General Terms and Conditions - Dealer

1. Scope

1.1 The following general terms and conditions of business shall apply to all offers, purchase orders, deliveries, payments and other business transactions initiated in the context of trade agreements reached by the Customer and BRAINSTREAM GmbH („BRAINSTREAM“). The scope of the present terms and conditions shall also extend to future business relations between the parties, even if the parties refrain from expressly renewing their agreement to the terms and conditions. In virtue of submitting a purchase order or receiving the relevant deliverables, the Customer effectively accepts the validity of the present terms and conditions. 

1.2 To the extent that nothing to the contrary has been agreed, the present terms and conditions shall take precedence over any terms and conditions of business issued by the Customer in the context of submitting offers, price lists, invoices or transacting other kinds of business. In particular, the conditions of purchase issued by the Customer shall not apply, even if BRAINSTREAM has not expressly communicated its objection to them. 

2. Offers and Contracts of Sale

2.1  BRAINSTREAM shall be entitled to accept purchase orders that are submitted by the Customer and that qualify as offers to conclude a contract of sale within two weeks by submitting an order confirmation, submitting an invoice or delivering the ordered products within the same period of time. The submission of the invoice within the same period shall also qualify as an order confirmation. If purchase orders are submitted online, the Customer shall receive a notification of their receipt by e-mail from BRAINSTREAM within 2 days. This, however, shall not qualify as an order confirmation.

2.2 Offers issued by BRAINSTREAM are non-binding and free of obligation, unless they are expressly designated as binding offers in writing. 

2.3. The Customer must notify BRAINSTREAM in writing before order confirmation if the Customer wishes to stipulate that the services provided by BRAINSTREAM are to meet additional requirements. BRAINSTREAM shall then have the option of accepting or rejecting the purchase order in writing within a period of 2 weeks of having received the written specifications. However, the purchase order submitted by the Customer shall remain binding for the Customer throughout the two-week period. 

3. Minimum Purchase Order Values, Shipping Costs, Sample Consignments

3.1 The following basically applies: There is no minimum value of initial purchases as well as for reorder made from within Germany, Austria and Switzerland. . Goods delivered to destinations outside Germany may have different minimum values and freight charges and will be agreed upon individually.

3.2 The minimum net value and subsequent purchase value is EUR 300.00 each for Customers in the advertising and promotional field. The corresponding deliveries shall also be made free of charge to delivery addresses within Germany. Goods delivered to destinations outside Germany may have different minimum values and freight charges and will be agreed upon individually.

3.3 Individual consignments of samples shall always be charged. The Customer shall have no right to return ordered samples. 

4. Prices, Terms of Payment

4.1 The list prices valid on the day of delivery plus the statutory VAT shall apply. The applicable rate and the amount of the VAT shall be itemized separately on all invoices. 

4.2 To the extent that nothing to the contrary is provided for the present terms and conditions of business, the transport, postage, packaging, insurance and customs fees, as well as any other incidental charges, shall be invoiced separately. The prices shall apply ex works, i.e. from the relevant BRAINSTREAM facility. 

4.3 BRAINSTREAM shall be entitled to adjust agreed prices accordingly to account for unforeseeable cost increases (e.g. materials, labor, etc.) that BRAINSTREAM is not responsible for, unless agreements to the contrary have been concluded. Once prices have been agreed, price adjustments shall only be possible if the cost increases arise after the conclusion of the relevant contract and the agreed delivery date is more than six (6) weeks after the conclusion of the contract. 

4.4 Unless otherwise agreed upon, invoiced amounts shall be payable strictly net within 30 days. Payments made shall always be applied to the oldest of the accounts payable in addition to any interest charges that may have accrued.  

4.5 If BRAINSTREAM undertakes to fulfill purchase orders by making reasonable and warranted partial deliveries, it shall be entitled to submit invoices for the partial fulfillment of the purchase orders in question.

4.6 If the Customer is in default of payment for a given deliverable, the payment on all other accounts payable shall become due immediately.

4.7 Payments shall be made in cash or via bank transfer. Checks, payment orders and bills of exchange shall only be accepted for payment if BRAINSTREAM incurs no expenses in connection with them. Credits for checks, payment orders and bills of exchange shall be granted only as of the day BRAINSTREAM can dispose of the value in question and only in the amount of the value on that day.

4.8 If quantity-based discounts are granted, these discounts shall only apply if payment is made on time and the corresponding deliveries are accepted in full. If BRAINSTREAM agrees to the return of deliverables without being obligated to do so, any discounts granted for the batch of goods from which the returned goods have been returned shall cease to apply. The Customer shall then be obligated to pay the previously deducted amount. 

4.9 To the extent that BRAINSTREAM becomes aware at some time after the conclusion of a contract that the creditworthiness of the Customer is endangered, BRAINSTREAM shall be entitled to make the delivery of any outstanding deliveries contingent on prepayment or the provision of an appropriate security (e.g. a bank guarantee). If the Customer fails to make the prepayment or fails to arrange the security within an appropriate grace period, BRAINSTREAM shall be entitled to withdraw from the contract upon the expiration of the grace period.

4.10 The Customer shall only be entitled to offset accounts payable if the Customer’s counterclaims have been legally substantiated, have been recognized as valid by BRAINSTREAM, or are essentially indisputable. The Customer shall only be entitled to exercise a right of retention if the Customer’s counterclaims are based on the same contractual relationship and are indisputable and recognized by BRAINSTREAM as valid, or if they have been legally substantiated.

5. Delivery and Performance Time

5.1 Unless explicitly agreed otherwise, delivery periods or deadlines shall qualify as non-binding. The delivery period specified by BRAINSTREAM shall begin only after the Customer has properly fulfilled all obligations (e.g. submission of regulatory approvals, model types, etc.) in a timely manner.

5.2 BRAINSTREAM shall be entitled to fulfill purchase orders via partial performance or partial deliveries whenever the Customer can be reasonably expected to accept such. 

5.3 Delivery periods and deadlines shall qualify as met upon the timely shipment of the goods or – in case the goods are picked up by the Customer – upon the timely notification of the availability of the goods for shipping. 

5.4 To the extent that BRAINSTREAM and the Customer undertake to subsequently amend the contract, the delivery periods or deadlines shall be extended accordingly. 

5.5 In case of performance and delivery delays that are caused by unforeseeable and unavoidable events over which BRAINSTREAM has no control and for which BRAINSTREAM is not responsible (e.g. strikes, lockouts, wars, riots, natural catastrophes, government decrees, forces majeure, etc.), BRAINSTREAM shall not be obligated to meet delivery deadlines even if they are binding. These deadlines shall be extended by the duration of the delays caused by the relevant circumstances. The Customer shall be notified of the cause of delay in an appropriate manner. If the delay lasts for more than 3 months or if the ultimate duration of the delay is unforeseeable, each of the parties shall have the right to withdraw from the agreement with respect to unfulfilled deliveries or performance. 

5.6 BRAINSTREAM shall be liable for any losses that arise in connection with performance or delivery delays in accordance with the relevant legal statutes, with the liability for non-willful damage being limited to the foreseeable and typical losses that occur. Other legal claims and rights of the Customer that go beyond the claim for compensation shall remain unaffected. 

5.7 In case of a delivery delay, the Customer shall declare a willingness to grant BRAINSTREAM a grace period of four (4) weeks to make the delivery before undertaking to enforce any further claims.

6. Shipping, Packaging, Transfer of Risk

6.1 Unless otherwise agreed upon, as soon as the goods have been transferred to the shipping company – at the latest, however, upon leaving the premises of the BRAINSTREAM warehouse – the incidental risk of destruction or depreciation of the deliverables shall transfer to the Customer.

6.2 If the Customer picks up the goods or commissions a third party to do so, the risk of destruction or depreciation shall transfer to the Customer as soon as the goods are picked up by the Customer or the relevant third party. If the acceptance of the goods by the Customer or a third party commissioned by the Customer is delayed, the relevant legal statutes shall determine the moment of risk transfer. 

6.3 Provision 6.2 above shall also apply to partial deliveries.

6.4 BRAINSTREAM does not accept returned transport packaging materials or other packaging materials as per the German Packaging Ordinance. This does not apply to pallets. The Customer shall be obligated to dispose of the packaging materials and carry the corresponding costs of doing so. 

7. Notice of Defects, Warranty for Defects

7.1 The goods shall exhibit the agreed properties at the moment of risk transfer. Such properties shall be exclusively assessed according to the written agreements that have been made by the contracting parties and that specify the necessary properties and performance specifications. Minor variances in quality, form, color, size, weight, etc. or such variances that belong to standard industry practice shall not justify complaints. Minor changes that result from model or production-process revisions shall also not justify complaints if the variances or changes in the particular case are not unreasonable. 

7.2 The Customer shall be obligated to carefully examine the received goods immediately for any signs of apparent defects and to submit written notice of such to BRAINSTREAM within 7 days. Such written notification shall also specify the customer number and both the number and date of the invoice. A failure on the part of the Customer to submit notice of defect within the specified period shall release BRAINSTREAM from any liability for the defects in question. 

7.3 The warranty for defects shall expire 12 months after the delivery of the goods to the Customer, unless BRAINSTREAM has fraudulently concealed the defects in question. The provisions on claims limitation outlined in § 479 of the German Civil Code shall remain unaffected. Claims for compensation lodged by the Customer for reasons unrelated to defects are subject to the limitations provided for in the relevant legal statutes. 

7.4 BRAINSTREAM shall be entitled, as it sees fit, to either remedy verified defects that have been reported in due time or replace the delivered goods in question within an appropriate grace period granted by the Customer. If such subsequent performance on the part of BRAINSTREAM fails to bring about the desired result, or if BRAINSTREAM is unwilling or unable to remedy the defect or is unreasonably late in attempting to remedy the defect, the Customer shall be entitled to demand a reduction in the negotiated price, withdraw from the contract or demand compensation within the limits outlined in the present general terms and conditions on account of the defects in question. The Customer’s right to seek compensation for any further losses, i.e. as provided for in the present terms and conditions, shall remain unaffected by the present provision. 

7.5 The Customer shall be obligated to return for purposes of inspection any allegedly defective goods in their original packaging or in packaging of equal quality to BRAINSTREAM within 14 days of ascertaining the defects in question. In case of verified defects and a timely notification thereof, BRAINSTREAM shall reimburse the Customer immediately for the incurred shipping costs. When returning allegedly defective goods, the Customer shall provide a clear description of the defects in question as well as the information that is necessary for processing the complaint, including such items as the delivery note, customer number, a copy of the warranty certificate and the receipt. 

7.6 Any warranty claims issued by the Customer shall be excluded if the defects in question were caused – in part or in full – by improper handling or storage. 

8. Liability

8.1 BRAINSTREAM shall be liable for slightly negligent violations of obligations whose violation jeopardizes the fulfillment of the aim of the contract as well as for violations of obligations whose fulfillment is an essential condition for the proper performance of the contracted services and whose fulfillment is something the Customer relies upon regularly. This liability is limited to the foreseeable damage that is typical of the relevant transaction.

8.2 The limitations and exclusions of liability outlined in the provisions above shall also apply to any legal representatives and subcontractors of BRAINSTREAM.

8.3 The limitations of liability outlined above shall not apply to BRAINSTREAM’s liability stemming from the German Product Liability Act or from other statutory liability provisions. This applies especially to culpable actions that result in death or personal injury. 

8.4 To the extent that nothing to the contrary has been agreed upon, liability for lost revenue or other asset losses incurred by the Customer shall be excluded. 

8.5 BRAINSTREAM accepts no liability for any materials, order components, shipping instructions, processing regulations or other such items that are made available to the Customer. BRAINSTREAM is, in particular, not obligated to examine these in light of the German Product Liability Act and/or the German Civil Code for compliance with the relevant legal statutes. The Customer shall be liable in such cases without limitation and shall release BRAINSTREAM in full from any liability relating to claims made by third parties.

9. Customized Products

9.1 Minimum production runs and minimum order values shall apply to the delivery of customized products manufactured by BRAINSTREAM, with BRAINSTREAM being entitled to commission their production by third-party producers.

9.2 The delivery of customized products shall always take place ex works. The specified delivery times from the date of the written production release of the color and form samples on which the production is to be based shall apply. If it proves impossible for the time being to issue a release, the delivery time shall be extended irrespective of the causes (color, form, material discrepancies) by the corresponding time it takes to issue a final product release. The risk of transport depreciation or destruction shall always transfer to the Customer.

9.3 Contrary to the terms of payment outlined in provision 5 above, a 30 % advance payment shall apply to customized productions ordered from within Germany. The remainder of the total amount due is to be paid without deduction upon delivery. A bank guarantee can also be used to cover the demand for payment.

9.4 To the extent that nothing to the contrary has been agreed, delivery overruns or underruns of up to 5 % shall be permissible in the case of special models and models requiring additional processing to accommodate promotional aspects. The Customer shall be obligated to accept and pay for quantities that exceed the reference quantity by up to 5 %. In case of deliveries under the reference quantity, the Customer shall be entitled to a corresponding price reduction.

9.6 No right of return shall apply to samples. Customized products and products requiring additional processing to accommodate promotional aspects cannot be returned.

9.7  BRAINSTREAM shall be obligated to treat and store all documents, design drawings, photos, templates and other similar items that have been made available by the Customer with special care. Such items shall be returned only at the express wish of the customer. The Customer shall also bear the costs and risks associated with such return. The obligation to store and return such documents shall expire if no further orders are placed for the relevant product in question within 12 months.

10. Retention of Title

10.1 BRAINSTREAM shall retain ownership of the delivered goods until all accounts payable, including all current account claims against the Customer from existing or future business agreements, have been paid in full. The Customer shall refrain from pledging or transferring the delivered goods. The Customer shall notify BRAINSTREAM without delay if the goods have been pledged, confiscated or otherwise transferred to a third party. 

10.2 The Customer shall be authorized to sell the goods to third parties or to join retained property to other moveable properties only in the course of ordinary business operations. To the extent that the retained property has been joined to other properties, 

BRAINSTREAM shall automatically acquire ownership rights with respect to the composite products. The share of the co-ownership shall be derived from the value of the retained property compared to that of the other properties when conjoined. If the result of the joining is that the other properties constitute the main property, the Customer shall be obligated to transfer the appropriate share in the co-ownership to BRAINSTREAM. The Customer shall manage on behalf of BRAINSTREAM the share of co-ownership that has arisen thereby. 

10.3 As a precaution, the Customer shall be obligated from the outset to relinquish to BRAINSTREAM the amount of any payment demands resulting from the sale of the retained property or from its transfer for some other legal reason, including all balance claims from the current account up to the amount of the purchase price or the amount accounted for by the co-owned property. BRAINSTREAM hereby accepts the relinquishment. The Customer is granted the revocable authorization to collect the claims assigned to BRAINSTREAM for the Customer’s own account. The Customer’s authorization to collect such claims can be revoked at any time if the Customer fails to meet the relevant payment obligations. In this case, the Customer shall be obligated to report to BRAINSTREAM the names, addresses and all other such information that is necessary to collect payments from the garnishee and to hand over all accompanying documents, especially a statement on available retained property and to declare the relinquishment to the debtor. 

10.4 At the Customer’s request, BRAINSTREAM shall be obligated to release securities assigned to BRAINSTREAM if the value of the securities should come to exceed that of the secured claims by more than 20 %. In such cases, BRAINSTREAM shall be responsible for selecting the securities that are to be released. 

10.5 To the extent that BRAINSTREAM withdraws from the contract on account of contract violations committed by the Customer, especially on account of payment delays, BRAINSTREAM shall be entitled to demand the relinquishment of the goods subject to the retention of title and the Customer shall be obligated to grant BRAINSTREAM access to the relevant goods and to hand them over to BRAINSTREAM under exclusion of any countervailing rights of retention. Moreover, all of the costs incurred in the context of relinquishing the goods shall be carried by the Customer. Any further claims lodged by BRAINSTREAM shall remain unaffected. 

11. Industrial Property Rights

11.1 BRAINSTREAM is the sole owner of all of the brands with which the BRAINSTREAM goods are labeled, including the “BRAINSTREAM” brand itself. The Customer shall refrain from violating the corresponding rights. Claims on the part of the Customer for the unlimited use of the brands are excluded.

11.2 The labels or brands that are featured on BRAINSTREAM goods may only be used by the Customer for purposes of labelling the goods predetermined by BRAINSTREAM. This shall provide no basis for any further rights on the part of the Customer to use the relevant brands. 

11.3 The Customer shall be obligated to cease using the BRAINSTREAM brands as soon as the Customer’s supply contract with BRAINSTREAM has come to a close and all of the relevant items previously delivered by BRAINSTREAM have been sold. 

11.4 The Customer recognizes the trademark rights, other industrial property rights and copyrights to the BRAINSTREAM products as valid, and shall refrain from challenging their legal validity or supporting the efforts of a third party to challenge their legal validity. 

12. Product presentation and rights to images

12.1. When presenting products that are under contract, the customer is only to use images in the design provided specifically for this purpose.

12.2. If images have been provided, they are not to be edited or reconfigured.

12.3. BRAINSTREAM confers, without compensation, the spatially restricted, non-transferable, non-exclusive and revocable right, valid for the duration of the contractual relationship, to duplicate and publish any images provided for the purpose of advertising the products under contract in:

• Advertisements (print)

• Advertising journals (print)

• Sales displays (commercial)

• Inserts (print)

• Illustrated offers and order confirmations

• Brochures (print, for commercial use)

• Trade journals (print, for commercial/editorial use)

• Flyers (print, for commercial use)

• Online trade journals (editorial)

• Social media and

• in the customer’s own webshop, which is not in a third party’s marketplace

• Posters (for commercial use) 

12.4. Provided that images may be used on social media, only those products available in the customer’s own online shop or physical store may be advertised. Placing images on image search engines or third parties’ marketplaces is not permitted. Furthermore, it is strictly prohibited to confer to third parties the right to use the images.

13. Final Provisions

13.1 Any amendments to the contract or to the present general terms and conditions or any subsidiary agreements must be made in writing. Oral agreements are prohibited. 

13.2 German law alone shall apply to the present general terms and conditions of business and any contracts concluded by BRAINSTREAM and the Customer under exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG). 

13.3 The sole jurisdiction for all disputes that arise in connection with the contract concluded by the parties is Munich, Germany. However, BRAINSTREAM shall be entitled as BRAINSTREAM sees fit to file suit against the Customer in any other legal jurisdiction. 

13.4 Should any of the individual provisions contained in the present terms and conditions of business or in its annexes “Requirements for the Sale of BRAINSTREAM Products” and “Guidelines for the Sale of BRAINSTREAM Products via the Internet” and/or the contract prove to be incomplete, invalid or unenforceable, their status as such shall not limit the validity of the remaining provisions. The parties shall replace any incomplete, invalid or unenforceable provisions with valid provisions that best capture the economic purpose of the invalidated provisions.

BRAINSTREAM GmbH

Dalbker Str. 74

33813 Oerlinghausen

(Valid from 01.12.2018)