1. Application
1.1. These terms and conditions of delivery and payment apply to all our deliveries and services to customers.
1.2. The terms and conditions also apply to all future transactions with the customer if we have issued them and they have accepted them. Customer conditions which vary from our own are not binding for us, unless we expressly acknowledge them in writing. Neither will they become an integral part of the contract tacitly or by reason of our delivery.
2. Offer and signature of contract
2.1. Our offers are binding if we make them in writing and without reservation. The contents of orders will become binding when we confirm them in writing or fulfil them by delivering the goods.
2.2. We will only be required to retain stocks for orders on call forward notice if we undertake to do so. Deadlines for call forward orders must be reasonable. If we have confirmed call forward orders, the amounts accepted must be purchased at the latest within one year of signature of the contract. Otherwise, if we have requested the customer to proceed with the call forward within an appropriate period, we will be entitled to withdraw from the contract and claim the agreed remuneration less any costs saved.
3. Prices, payment, account balancing
3.1. Subject to special agreement, the prices shall apply ex works, excluding loading, packaging and unloading, plus the statutory value-added tax.
3.2. If no price agreement has been reached, the goods will be accounted at the price valid on the day of delivery.
3.3. Payment must be made at the latest within 30 days of the date of invoice.
3.4. Bills will only be accepted by express agreement. Credit notes relating to bills or checks will always be subject to due payment and without prejudice to early maturity of the purchase price where the purchaser delays. They will be deemed to count as payment on the value date on which the proceeds become available to us.
3.5. If the customer experiences difficulty paying after the contract is concluded, late payment processes or check or bill of exchange proceedings are started, we are entitled to only carry out further deliveries if payment is made in advance and all open demands are settled immediately. In such cases, we may return any bills accepted as payment and demand payment in cash or collateral in another form.
3.6. Balancing of accounts by counterclaims will not be permitted, unless such counterclaims are undisputed or legally established. The customer will only be entitled to withhold payments or else to balance accounts by way of counterclaims to the extent that their counterclaims are undisputed or legally established.
4. Deadlines, delivery dates, part deliveries, special orders, return of goods
4.1. The dates and delivery deadlines specified by the customer are only binding if these are either offered to them or confirmed by us in writing. This also applies to call-off deadlines. Compliance with this requires the timely fulfillment of the obligation to cooperate that the customer is committed to, otherwise they are extended appropriately.
4.2. Our compliance with deadlines and delivery dates will be subject to correct and timely deliveries to us, if we can show concordant coverage business. Insofar as acceptance is agreed or provided for by law, the acceptance date shall be decisive; the alternative is notification of readiness for acceptance, if the customer unjustifiably refuses acceptance.
4.3. If the dispatch or acceptance of the delivery item is delayed for reasons for which the customer is responsible, then the costs incurred due to the delay will be charged to the customer, starting one month after the notification of readiness for dispatch or acceptance.
4.4. If the non-compliance with the delivery time is due to force majeure, labor disputes or other events beyond our area of influence and control, the delivery time shall be extended accordingly. We will notify customers at the start and end of such circumstances, without undue delay.
4.5. The customer can rescind the contract without setting a deadline, if the entire service becomes impossible before the risk passes. The customer may also withdraw from the contract if, when ordering, part of the delivery was not possible, and the customer has a legitimate interest in rejecting the partial delivery. If this is not the case, the customer must pay the contract price of the partial delivery. The same will apply if we become insolvent. Figure 8.3 will also apply. If the impossibility or inability occurs during the delay of acceptance or if the customer is solely or predominantly responsible for these circumstances, the customer remains obliged to pay.
4.6. In the event that a delay on our part causes a loss to the customer, they will be entitled to claim a lump-sum compensation. This will comprise at least 0.5% but at most 5% for each full week of delay of the value of that part of the delivery which cannot be used in time or in accordance with the contract as a result of the delay. If, in the event of a delay, the customer grants us an appropriate period for performance of the
delivery – taking the statutory exceptions into account – and if the new deadline is not met, the customer will be entitled to withdraw within the framework of the statutory provisions. Additional claims arising from delays in delivery are defined in 8.3 of these terms and conditions.
4.7. We are entitled to make partial deliveries to the extent that these are acceptable to the customer.
4.8. For custom-made products, we are entitled to exceed or undercut the agreed delivery quantity by 10%, unless this is unreasonable for the customer.
4.9. In the event of returns by the customer, 10% will be deducted from the contract price. Depending on the condition of the goods, this deduction may be higher or lower. Exception: Material defects (see item 7. Rights in the case of defects).
5. Transfer of risk, acceptance, delay in acceptance
5.1. Shipping is at the expense and risk of the customer. Unless we are given specific shipping instructions prior to readiness for shipping, shipping will be carried out at our sole discretion and insured at the customer’s expense if the shipping is carried out in one of our lorries.
5.2. The risk is transferred to the customer upon notification of readiness for shipment and before loading of the goods in our factory, even if freight-free delivery has been agreed. This applies even if the delivery is delayed at the customer’s request. If acceptance is required, this shall be decisive for the transfer of risk. This must be carried out immediately on the acceptance date or, alternatively, after our report of readiness for acceptance. Where a slight defect is found, the customer may not refuse to accept delivery. If acceptance is delayed due to circumstances for which we are not responsible, the risk shall pass to the customer from the date of notification of the readiness for acceptance.
5.3. If dispatch or acceptance is delayed due to circumstances for which the customer is responsible, we may charge the customer storage costs amounting to 0.5% of the invoice amount for each month or part thereof, starting one month after notification of readiness for dispatch or acceptance, but not exceeding 5% of the invoice amount, unless we can prove higher costs.
6. Retention of title
6.1. Our deliveries remain our property until payment of all outstanding monetary claims against the customer at the time of delivery, regardless of the legal grounds, even if payments are made for specially designated claims. In the case of a running account, retention of title will be used as security for our balance claim.
6.2. The retention of title shall remain unaffected if the customer issues a check for the invoice amount and at the same time receives acceptance from us relating to the purchase price.
6.3. The customer may sell, mix and process our property in the ordinary course of business, as long as they are not in arrears. We will be entitled to withdraw this authority at any time. Processing of the reserved goods is always carried out for us by the customer, without any obligations arising from this. In the case of processing, mixing or confusion of reserved goods with other goods which are not our property, we will have a proportional title to the new item in the amount of the invoice value of the goods supplied by us in accordance with Articles 947, 948 Civil Code.
6.4. If the conditional sale goods supplied by us are resold, mixed or processed by the customer, the customer hereby assigns to us their claims arising from their contract with their customer. We hereby accept this assignment. If the reserved goods are sold by the customer together with other goods not belonging to us, either without or following processing, the assignment of the claim from the resale shall only apply in the amount of the value of the reserved goods. The customer is entitled to collect claims from the resale until our revocation at any time. However, they may not dispose of any such claims. The customer is obliged to provide us with all information and documents required to assert the assigned right, and in particular to name the debtors of the assigned claim and to notify the latter of the assignment on our request. We may notify the said debtors of the assignment on behalf of the customer.
6.5. If the value of the existing securities exceeds our claims by more than 20%, we are obliged to release securities of our choice, at the customer’s request.
6.6. The customer must notify us immediately of a seizure or other impairment of our rights by third parties.
6.7. If the customer fails to meet their payment obligations or if an application for insolvency proceedings is filed in the assets of the customer, the customer must return the goods subject to retention of title after a reminder. However, we may only require the handover of the reserved goods on the basis of a retention of title if we have withdrawn from the contract.
7. Rights in the event of defective goods
We will provide guarantees for defective goods or legal defects as set out below, subject to the exclusion of any further claims and to the terms of Clause 8:
Defective goods
7.1. We will repair or replace any parts which are revealed to be defecting as a result of circumstances existing prior to the transfer of risk. We must be notified of any such defects in writing without delay. We will retain title to replaced parts.
7.2. The customer must allow us the necessary time and opportunity to carry out any improvements or make replacement deliveries which we consider necessary, otherwise we will be released from liability for any consequences which may arise as a result. The customer may only remedy the defect himself or through a third party and recover the costs from us in the event of an emergency, in particular in order to prevent any disproportionately large losses, in which case we must be notified immediately.
7.3. Within the framework of the statutory provisions, the customer will be entitled to withdraw from the contract if – taking into account statutory exceptions – we allow a deadline set for remedial work to or the replacement of defective goods to pass fruitlessly. In the event that the defect in question is only slight, the customer will only be entitled to a reduction of the contract price. The right to a reduction of the contract price is otherwise excluded.
7.4. No liability will arise in the following cases in particular:
7.6. Claims for recovery against us by the customer in respect of costs arising during the chain of supply to the end-user will only exist to the extent that the customer has not entered into any agreement with their own customers in excess of the statutory claims for defective goods. To the extent that costs are increased because subsequent deliveries have to be made to a place other than the customer’s premises, we will not be liable for such costs unless the transfer is commensurate with the specified use of the goods.
Legal defects
7.7. In the event that the use of the delivered item leads to a breach of commercial industrial or intellectual property rights in this country, we will, at our expense, obtain the right in principal for the customer to continue to use the goods, or modify the delivery in such a way – which will be reasonably acceptable to the customer – that the breach no longer exists. If this is not possible under appropriate conditions or within an appropriate deadline, the customer will be entitled to withdraw from the contract. We will be similarly entitled to withdraw from the contract under these conditions. In addition, the customer will be released from any claims by the holder of the rights concerned which are undisputed or established with the force of law.
7.8. Subject to Clause 8.3, our obligations as set out in Clause 7.7 are conclusive in the event of a breach of industrial or intellectual property rights.
8. Liability
8.1. We are not liable for late delivery or non-delivery caused by factors beyond our control and which could not have been avoided by the exercise of normal due diligence. Delays caused by shipping contractors are not deemed to be force majeure.
8.2. If the goods delivered cannot be used by the customer for the contractually agreed purpose by our fault as a result of having failed to carry out or having defectively carried out suggestions or advice given prior to or after signature of the contract or as a result of a breach of accessory contractual obligations – in particular in following instructions for the operation and maintenance of the delivered goods – the regulations contained in Clauses 7 and 8.3 will apply as appropriate, and any further claim by the customer will be excluded.
8.3. We will only be liable – irrespective of any legal grounds whatsoever – for damage which is not caused to the delivered goods themselves if
In the case of gross negligence we will compensate for damages to the amount of twice the purchase price of the defective product.
9. Statute of limitations
Claims for defective products and claims for compensation under the terms of Clauses 7 and 8 must be made within twelve months. This will not apply to the extent that, legally, longer limitation periods are established for construction works and construction materials under Article 438.1.2 and claims for recovery under Article 479.1 and construction defects under Article 634 a.1.2 Civil Code. The statutory limitation periods apply in the same way as compensation claims under the product liability law to death, personal injury or ill health in cases of premeditated or grossly negligent breach of obligations as well as in cases of fraudulent concealment of defects.
10. Place of performance, jurisdiction, applicable law
10.1. The place of performance for the delivery is Unna or the place of the respective delivery warehouse.
10.2. All disputes will be subject to the exclusive jurisdiction of the courts of Münster/Westphalia, if the customer is a business person, a legal entity under public law, or a special asset under public law. However, we may, at our discretion, sue a customer for damages at their general place of jurisdiction.
10.3. Applicable law will be the law of the Federal Republic of Germany.
Brillux GmbH & Co. KG
Industrial Coatings
Otto-Hahn-Straße 14
59423 Unna
Tel. +49 2303 8805-0
Fax +49 2303 8805-119
www.brillux-industrial-coatings.com
info@brillux-industrial-coatings.com
General managers: Peter König, Robert König, Ulrike Nordemann, Michael Thompson
Sparkasse Münsterland Ost
IBAN: DE93 4005 0150 0034 4806 24
BIC: WELA DE D1MST
January 2023