Standard Terms and Conditions of Sale

As used herein "BRILLIANCE" means Brilliance B.V., having its place of business at Hengelosestraat 58, 7521 AG Enschede, The Netherlands, unless otherwise specified.

These Terms and Conditions, together with the applicable Quotation and Purchase agreement (the "Agreement"), constitute the entire agreement between BRILLIANCE and Customer, unless otherwise agreed in writing by BRILLIANCE. In the event that Customer issues any form of order to BRILLIANCE authorizing the purchase of Product(s), it is agreed that such order is issued exclusively for the purpose of confirming Customer's purchase of the specified item(s) and the price(s) thereof, and that no other terms and conditions specified or preprinted on such order shall add to or modify the terms and conditions of this Agreement and/or any related documentation provided with the items purchased, nor shall such order terms and conditions affect either party's responsibility to the other party as defined herein. A Customer Purchase agreement shall constitute acceptance of BRILLIANCE's offer as specified in a valid Quotation. BRILLIANCE reserves the right to reject any Purchase agreement

As used herein “Products” means any hardware, software, installation or maintenance or any other service purchased (eg. non-recurring charges) delivered to the Customer hereunder. 

As used herein “Goods” means any physical product delivered to the Customer hereunder. 

As used herein “Quotation” means a price submitted formally to the Customer in writing for the sale of hardware and/or software (Products) and any associated installation, configuration or other services as described therein. 

As used herein "Customer" means the purchaser of Products and/or services from BRILLIANCE identified in the Quotation or Purchase agreement referencing this Standard Terms and Conditions of Sale document. 

As used herein, “Purchase agreement” means a purchase order (electronic or otherwise) agreed to by BRILLIANCE, order acknowledgement of Customer purchase by BRILLIANCE, supply agreement, long term agreement, or any other agreement for the Customer purchase of Products. 

All prices are subject to change without notice prior to receipt of Purchase agreement. All invoice prices are those in effect on date of shipment, unless otherwise agreed to by BRILLIANCE in writing. All pricing information in published or printed material is provided for general information and estimation purposes only. Published prices are neither quotations nor offers to sell. Prices do not include applicable national or local taxes and, unless expressly identified and itemized, do not include freight, handling or insurance. All taxes applicable to Products ordered shall be paid by Customer, or in lieu thereof, Customer shall provide BRILLIANCE with a tax exemption certificate acceptable to the taxing authorities. 

Unless agreed otherwise between BRILLIANCE and Customer in writing, BRILLIANCE may invoice Customer upon delivery of the Products in accordance with the applicable Incoterm. Net payment is due within thirty (30) days of date of invoice unless otherwise agreed between BRILLIANCE and Customer in writing. All payments shall be made to the designated BRILLIANCE address. If deliveries are made in installments, each installment shall be separately invoiced and paid for when due. No discount is allowed for early payment unless agreed to in writing by BRILLIANCE. Interest will accrue on all late payments, at the rate of 12% per annum or the applicable statutory rate, whichever is higher and to the extent permitted by applicable law, from the due date until payment in full.

All shipments, deliveries and performance of work agreed to by BRILLIANCE shall at all times be subject to the credit approval of BRILLIANCE. If, in BRILLIANCE’s judgment, the Customer’s financial condition at any time does not justify production or delivery on the above payment terms, BRILLIANCE may alter the terms of payments, such as require full or partial payment in advance or other payment terms as condition for delivery, and BRILLIANCE may suspend, delay or cancel any credit, delivery or any other performance by BRILLIANCE.

Payment by Customer of non-recurring charges, as may be made to BRILLIANCE for special design, engineering or production materials required for BRILLIANCE performance on orders deviating from BRILLIANCE established product line, shall not convey title to either the design or special materials, but title shall remain in BRILLIANCE.

Customer shall not offset, withhold or reduce any payment(s) due by it to BRILLIANCE. The payment of fees and charges is a covenant of Customer that is independent of the other covenants made by the parties hereunder.

If BRILLIANCE incurs exchange rate losses due to Customer's failure to pay when payments are due, BRILLIANCE shall be entitled to equivalent compensation from Customer for such losses.

In the event of any default by Customer in the payment of any fees or charges due, or any other default by Customer, BRILLIANCE shall have the right to refuse delivery of any Products until payments are brought current and BRILLIANCE may suspend, delay or cancel any credit, delivery or any other performance by BRILLIANCE. Such right shall be in addition to, and not in lieu of, any other rights and remedies available under the Agreement or at law or in equity for Customer’s default.

All shipments of Products shall be delivered FCA (as defined in Incoterms 2020) BRILLIANCE’s nominated facility.

Property of the products shall not pass to Customer until BRILLIANCE has received payment in full of the entire price including interest and any other possible amount due to it. Until property of the products passes to Customer, Customer shall keep the products separate from those of Customer and third parties. 

Unless expressly specified otherwise in the applicable Quotation, Customer shall accept and pay for partial shipments of Products by BRILLIANCE.

If Products are held in a warehouse, whether at Customer's request or due to Customer's failure to accept delivery, Customer shall pay BRILLIANCE a warehousing fee equal to one and a half percent (1.5%) of the agreed price in the Purchase agreement of the Products so held, per month or part of a month, calculated from the date the Products are delivered to the warehouse.

Customer may request expedited delivery of Products. If BRILLIANCE accepts such request BRILLIANCE will assess an expedited delivery fee for the Product(s) for which expedited delivery is requested, unless otherwise specified on the applicable Quotation. BRILLIANCE is under no obligation to agree to expedite delivery. 

Within 90 days before scheduled delivery of Products, Customer may not cancel or modify a Purchase agreement without the written consent of BRILLIANCE. If BRILLIANCE consents to Customer’s cancellation or modification of a Purchase agreement, Customer agrees to be responsible for and pay BRILLIANCE all costs, expenses and fees incurred by BRILLIANCE.

No return shipment for Products delivered to Customer will take place without prior written approval from BRILLIANCE. Such approval, when provided, must be in the form of a written Return Material Authorization (RMA), which must accompany the returned items. An RMA must be requested by Customer from BRILLIANCE within twenty (20) days from the original ship date. Items returned pursuant to the foregoing procedure may be subject to a restock fee, and customer shall assume and satisfy in full. Returned items must be in the original sealed shipping conditions, undamaged, unused and unaltered. Equipment received without an RMA and or in a condition other than described entitles BRILLIANCE the right to reject return of the items and/or may be subject to additional charges which Customer agrees to pay. Opened software is not returnable. All shipments of returned items must be shipped prepaid by Customer to the warehouse location specified in the RMA. Upon receipt of the returned items, BRILLIANCE will inspect such items for compliance with the foregoing conditions for proper return. A credit for properly returned items will be entered against the original invoice for the ordered items. All RMA’s issued are valid for thirty (30) days from the date the RMA is issued after which time the RMA will be cancelled. 

The ultimate shipment of Products to be delivered as part of a Purchase agreement shall be subject to the right and ability of BRILLIANCE to make such sales and shipments under all policies, decrees, orders, laws, rules and regulations of the country of origin government and agencies and instrumentalities thereof in effect at the time of shipment of the Purchase agreement, or which may be in effect thereafter, which govern exports or otherwise pertain to export controls. 

Any Purchase Agreement which cannot be fulfilled due to such policies, decrees, orders, laws, rules or regulations shall be considered to have been rejected when submitted to BRILLIANCE for acceptance or rejection. BRILLIANCE will inform Customer accordingly. Customer shall not transfer, directly or indirectly, any Products or technical data received from BRILLIANCE or the direct product of such data, to any destination subject to export restrictions, unless prior written authorization is obtained from the appropriate government agency. 

BRILLIANCE warrants for a period of 1 year after day of delivery that the Goods are free from defects in material and workmanship. Subject to the conditions and limitations set forth below, BRILLIANCE will, at its option, either repair or replace any part of its Goods that prove defective by reason of improper workmanship or materials. Repaired parts or replacement Goods will be provided by BRILLIANCE on an exchange basis, and will be either new or refurbished to be functionally equivalent to new. If BRILLIANCE is unable to repair or replace the Goods, it will refund the current value of the Products at the time the warranty claim is made. This limited warranty does not cover any damage to this Goods that results from improper installation, accident, abuse, misuse, natural disaster, insufficient or excessive electrical supply, abnormal mechanical or environmental conditions, or any unauthorized disassembly, repair, or modification. This limited warranty also does not apply to any Goods on which the original identification information has been altered, obliterated or removed, has not been handled or packaged correctly, has been sold as second-hand or has been resold contrary to export regulations. 

Customer shall be unable to invoke any hidden defects unless he has notified BRILLIANCE by registered letter of hidden defects within fifteen (15) business days following discovery and no later than twelve (12) months following receipt of the Products by Customer which, unless otherwise determined in writing, is accepted to have taken place on the day of delivery of the Products towards Customer. Any claim for non-conformity, apparent defects or hidden defects that is not made within the timeframe set forth herein shall be void. No claim shall be allowed by any other party than Customer.

The sale of Products to Customer shall not grant, convey, or confer upon Customer or any third party, a license or any right whether express or implied, to BRILLIANCE-owned patents, trademarks, copyrights, know how, trade secrets, work product, proprietary information, or any other BRILLIANCE-owned intellectual property.

BRILLIANCE grants Customer a non-exclusive, non-transferable, non-sublicensable right to use software delivered under a Purchase agreement solely for Customer's internal business purposes and only in connection with the specific project, product, system, or deliverable for which the software was delivered ("Authorized Purpose").

Customer shall not use the software for any purpose other than the Authorized Purpose without Supplier's prior written consent.

Where the parties have agreed to a specific license term, quantity, field of use, territory, project scope, or product scope, Customer's rights shall be limited accordingly and subject to such license terms. For Software delivered without a separately stated license term, Customer receives only the limited right of use described in this section. No ownership, implied license, right of reuse, right of transfer, or right of use in other projects or products shall arise by implication, estoppel, course of dealing, or otherwise.

All intellectual property rights in and to the software remain the exclusive property of BRILLIANCE and/or its licensors. Except for the limited rights expressly granted herein, no rights are granted to Customer.

Upon completion or termination of the Authorized Purpose, expiration of the applicable license, or Supplier's written request following a material breach of this Agreement, Customer shall cease all unauthorized use of the software and, upon request, certify such compliance in writing.

Unless expressly stated otherwise in a Statement of Work, Purchase Order, License Agreement, or similar document, all Software is provided under the limited Authorized Purpose license described herein.

If a third party files a claim or brings an action against Customer alleging that a Product, as delivered by BRILLIANCE to Customer infringes a patent, copyright, trademark or other intellectual property right or action by Customer, then BRILLIANCE shall assume and have sole control of the defense of any such action or claim at its own expense, including the sole power and authority to negotiate any settlement or compromise and shall be responsible for any judgment or award issued in such action based on such infringement. Customer will inform BRILLIANCE of such claim or action within fifteen (15) working days. 

If at any time use of the Products is enjoined or is discontinued because of such action, BRILLIANCE shall at its sole option and expense either procure for Customer the right to continue using the Products, replace or modify the Products so that it becomes non-infringing or grant Customer a credit for the purchase price of the Products and accept its return. BRILLIANCE shall not have any liability or obligation under this paragraph if the infringement of a third party right is based in any way upon (i) the use of Products in combination with other components, equipment or software not furnished by BRILLIANCE, (ii) the use of a Product in practicing any process for which the Product’s use was not intended, (iii) any Products which has been modified or altered, (iv) a manner in which the Product is used different from the manner for which the Product was intended and authorized even if BRILLIANCE had been advised of such use; or (v) BRILLIANCE’s compliance with Customer's designs, specification or instructions. In no event shall BRILLIANCE’s total liability to Customer under this section exceed the aggregate sum paid to BRILLIANCE by Customer over the preceding twelve (12) months for the infringing Products. 

BRILLIANCE assumes the right to make substitutions and modifications in the specifications of any of the Products or parts thereof designed by BRILLIANCE provided such substitutions or modifications will not materially affect the performance of such Products. BRILLIANCE also reserves the right to discontinue manufacturing and sale of Products at any time. If however at any time during the term of a Purchase agreement under which BRILLIANCE sells Products on a regular basis, such regularly sold and purchased Products are to be permanently discontinued, BRILLIANCE shall use its reasonable commercial efforts to give Customer prior written notice of such discontinuance and shall use reasonable commercial efforts to accept last-time-buy orders. 

Customer agrees that it will not modify, adapt, alter, translate, or create derivative works from any of the Products purchased under the Purchase agreement or derive, attempt to derive or direct others to derive the source code of any software product or the physical structure or technical properties of any other Products purchased under the Purchase agreement by reverse engineering, disassembly, de-compilation or any other means.

The Products are not designed or intended for use in applications where failure can reasonably be expected to result in personal injury or death (including, without limitation, for navigation, weaponry, aviation, nuclear or safety equipment, surgical implant, rescue of persons, or to support, protect or sustain life). Customer uses, markets and sells the Products for such applications at its sole risk and expense, and agrees to indemnify and hold BRILLIANCE harmless from any and all damages, costs or expenses arising from any claim, alleged claim or action by any third party based on the actual or alleged failure of a Product in such applications, and agrees that BRILLIANCE's warranty or liability under the Agreement does not extend to any such applications. If Customer wishes to use BRILLIANCE Products in safety or life support applications, BRILLIANCE may, on a case-by-case basis, approve an exception to this limitation of use. Such exception shall be agreed to in writing. 

BRILLIANCE shall not be liable for any loss or damage resulting from any delay in delivery or failure to give notice of delay when such delay is due to any cause or event beyond BRILLIANCE's reasonable control, including, without limitation, acts of nature, acts of terrorism, pandemic/epidemic incidents, cyber incidents, unavailability of supplies or sources of energy, riots, wars, fires, strikes, labor difficulties, delays in transportation, or delays or defaults by BRILLIANCE's suppliers or vendors. 

In the event of delay due to any such cause, the time for delivery shall be extended for a period equal to the duration of the delay, and Customer shall not be entitled to refuse delivery or otherwise be relieved of its obligations as a result of the delay. If, as a result of any such cause, a scheduled delivery is delayed for a period in excess of one hundred twenty (120) days, either BRILLIANCE or Customer shall have the right, by written notice to the other, to cancel the order for the Products subject to the delayed delivery, without further liability of any kind.

Notwithstanding anything else, and except as set out below, all liability of BRILLIANCE under a Purchase agreement(s) or otherwise shall be limited to the money paid to BRILLIANCE under the Purchase agreement(s) during the twelve (12) month period preceding the event or circumstances giving rise to such liability, and shall in no event exceed €1,000,000 (one million euros). Any liability for damages relating to allegedly defective or infringing Products, under any legal or equitable theory, shall be further limited to the purchase price paid by Customer for such Products, subject to Article 11 (Defence of Infringement Claims). In no event shall BRILLIANCE be liable for any incidental or consequential damages, lost profits or lost data, or any other indirect damages, even if BRILLIANCE has been informed of the possibility thereof.

Nothing in this Article 16 shall limit or exclude either party's liability for (i) death or personal injury caused by its negligence, (ii) its own intent (opzet) or willful misconduct, (iii) gross negligence (grove schuld) of that party or its management, or (iv) any other liability that cannot be limited or excluded under applicable mandatory law.

Except for non-confidential documentation provided to Customer for distribution with a corresponding Product, Customer acknowledges that all technical, commercial and financial information disclosed to Customer by BRILLIANCE, is the confidential information of BRILLIANCE. Customer shall not disclose any such confidential information to any third party and shall not use any such confidential information for any purpose other than as agreed by the parties and in conformance with the purchase transactions contemplated herein.

The Agreement is not assignable by Customer and any attempt to assign any rights, duties or obligations arising hereunder shall be void. 

These Terms and Conditions, and all Purchase agreements are governed by and construed in accordance with the laws of the Netherlands. All disputes arising out of or in connection with these Terms and Conditions or Purchase agreement, shall first be attempted by Customer and BRILLIANCE to be settled through consultation and negotiation in good faith and a spirit of mutual cooperation. All disputes that are not so settled within a period of sixty (60) days from the date the relevant dispute first arose may be submitted to the courts of The Hague, the Netherlands, provided that BRILLIANCE shall always be permitted to bring any action or proceedings against Customer in any other court of competent jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. Nothing in this section shall be construed or interpreted as a limitation on either BRILLIANCE’s or Customer’s right under applicable law for injunctive or other equitable relief or to take any action to safeguard its possibility to have recourse on the other party.

All rights and remedies of BRILLIANCE hereunder shall be cumulative and may be exercised singularly or concurrently. In the event that either party shall on any occasion fail to perform any term herein and the other party shall not enforce that term, failure to such enforce on that occasion shall not prevent enforcement of any term on any other occasion. 

Each Party shall comply, and shall procure that its directors, officers, employees, agents, and subcontractors engaged in connection with this Agreement comply, with all applicable anti-corruption and anti-bribery laws, including the Dutch Criminal Code, the UK Bribery Act 2010, and the U.S. Foreign Corrupt Practices Act. Neither Party shall, directly or indirectly, offer, promise, give, or accept any payment, gift, or other benefit to or from any person, including a public official, in order to improperly obtain or retain business or to secure an improper advantage. Breach of this clause constitutes a material breach of this Agreement, entitling the non-breaching Party to suspend performance and/or terminate the Agreement with immediate effect, without prejudice to any other rights or remedies available at law.

In connection with the execution of this Agreement, BRILLIANCE may, from time to time, use and process personal data (such as contact details and other project-related data of Customer's representatives, employees, or engaged professionals) to the extent reasonably necessary for the performance of this Agreement. Each Party shall comply with all applicable data protection and privacy laws, including the General Data Protection Regulation (EU) 2016/679 (GDPR) and its Dutch implementing legislation (Uitvoeringswet AVG), in connection with any such processing. 

If any provision of these Terms and Conditions, or of any Purchase agreement, is held by a court or other competent authority to be invalid, illegal or unenforceable in any respect under any applicable law, such provision shall to that extent be deemed severed from these Terms and Conditions, and the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby. In such event, the parties shall negotiate in good faith to replace the invalid, illegal or unenforceable provision with a valid provision that most closely reflects the original commercial intent of the parties.

These Terms and Conditions, and any Quotation, Purchase agreement or related documentation, are drafted in the English language. Any translation into another language is provided for convenience only. In the event of any conflict, ambiguity or inconsistency between the English text and a translated version, the English text shall prevail and shall be binding between the parties.