1. Formation of the contract

1. These Terms and Conditions of Sale and Delivery shall apply only if the Buyer is an entrepreneur (section 14 of the German Civil Code [Bürgerliches Gesetzbuch, BGB]), a legal person under public law, or a special fund under public law [öffentlich-rechtliches Sondervermögen]. Our offers are not legally binding. The offer shall not oblige us to accept an order. No agreement shall be effective until confirmed by us in writing. Our Terms and Conditions of Sale and Delivery apply exclusively to all our deliveries. Other terms and conditions of purchase are rejected. Our terms and conditions shall be deemed accepted upon receipt of the goods at latest. Our general Terms and Conditions of Sale and Delivery as amended from time to time shall also apply to all future transactions with the Buyer. Agreements deviating from these Terms and Conditions of Sale and Delivery, and all additional agreements, including those by field staff or sales representatives, must be made in writing; this shall also apply to any amendment to dispense with this stipulation requiring the written form.

2. Article to be supplied

1. Insofar as the order is for regular products from our brochures or sales lists, the article to be supplied shall be the serial product specified in the order confirmation. Measurements, illustrations, designs, colour, information on characteristics and weights from brochures are non-binding. The right to make modifications serving the technical improvement of the products is expressly reserved. Minor modifications, particularly in case of repair of defects or supply of a replacement (e.g. tolerances, deviations in colour or quality) are permitted.
    
2. Custom-designed and manufactured special units shall be manufactured per the drawings attached to the order confirmation and in accordance with the technical requirements specified in the order confirmation. All materials provided to us, as for example fabric or synthetic leather, are processed without any guarantee in respect of colour, quality, conformity with samples from the Brunner collection or brochures etc.
    
3. For all wood shades, the Brunner standard range shall apply. Wooden items stained to match a customer sample must be released for manufacture by way of a counter sample accepted in writing.

3. Price, payment

1. Prices apply according to the price list in force on the date of formation of the contract. Prices are ex Rheinau-Freistett, excluding packaging and plus statutory value-added tax. Prices for items manufactured to customer order not included in the price list shall be specified in the order confirmation.
    
2. Insofar as after the order confirmation is given the price list is amended or the material prices and labour costs applicable for items manufactured to customer order change significantly, the original price shall continue to apply as long as the order is fulfilled within four months of formation of the contract. If the order is fulfilled at a later date by agreement, the new price list or a price increased at the Seller‘s reasonable discretion shall apply.
    
3. Unless otherwise agreed on an individual basis, payments shall be made net without deductions in cash within 30 days of the invoice date. We reserve the right to require payment in advance. Bills of exchange shall be accepted on account of payment (zahlungshalber) only, not instead of payment (an Erfüllungs statt); discount charges and ancillary costs shall be settled immediately. Where due dates are exceeded, we shall be entitled to charge default interest for the period between the due date and the date of payment. Late interest at the statutory rate in force from time to time shall accrue on the purchase price for the period during which the Buyer is in default. We reserve the right to assert further damage due to default. Our entitlement to commercial due interest (section 353 of the German Commercial Code [Handelsgesetzbuch – HGB]) vis-à-vis merchants (Kaufleute) shall remain unaffected.
    
4. All receivables arising from the entire business relationship, including from current bills of exchange, shall become due and payable immediately if the Buyer falls into arrears on all or part of a payment. In the event that that the Buyer culpably fails to adhere to the terms of payment, or circumstances capable of impairing the Buyer‘s creditworthiness become known after formation of the contract, or we become aware of such deterioration only after delivery, all receivables shall become due and payable, regardless of the maturity of any bills of exchange accepted. In such circumstances we shall further be entitled to render outstanding performance only against payment in advance or provision of security, and if the latter is not done to rescind the contract or demand damages for non-performance after expiry of a reasonable extension of time.
    
5. The Buyer shall have the right to withhold performance of its obligations under the contract only insofar as such right is founded on the same contractual relationship. The Buyer shall have the right to set off its claims only if such claims are uncontested or have been finally adjudicated.

4. Retention of title

1. Title to the goods supplied shall be retained until payment in full of all receivables due from the customer arising from the business relationship, regardless of the legal basis thereof. This shall also apply in particular when payment is made in respect of specifically designated receivables. Where there is an open account, the receivable arising from the mutual accounts shall be deemed to have been assigned to us by way of security. In the event of payment using the cheque/bill of exchange procedure, title is retained until full and unconditional release from issuer‘s liability in respect of liabilities on bills of exchange.
    
2. The Buyer is authorised to sell, process and manufacture the goods subject to retention of title in the course of ordinary business under its normal terms and conditions of business, provided that it is not in default. Any pledge or security transfer is not allowed. The Buyer may only resell subject to the proviso that the receivable arising from the resale passes to us to the extent stipulated hereinafter. The Buyer hereby assigns in advance by way of security the full amount of all claims arising from resale of the goods, even if the goods are modified, blended or mixed with other goods; the assignment is accepted. The Buyer is not permitted to dispose of the goods in any other way.
    
3. The Buyer shall be authorised to collect the receivable assigned to us until revocation or as long as it does not fall into arrears with us. The conditions for revocation of this authorisation are met when our receivables fall due in accordance with section 3.3. In such case we will be authorised to revoke the authorisation to resell the goods subject to retention of title and the authorisation to collect the receivable assigned to us. In such case we will further be authorised to demand surrender of the goods subject to retention of title; the Buyer shall have no right of retention in respect of this claim for surrender and this shall not constitute a rescission of the contract by us. We can furthermore inform the third-party debtor of this assignment; to this end the Buyer shall provide us with the necessary documents and information. In the event that the goods subject to retention of title are processed, combined, mixed or blended with other goods not belonging to the Seller it is agreed that a share in the title in the new object or new stock in proportion to the value of the goods supplied to us compared to the total value of the new thing or new stock belongs to us. The Buyer shall hold these goods in safekeeping for us free of charge. If the goods subject to retention of title are resold together with other goods, whether or not they have been processed, combined, mixed or blended with such goods, the above agreement regarding assignment of future claims shall apply only up to the amount of the value of the goods subject to retention of title which together with the other goods constitute the object of the sales transaction.
    
4. In the event that the value of the collateral provided to us exceeds, not on a merely temporary basis, the receivables due to us by a total of more than 10%, we shall release the collateral of our choice in the appropriate amount on request by the Buyer.

5. Delivery periods

1. Delivery periods and dates are approximate only, unless we have established them as binding expressly and in writing.
    
2. The delivery periods shall begin on receipt of our order confirmation. Delivery periods and dates relate to the time that the goods are delivered, i.e. ex works or ex warehouse, but shall not commence until such time as the technical aspects of the order have been clarified. Compliance with delivery times is conditional on correct and timely delivery to ourselves. We shall give notice of impending delays as soon as possible. If a partial payment is not received, our obligation to deliver shall be suspended until such time as the sum is received. The delivery period shall start anew from the time payment is received. Where delivery ex works is agreed, delivery periods shall be deemed to have been met if the Buyer is informed that the goods are ready for dispatch and if the goods cannot be dispatched in time through no fault of our own. This shall also apply where we use our own trucks to transport the ordered goods.
    
3. Insofar as a subsequent amendment to the sales contract may affect the delivery period, such period shall, unless otherwise agreed, be extended by a reasonable time. Where we have guaranteed an agreed delivery period or delivery date, the Buyer must grant us a reasonable extension of time in writing if we exceed such period or date. A period of at least four weeks shall be deemed to be reasonable. Should this period expire without result, the Buyer may rescind the contract in respect of the goods not reported as ready for dispatch at the time of expiry of the extension of time. The Buyer may only rescind the entire contract if the partial performance it has received is not of interest to it. Should the Buyer choose to rescind the contract for late delivery, it shall have no additional claim for damages on the basis of the late delivery.
    
4. The Buyer may not reject partial deliveries unless it cannot be expected to accept such deliveries.
    
5. Events of force majeure shall entitle us to defer delivery for the duration of the impediment and a reasonable set-up period or to rescind the contract in whole or in part in respect of the unfulfilled portion of the contract. Strikes, lockouts, mobilisations, war, blockade, import and export embargoes, raw material and fuel shortages, fire, transport stoppages, disruption to operations or transport and other circumstances for which we are not responsible shall be equivalent to force majeure; this shall apply regardless of whether such events affect us, our supplier, or one of its sub-suppliers. The Buyer can demand a statement from us regarding whether we will rescind the contract or deliver within a reasonable period. If we do not provide such statement, the Buyer can rescind the contract.

6. Warranty

No responsibility is accepted when processing materials such as fabric or synthetic leather sent to us by the Customer. This means that we do not guarantee that the colour, quality, use or other characteristics provided by original Brunner products will be achieved. In this case we also do not guarantee conformity with the article to be supplied as shown in our brochure. We give warranty regarding any defects, including the absence of guaranteed characteristics of the goods, in accordance with the following stipulations:

1. The Buyer must notify us of defects in writing without delay and not later than 7 days after receipt of the goods and must cease any processing of the goods. Otherwise, section 377 HGB shall apply. Defect notifications given to sales representatives or field service staff are ineffective.

2. The Buyer shall on request afford us the opportunity to examine the goods subject to complaint and to satisfy ourselves that that they are in fact defective. The Buyer shall also afford us the facilities and space required for this purpose. All warranty claims shall lapse if the Buyer fails to fulfil this obligation.

3. Where the Buyer has given us valid and timely notification of defects, we shall be authorised at our option to repair the defect or replace the defective goods. Our right to refuse to rectify the defect in accordance with the statutory requirements shall remain unaffected.

4. If rectification has failed or a reasonable period for rectification set by the Buyer has passed without result, or such period can be dispensed with in accordance with the statutory provisions, the Buyer may rescind the purchase contract or reduce the purchase price. There shall however be no right of rescission in respect of trivial defects.

5. Expenditures required for the purpose of inspection and rectification of defects, particularly costs of transport, travel, labour and materials (not disassembly and assembly costs) will be borne by us if a defect is actually present. Should it be determined that a request by the Buyer for repair of a defect is unjustified, we can demand compensation from the Buyer for the costs incurred as a result of such request.

6. We shall be authorised to make rectification of defects owing dependent on payment by the Buyer of the purchase price due. However, the Buyer shall be entitled to withhold a portion of the purchase price in reasonable proportion to the defect.

7. Should the Buyer elect to rescind the contract for a legal or material defect following failure to rectify the defect, it shall have no claim for damages in respect of such defect. The provisions of the foregoing points 1 to 7 shall also apply to goods delivered different from those ordered in accordance with the contract.

8. Claims of the Buyer for damages or reimbursement of futile expenditures shall only exist subject to the provisions of point 7 hereinafter (Liability) and shall otherwise be excluded.

9. We shall not be responsible for damages resulting not from a material or manufacturing defect but from faulty and unprofessional assembly, improper handling, violation of applicable DIN standards, excessive use, non-compliance with assembly and operating instructions or natural wear and tear, in order words for damages the cause for which lies within the sphere of the Buyer or a third party.

7. Liability

1. Unless otherwise provided in these General Terms and Conditions of Sale and Delivery, including the provisions hereinafter, we shall be liable for breach of contractual and extra-contractual obligations in accordance with the relevant statutory provisions.
    
2. We shall be liable for damages - regardless of the legal grounds - caused intentionally or by gross negligence. In the event of simple negligence, we shall be liable only a) for damages arising from loss of life, physical injury or damage to health, b) for damages arising from a breach of a material contractual obligation (duty the fulfilment of which only makes possible the due and proper performance under the contract and on the fulfilment of which the contracting party may and does routinely rely); in this case our liability shall be limited to any foreseeable, typically resulting damages.
    
3. The limitations of liability arising from point 2 shall not apply to the extent we have fraudulently concealed a defect or have guaranteed the quality of the goods. The same shall apply for claims of the Buyer under the German Product Liability Act [Produkthaftungsgesetz].
    
4. In case of a breach of duty not comprising any defect, the Buyer may only rescind or terminate the contract if we are responsible for such breach of duty. The Buyer shall have no unrestricted right of termination (in particular in accordance with sections 651, 649 BGB).
    
5. All claims against us shall become time-barred after two years at the latest. All warranty claims brought against us by companies shall expire after one year at the latest. However, for damages claims in accordance with points 2 and 3 above that are not founded on a defect, the statutory limitation periods shall apply. This limitation periods laid down in the German Product Liability Act shall remain unaffected in any event.
    
6. These Terms and Conditions of Sale and Delivery shall also apply mutatis mutandis to services provided by us by way of subsidiary obligations to the sales contract under a contract for work and services, or if we provide repair services under a contract for work and services outside the scope of a sales contract. Such (subsidiary) services under a contract for work and services shall include in particular measurements, construction consultancy, assembly of displays, assembly of stands and repairs. Application of these Terms and Conditions of Sale and Delivery to such subsidiary obligations also expressly refers to the limitations of liability stipulated herein.

8. Shipping conditions

1. Deliveries within Germany (excluding German islands) are carriage paid to the delivery address of a trading partner.
    
2. Deliveries within Germany to an end customer address are carriage paid from €5,000 net value of goods. Below this amount, we charge a freight surcharge of 8%, but at least €50 net.
    
3. Deliveries abroad and to any island are generally excluded from freight-free delivery.
    
4. Unloading point/unloading: The unloading points must be accessible by articulated lorry. The unloading of our consignments must be ensured by the buyer.
    
5. Delivery/collection dates: the finished goods must be accepted immediately in accordance with the confirmed delivery dates. Otherwise, we shall be entitled to place them in storage at the cost and risk of the buyer.
    
6. Returns. Returns must be authorised by the Manufacturer in writing. Where authorisation is given, a return delivery note is required. Oral agreements shall be invalid.

9. Place of performance, place of jurisdiction, applicable law

1. Place of performance for both contracting parties shall be 77866 Rheinau-Freistett exclusively.
    
2. The law of the Federal Republic of Germany shall apply to these Terms and Conditions of Sale and Delivery and to all legal transactions between us and the Buyer to the exclusion of international uniform law, in particular the UN Sales Convention.
    
3. With full merchants [„Vollkaufleute“] and contracting parties who do not have a general place of jurisdiction in Germany or who after formation of the contract have or move their domicile or place of habitual residence outside the Federal Republic of Germany, and with legal persons under public law and special funds under public law, it shall be deemed agreed that the jurisdiction for all legal disputes arising from the contractual relationship, including claims relating to bills of exchange and cheques, shall be 77866 Rheinau-Freistett. However, we shall also be entitled to bring claims at the general place of jurisdiction of the Buyer.
    
4. The assignment by the Customer of rights arising out of this contract shall only be effective with our prior written consent.
    
5. Exportation of products supplied by us, in particular over the borders of the country to which we delivered them, is permitted only with our prior written consent.

10. Amendments to the contract, lump-sum claims for damages

1. Requests for variation of the order cannot be entertained after we have confirmed a contract. The same shall apply for the cancellation of an order.
    
2. In the event that the Buyer fails to fulfil its obligations arising out of the contractual relationship and is thus obliged to pay compensation, we shall be entitled to demand compensation in the amount of 20% of the purchase price without providing particular proof. The Buyer shall be permitted to furnish proof that no loss or damage or reduction in value has been incurred, or that such loss, damage or reduction is significantly lower than the lump sum. If we have manufactured the goods separately due to the order, we can claim the amount of the actual damages incurred in lieu of the lump sum. The right to claim for further damages is expressly reserved.
    
3. If shipment is delayed by request of the Customer, the Customer shall, beginning one month after notification of readiness for shipment, be invoiced, for each month, for storage costs in the amount of the costs incurred, and where the goods are stored at the Supplier‘s premises, in the amount of at least 1/2 per cent. of the invoice amount. However, the Supplier is entitled, after allowing a reasonable period and after such period has expired without result, to dispose of the article to be supplied otherwise and to supply new articles to the Seller as soon as possible after a reasonable extension of time.

11. Partial invalidity, general

Should individually provisions of these Terms and Conditions of Sale and Delivery be or become ineffective in whole or in part, the other provisions shall remain valid. The ineffective provisions shall be replaced by arrangements most closely reflecting the economic intent of the contract, taking appropriate account of the mutual interests of the parties. The Customer consents to our storing necessary business-related data relating to it. We give assurance that we will use this data only in connection with our business relationship and in particular will not disclose it to third parties unless this is unavoidable.