1. SCOPE OF APPLICATION; OTHER AGREEMENTS
    These General Terms and Conditions (“GTC”) shall govern all delivery transactions, including all future delivery transactions in current business relationships, of bd breyton design GmbH, Gießereistraße 14, D-78333 Stockach (“Breyton”), except as agreed otherwise according to these GTC. These GTC apply only in relation to entrepreneurs, public law entities and public law funds as defined in Sec. 310(1) s. 1 BGB (“Customers”). Any agreements to the contrary, made prior to or at conclusion of a contract, must be set forth in writing.
  2. CONCLUSION OF CONTRACT
    All offers by Breyton remain subject to change and descriptions are approximate only. A contract becomes effective upon acceptance in writing, order confirmation or invoicing by Breyton but at the latest upon the Customer’s acceptance of the delivery.
  3. DELIVERY, DELIVERY PERIODS AND DATES, FORCE MAJEURE
    1. Delivery periods and dates are without commitment. The delivery period is deemed observed where Breyton has notified the Customer in due time that the shipment is ready for dispatch, or has transferred the goods to the carrier or dispatched the goods.
    2. All deliveries are EX WORKS (Incoterms 2010) Breyton’s domicile.
    3. Transport insurance will be effected only at the Customer’s express request and at the Customer’s expense.
    4. Breyton may make partial deliveries, if this is reasonable acceptable for the Customer.
    5. In any event of force majeure or other unforeseen circumstances beyond the control of Breyton, the delivery period will be extended by the length of the disruption caused by such events, including events that occur during any default; the same shall apply if a subcontractor becomes subject to any such events. If the end of the disruption is unforeseeable or if a disruption prevails longer than two months, Breyton will have the right to rescind the contract. The Customer will have the same right, subject to having granted a reasonable respite for the delivery.
  4. PAYMENT TERMS, RIGHT OF RETENTION, SETOFF
    1. All deliveries are based on the price list as applicable at the time of conclusion of the contract. All prices are euro prices, EX WORKS (Incoterms 2010) Breyton’s domicile, plus shipping charges, customs and VAT, if applicable.
    2. Payments fall due upon conclusion of the contract and are payable net within 30 days after the invoicing date. For payments made within 10 days the Customer will be granted a 2% cash discount on the invoice total.
    3. The Customer shall have no right of setoff, except on the basis of counterclaims that have been determined by final enforceable judgment, are ripe for adjudication, or remain uncontested. The Customer may not exercise any right of retention, except on the basis of claims from the same contractual relationship that are uncontested, ripe for adjudication, or established by final enforceable judgment.
  5. RETENTION OF TITLE
    1. All delivered goods remain the property of Breyton (“Goods under Retention of Title”) until all claims under the business relationship with the Customer have been settled and paid in full.
    2. The Customer may process and resell any Goods under Retention of Title only in the ordinary course of business. Where such Goods are processed, the retention of title will extend to the new product. For any event of resale the Customer herewith assigns to Breyton any and all related claims in order to secure all claims. The Customer may collect the assigned claims unless and until this right is revoked for a legitimate reason.
  6. INSPECTION OF DELIVERIES, WARRANTY
    1. The warranty shall be governed by the applicable laws as modified by the terms and conditions below:
    2. Details provided in catalogues, price lists and other information material provided to the Customer by Breyton, as well as any descriptions, shall not involve any warranty as to a particular quality of the goods; any guarantee or acceptance of a procurement risk shall be subject to an express written agreement.
    3. The Customer must report any defects as required by Sec. 377 HGB. Obvious defects must be reported to Breyton in writing without undue delay but at the latest seven days after delivery, and any hidden defects must be reported in writing without undue delay but at the latest seven days after their discovery.
    4. For any defect reported in a timely manner Breyton will, in its discretion, repair the defect or deliver a defect-free product (“remedial action”). Remedial action will be taken at the place of the original delivery, and will be deemed failed after three unsuccessful attempts at the earliest. Breyton will not bear any defect diagnosis, dismantling, retrieval or assembly costs in connection with remedial action.
    5. Claims for remedial action become time-barred one year after delivery, unless the defect has been fraudulently concealed, a warranty as to quality has been issued, or a procurement risk has been accepted. The limitation period will be suspended by any remedial action only where Breyton has expressly acknowledged its duty to provide remedial action.
    6. The Customer may claim damages based on defects only where Breyton’s liability is not excluded or limited by the terms and conditions below. Any rights and remedies further or other than those provided herein for defects in quality shall be excluded, notwithstanding the rights of recourse defined by statute (Sec. 478 f. BGB).
  7. LIABILITY
    1. Breyton only accepts liability for damage and losses caused by gross negligence or intent and for breaches of material contract duties whose fulfilment is essential to the due and proper performance of the contract and whose fulfilment the Customer could reasonably rely upon (“material obligation”).
    2. Breyton’s liability for breaches by slight negligence of a material obligation shall be limited to damage and losses that were foreseeable at conclusion of the contract and are characteristic for the particular type of contract. Breyton accepts no liability for breaches by slight negligence of secondary contract duties that are not material obligations.
    3. Breyton shall be liable for cases of initial impossibility of performance only if Breyton had knowledge of the impediment to performance or if Breyton’s lack of knowledge is due to gross negligence, or if the initial impossibility constitutes a breach of a material obligation.
    4. Where the liability of Breyton has been limited or excluded, this shall apply equally to the liability of Breyton’s employees, representatives and vicarious agents engaged in the discharge of Breyton’s duties. Any liability of vicarious agents for damage or losses caused by slight negligence shall be excluded.
    5. The above limitations and exclusions of liability shall not extend to any fraudulent concealment of defects or any guarantee or procurement risk as may have been issued or accepted, to claims under the Product Liability Act, and to bodily injury (injury to life, limb or health). This shall not involve any reversal of the burden of proof to the Customer’s disadvantage.
    6. The Customer’s claims for damages for which liability has been limited hereunder shall become time-barred one year from the beginning of the statutory limitation period, except claims based on tort.
  8. ASSIGNMENT, SEVERABILITY
    1. Any assignment of claims arising out of Breyton delivery transactions shall be subject to Breyton’s prior written consent.
    2. If any provision of a contract and/or of the GTC is wholly or partially invalid, nothing in this shall prejudice the validity of the remaining provisions thereof. Breyton may replace any invalid provision by a valid provision which most closely accomplishes the intended economic purpose. This applies mutatis mutandis to any omission in the GTC or contract.
  9. PLACE OF PERFORMANCE, FORUM, GOVERNING LAW
    1. The place of performance for all delivery and payment obligations and the exclusive place of jurisdiction shall be at the domicile of Breyton. Breyton has the right to sue the Customer at any other legal place of jurisdiction.
    2. The GTC and the business relations between Breyton and the Customer shall be governed exclusively and exhaustively by the laws of Germany to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG).
Last amended: June 2014