General Terms and Delivery Conditions
1. General Provisions
1.1 The following terms and conditions of sale (“sales terms”) shall apply to the contracts for the sale of products between Brain Products GmbH (“seller”) and the Purchaser (“buyer”) through the online shop shop.brainproducts.com (“online shop”).
1.2 All other different terms and conditions, in particular any terms and conditions referred to by the buyer in any request for quotation, purchase order or otherwise shall not apply. Fulfilment of the buyer’s order does not constitute acceptance of any of the buyer’s terms and conditions by the seller.
1.3 Unless a contrary written agreement is signed, these conditions apply to the entire present and future course of business between the seller and the buyer, even if, during an individual confirmation of order in the context of an existing business relation, no particular reference is made to these conditions. By placing an order, the buyer acknowledges and accepts expressly these conditions.
1.4 The product offerings in the online shop are directed exclusively to entrepreneurs (as defined in § 14 (1) of the German Civil Code (“Bürgerliches Gesetzbuch – BGB”) ,i. e. natural or legal persons or partnerships with legal capacity acting, when entering into the transaction in the exercise of their commercial, business or professional activity), as well as legal entities and special funds organized under public law, but in each case only to end users. The buyer is required to confirm the above upon registration and placement of the order in the online shop.
2. Offer and Conclusion of the Contract
2.1 The seller’s offers are subject to confirmation and non-binding. Orders as well as any changes and additions shall only be binding by means of an order confirmation from the seller. This also applies if the seller provides the buyer with catalogues, technical documentation, other product descriptions or documents – also in electronic form – to which the seller reserve property rights and copyrights.
2.2 The order of the products shall be deemed as a binding offer of the buyer. Unless otherwise stated in the order, the seller is entitled to accept this contractual offer within 10 days upon of its receipt by the seller. Until this time, the buyer’s offer is irrevocable. The acceptance of the offer can be declared either in writing (e.g. by order confirmation) or by delivery of the products to the buyer. The sales contract with the buyer shall not become effective until the acceptance of the seller.
2.3 Any verbal supplementary agreements regarding a contract become effective only when confirmed in writing.
3. Prices and Payment
3.1 In the absence of a special agreement or in case not otherwise stated in the product description, all prices shall be applicable only without transport and packaging costs, plus statutory VAT. The buyer shall bear the transport costs and the costs of any transport insurance requested by the buyer. Any further customs duties, fees, local taxes, and other public charges as applicable on the date of delivery shall be borne by the buyer.
3.2 Unless expressly otherwise agreed, all orders shall require advance payment (to be made in the manner specified in the seller’s order form made available in the online shop). It can also be agreed on a payment on delivery if the seller agrees. In each case the receipt of an invoice is required. The applicable payment terms are reported in offers, confirmations of order and invoices.
3.3 In the event of a payment after delivery, the purchase price is due and payable within 14 days upon receipt by the buyer of the product and the invoice, unless the buyer is expressly granted a different payment term.
3.4 Payments must be made by bank transfer, stating the buyer and invoice number, to the account specified on the invoice. Transfer charges are borne by the buyer. A late interest of 9 percentage points above the Deutsche Bundesbank’s prime rate shall be charged in the event that the payment term was exceeded. The seller reserves the right to claim further damages. Payments for orders placed by the buyer on the seller’s website shall be processed following the instructions reported online.
3.5 The buyer shall not be entitled to a right of retention with respect to claims regarding the seller, unless (1) the buyer has already paid the part of the compensation upon receipt of a defective delivery, which corresponds to the value of the performance, or (2) the buyer’s counterclaim upon which the right to refuse performance is based, is indisputable, has been established as final and absolute, or is ready for decision. The same shall apply to setoffs made by the buyer.
3.6 If the seller is burdened with costs as a result of credits in favour of the buyer, such costs shall be borne by the buyer. The same shall apply to bank charges for the account of the seller as a result of transactions conducted with the buyer.
3.7 If the seller is required to pay additional taxes due to the fact that the buyer has stated an incorrect VAT ID number (this only applies within the EU), the seller shall be entitled to charge the back taxes to the buyer.
4. Delivery Period
4.1 Any period for the delivery of the product, specified by the seller at the time of the order or as otherwise mutually agreed upon, shall begin (a) upon receipt by the seller of the full purchase price (including VAT and shipping costs) if payment in advance has been agreed or (b) upon conclusion of the sales contract if payment on delivery or payment after delivery has been agreed upon. The date of delivery shall be such day on which the product is handed over by the seller to the carrier.
4.2 The seller is strongly committed to keep the delivery times confirmed; they are, however not binding and may therefore be exceeded by up to ten business days, except if a fixed date of delivery has been agreed upon. The date of delivery shall be such day on which the product is handed over by the seller to the carrier.
4.2 The delivery period shall be reasonably extended in the event of measures resulting from industrial disputes, in particular strikes and lockouts, as well as of unforeseen impediments, which are beyond the seller’s control as long as such impediments demonstrably affect the delivery of the ordered item. The same shall apply if upstream suppliers experience such circumstances. In addition, the seller shall not be responsible for any of the aforementioned circumstances if they occur during an existing delay. The seller shall inform the buyer about the beginning and end of such impediments if they affect compliance with the delivery period or the extension of the delay.
4.3 In the event that a product is no longer available for a reason not attributable to the seller or cannot be timely delivered despite the seller’s timely order, the seller shall be entitled to terminate the sales contract. The seller shall without undue delay inform the buyer of the non-availability of the product and, in case of a termination, promptly reimburse the buyer any payments made to the seller.
4.4 In the event of a delay by the seller, the damage caused by the delay for each full week of delay shall be 0.5 % in the aggregate, but not exceeding 5 % of the value of that part of the total delivery, which cannot be used in due time or not according to contract due to the delay.
4.5 In the event that the delivery is delayed at the buyer’s request, the buyer shall be charged for the warehousing costs incurred and no less than 1 % of the invoice amount for each month beginning one month after notification of the sellers’ readiness to deliver. However, after the expiration of an appropriate deadline, a max. period of ten business days, the seller shall be entitled to use the products from this delivery to fulfil other orders and put the purchase order related to the delayed delivery back onto a waiting list.
4.6 Even if the product is indicated on the order form as „in stock“, the seller may sell the product at any time, unless an agreed advance payment is received by the seller within a period of five business days upon the sellers acceptance of the order. In such case, the seller shall only be obligated to dispatch the product within the relevant time period (as agreed upon or specified by the seller) as long as stock lasts.
4.7 The compliance with the delivery term shall be subject to the buyer’s compliance with its contractual obligations.
5. Type and Time of Delivery, Passing of Risk and Acceptance
5.1 Unless expressly otherwise agreed upon, the seller shall be free to determine the appropriate mode of shipment and to select the carrier at the seller’s reasonable discretion.
5.2 Partial shipments shall be acceptable.
5.3 Shipment – also in the case of prepaid deliveries – is always at the account and at the risk of the buyer. The risk of accidental destruction, damage or loss of the delivered product shall, if the obligation of the seller is limited to the dispatch of the product, shall pass to the buyer at the latest upon the dispatch of the delivery items by the seller to the carrier even in case of partial shipments.
5.4 If the product is shipped according to the agreement with the buyer, except where the seller has agreed to carry out any assembly, installation or similar work, the seller shall only be obliged to properly and timely deliver the product to the carrier and shall not be responsible for any delays caused by the carrier. Any transit time (i. e. the time between the delivery by us to the carrier and the delivery to the buyer) specified by us shall therefore be non-binding.
5.5 In the event that the shipment is delayed due to circumstances for which the buyer is responsible, the risk shall pass to the buyer on the day on which the seller is ready to dispatch.
6. Reservation of Title
6.1 The seller shall reserve the title to the delivery item until receipt of all payments as stipulated in the supply agreement or purchase order. The buyer must treat the reserved products with care and has to insure it at its own expense against fire, water and theft in the amount of the replacement value of the purchased item.
6.2 The buyer shall only be allowed to resell the products subject to reservation of title in the ordinary course of business and as long as he is not in default of payment. The buyer shall not be entitled to any other disposals of the products subject to reservation of title, in particular hypothecations and transfers by way of security. Furthermore, the entitlement to resell shall not apply in the event of a delay, a draft or check protest and suspension of payment, and if insolvency proceedings have been initiated. Before any resale, the buyer agrees to obtain an express written consent from the seller in all of the aforementioned cases, which consent can be made contingent on the pecuniary claim being secured otherwise.
6.3 For the event of resale, the buyer hereby assigns to the seller all claims including all ancillary rights, resulting from the resale, for the purpose of meeting the seller’s claims; the seller hereby accepts this assignment. In the event that the buyer fails to fulfil its obligations to the seller or if the buyer breaches his contractual obligations, in particular as provided in Clause 6.2, or if the end-buyer fails to fulfil its obligations to the buyer, or if the end-buyer breaches the contract resulting in substantial impacts on the contractual relationship, the buyer shall immediately provide the seller with the information and hand over all documents required for the collection of the assigned claims; in addition, the buyer shall inform the end-buyers about the assignment, in the event that this has not happened yet. The seller shall then be entitled to inform the end-buyers about the assignment of claim and to collect the assigned claim or take back the goods subject to reservation of title.
6.4 The seller shall be informed immediately about any attachments and confiscations of the products subject to reservation of title, and the buyer shall bear any resulting investment costs.
6.5 In the event that the buyer acts contrary to contract, particularly in the event of late payments, the seller shall be entitled to take the products back after having sent a reminder and having terminated the contract, whereas the buyer shall be obliged to release the products. The enforcement of the reservation of title as well as the seller’s attachment of the delivery item shall not be deemed as a withdrawal from the contract. The costs, especially the transport costs, incurred for the return of the products shall be borne by the buyer.
7. Guarantee
7.1 The buyer shall immediately examine the products upon receipt. The seller shall only be bound by any defects that can be detected upon thorough examination if such defects have been notified to the seller in case of any obvious defects within three business days upon delivery of the products. In the event of hidden defects, the period within which complaints may be made shall commence on the date of the discovery and shall end no later than three business days as from the day when the defect has been identified. If the obvious/hidden defects are not notified in good time, they are deemed to have been approved by the buyer. These provisions shall also apply to complaints regarding quantities. The claims for defects shall not apply in the event of insignificant deviations from the agreed quality or only insignificant impairments with respect to the service ability. In the event that the buyer uses own products or accessories in combination with the products of the seller (hardware, software) and such own products or accessories are not in a technically perfect condition or are not compatible, the guarantee shall be deemed to be excluded.
7.2 The liability for defects shall come under a statute of limitations of twelve months upon delivery of the products. Excluded from this are claims for damages due to injury to life, limb, or health and/or claims for damages due to grossly negligent or intentional damage caused by the seller. In this regard, the statutory provisions shall apply.
7.3 The limitation period starts from the date of delivery of the product. The actual recognition of a defect by the buyer has no legal impact on the commencement of the limitation period. Furthermore, the limitation period shall commence irrespective of the buyer’s obligations set out in Sec. 7.1.
7.4 The seller shall not be liable for damage that was not caused to the delivery item itself, for lost profits or any other pecuniary losses of the buyer, unless fraudulent intent or a warranty existed. This shall not apply to claims for damages arising from injury to life, body, and health and in cases of deliberate or grossly negligent breaches of duty and fraudulent concealment of a defect.
7.5 In the event of a defect of the delivered product, it only binds the seller at his choice to repair the defective parts or to replace them at his option; the defective parts shall be made available to the seller upon request. In the event that the repairs or the replacement fail (two attempts per defect, not exceeding a total of six attempts) within a reasonable grace period or the seller refuses to remedy the defect, the buyer may request a reduction of the consideration or, at its discretion, the cancellation of this contract.
7.6 Characteristics of the products shall be warranted only if warranted by the seller expressly in writing.
7.7 Complaints regarding partial shipments shall not entitle the buyer to refuse the remaining shipment unless the partial shipment and remaining shipment are functionally associated, and the removal of the defects fails or has failed.
7.8 Further details regarding the guarantee follow from the current price list, the product manuals or warranty statement.
8. Rescission and Liability
8.1 The seller’s liability for damages, irrespective of the legal grounds, in particular due to impossibility, delay, defective or incorrect delivery, breach of contract, breach of duties during contractual negotiations and tort, shall be limited in accordance with the provisions of this Sec. 8, insofar as fault is relevant in each case.
8.2 The buyer may rescind the contract if the entire delivery becomes impossible for the seller before the transfer of risks; the same shall apply in the event of inability and if, upon ordering similar items, the design of a part of the shipment becomes impossible with respect to the quantity and the buyer has a legitimate interest in refusing a partial shipment; if this is not the case, the buyer may reduce the balance due accordingly.
8.3 If the seller neither acted deliberately nor with gross negligence, the seller shall be liable – both in contract and in tort – only if it has negligently breached a major contractual obligation or a cardinal obligation, in which case the liability shall be limited to the foreseeable damage typical to the contract. The same applies in the case of a guaranteed condition (see § 444 BGB). The limitation period for such a negligent breach of major contractual obligation or a cardinal obligation of the contract is 12 months from the knowledge of the breach. This does not apply to breaches of contract in connection with the warranty for defects. In this case, Sec. 7.2 and Sec. 7.3 apply.
8.4 The seller shall not be liable (on whatever legal grounds) for damages which may not reasonably be foreseen, assuming a normal use of the product.
8.5 Claims resulting from the seller’s liability shall be limited to the indemnification paid by the insurance carrier. The seller’s own liability shall only apply, if the insurer refuses indemnification or the amount insured does not provide adequate compensation for damages. In the event of the seller’s own liability, the seller shall assume those costs that the creditor incurred due to the insurer’s additional claim of the seller. The liability according to § 1 of the German Product Liability Act (“Produkthaftungsgesetz – ProdHaftG”) remains unaffected; § 275 BGB shall apply in the event of impossibility of performance. As long as the seller’s liability remains excluded or is limited, this shall also apply to the personal liability of the seller’s employees, associates, representatives, and vicarious agents.
9. Intellectual Property Rights
Where the seller delivers to the buyer tangible products or programs (Products) in performing the contract and where intellectual property rights in favour of the seller exist or arise in these Products, such rights shall remain the exclusive property of the seller. The same shall apply, if Products from the seller otherwise become available to the buyer.
10. Claims in the case of Infringement of Intellectual Property Rights
10.1 If the buyer provides documents for the purpose of the further development of existing Products or the production of new Products in which a third party has intellectual property rights or if the further development of existing Products or the production of new Products results in the infringement of intellectual property rights of third parties due to the contribution of the buyer, the buyer shall indemnify the seller against all claims asserted by third parties (intellectual property right owners and/or authorized licensees), provided that the buyer is at fault (including ordinary negligence). The indemnification shall also provide that the seller is fully assisted in its defense against justified or unjustified allegations of an infringement. Any contributory negligence of the seller shall be taken into account in this respect.
10.2 If a third party asserts claims against the buyer on the grounds of an alleged or actual infringement of intellectual property rights with respect to Products from the seller, the buyer may take recourse to the seller in cases of intent, gross negligence or ordinary negligence on the part of the seller, on the grounds that the infringement of intellectual property rights constitutes a material breach of contract on the part of the seller. Any contributory negligence of the buyer shall be taken into account in this respect.
11. Business and Trade Secrets
All facts in connection with the business operations of the seller that are not obvious, but only known to a limited group of persons, and in the secrecy of which the seller has a legitimate economic interest shall constitute business and trade secrets which fall under the protection of the German Law on the Protection of Trade Secrets (“Gesetz zum Schutz von Geschäftsgeheimnissen – GeschGehG”).
12. Software
12.1 If the contract provides for the supply of own software by the seller, the seller shall grant to the buyer a non-exclusive and non-transferable license for the term of years. Product specific license terms can be accessed before purchase via the web shop website and must be accepted during the installation process. If the contract includes third-party software, then the correspondent license terms apply.
12.2 In the event that the seller removes bugs – in the form of a patch or an update – the seller shall provide to the users the relevant part of the Product or the update free of charge. Support (assistance) is only provided for the current version of the software which has been improved by means of patches and/or updates. In the event of the further development of the software with the option to purchase a paid upgrade, support shall be provided for the previous version for the term of one year following the release of the new version.
12.3 The buyer shall have no right to make copies of the software, except for the purpose to use the software pursuant to Sec. 12.1 or for back-up purposes.
12.4 The buyer may transfer the rights to the software to any third party only if at the same time title to the relevant product (in particular, a hardware product) is transferred to the transferee and the buyer does not retain any copy whatsoever of the software.
13. Data Protection
The seller may save and process any data relating to the relevant orders only to the extent permitted under applicable law. Details are set out in the privacy policy available on the seller’s website.
14. Place of Jurisdiction, Governing Law
14.1 If the buyer is a corporation, limited liability company or commercial partnership or otherwise operates a commercial business (“Kaufmann” within the meaning of § 1 (1) of the German Commercial Code “Handelsgesetzbuch – HGB”) or is a legal entity or special fund organized under public law, the Munich courts (for district courts: LG München I) shall have exclusive jurisdiction. In addition, the seller shall be entitled to sue at the buyer’s headquarters. In all other cases, the seller or the buyer may file suit before any court of competent jurisdiction under applicable law. The right of both Parties to have recourse to a court of competent jurisdiction for obtaining interim relief shall remain unaffected.
14.2 The parties’ privity of contract shall be subject to German law. The application of standard laws regarding the international purchase of movable property as well as the conclusion of international purchase agreements for movable property shall be expressly excluded as well as the UN Convention on Contracts for the International Sale of Goods (“CISG”).
14.3 The private law provisions of the laws on the protection of intellectual property applicable in Germany and the private law regulations on the enforcement of the protection of business and trade secrets as provided in through the German Law on the Protection of Trade Secrets (GeschGehG) shall apply, even if the infringement occurs abroad.
15. Rules for dealing with illegal content
15.1 Definition: By illegal content, we mean any form of material that violates national or international laws. This includes, but is not limited to, hate speech, copyrighted content shared without permission, content that promotes violence or illegal activities, and fraudulent or misleading information. This list is not exhaustive and may vary depending on the legal framework of the respective country.
15.2 Reporting illegal content: Users can report suspected illegal content via specified channels such as a dedicated e-mail address or a contact form. We encourage the use of these channels to ensure fast and effective processing. When reporting, users should provide specific information about the content and the reason for the complaint.
15.3 Review process: Upon receipt of a report, the reported content will undergo a thorough review. Our team assesses the content to determine whether it is unlawful, considering the context and the relevant legal requirements. External legal experts may also be consulted at this stage to make an informed decision.
15.4 Taking measures: If the content is classified as unlawful, appropriate measures will be taken which, depending on the severity of the violation, may range from removal of the content to more extensive sanctions such as temporary or permanent blocking of the user account. In cases where the facts are not clear, the content may be temporarily deactivated until a final decision has been made.
15.5 Notification and legal remedy: Users whose content has been removed or whose accounts have been restricted will be informed of these measures, including the reasons for the decision. They will also be given the opportunity to appeal against the measures taken. The procedure for such an appeal will be clearly set out, including deadlines and steps required to request a review of the decision
16. Final Provisions
A gap or an invalid provision in the contract shall not affect the validity of the contract as a whole. The invalid provision shall be replaced with a statutory provision. In the event of gaps that cannot be filled by statutory provisions, the contract shall be construed by way of a supplementary interpretation of what the Parties would have agreed after appropriate consideration of their interests in good faith, if they had considered the case not envisaged.