of intent, gross negligence or injury to life, limb or health. In the event of a breach of essential contractual obligations, Brandt GmbH's liability shall be limited to the foreseeable damage typical for this type of contract.
This shall not affect strict liability under the Product Liability Act. Liability for culpable breach of material contractual obligations shall also remain unaffected; however, liability shall be limited to foreseeable damage typical for this type of contract, except in the cases referred to in sentence 1. The above provision shall not imply a change in the burden of proof to the detriment of the client.
Transfer of risk and dispatch
Shipping is at the expense and risk of the customer. The risk is transferred to the customer at the point in time when the goods are handed over to the carrier, but no later than when the goods leave the premises of Brandt GmbH. The shipping route and means of transport are at the discretion of Brandt GmbH. If delivery is made by lorry free to the delivery point, this is subject to the condition that the unloading point can be reached by lorry. The customer must ensure that immediate and proper unloading is possible. Waiting times or return trips will be invoiced by Brandt GmbH.
Place of jurisdiction and applicable law, severability clause
All legal relationships between the client and Brandt GmbH shall be governed exclusively by the law applicable to legal relationships between domestic parties at the company's registered office. Unless otherwise stated in the order confirmation, the place of performance shall be the company's registered office. The place of jurisdiction for all legal disputes, including those relating to bills of exchange and cheques, shall be the registered office of Brandt GmbH. We are also entitled to bring legal action at the client's place of business. The contractual relationship shall be governed exclusively by the law of the Federal Republic of Germany. The application of the United Nations Convention on Contracts for the International Sale of Goods (CISD "Vienna Sales Convention") of 11 April 1980 is excluded. Should individual points of these General Terms and Conditions be wholly or partially invalid, this shall not affect the validity of the remaining provisions. The invalid provision shall be replaced by a valid provision that comes closest to the spirit, purpose and economic intent of the invalid provision.