CONDITIONS OF SALE AND DELIVERY of Assmann Electronic GmbH
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 and orders
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 reservation 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.
7.1 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.
8.1 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.
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.
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.
14.1 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.