General Terms and Conditions
of Sale and Delivery

The base for a lasting and enduring business relationship is not delivery and payment terms, but cooperation and mutual trust. Nevertheless, we cannot avoid regulating the following points:

1. Applicability of the General Terms and Conditions of Sale and Delivery

The supplier’s offers, order acceptance and all deliveries are made exclusively on the basis of the following “General Terms and Conditions of Sale and Delivery.” The purchaser’s terms and conditions of purchase are hereby expressly rejected; they do not bind the supplier even if he does not object to them again upon conclusion of the contract.

2. Offer and conclusion of contract

The supplier’s offers are non-binding and subject to the supplier’s written confirmation, unless expressly agreed otherwise in writing. Documents belonging to an offer, such as illustrations, drawings and weight specifications as well as more detailed descriptions, are only approximately authoritative and serve to describe and define the delivery item more precisely. The same applies to performance and consumption data. These details do not constitute a guarantee of the quality or durability of the delivery item. The supplier reserves the right to change the dimensions and weights of the delivery item up to the time of delivery.

3. Consent

If the supplier commissions a subcontractor (e.g. a parcel service) for shipments of goods, the purchaser agrees that the email address provided by him may be transmitted by the supplier to the subcontractor and used by the latter in the course of delivery. This consent can be revoked by the purchaser at any time. The purchaser should note that, in the event of revocation, he will no longer be able to influence the delivery of goods in transit directly. Any revocation should be sent to: info@brunner.de.

4. Prices and payments

a) Prices apply ex works, excluding packaging and transport, and do not apply to repeat orders.

b) The prices are based on the cost of production at the time of the supplier’s written confirmation. If these production costs increase by the time of delivery due to higher taxes/charges, prices for raw materials, auxiliaries, energy, freight or wages, the supplier is entitled to adjust the agreed price accordingly. The individual cost elements and their increase must be appropriately weighted when determining the new price. If individual cost elements increase while others decrease, this must likewise be taken into account when determining the new price. Such a price increase does not entitle the purchaser to rescind the contract.

c) If the delivery date is more than 8 weeks after conclusion of the contract and changes to the price basis occur as described under b) above, the supplier reserves the right to adjust the price accordingly after informing the purchaser. Here, too, the individual cost elements and their increase must be appropriately weighted when determining the new price; if individual cost elements increase while others decrease, this must likewise be taken into account. Such a price increase does not entitle the purchaser to rescind the contract.

d) The agreed delivery price plus statutory VAT is due for payment upon receipt of the invoice, without prejudice to any other agreement. Payments to the supplier’s traveling sales staff or agents are not permitted without written collection authority. Packaging, transport and installation costs are due for immediate net payment upon receipt of invoice.

5. Invoicing

a) The customer agrees to receive the invoice electronically via email. The invoice is valid without a signature.

b) The customer must ensure on the recipient side that all electronic transmissions of the invoice by email can be properly delivered to the email address provided by the customer and must adapt technical facilities such as filter programs or firewalls accordingly. Any automated electronic replies (e.g. out-of-office notices) cannot be taken into account and do not prevent valid delivery.

c) The customer must promptly notify any change to the email address to which the invoice is to be sent, in written and legally valid form. Invoices sent to the most recently notified email address shall be deemed received by the customer if the customer has not notified a change of email address.

d) The customer may revoke participation in electronic invoice delivery by email at any time in writing. After receipt and processing of the written revocation, the customer will receive invoices by post to the most recently provided postal address. The supplier reserves the right to charge a handling fee for postal dispatch.

6. Set-off and right of retention

Set-off with counterclaims is only permitted with claims that are undisputed, have been established with final legal effect or acknowledged, as well as those arising from the same contractual relationship.

The exercise of a right of retention is only permitted in the case of counterclaims that are undisputed, have been established with final legal effect or acknowledged, as well as those arising from the same contractual relationship.

7. Default

a) In the event of exceeding payment deadlines or subsequent deferral, statutory interest will be charged.

b) If the purchaser fails to honor a cheque or bill of exchange, or if the supplier becomes aware of a material deterioration in the purchaser’s circumstances that jeopardizes the claim for payment, the entire remaining debt becomes due, even if bills of exchange with later maturity are outstanding. If the entire remaining debt is not paid immediately, the purchaser’s right to use the delivery item expires. The supplier is entitled either to repossess the delivery item without waiving his claims until they are satisfied, or to withdraw from the contract. In the event of repossession, all costs shall be borne by the purchaser. In the event of withdrawal, the purchaser must compensate the supplier for use of the delivery item, any loss in value (even if not culpable) and lost profits.

c) If the purchaser otherwise fails to meet his payment obligations after a reminder with a reasonable deadline for payment, the supplier is entitled to repossess the delivery item or to withdraw from the contract.

8. Delivery time

a) The delivery period begins on the day the order confirmation is sent and is deemed met if the goods have left the factory by the end of the delivery period.

b) If, for reasons for which we are not responsible, we do not receive deliveries or services from our sub-suppliers or subcontractors despite proper congruent coverage (i.e., in quantity and quality in accordance with the delivery agreed with the customer), or if events of force majeure occur—i.e., non-culpable impediments to performance lasting more than 14 calendar days—we will inform our customers in writing in good time. In this case, we are entitled to postpone the delivery or service by the duration of the impediment, or to withdraw from the contract in whole or in part with respect to the unfulfilled portion, provided we have complied with our information obligation above, have not assumed the procurement or production risk, and the impediment to performance is not merely temporary. Force majeure includes strikes, lockouts, official interventions, shortages of energy and raw materials, unavoidable transport bottlenecks, unavoidable operational disruptions—for example due to fire, water and machinery damage—and all other impediments which, objectively considered, were not culpably caused by us.

c) If a binding delivery/performance date or period has been agreed and, due to events pursuant to the above § 6 para. (1), the agreed delivery/performance date or period is exceeded by more than four weeks, or if, in the case of a non-binding performance date, adherence to the contract is objectively unreasonable for the customer, the customer is entitled to withdraw from the contract with respect to the unfulfilled portion. Further rights of the customer, in particular claims for damages, do not exist in this case.

d) The aforementioned circumstances are likewise not attributable to the supplier if they arise during an already existing delay.

If the purchaser suffers loss due to a delay for which the supplier is culpably responsible, the purchaser is entitled—excluding further claims—to demand delay compensation. This amounts to 0.5% for each full week of delay, but not more than 5% in total of the value of that part of the total delivery which, as a result of the delay, cannot be used on time or in accordance with the contract.

The parties remain free to prove higher or lower storage costs. Compliance with the delivery period presupposes that the purchaser fulfills his contractual obligations.

9. Transfer of risk and acceptance

Risk passes to the purchaser at the latest upon dispatch of the delivery item, even if partial deliveries are made or the supplier has assumed other services. At the purchaser’s request, the supplier will insure the shipment at the purchaser’s expense against theft, breakage, transport, fire and water damage as well as other insurable risks.

If dispatch—at the supplier’s discretion by rail or freight carrier—is delayed due to circumstances attributable to the purchaser, risk passes to the purchaser from the date of readiness for dispatch; however, at the purchaser’s request and expense, the supplier is obliged to arrange the insurances requested by the purchaser. Delivered items must be accepted by the purchaser—even if they exhibit minor defects—without prejudice to the rights under clause 7.

Partial deliveries are permitted.

10. Liability for defects in delivery

a) The purchaser’s warranty claims presuppose that he has duly complied with his inspection and notification obligations pursuant to § 377 of the German Commercial Code (HGB).

b) If a defect exists in the goods, the supplier will, at his option, remedy the defect or deliver a replacement; replaced parts become the property of the supplier.

c) No warranty is assumed for damage resulting from improper installation, improper care, improper connection, natural wear and tear or replacement materials.

d) In the event of warranty—i.e., repair or replacement—the supplier shall bear all expenses necessary for the purpose of remedying the defect, in particular transport, travel, labor and material costs, insofar as these are not increased by the fact that the goods have been moved to a place other than the place of performance.

If subsequent performance fails, the purchaser may, at his option, demand a reduction in price or rescission of the contract and—if the statutory requirements are met—also claim damages or reimbursement of futile expenses. No deadline for subsequent performance need be set if the supplier seriously and finally refuses performance, if the supplier fails to perform on the date or within the period specified in the contract and the buyer has tied the continued interest in performance to timely performance. The above rights shall also accrue to the buyer if the supplier refuses subsequent performance or if it is unreasonable for him.

11. Liability

The supplier is liable without limitation for damages arising from injury to life, limb or health that are based on a negligent or intentional breach of duty by the supplier or on an intentional or negligent breach of duty by a legal representative or vicarious agent.

The supplier is also liable without limitation for other damages based on grossly negligent breach of duty by the supplier or on intentional or grossly negligent breach of duty by a legal representative or vicarious agent.

The supplier is also liable where mandatory by law, such as under the Product Liability Act.

For other negligently caused property and financial losses, the supplier—also for legal representatives and vicarious agents—is liable only in the event of a breach of a material contractual obligation; material contractual obligations are those whose fulfillment characterizes the contract and on which the purchaser may rely.

In the event of liability for material contractual obligations, damages are limited in amount to the damage foreseeable and typical for the contract at the time of conclusion.

Otherwise, liability—regardless of the legal grounds—is excluded; the above provisions also apply to claims based on culpa in contrahendo.

12. Limitation

Warranty claims become time-barred one year after transfer of risk; however, the statutory period applies insofar as the law provides for a longer period for claims for defects in buildings and for items for buildings, as well as for the purchaser’s right of recourse under §§ 478, 479 BGB.

The statutory limitation period also applies in cases of injury to life, limb or health, as well as in cases of intentional or grossly negligent breach of duty by the supplier and fraudulent concealment of a defect.

13. Retention of title

a) The supplier retains title to the goods until all payments under the contract have been received. The purchaser is obliged to handle the goods with care and, in particular, to insure them at his own expense at replacement value against fire, water and theft. The purchaser must carry out any maintenance and inspection work in good time and with due care at his own expense.

b) In the event of seizures, confiscations or other third-party interventions, the purchaser must notify the supplier in writing without delay so as to enable the supplier to exercise his rights under the retention of title. In the event of a breach of this duty, the purchaser shall be liable for any resulting loss to the supplier.

c) The purchaser is entitled to resell the goods in the ordinary course of business; however, he hereby assigns to the supplier all receivables in the amount of the gross purchase price of the supplier’s claim to which he is entitled from the resale of the goods. This applies regardless of whether the goods are sold on without or after processing. The customer remains authorized to collect the receivables even after assignment; this does not affect the supplier’s right to disclose the assignment and collect the receivables himself. Disclosure shall not occur as long as the purchaser meets his payment obligations, is not in default of payment, and no application is filed to open composition or insolvency proceedings. In this case, the purchaser is obliged to promptly provide the supplier with all necessary information about his buyers, hand over the required documents and enable the supplier to disclose the assignment.

d) Processing or transformation of the goods by the purchaser shall always be carried out for the supplier. If the goods are processed with other items not belonging to the supplier, the supplier acquires co-ownership of the new item in relation to the value of his own claim to the other processed items at the time of processing. The retention of title continues to apply in full to the item created through processing. The purchaser is authorized to resell the goods subject to retention of title in the ordinary course of his business. The buyer hereby assigns his receivables from a resale of these goods subject to retention of title to the seller already now, regardless of whether the goods subject to retention of title are resold unprocessed or processed.

e) If the delivered goods are inseparably mixed with other items not belonging to the supplier, the supplier again acquires ownership of the new item in relation to the value of the purchased item to the other mixed items at the time of mixing. If the mixing is such that the purchaser’s item is to be regarded as the principal item, the purchaser shall transfer co-ownership to the supplier on a pro-rata basis; the purchaser shall hold the supplier’s sole or co-ownership in safekeeping for him.

f) If the delivered goods or items or objects manufactured therefrom are resold by the purchaser or—directly or after modification—installed in a third party’s property in such a way that they become essential components of the third party’s property, the purchaser’s receivables replacing these items against his buyer or third parties shall pass to the supplier to secure his claims, without the need for a special assignment declaration.

g) At the purchaser’s request, the supplier shall release securities to which he is entitled to the extent that the realizable value of the securities exceeds the claims to be secured by more than 10%; the selection of the securities to be released is at the supplier’s discretion.

14. Miscellaneous

a) The contract shall remain binding in its remaining parts even if individual provisions are legally invalid; the invalid provision shall be replaced by one that comes closest to the intended economic purpose.

b) If the purchaser is a merchant within the meaning of the law, the supplier’s registered office shall be the place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship; however, the supplier is entitled to bring an action at the purchaser’s registered office.

c) German substantive law shall apply to the legal relationships in connection with this contract, excluding the United Nations Convention on Contracts for the International Sale of Goods (CISG).

d) Any further possible agreements outside the order confirmation must be agreed in writing between contractor and client; this also applies to amendments and/or side agreements before or after conclusion of the contract or the order confirmation. This also applies to any waiver of this written form requirement. The order shall remain effective in all other respects even if individual provisions are invalid; the invalid provision shall be replaced by one that comes closest to the intended economic purpose.