Terms and Conditions | RELIUS Farbenwerke GmbH

As of: 01.12.2012

I. General Provisions – Scope of Application

Our deliveries and services are provided exclusively according to the following General Terms and Conditions of Sale. These General Terms and Conditions of Sale apply only to merchants and entrepreneurs according to § 14 BGB. These General Terms and Conditions of Sale also apply to all future transactions between the contracting parties, without any special renewed reference. They also apply even if we do not expressly refer to them in subsequent contracts, especially if we provide deliveries or services to the customer unconditionally, even with knowledge of the customer's terms and conditions of business that deviate from our General Terms and Conditions of Sale. The General Terms and Conditions of Sale have been made known to you through our invoices, delivery notes, forms, price lists, as well as our email and internet publications. The scope of these terms and conditions applies to all countries in which German law is applicable. The applicability of German law is agreed upon herewith (see also XII.2. of these terms and conditions).

II. Offers and Contract Conclusion, Scope of Services

Our offers to the customer are non-binding. The customer's order is considered a binding offer. Acceptance of this offer is made at our discretion within four weeks of receipt by sending a confirmation of order or by unconditionally providing the ordered deliveries or services.
The technical data and descriptions in the respective product information, technical data sheets, or advertising materials are not guarantees of the quality or durability of the goods to be delivered by us.
In the case of sales based on samples or prototypes, these only describe the technical suitability of the sample, but do not constitute a guarantee for the quality or durability of the goods to be delivered by us.
Technical changes remain reserved within the scope of what is reasonable.
We provide technical advice to the best of our knowledge. All information and details regarding the suitability and application of our products do not relieve the buyer from their own tests and verifications to determine the suitability of the products for the intended processes and purposes.

III. Prices, Payment Terms, Payment Delays

The prices applicable are those agreed upon at the conclusion of the respective contract, in particular those stated in the order form or order confirmation. If a price is not explicitly stated, the prices valid at the time of the contract conclusion according to our price list apply. For the calculation, the weights, quantities, and amounts determined by us are decisive, unless the customer immediately objects upon receipt of the goods. In addition to these prices, the applicable value-added tax at the legally prescribed rate, as well as the costs for the packaging necessary for proper shipping, the transportation costs from our factory or warehouse, the handling charges, and – if agreed – the costs of the transport insurance, are added. For deliveries abroad, other country-specific taxes may apply.
We reserve the right to adjust our prices appropriately if changes in costs occur after the conclusion of the contract due to collective bargaining agreements, price increases by suppliers, or exchange rate fluctuations.
Our invoices are payable within five days of receipt, unless a different payment term has been agreed. After the due date stated on the invoice, the customer is in default according to § 286 Abs. 2 No. 2 BGB.
The timeliness of payment is determined by the receipt of the payment to us. Discounts are granted based on a special agreement. A discount on a new invoice is excluded as long as older invoices have not been properly paid.
The customer is only entitled to set-off or retention rights if his counterclaims have been legally established, acknowledged by us, or not disputed by us. Furthermore, the right of retention only exists if the asserted counterclaim is based on the same contractual relationship as our claim.
If the customer does not pay overdue invoices, exceeds a granted payment term, or if, after the conclusion of the contract, the customer's financial circumstances deteriorate, or if we receive unfavorable information about the customer after the conclusion of the contract, which calls into question the customer's ability to pay or creditworthiness, then we are entitled to demand the entire outstanding amount or security, or immediate payment of all of our claims that are based on the same legal relationship, or to withdraw from the contract. This applies in particular if the customer stops making payments, a check issued by the customer is not redeemed, a bill of exchange issued by the customer is not paid by the customer, an insolvency proceedings are applied for or opened regarding the customer's assets, or the insolvency proceedings are not opened due to lack of assets.

IV. Delivery and Performance Time, Breach of Contract

Agreed delivery periods are only approximate, unless a firm commitment has been expressly agreed in writing. Even if agreed delivery periods are exceeded due to circumstances for which we are responsible, the customer may withdraw from the contract after a reasonable period of notice has been given by him. The withdrawal must be in writing.
We are only in default after the expiration of a reasonable grace period set by the customer. In the event of force majeure and other unforeseen, extraordinary, and unavoidable circumstances, such as operational disruptions due to fire, water, and similar circumstances, failure of production facilities and machinery, delays or failures in delivery by our suppliers, as well as operational interruptions due to shortages of raw materials, energy, or labor, strikes, lockouts, difficulties in procuring means of transport, traffic disruptions, or official intervention, we are – to the extent that we are prevented from fulfilling our obligations on time due to the aforementioned circumstances – entitled to postpone the delivery or service for the duration of the impediment plus a reasonable start-up time. If this results in a delay of more than one month in the delivery or service, both we and the customer are entitled, excluding any claims for damages, to terminate the contract in writing under the conditions specified in Section VIII.1–7 of these terms and conditions with respect to the quantity affected by the delivery disruption.
In every case of default, our liability for damages is limited in accordance with the provisions in Section VIII.1–7.
We are entitled to partial deliveries and partial services within the agreed delivery and performance times, provided that this is reasonable for the customer.
Compliance with our delivery and performance obligations requires the timely and proper fulfillment of the customer's obligations. We reserve the right to invoke the principle of "non-performance of the other party."

V. Transfer of Risk, Transport and Packaging Costs

The delivery takes place, unless expressly agreed otherwise in writing between us and the customer, from our factory or warehouse, and the customer is obliged to collect the goods there at his own risk and expense. In this case, the risk of accidental loss and accidental deterioration of the contractual delivery items passes to the customer after they have been made available. Otherwise, the risk of accidental loss and accidental deterioration of the delivery items passes to the customer upon delivery to the carrier, even in the case of free-freight or by us transport-insured delivery.
Leihbehälter and Leihverpackungen are to be returned by the buyer empty and free of charge within 60 days; loss and damage to the Leihbehälter and Leihverpackungen are at the buyer's expense, if these are to be accounted for by him. Leihverpackungen and Leihbehälter may not be used for other purposes or for the containment of other products. They are exclusively intended for the transport of our delivered goods. Markings must not be removed. One-time packaging is not taken back by us. Instead, we name a third party to the buyer who accepts the packaging in accordance with the packaging regulation.

VI. Obligations of the Buyer/Retention of Title

The delivered goods remain our property until the full payment of the purchase price and all other current or future claims that we have against the buyer arising from the business relationship. The inclusion of the purchase price claim against the buyer in a running invoice and the recognition of a balance do not affect the retention of title. Purchase price claims are considered not extinguished even after payment, as long as a reciprocal liability assumed by us in this context, such as in the case of a check and bill procedure, continues to exist.
The buyer is obliged to handle the goods with care; in particular, he is obliged to insure them against loss, damage and destruction, such as fire, water and theft damage, at his own cost to the value of the replacement. The buyer assigns his claims under the insurance contracts to us already now. We accept this assignment.
The buyer may neither pledge nor assign in security the goods that are in our ownership. However, he is entitled, in accordance with the following provisions, to continue to sell the delivered goods in the regular course of business. The aforementioned entitlement does not exist, to the extent that the buyer has already transferred or pledged in advance the claim arising from the resale of the goods against his contractual partner – effectively – to a third party or has agreed with him a prohibition on assignment.
The buyer assigns to us already now all – even future and conditional – claims arising from the resale of the goods delivered by us, with all ancillary rights, in the amount of 110 % gross of the value, with priority over the remaining part of his claim, to secure the fulfillment of all our claims mentioned in paragraph VI.1. We accept this assignment hereby.
As long as and to the extent that the buyer fulfills his payment obligations towards us, he is authorized to collect the claims assigned to us against his customers within the framework of proper business management. However, he is not authorized to agree on a current account relationship or an assignment prohibition with his customers regarding these claims, or to assign or pledge them to third parties. If, contrary to sentence 2, there is a current account relationship between the buyer and the purchasers of our retained goods, the previously assigned claim also applies to the recognized balance, and in the event of the insolvency of the purchaser, also to the balance then existing.
Upon request, the buyer must individually prove the claims assigned to us and inform his debtors of the assignment, with the instruction to pay us up to the extent of our claims against the buyer. We are authorized at any time to notify the buyer's debtors of the assignment and to collect the claims ourselves. We will not use these powers as long as the buyer fulfills his payment obligations properly and without delay, no application for the opening of an insolvency proceeding of the buyer has been made, and the buyer does not suspend his payments. If, however, any of the aforementioned cases occur, we may require the buyer to inform us of the assigned claims and their debtors, to provide all necessary information for the collection of the claims, and to hand over the relevant documents.
In the event of seizures or other interventions by third parties, the buyer must immediately notify us in writing, so that we can bring an action pursuant to § 771 ZPO.
The processing or transformation of the goods delivered by us under retention of title is always carried out by the buyer on our behalf, without any obligations arising for us. If the goods delivered by us under retention of title are processed, mixed or combined with other items not belonging to us, we acquire joint ownership of the new item in the proportion of the value of the goods delivered by us (invoice amount including VAT) to the other items at the time of processing, mixing or combination. The same applies to the item resulting from the processing as for the delivered goods under retention of title. If the processing, mixing or combination is carried out in such a way that the item of the buyer is considered the main item, it is deemed agreed that the buyer transfers us a share of joint ownership. The buyer safeguards the resulting sole ownership or joint ownership for us. The buyer is authorized, within the framework of proper business operations, to dispose of the newly created products resulting from processing, transformation, combination or mixing without pledge or assignment, as long as he fulfills his obligations arising from the business relationship with us in a timely manner. The buyer assigns his claims arising from the sale of these new products, in which we have ownership rights, already now to us in the extent of our ownership share in the sold goods for security. If the buyer combines or mixes the delivered goods with a main item, he assigns his claims against the third party up to the value of our goods to us already now. We hereby accept these assignments.
The buyer also assigns us the claim up to the value of our goods for the security of our claims, which arise from the combination of our goods with a piece of land against a third party.
We undertake to release the security interests that are due to us upon our selection upon request of the buyer to the extent that the realizable value of our security interests exceeds our secured claims against the buyer by more than 20%.
In the case of breach of contract by the buyer, in particular in the case of payment delay exceeding 10 % of the invoice amount for a considerable period of time, we – without prejudice to other claims for damages which may be due to us – are entitled to withdraw from the contract and to demand the goods delivered by us back. We are authorised to dispose of the goods delivered by us upon their recall. The proceeds from the disposal are to be credited against the buyer's obligations to us – less reasonable disposal costs.

VII. Buyer's rights in case of defects

Open defects, incorrect deliveries and discrepancies in quantity must be reported to us by the buyer immediately, at the latest within seven days after receipt of the goods by the buyer in writing. Hidden defects must be reported to us in writing within a period of eight days after their discovery. The buyer has the obligation, if necessary, to check by means of a sample processing whether the delivered goods are free from defects and suitable for the intended use. This also applies if components are mixed in which were not supplied by us. If any defects are only discovered during processing, the work must be immediately suspended and the still unprocessed, unopened original packaging must be secured. They must be made available to us upon request for inspection. After three months from the transfer of risk to the buyer according to paragraph V.1., objections regarding hidden defects are excluded and are deemed late, if they could reasonably have been detected. If a defect objection is delayed or not properly made in accordance with paragraph VII.1. sentences 1–7, the buyer loses his rights to claim defects under the conditions of paragraphs VIII.1.–7. of these sales terms, unless the defect was deliberately concealed by us.
In the case of defects in goods delivered by us, we are only obliged to perform a repair or to deliver defect-free goods at our option (remedial action). If we are not willing or unable to perform the remedial action, in particular if the remedial action is delayed beyond a reasonable period of time for reasons attributable to us, or if the remedial action otherwise fails, the buyer is entitled at his option to withdraw from the contract or to claim a reduction in the purchase price. A remedial action is deemed to have failed after the third attempt, unless the nature of the goods or other circumstances indicate otherwise. To the extent that the buyer has suffered damage or incurred futile expenses due to defects in goods delivered by us, our liability in this regard is governed by paragraph VII.1., paragraphs VIII.1.–7. and paragraph IX.

VIII. Rights and obligations of our company

Liability of our company for damages or futile expenses – regardless of the legal basis – only arises if the damage or the futile expenses
1. which was caused by a culpable breach of an essential contractual obligation by us or one of our agents
2. which can be attributed to a grossly negligent or intentional breach of duty by us or one of our agents
According to paragraph VIII.1.a) and b), we are liable for damages or futile expenses caused by advisory or information services that are not separately payable, only in the case of intentional or grossly negligent breach of duty, provided that this breach of duty does not constitute a defect in the goods supplied by us pursuant to § 434 BGB
If we are liable according to number VIII.1.a) for the breach of an essential contractual obligation, without gross negligence or intent, our liability for damages is limited to the foreseeable, typically occurring damage. In this case, we are not liable for lost profit of the buyer and not for unforeseeable indirect damages. The above-mentioned limitations of liability according to sentence 1 and 2 apply in the same manner to damages caused by gross negligence or intent of our employees or representatives. We are not liable for indirect damages of the buyer which arise due to the assertion of contractual penalty claims by third parties
If we are liable according to number VIII.1.a) for the breach of an essential contractual obligation, without gross negligence or intent, our liability is limited in amount to 1,535 Mio. Euro per damage case. We commit ourselves to conclude and maintain an insurance policy with coverage of at least 1,535 Mio. Euro per damage case
Deviation from the above applies in the case of a delay caused by the carrier, the damages are limited to three times the freight rate payable for the order
The aforementioned liability limitations referred to in numbers VIII.1.–4. do not apply, to the extent our liability is mandatory under the Product Liability Act or if claims arising from a violation of life, body, or health are asserted against us. If the goods supplied by us lack a guaranteed characteristic, we are only liable for such damages whose non-occurrence was the subject of the warranty.
A further liability for damages as provided in numbers VIII.1.–5. is excluded – without regard to the nature of the claim asserted –. This also applies in particular to claims for damages arising from fault at the time of contract conclusion pursuant to § 311 Abs. 3 BGB, positive breach of contract pursuant to § 280 BGB, or due to delictual claims pursuant to § 823 BGB.
To the extent that liability for damages is excluded or restricted pursuant to number VIII.1.–6., this also applies with regard to the personal liability for damages of our employees, workers, staff, representatives, assistants, and agents.

IX. Statute of Limitations for Claims

Claims of the buyer due to defects in goods supplied by us or due to our breach of duty in performance – including claims for damages and claims for compensation of futile expenses – expire within one year from the statutory beginning of limitation, unless otherwise provided in the following numbers IX.2.–5.
If the buyer is a merchant and he or another buyer in the supply chain, as a merchant, has fulfilled claims of the consumer due to defects in new goods supplied by us, which were also delivered to a consumer as new goods, the statute of limitations for the buyer's claims against us pursuant to §§ 437 and 478 Abs. 2 BGB begins earliest two months after the date on which the buyer or the other buyer in the supply chain, as a merchant, fulfilled the consumer's claims, unless the buyer could successfully invoke the defense of limitation against his customer or contractual partner. The statute of limitations for the buyer's claims against us due to our delivery of defective goods begins in any case, to the extent that the claims of the buyer's customer or contractual partner due to defects in the goods supplied by us to the buyer have expired, but latest five years after the date on which we delivered the respective goods to our buyer.
Claims of the buyer regarding newly manufactured goods delivered by us, which have been used in accordance with their usual purpose for a construction work and have caused its defectiveness, expire within five years from the statutory limitation period. Deviating from sentence 1, a limitation period of four years applies, provided that the buyer has used the delivered goods for the performance of contracts which in total include Part B of the Conditions of Contract for Building Works or it concerns materials used in purely construction repairs. The limitation period pursuant to the aforementioned sentence 2 shall commence earliest two months after the date on which the buyer has fulfilled the claims arising from the defectiveness of the construction work, caused by the delivered goods, against his contractual partner, unless the buyer could successfully invoke the defence of limitation against his customer or contractual partner. The limitation of the buyer's claims against us regarding delivered defective goods shall commence in any case as soon as the claims of the customer or contractual partner of the buyer against the buyer due to defects in the goods delivered by us to the buyer have expired, but at the latest five years after the date on which we delivered the respective goods to our buyer.
Claims against us based on negligent advice and/or information, which are not separately payable, and/or without us having delivered goods in connection with the information or advice, or without the negligent advice or information constituting a defect in the goods delivered by us pursuant to § 434 BGB, expire within one year from the statutory limitation period. Claims of the buyer or customer against us due to breach of contractual, pre-contractual or statutory obligations, which do not constitute a defect in the goods to be delivered or delivered by us pursuant to § 434 BGB, also expire within one year from the statutory limitation period. Where the aforementioned breaches of duty constitute a defect in the goods delivered by us in connection with the advice or information pursuant to § 434 BGB, the provisions set out in paragraphs IX.1.–3. and IX.5. apply for the limitation of the claims based thereon.
The provisions set out in paragraphs IX.1.–4. do not apply to the limitation of claims due to violation of life, body or health, nor to the limitation of claims under the Product Liability Act and due to legal defects of the goods delivered by us, which exist in the property right of a third party, on account of which the delivery of the goods delivered by us may be claimed. They also do not apply to the limitation of claims of our buyer or customer, which are based on the fact that we have concealed defects in the goods delivered by us intentionally or have negligently and grossly violated a duty. In the cases referred to in this paragraph IX.5., the statutory limitation periods apply for the limitation of these claims.

X. Returns

The return of delivered defect-free goods is excluded. Should we exceptionally agree to the return of defect-free goods, a credit will be issued only to the extent our laboratory determines the unrestricted reusability. For the costs of inspection, preparation, reworking and repackaging, the actual costs, at least 20 % of the invoice amount, but at least 30 Euros will be deducted. Such a credit will not be paid out, but serves only for offsetting against future deliveries.

XI. Assignment prohibition

Without our express written consent, rights or claims against us, in particular due to defects in goods supplied by us or due to breaches of duty committed by us, may neither entirely nor partially be transferred to third parties or subject to third-party pledges; § 354a HGB remains unaffected.

XII. Place of performance, place of jurisdiction, applicable law, trade clauses

Place of performance and exclusive place of jurisdiction for all claims between us and merchants or legal persons of public law or public-law special funds is Memmingen (MM), unless mandatory statutory provisions are in conflict. However, we have the right to bring an action against an orderer also at the orderer's statutory place of jurisdiction.
The legal relationship between us and the orderer is exclusively governed by the law of the Federal Republic of Germany, as it applies between German merchants and as it could effectively be agreed in the respective delivery countries. The application of the rules on the international sale of goods (CISG – Vienna Convention on the International Sale of Goods) and German international private law is explicitly excluded.
Where trade clauses according to the International Commercial Terms (INCOTERMS) are agreed, the INCOTERMS shall apply in their latest version (currently INCOTERMS 2010).

XIII. Final Provisions

Changes or additions to the contract and these terms shall only apply if they are agreed in writing. This also applies to the revocation of the written form clause.
Should any of the foregoing provisions be invalid, partially invalid, or excluded by a special agreement, this shall not affect the validity of the remaining provisions.
We store data of our customers within the framework of our mutual business relationships in accordance with the Federal Data Protection Act.