Terms and conditions
of delivery and payment
1.1. These terms and conditions of delivery and payment apply to all our deliveries and services to companies.
1.2. The conditions also apply to all future transactions with the customer if we have provided him with these and he has acknowledged them. Customer conditions which vary from our own are not binding on 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. Unless otherwise specifically agreed, prices will apply ex works excluding loading, packaging and unloading plus VAT at the statutory rate.
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. A discount of 2% will be given for payment within 14 days of the invoice date. The entitlement to a discount will fail if, at the time of payment, the customer still has outstanding earlier invoices.
3.4. Bills will only be accepted by express agreement. Credit notes relating to bills or cheques 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. In the event that the customer experiences payment difficulties following signature of the contract, or if he falls into arrears of payment or if he becomes the subject of proceedings relating to cheques or bills, we will be entitled to make deliveries only against payment in advance, and also to call due any outstanding receivables 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 his counterclaims are undisputed or legally established.
4. Deadlines, delivery dates, part deliveries, special orders, returns of goods
4.1. Deadlines and delivery dates set by the customer will only be binding if we have either offered him these or confirmed them in writing. This also applies to call-off deadlines. Meeting these is conditional upon timely compliance by the customer with his duty of co-operation, otherwise they will be 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. To the extent that a purchase has been agreed or has been legally provided for, the delivery date will be material or, alternatively, the date of notification of readiness to accept delivery, unless the customer has unjustifiably refused to accept the delivery.
4.3. In the event that despatch and/or or delivery of the goods is delayed on grounds attributable to the customer, the customer will be invoiced for any costs arising out of the delay at the beginning of the month following notification of readiness to accept despatch and/or delivery.
4.4. In the event that delivery cannot take place due to force majeure, industrial disputes or other events beyond our control and which are not attributable to us, the delivery period will be extended appropriately. We will notify the customer of the commencement and the termination of any such circumstances.
4.5. The customer may withdraw from the contract without notice in the event that we are ultimately unable to make the delivery in full before the risk has been transferred. Further, the customer may withdraw from the contract if performance of part of the delivery of an order becomes impossible, and if he has a justifiable interest in refusing a partial delivery. If this is not the case, the customer will be liable for the contract price relating to the partial delivery. The same will apply if we become insolvent. Figure 8.2 will also apply. In the event that the impossibility or the insolvency arises during a delay in acceptance of the delivery, or if the customer is solely or to the greatest extent responsible for the circumstances, he will remain liable for the consideration.
4.6. In the event that a delay on our part causes a loss to the customer, he 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 out delays in delivery are defined in 8.3 of these terms and conditions.
4.7. We will be entitled to make partial deliveries, to the extent that they are reasonable for the customer.
4.8. In the case of special orders, we will be entitled to exceed or fall short of the agreed delivery volume 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. This deduction can be increased or reduced, depending on the condition of the goods, the exception being defective goods (see Clause 7 Rights arising out of defective goods).
5. Transfer of risk, acceptance, delay in acceptance
5.1. Despatch will take place at the customer’s risk and expense. To the extent that we have received no special instructions relating to the despatch, it will be carried out to the best of our judgement and insured at the customer’s expense, if the transport is carried out in one of our lorries.
5.2. The risk will be transferred to the customer upon notification of readiness to despatch and prior to loading of the goods at our works, even if carriage paid delivery has been agreed. This will also apply if despatch is delayed at the customer’s request. Where there is to be an acceptance, this will be material for the transfer of the risk and must take place on the date of acceptance or, alternatively, after our notification of readiness to accept delivery. Where a slight defect is found, the customer may not refuse to accept delivery. In the event of delay as a result of circumstances which are beyond our control, the risk will be transferred to the customer from the date of notification of readiness to accept delivery.
5.3. In the event that acceptance is delayed as a result of circumstances for which the customer is responsible, we will be entitled to charge storage in the amount of 0.5% of the invoice amount for each month commenced with effect from one month following notification of readiness to accept despatch and/or delivery. The highest amount chargeable, however, will be 5% of the invoiced amount, unless we can show that higher costs have been incurred.
6. Retention of title
6.1. Our deliveries will remain our property until the time of payment of all our claims outstanding against the customer at the time of delivery, irrespective of the legal reasons therefor, even if payments for specially defined claims are being made. In the case of a running account, retention of title will be used as security for our balance claim.
6.2. Retention of title will remain unaffected if the customer writes a cheque for the amount of the invoice and simultaneously receives a receipt for the purchase price from us.
6.3. The customer may dispose of, mix or process our property in the normal course of his business, provided that he has not incurred any delay in payment. We will be entitled to withdraw this authority at any time. The customer will always undertake to process reserved goods for us, without any obligation on our part arising therefrom. 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. In the event that the reserved goods delivered by us are sold on by the customer, the customer hereby assigns any claims he may have arising out of the contract between himself and his employee to us. We hereby accept this assignment. In the event that the reserved goods are sold on with other goods which do not belong to us either processed or unprocessed, then the assignment of claims arising out of the onward sale will be to the value of the reserved goods only. The customer may recover claims arising out of the onward sale until such time as we cancel, which we may do at any time. However, he may not dispose of any such claims. The customer will have a duty to provide us with all information and documentation necessary to enforce the assigned right, in particular to identify debtors of the assigned claim and to notify such debtors of the assignment if we instruct him to do so. We may notify the said debtors of the assignment on behalf of the purchaser.
6.5. In the event that the value of our existing securities exceed that of our overall claims by more than 20%, we will be obliged to that extent, to release securities at our discretion at the request of the purchaser.
6.6. The customer must advise us immediately of any attachment of our rights by third parties.
6.7. In the event that the customer fails to meet his payment obligations, or if he becomes the subject of an application for insolvency proceedings, the customer must hand over the reserved goods following a warning. 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:
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:
- inappropriate or improper use
- inappropriate base
- chemical, electro-chemical or electrical influences, to the extent that we are not responsible for these
- slight variations in color, which do not exceed the values usually acknowledged in the sector, or which fall within the requirements of the guidelines or standards for the goods in question
- if the customer fails to take samples to verify the correctness of the nature and colors of the materials supplied prior to processing of the materials
- commercial variations in the color, weight and texture of the goods supplied
- commercial or slight variations in quality, color, weight and texture of the goods supplied from any samples or models which are technically unavoidable.
7.5. If the customer or a third party makes inappropriate improvements, we will not be liable for any consequences arising therefrom. The same will apply to any alterations made to the goods supplied without our prior consent.
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 his 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.
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.
8.1. 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
- there is premeditation
- our executives or bodies were grossly negligent
- there is death or culpable personal injury to or injury to health
- we fraudulently conceal defects, or if we have guaranteed that such defects are not present
- there are defects on the delivered goods, to the extent that we are liable under the product liability laws for personal injury or material damage to privately used goods.
- in the event of negligent breach of essential contractual obligations, we will also be liable for the gross negligence of non-executive staff and for minor negligence, in the latter case limited to damage which is relevant to the nature of the contract and which could reasonably have been foreseen. Other claims are excluded
- In the case of slight negligence our liability is limited to the value of the defective consignment. In addition to replacing the product or refunding the purchase price, we will compensate for further damages only to the amount of the purchase price of the defective product.
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 delivery is Münster or else the individual distribution warehouse.
10.2. All disputes will be subject to the exclusive jurisdiction of the courts of Münster/Westphalia, if the customer is a businessman, a legal entity under public law, or a special asset under public law. We may, however, elect to bring an action against the customer under his own general jurisdiction.
10.3. Applicable law will be the law of the Federal Republic of Germany.
Brillux GmbH & Co. KG Tel. +49 (0)251 7188-0 www.brillux.com
Weseler Straße 401 Fax +49 (0)251 7188-105 firstname.lastname@example.org
A limited partnership with its registered office in Münster, registered at the
district court of Münster in the companies register under number A 3194
Partner with personal liability:
Brillux GmbH, registered office in Münster, registered at the district court of
Münster in the companies register under number B 4272
General managers: Peter König, Franz Wilhelm König,
Dr. Julius Schröder, Michael Thompson
Sparkasse Münsterland Ost, account no. 95 000 303, bank code 400 501 50
IBAN: DE11 4005 0150 0095 0003 03, BIC: WELA DE D1MST
Deutsche Bank AG Münster, account no. 0 284 000, bank code 400 700 80
IBAN: DE02 4007 0080 0028 4000 00, BIC: DEUT DE 3B400
Postbank, account no. 7 462 505, bank code 370 100 50
IBAN: DE98 3701 0050 0007 4625 05, BIC: PBNK DE FF370
GLN 40 06559 00000 9