Terms and Conditions (Customers)

General Terms of Delivery and Payment of PaintSystems GmbH

Version of 24 March 2020

This English text is a convenience translation of the German "Allgemeine Lieferungs- und Zahlungsbedingungen". In the event of any discrepancy, the German version shall prevail.

I. Scope

The following terms of delivery and payment are intended solely for use towards entrepreneurs, legal entities under public law or special funds under public law within the meaning of Section 310 (1) of the German Civil Code (BGB). They do not apply towards consumers.
Our terms of delivery and payment apply exclusively. Conflicting terms of the buyer, or terms deviating from our terms of delivery and payment, shall not become part of the contract unless we have expressly agreed to their validity in writing. Our offers are subject to change unless expressly agreed otherwise.
Ancillary agreements, amendments and deviations from these terms should be agreed in writing.

II. Prices

The agreed prices apply plus the statutory value added tax applicable on the day of delivery.
The weights, quantities and volumes determined by us shall be decisive for invoicing unless the buyer objects without undue delay after delivery.

III. Application engineering advice

Insofar as we provide advisory services, this is done to the best of our knowledge and is non-binding. All statements and information regarding the suitability and application of the goods delivered do not release the buyer from carrying out its own examinations and trials. This applies in particular where thinners, hardeners, additional paints or other components not purchased from us are added.

IV. Delivery

Deliveries are made EXW Incoterms 2020. The buyer shall collect the goods on the agreed delivery date or, if no binding delivery date has been agreed, without undue delay after notification that the goods are ready for collection at the place of performance pursuant to Section IX. 1. If the buyer is in default of acceptance of the goods, we shall be entitled, at our discretion, to ship them at the buyer's expense or to store them – if not otherwise possible, in the open air if necessary. In this case we shall not be liable for accidental destruction, loss of or damage to the goods. If the goods are stored by us, we shall be entitled to invoice the goods and demand payment one week after the buyer's default of acceptance has commenced.
Where, in deviation from paragraph 1, it is agreed that we are obliged to ship the goods, transport shall be at the buyer's expense, and the choice of means and route of transport shall be at our discretion unless the buyer has given us specific instructions. Risk passes at the moment the goods are handed over by us to the carrier.
Partial deliveries that are reasonable for the buyer, as well as production-related over- and under-deliveries of up to 10 % each in relation to the original order, are permitted.
Significant, unforeseeable operational disruptions for which we are not responsible, as well as delays or failures of delivery by our suppliers, for example business interruptions due to a shortage of raw materials, energy or labour, strikes, lock-outs, difficulties in obtaining means of transport, traffic disruptions, official orders or cases of force majeure affecting us or our sub-suppliers, shall extend the delivery period by the duration of the impediment, insofar as they are relevant to our ability to deliver the goods. We shall inform the buyer without undue delay of the beginning and end of such impediments. If delivery is thereby delayed by more than one month, both the buyer and we shall be entitled to withdraw from the contract with regard to the quantity affected by the disruption, to the exclusion of claims for damages. The buyer's statutory right of withdrawal in the event of a delivery disruption for which we are responsible remains unaffected.
If delivery is made in loaned containers, these must be returned empty and carriage paid within 90 days of receipt of the delivery. Loss of or damage to loaned packaging shall be borne by the buyer where the buyer is responsible for it. Loaned packaging may not be used for other purposes or to hold other products. It is intended solely for the transport of the goods delivered. Labels may not be removed.
We do not take back single-use packaging. Instead, we will name a third party to the buyer who will recycle the packaging in accordance with statutory and official provisions.

V. Payment

The invoice amount is due immediately upon receipt of the invoice and payable without deduction. Payment is only deemed to have been made on time if we are able to dispose of the money with value date on the due date in the account specified by us.
Direct debit procedure: the buyer will receive advance notice no later than 14 calendar days before the due date of a SEPA direct debit, stating the direct debit amount and the due date. This period may be shortened by individual agreement between us and the buyer to any other period, but at least to "receipt one day before the due date". Advance notice may be given by invoice, SMS, telephone, e-mail, fax or internet. The amount debited corresponds to the invoice amount, taking any cash discount agreements into account. The direct debit is submitted on the due date.
In the event of late payment, the buyer shall pay default interest at a rate of 9 percentage points above the applicable base interest rate.
The provision of bills of exchange does not constitute cash payment and is permissible only with our prior consent and on account of performance. Discount and bill charges shall be borne by the buyer.
Retention and set-off by the buyer are excluded unless the claim asserted for the exercise of the right of retention or for set-off is undisputed, has been established as final and absolute, or arises from the same contractual relationship.
We are entitled to assign our claims against the buyer to third parties.
Non-payment of due invoices or other circumstances indicating a material deterioration in the buyer's financial situation after conclusion of the contract entitle us to declare all of our claims based on the same legal relationship immediately due.
The buyer shall bear all fees, costs and expenses incurred by us in connection with any legally successful enforcement of rights against the buyer outside Germany.

VI. Retention of title

We retain title to the delivered goods until the purchase price has been paid in full. The goods delivered shall remain our property until all claims arising from the ongoing business relationship with the buyer have been satisfied. The retention of title shall also continue to apply if individual claims of ours are included in a current account and the balance has been struck and acknowledged. Purchase price claims shall, despite payment, be deemed not to have been extinguished for as long as any liability assumed by us in this connection under a bill of exchange – for example within the framework of a cheque/bill-of-exchange procedure – continues to exist.
Any processing or mixing is carried out by the buyer on our behalf, without any obligation arising for us from this. In the event of processing or mixing with other items not belonging to us, the buyer hereby assigns to us, as security for our claims, co-ownership of the new item in the ratio of the value of the goods subject to retention of title to the other processed items, with the proviso that the buyer shall keep the new item in safe custody for us.
The buyer is entitled to dispose of the products in the ordinary course of business as long as it meets its obligations arising from the business relationship with us on time.
The buyer hereby assigns to us, as security, claims arising from the sale of goods to which we hold title, to the extent of our ownership share in the goods sold.
If the buyer combines or mixes the delivered goods with a main item belonging to a third party against payment, the buyer hereby assigns to us, as security, its remuneration claims against the third party up to the amount of the invoice value of the goods delivered. We accept these assignments.
At our request, the buyer shall provide us with all necessary information about the stock of goods owned by us and about the claims assigned to us, and shall notify its customers of the assignment.
The buyer is obliged to store the goods subject to retention of title carefully and to insure them at its own expense against loss and damage. The buyer hereby assigns its claims under the insurance contracts to us in advance. We accept this assignment.
If the value of the securities exceeds our claims by more than 20 %, we shall, at the buyer's request, release securities of our choice to that extent.
The buyer's right to dispose of the products subject to our retention of title and to collect the claims assigned to us shall lapse as soon as the buyer suspends payment and/or becomes financially distressed. If these conditions occur, we shall be entitled, excluding any right of retention and without setting a grace period or declaring withdrawal, to demand the immediate provisional surrender of all goods subject to our retention of title.
Insofar as the retention of title is not effective under the law of the country in which the delivered goods are located, the buyer shall provide equivalent security at our request. If the buyer does not comply with this request, we may demand immediate payment of all outstanding invoices irrespective of any agreed payment terms.

VII. Claims for defects

The buyer shall inspect the goods for defects without undue delay after receipt.
Defects must be notified in writing without undue delay after receipt, unless the defect was not detectable during inspection. If such a defect becomes apparent later, it must likewise be notified without undue delay. The notification must be made in writing and must precisely describe the nature and extent of the defect.
The buyer is obliged to inform us without undue delay and to give us the opportunity of an immediate inspection if it intends to assert defects in the products delivered by us.
In the case of subsequent performance, we are entitled to choose between remedying the defect and delivering a replacement.
Where a defect is remedied, we shall bear all expenses necessary for this purpose, provided these are not increased by the fact that the goods have been moved to a place other than the place of performance.
We are liable for compensation for consequential damage caused by a defect only if we are (partly) responsible for the occurrence of the defect through intentional or grossly negligent conduct.
If we are unwilling or unable to remedy the defect or deliver a replacement, or if this is delayed beyond reasonable periods for reasons for which we are responsible, or if the remedy of the defect or replacement delivery otherwise fails, the buyer shall be entitled, at its option, to demand rescission of the contract or a corresponding reduction of the purchase price.
All claims for defects become time-barred 12 months after receipt of the goods by the buyer, unless the goods delivered have been used for a building in accordance with their customary use and have caused the defectiveness of that building.
In the case of recourse within the supply chain (Section 445a BGB), it shall be presumed that no defects were present at the time risk passed to the buyer if the buyer duly inspected the goods pursuant to Section VII. 2. (sentence 1) but did not notify any defects, unless this presumption is incompatible with the nature of the item or of the defect.
If the buyer asserts claims for recourse, it must allow itself to be treated by us as if it had implemented all legally permissible contractual options vis-à-vis its own contractual partner (for example refusal of subsequent performance on grounds of disproportionality, or limitation of the reimbursement of expenses to a reasonable amount).
We are entitled to reject the buyer's claims for recourse, with the exception of claims for a new delivery of the goods, provided that we grant the buyer equivalent compensation for the exclusion of its rights. We are liable for compensation for consequential damage caused by a defect only if we are (partly) responsible for the occurrence of the defect through intentional or grossly negligent conduct.
Claims of the buyer for damages are excluded without any compensation having to be granted, unless we are guilty of intent or gross negligence.

VIII. Liability

Unless otherwise agreed, all further claims for compensation by the buyer against us and our employees, staff, representatives and vicarious agents are excluded, in particular any claim for compensation for damage that has not occurred to the delivered goods themselves.
The limitations and exclusions of liability contained in the preceding paragraph 1 and elsewhere in these terms of delivery and payment do not apply where liability on our part is mandatory in cases of intent, gross negligence, injury to life, body or health, as a result of an assumed guarantee as to quality or durability, or under the provisions of, in particular, the German Product Liability Act. The same applies in the event of a breach of duty on our part which jeopardises the achievement of the purpose of the contract, whereby our liability is, however, limited to compensation for typical, foreseeable damage.

IX. Place of performance, place of jurisdiction and miscellaneous

The place of performance for all obligations arising from the business relationship or from the individual contract is our respective dispatch point; for payment it is our registered office.
The place of jurisdiction shall, at our option, be our registered office or the buyer's general place of jurisdiction. This also applies to disputes in documentary, bill-of-exchange or cheque proceedings. The buyer is obliged to request us, setting a reasonable deadline, to exercise our right of choice.
The contractual relationships with our customers are governed exclusively by the law of the Federal Republic of Germany. The applicability of the United Nations Convention on Contracts for the International Sale of Goods (CISG) is excluded.
The buyer's data will be stored and processed by us only to the extent necessary for the proper performance of the contractual relationship and in accordance with the applicable statutory provisions.