Conditions of Sale and Delivery Assmann Electronic GmbH
Status: 21.05.2019
1. Area of applicability
Our terms and conditions apply to all our contracts regarding the
delivery of goods. They apply to entrepreneurs, judicial persons under
public law and public law special assets. Our terms and conditions shall
apply exclusively. Opposing or deviating conditions shall only be
binding, as far as this has been accepted explicitly in writing.
2. Offers
2.1 Our offers, as well as data and information provided by us
shall be subject to confirmation and non-binding. Orders shall only
become binding following us confirming the order. Additional verbal
agreements shall only apply, as far as these are confirmed in written or
text form.
2.2 The minimum order value per assignment shall be EUR 500.00.
3. Delivery times and deliveries
3.1 Regarding the extent and time of the delivery, the written
information supplied by us shall apply exclusively. Additional
agreements and amendments need to be confirmed by us in writing.
3.2 Our
delivery obligation is subject to a timely and correct supply to
ourselves. This does not apply, as far as we are responsible for an
according non-delivery. Should it be foreseeable, that a specific
delivery cannot be made on time, we will notify the customer accordingly
in written or text form, including the respective reasons and the
estimated delivery date, as far as this is possible. We will only
default on the delivery, once a reasonable deadline for the delivery has
passed, as long as we are responsible for the respective non-delivery,
and as long as the customer has fulfilled their obligations in full.
3.3 Unless
stipulated otherwise in writing by us, the delivery will be from the
warehouse at 58513 Lüdenscheid. The transport costs and risks, as well
as the loading and packaging costs shall be at the expense of the
customer. The customer shall be responsible for adhering to possible
terms of exclusion, such as the general German forwarding terms (ADSp).
3.4 In
case of force majeure, we shall be released from your performance
obligations for the duration and extent of the consequences. Force
majeure shall be any event outside of our area of influence, which
hinders us in fulfilling our obligations in full or in part. This
includes, in particular, fire, floods and business disruptions, for
which we are not responsible, such as industrial disputes and strikes or
official administrative acts, as well as supply difficulties and other
performance disruptions, for which we are not responsible.
3.5 We
will notify the customer without delay regarding the occurrence and
discontinuation of force majeure, and will try to the best of our
ability to rectify such force majeure, as well as to limit the effects
of the same, as far as this is possible. Notifications are made in text
form or in writing, and in urgent cases via telephone. Together with the
customer, we will agree on the way to proceed in case of force majeure.
3.6 We
will choose the mode of shipment and packaging. This shall not apply,
should the customer have provided explicit instructions. A different
approach may be agreed in text form or in writing. Partial deliveries
are valid and shall be invoiced separately.
4. Prices and payments
4.1 The price stipulated as per our order confirmation shall
apply at all times, unless agreed otherwise in writing, and otherwise
the price listed in our price list as of the date the order was
accepted.
4.2 Our prices are net, “ex works” plus value added tax, transport costs and packaging.
4.3 In
case of our services to be provided after more than 4 weeks following
the finalization of the contract, we shall be authorized to carry out a
reasonable price adjustment of up to 10% in case of significant changes
to our processing costs, and in particular in regard to a change to the
costs of the raw materials to be processed by us, salaries, freight
rates, energy costs, taxes, customs etc. In case of a price adjustment
of more than 10%, the customer shall be obligated to negotiate an
appropriate price amendment with us. Should it not be possible to agree
on a price adjustment, or should the negotiations fail, we shall be
authorized to withdraw from the agreement.
4.4 The customer may
only offset such costs, which are undisputed and legally valid.
Exceptions from this shall be claims, to which the customer is entitled
due to cancellation.
4.5 Payments made by the customer shall, in
deviation from §367 of the German civil code (BGB) first be offset
against the main claim, then against possible interest and then against
possible other costs.
4.6 Payments shall be considered as having
been made, once we are able to manage the sum accordingly. In case of a
payment by means of securities, the acceptance of which is subject to
reservation as per the individual case, payments shall only be
considered as having been made upon cashing in of the securities. The
costs and fees associated therewith shall be borne by the purchaser.
4.7 As
far as payment via direct debit has been agreed, and as far as the
contractual partner has issued an according direct debit mandate to
ASSMANN Electronic GmbH, the following shall apply: the above direct
debit charge shall usually be notified by ASSMANN Electronic GmbH
together with the issuance of the respective invoice and at least 1
(one) calendar date before the direct debit due date
(“pre-notification”). The charged amount may, in individual cases,
deviate from the amount notified as per the bill/ invoice, should the
contractual partner have received a credit note between the issuance of
the bill/ invoice and the due date, or should specific transactions have
been cancelled. The contractual partner shall be obligated to ensure
that sufficient credit is held on the account specified for the direct
debit mandate, and shall ensure that the due amounts may be debited by
ASSMANN Electronic GmbH. This obligation shall also apply, as far as the
contractual partner fails to receive prior notification in individual
cases, or should they fail to receive such prior notification in a
timely manner.
5. Payment conditions and reservations of supplementary performance
5.1 Payment shall be due in full upon handover of the delivery.
5.2 Payments are to be made within 14 days of the invoice date
without deductions, unless agreed otherwise. Should the customer
default on the respective payment deadlines, we shall be authorized to
claim default interest up to the legal amount – irrespective of further
rights.
5.3 In case of the existence of defects, the customer
shall not be entitled to retention rights, unless the customer is
obviously entitled to a right of refusal of acceptance. In such a case,
the customer shall only be entitled to an according retention, as far as
the retained amount is appropriate considering the defects and the
expected costs of the respective supplementary performance (and in
particular the costs of a rectification of defects).
5.4 The
customer shall not be authorized to enforce claims and rights based on
defects, should they have failed to make due payment, and as far as the
amount due (including possible payments made already) fails to
reasonably reflect the value of the work to be carried out in regard to
the defects.
6. Reservation of proprietary rights
6.1 The delivered goods shall remain our property up until
fulfillment of all of the claims, to which we are entitled from the
customer as per the business relationship.
6.2 The client may
process or use the delivered goods. The processing is carried out on our
behalf. Should the value of the goods belonging to us be lower than the
value of the goods not in our possession and/ or the processed goods,
we shall acquire co-ownership in the new goods in relation to the value
(gross invoice value) of the processed goods to the value of the other
processed goods and/ or the processed goods at the time of processing.
As far as we do not acquire ownership of the new goods as per the above,
the client shall grant co-ownership in the new goods to us in relation
to the value (gross invoice value) of the new goods owned by the client
compared to the other processed goods at the time of processing. The
above sentence applies accordingly in case of inseparable mixes or
links. As far as we acquire ownership or co-ownership, the client shall
store the goods on our behalf with the due diligence of a prudent
businessperson.
6.3 In case of a sale of the goods or new goods,
the customer shall herewith transfer their onsale claims towards their
(third party) customers, including all ancillary rights, to us as a
means of security, and without this requiring a separate confirmation.
The transfer shall include all possible payment balance requests.
However, the transfer shall only be up to the amount as per the price of
the goods invoiced by us. The share of the claim transferred to us
shall be satisfied with priority.
6.4 Except for cases of
revocation, the customer shall be authorized to confiscate the
transferred claims. The customer shall forward any payments made against
the transferred claims to us up until the amount of the secured claims.
In case of a justified interest, and especially in case of default,
cessation of payment, the opening of insolvency proceedings, note
protest or justified indications of overindebtedness, or an imminent
inability of the customer to make payment, we shall be entitled to
revoke the customer’s confiscation authorization. Furthermore, we may
disclose the transfer of securities, make use of the transferred claims,
as well as disclose the transfer of securities by the customer to their
(third party) customers following prior notification, and whilst
adhering to an appropriate deadline.
6.5 In case of a legitimate
interest, the customer is to disclose to us the information necessary,
so as to claim such rights towards (third party) customers, and is to
hand over the required documents.
6.6 Whilst the reservation of
proprietary rights applies, the customer shall be prohibited from
pledging or the transfer of securities. In case of pledging,
confiscations or any other third-party orders or interventions, the
customer is to notify us immediately.
6.7 As far as the realizable
value of all securities, to which we are entitled, exceeds the sum of
all secured rights by more than 10%, we shall release an according share
in the securities at the request of the customer. It is assumed that
the conditions of the above sentence have been met, as far as the
estimated value of the securities, to which we are entitled, reaches or
exceeds 150% of the value of the secured claims. We may choose from the
respective securities in case of a release.
6.8 In case of a
breach of duty by the customer, and especially in case of default, we
shall be entitled to demand a release of the goods or new goods –
including without the setting of an according deadline- and/or to
withdraw from the agreement – if required, following the setting of a
deadline - ; the customer shall be obligated to release the goods
accordingly. An according request regarding the release of the goods or
new goods shall not be regarded as a cancellation, unless this is
specified explicitly.
7. Guarantee
7.1 One condition regarding according guarantee claims against us
is, that the customer fulfils their obligations as per §377 of the
commercial code (HGB), i.e. so-called notifications of defect. A
notification of defect shall be considered as having been submitted in a
timely manner, if it is sent by the customer within three working days
as of the receipt of the delivery, or in case of hidden defects as of
the date of discovery. Should the goods have been accepted by the
customer, or should a check have been carried out on site, an according
notification of defect shall be excluded, if such defects could have
been identified at that time. Transport damages or shortfall quantities
recognizable upon delivery shall furthermore be noted on the forwarding
agent’s receipt confirmation in accordance with §438 of the commercial
code (HGB).
7.2 Should it transpire upon checking an according
notification of defect, that it is unjustified, and should the customer
have been aware of the non-existence of said defect upon submitting the
notification of defect, or should they have made such a notification in
error due to negligence, the customer shall reimburse any damages
incurred. We will charge a fixed fee of €100 in this case. We shall
reserve the right to demand further compensation. The customer shall be
entitled to prove that the notified defect exists nevertheless and/or
that we incurred lower costs in regard to the checking process than the
fixed fee stipulated.
7.3. Should the notification of defect be
justified, we will either rectify the defect or provide a replacement.
Should it not be possible to rectify the defect within an appropriate
timeframe stipulated by the customer, the customer may choose to ask for
a discount or issue a cancellation. A cancellation shall not be
possible in case of minor defects.
7.4 Warranty claims shall not
apply in case of minor deviations from the agreed quality or minor
limitations in regard to the respective usability.
7.5 We are to
meet any costs incurred in regard to a rectification of defects,
including transport, travel, work and material costs. This shall not
apply, should the costs regarding the rectification of defects increase
as a result of providing such services at another location than the
customer’s registered office, unless such a movement is in line with the
respective regulations.
7.6 We may refuse a rectification of defects, should this only be possible by incurring unreasonable costs.
8. Liability
8.1 We shall be liable in cases of intent and gross negligence by
us or our representatives or assistants, as well as in case of culpable
injury to life, body or health in accordance with the legal regulations.
8.2 In
all other cases, we shall only be liable in accordance with the product
liability act, due to a culpable breach of significant contractual
obligations, or as far as we have maliciously concealed the respective
defects, or as far as we have accepted an according guarantee regarding
the quality of the service. Compensation in regard to the breach of
significant contractual obligations shall, however, be limited to
foreseeable damages typical for such agreements, unless another
exceptional case as listed in paragraph 1 applies at the same time.
8.3 The
stipulations as per the above paragraphs shall apply to all
compensation claims (and in particular to compensation in addition to
the service, and compensation instead of the service), irrespective of
the applicable legal reason, and in particular if based on defects,
breaches of contractual obligations and illegal actions. They shall also
apply to claims regarding the reimbursement of futile expenses. Default
liability shall be based on no. 9 of these terms, liability in regard
to impossibility shall be based on no. 10 of these terms.
8.4 The above regulations shall not mean a change to the burden of proof to the customer’s disadvantage.
9. Limited liability - default
9.1 We shall be liable for delays to the service in case of intent
or gross negligence committed by us or one of our representatives or
assistance, as well as in regard to culpable damages to life, body or
health in accordance with the legal regulations. Our liability in cases
of gross negligence shall, however, be limited to foreseeable damages
typical for such agreements, unless another of the above-mentioned
exceptional cases applies at the same time.
9.2 Apart from the
cases listed in paragraph 1, the customer’s liability due to default
shall be limited to compensation of the service itself, as well as
foreseeable damages typical for such agreements, as well as to
foreseeable damages typical for such agreements in case of compensation
instead of the respective service (including a reimbursement of futile
expenses).
9.3 Additional claims of the customer shall be excluded
– even in case of the expiry of a deadline set for the contractor’s
services. The limitation shall not apply in case of a culpable breach of
significant contractual obligations. Compensation regarding the
culpable breach of significant contractual obligations shall, however,
be limited to foreseeable damages typical for such agreements, unless
another case as per paragraph 1 also applies.
9.4 The customer’s right to withdraw from the agreement shall not be affected.
9.5 The above regulations shall not mean a change to the burden of proof to the customer’s disadvantage.
10. Limited liability - impossibility
10.1 We shall be liable for cases of impossibility of the service
in case of intent or gross negligence committed by us or one of our
representatives or assistance, as well as in regard to culpable damages
to life, body or health in accordance with the legal regulations. The
contractor’s liability in cases of gross negligence shall, however, be
limited to foreseeable damages typical for such agreements, unless
another of the above-mentioned exceptional cases applies at the same
time.
10.2 Apart from the cases listed in paragraph 1, our
liability due to impossibility shall be limited to the compensation and
the reimbursement of futile expenses in relation to foreseeable damages
typical for such agreements.
10.3 Additional claims by the
customer shall be excluded – even in case of the expiry of a deadline
set for the contractor’s services. The respective compensation for
culpable breaches of significant contractual obligations shall, however,
be limited to foreseeable damages typical for such agreements, unless
another case as per paragraph 1 also applies.
10.4 The customer’s right to withdraw from the agreement shall not be affected.
10.5 The above regulations shall not mean a change to the burden of proof to the customer’s disadvantage.
11. Specific cancellation terms
In case of the breach of contractual obligations, the customer is to declare, whether they are withdrawing from the agreement due to a breach of contractual obligations, or whether they insist on the service, namely within an appropriate timeframe following our request.
12. Returns
Returns are to be sent to ASSMANN Electronic GmbH, Auf dem Schüffel
3, 58513 Lüdenscheid free of charge, and shall only be accepted subject
to a check to be carried out by us. Returns may, unless agreed
otherwise, only be processed by us, if they contain a return slip, which
states the RMA and customer number. The customer may obtain such a
return slip and the RMA number by contacting the Lüdenscheid office in
writing or by telephone 02351/554-335, fax 02351/554-554 99 335 or
online via www.assmann.com. The disclosure of an RMA number does not
mean that the defect or the customer complaint is accepted. The customer
carries the return risks, including the risk of accidental loss.
13. Transfer
The transfer of any claims of the customer against us based on the
respective business relationship shall require our written consent, so
as to be valid. We may only refuse such consent, should the customer not
have a justified interest.
14. Confidentiality
14.1 The protection of legally protected and/ or confidential
information shall be subject to confidentiality. The term legally
protected and/ or confidential information (hereinafter: secret
information) shall, in particular, refer to all technical and scientific
information regarding one of the contractual parties and/ or companies
affiliated with one of the contractual parties. Upon finalizing this
agreement, the parties shall be obligated to treat any secret
information received by the other party confidentially. In particular,
the following shall be treated confidentially:
a) Any documents
made available, such as all samples, models, drawings, specifications,
IT data regarding the parties’ business activities, which are made
available to the receiving party by the other party either directly or
indirectly;
b) Other information regarding the parties‘ business operations, such as operating processes, meeting minutes or proposals;
c) Information
of any kind made available to the parties throughout the term of this
agreement, such as the cooperation in general, data relating to
employees, contractors, customers, partners or suppliers, irrespective
of whether this is disclosed directly or indirectly, verbally or in
writing, on data carriers, by means of electronic data transfer or in
any other way.
14.2 Secret information may not be made available
to third parties directly or indirectly, be it verbally or in writing or
in any other way. It may only be used in the context of the contractual
discussions between the parties.
14.3 Information shall not be regarded as secret, if
a) it can be proven that it had already been published at the time of forwarding the same to the other party;
b) it can be proven that it was already known to the third party or publicly available at the time of forwarding the same;
c) one
of the parties is obligated by law or by means of a valid
administrative deed to disclose the information, as far as the
respective obligation is notified to the other party in writing before
disclosing the same, and whilst including a statement by a lawyer
proving the obligation.
14.4 Secret information shall be used
exclusively for contractual purposes. It is to be treated strictly
confidentially and may only be disclosed to own staff, affiliated
companies and their staff, as well as third parties and their staff, as
far as these need to be aware of the respective secret information for
contractual purposes.
14.5 The parties shall be obligated not to
utilize secret information commercially, or for a purpose, which may
damage the other party in regard to their competitive position or their
customer relations.
14.6 The forwarding of secret information to
third parties is not permitted. Unless the parties have consented to
this in writing in advance.
14.7 The parties shall be authorized
to forward secret information to staff, affiliated companies and their
staff, as well as external consultation companies and banks financing
the transaction, as long as it can be ensured that they are
contractually obligated to the same level of confidentiality as per this
agreement.
14.8 The parties shall be liable for adhering to the
obligations specified in this agreement through their own staff,
affiliated companies and their staff, as well as any third parties
involved and their staff. This also applies, should the other party
agree to forwarding of the same in writing in advance.
14.9 Data
carriers, such as devices, data carriers, photographs, drawings,
information, data or other materials exchanged in connection with this
agreement shall remain the property of the delivering party.
14.10 Each
party shall return any data carriers made available and all copies of
the data contained therein or any other duplicates to the other party at
their own expense and at the request of the other party at any time,
especially upon termination of the agreement. There shall be no
retention rights.
14.11 Should an according return be impossible
in individual cases, or should this be in relation to electronic data,
the data is to be destroyed or deleted. The destruction or deletion is
to be confirmed accordingly.
14.12 Data carries, including copies
and other duplicates, which have been acquired by one of the parties
from the other party against payment, or which are required by one of
the parties, so as to fulfil their documentation obligations as per a
separate agreement finalized between the parties, or in line with legal
requirements, shall be exempt from the return obligation.
14.13 An
according return is to be requested in writing. Upon receipt of a
written return request, the receiving party shall be obligated to fulfil
the return request within three working days. The receiving party shall
furthermore be obligated to prove the fulfilment of their obligations,
and shall, in particular, confirm the destruction or deletion in writing
or text form.
14.14 We shall not be liable for the accuracy and
completeness of the secret information forwarded by us. This applies in
particular, should we have received the secret information from a third
party ourselves. The disclaimer shall not affect possible liability
based on another contractual relationship between the parties,
especially in regard to possible other framework and delivery
agreements.
14.15 For each case of violation against this
confidentiality obligation, the violated party shall be authorized to
request a contractual fine from the violating party, the amount of which
shall be stipulated at the discretion of the violated party, and the
violating party may check on the appropriateness of the same with the
responsible court as per figure 18 of this agreement.
14.16 Irrespective
of the term of this agreement, the confidentiality obligations as per
this agreement shall apply for 36 months following the termination of
the business relationship.
15. Commercial proprietary rights, copyright
15.1 There are usually existing proprietary rights/ copyrights
held by the manufacturers/ licensors in regard to the products,
including wiring diagrams, drawings, sketches, descriptions and similar
documents, as well as software. Indications of such proprietary rights
in regard to the products may not be amended, covered or removed by the
customer.
15.2 The customer shall be obligated to inform their
(third party) customers in regard to the above proprietary rights and
license conditions of the manufacturers, as well as any limitations
included in the respective license terms.
15.3 We shall only be
liable for damages based on an infringement of such proprietary rights,
if we were aware or should have been aware of the existence of the same,
and if this has led to the customer being subjected to third party
claims.
15.4 In cases of simple and gross negligence, our
liability shall, however, be limited to foreseeable damages typical for
such agreements.
16. Declaration of consent data protection
The customer agrees that the required data is stored by us
electronically for the purpose of processing and accounting, whilst
taking into account the legal data protection requirements.
17. Statute of limitation
17.1 The limitation period for claims and rights based on delivery
defects – irrespective of the legal reason – shall be one year. This
shall not apply in case of §438 par. 1 no. 2 of the German civil code
(BGB) (construction, construction materials); these shall be subject to a
limitation period of three years. However, the stipulations of this
figure shall not apply to the limitation period of contribution claims
by the seller in accordance with §479 par. 2 of the German civil code
(BGB).
17.2 The limitation periods as per par. 1 shall also apply
to all claims against us in connection with defects – irrespective of
the legal basis of the claim.
17.3 The limitation periods as per paragraphs 1 and 2 shall, however, apply to the following extent:
a. The
limitation period shall generally not apply in case of intent or in
case of a malicious concealment of a defect, or as far as we have
provided a guarantee in regard to the quality of the service.
b. In
case of compensation claims, the limitation period shall furthermore
not apply in case of a grossly negligent infringement of obligations, in
case of a culpable infringement of significant contractual obligations –
not based on the delivery of defective goods – and in case of culpable
damage to life, body or health, or in case of claims in accordance with
product liability law.
c. The limitation period for compensation claims shall also apply to the reimbursement of futile expenses.
17.4 The limitation period for all claims shall commence upon delivery.
17.5 Unless
stipulated otherwise, the legal regulations regarding the commencement
of the limitation period, the suspension of the period of limitations,
as well as the suspension and restart of deadlines shall not be
affected.
17.6 The above regulations apply accordingly in regard
to compensation claims, which are not related to defects; regarding the
limitation period, par. 1 sentence 1 shall apply accordingly.
17.7 The above regulations do not lead to a change to the burden of proof to the customer’s disadvantage.
18. Place of jurisdiction/ choice of law
18.1 For all disputes based on this contractual relationship, and
as far as the customer is an entrepreneur, a judicial person in
accordance with public law, or a public law special asset, the exclusive
place of jurisdiction for both parties shall be Lüdenscheid.
18.2 German
law shall apply to the parties’ legal relationship, namely without
reference provisions of international civil law and whilst excluding UN
purchase law.
19. Final clauses
19.1 Verbal agreements shall only apply, if they are confirmed by us in writing or in text form.
19.2 The authentic contractual language shall be German.
19.3 Should
certain stipulations of these terms and conditions be or become
invalid, the validity and executability of the remaining stipulations
shall not be affected. The customer shall be obligated to agree on an
according replacement stipulation with us, which shall be valid,
enforceable, and suitable for the purpose of the assignment, whilst
protecting mutual interests.