CONDITIONS OF SALE AND DELIVERY of Assmann Electronic GmbH
(current status at December 2003 Version 1.1)
The following conditions apply to all commercial transactions with buyers who are not consumers according to section 13 BGB and have their registered office in Germany. For customers based abroad only numbers 16 and 17 apply.
1. Terms and Conditions
1.1 Deliveries, services and offers are subject to these terms and conditions.
1.2 These apply to all future business relations even if they are not expressly agreed. The latest upon receipt of goods or services are subject to these terms and conditions. Claims by the customer to the contrary with regard to its terms is hereby objected to. This is also the case that the customer has specified a particular form of opposition. Deviations from these terms and conditions shall be effective only if confirmed in writing.
1.3 Purchase orders and additional oral agreements in purchase orders which are agreed with our sales representatives need to be validated by written confirmation through us.
2. Conclusion of contract, information requirements in electronic trading
2.1 Our offers are non-binding. Technical changes as well as form and color changes shall remain reserved to us, provided the item purchased is not changed in its function and the change is reasonable to the customer. The adaptation of our products to a later standardization shall also remain reserved to us.
2.2 By ordering a product, the customer makes a binding intent to purchase the ordered goods (contract offer).
We are entitled to accept this offer within two weeks of the date that we receive it. Acceptance can be made either expressly in writing or in text form or by dispatch of the goods ordered.
2.3 The final contract is subject to the proper and timely delivery by our suppliers. This only applies in cases where non-delivery is not our responsibility. In particular, we are not responsible for non-delivery upon closing of a proper, congruent hedging transaction.
2.4 In the electronic legal dealings, the confirmation of the order is not yet a binding acceptance of the offer, unless the assumption is explicitly stated in the confirmation of receipt.
2.5 If an order is made by electronic means, the contract will be stored by us and sent by e-mail to the customer upon request together with these Terms and Conditions. Moreover, the information requirements of section 312 e paragraph I No. 1-3 BGB (provision of technical aids for the elimination of data entry errors, provision of information under the information requirements VO, immediate confirmation of receipt) are excluded.
3. Pricing, price adjustment for non-EC goods
3.1 Prices are in € ex works, excluding freight, insurance, and excluding VAT. The reference figures are always stated in our order confirmation plus the applicable sales tax. For order values under € 180.00, we charge a surcharge amounting to € 22.50. Exceptions are for sample deliveries.
3.2 If the EC import duties between contract and delivery increase, we have the right to increase the agreed prices to reflect the additional amount of duty on goods that are subject to such duties. This does not apply if we are to increase the import duties at the time the contract was already known.
3.3 Section 3.2 applies, mutatis mutandis, for quota goods originating from countries enjoying preferences for imports into the EC. With regard to such goods, we also have the right to also post shipment and payment by the buyer within 365 days of delivery of the duty drawback claim, unless a customs or tax change order is issued due to exhaustion of the goods relating to this product.
3.4 Confirmed prices of a contract are in no way binding on subsequent orders of similar parts.
4. Packaging, Shipping
4.1 Transport packaging is in accordance with the packaging order returned to us. If a return does not take place within three months after delivery of the goods, then we charge this at cost.
4.2 If there are no specific instructions from the customer for packaging and shipping, we reserve the right to choose the packaging and the route.
5. Terms of payment
5.1 Unless otherwise agreed, our invoices are payable immediately without deduction. After 30 days from the date of payment, the customer is automatically in default without the need for a payment reminder. We are entitled first to existing debts despite provisions of customer payments. If costs and interest are incurred, we are first entitled to the payment of the costs, then of the interest, and finally the principal claim.
5.2 A payment is only made when the amount is made available to us. In the case of payment by papers, we reserve collection in individual cases, and the payment shall only be considered if the paper is redeemed. The related costs and expenses are shouldered by the buyer.
5.3 The customer has an obligation to pay interest from the due date of 8% above base rate according to section 247 of the General Terms and Conditions. The assertion of additional, specific default damages are expressly reserved to us.
5.4 If the buyer's fails to comply with his/her payment obligations, in particular if a check or draft is not honored or a payment is suspended, or if other circumstances become known where the creditworthiness of the customer relevant to business dimensions is in question, we are entitled to the entire balance due even if we accepted checks or bills. We are in this case also entitled to demand advance payment or security deposit.
5.5 The buyer is to add, retain or reduce if defects or counterclaims are asserted and only if the counterclaims are legally determined or undisputed. The right of retention is permissible only if the counterclaim is made of the same legal relationship.
6 Delivery times, delivery delays, partial deliveries, differences in quantity
6.1 Delivery times do not begin before complete clarification of all details.
6.2 The observance of delivery times is the fulfillment of the contractual obligations of the buyer.
6.3 Delivery and service delays due to force majeure and due to events that complicate the delivery or make it impossible (these include, for example, strikes, lockouts, official orders, etc.), even if they occur at our suppliers or their suppliers, do not represent authentic agreed deadlines and dates. We are entitled to postpone delivery or performance for the duration of the hindrance plus a reasonable start time, or to withdraw from all or the part of the contract not yet fulfilled.
6.4 If the hindrance lasts longer than two calendar months, the customer is entitled to a reasonable grace period to withdraw from the unfulfilled portion of the contract. If the delivery time extends or we are freed of our obligation, then the buyer can not derive any claims for damages.
6.5 We can only invoke the circumstances mentioned in 6.3 and 6.4 when we notify the customer immediately of the occurrence of these events.
6.6 To make partial deliveries to a reasonable extent, we are entitled to legal protection provided by the customer or not be only marginally affected.
6.7 Over- or under-deliveries of ordered quantities in the industry range of + / - 10% are allowed. This is especially true for buyer-made or customer-specific products.
7. Supply on demand
7.1 For contracts with continuous on-demand delivery we have already communicated release quantities and delivery dates for this with the order. We have the right to manufacture the total quantity of the order according to our production at any time of the delivery, unless contradictory agreements were expressly made. The total amount is produced, so subsequent changes of the ordered goods are not possible.
7.2 The customer has the contractual obligation, to divide and decrease the order quantity during the term. If the order quantity in the release period was not accepted, we shall be, without prejudice to our further legal rights, entitled to demand acceptance and payment of the entire remaining balance. The customer is in default at the end of the contract with the decrease of the non-graded and retrieved part of the purchase amount.
7.3 If a processing period is not fixed, then we are, in the case where the customer has not requested processing within the usual period, entitled to set a time for further processing, and without prejudice to our broader legal rights, demand payment of the total remaining quantity.
7.4 A reasonable inflationary compensation, unpredictable changes in cost or quantity changes during the on demand order apply as agreed.
8. Shipping and risk, acceptance
8.1 The risk passes to the customer as soon as the consignment to the person performing the transport has been transferred or have left our warehouse for shipment. This applies even if free shipping was agreed. If the shipment is not possible through no fault of ours, the risk with the notification of readiness for shipment passes on to the customer. The choice of delivery is up to us, unless the customer has given explicit instructions in this regard. The shipper or carrier must be notified immediately of any transport damage upon receipt of the shipment and a certificate is to be issued on this.
8.2 We will only secure a transport insurance at the express request of the customers and upon calculation of the resulting costs.
9. Defects, warranty, damages
9.1 We are responsible for the warranty of the goods we deliver to ensure accordance with the following provisions, which include the final warranty rules and those that do not constitute a guarantee in the legal sense. Any manufacturer’s warranty of merchandise remains unaffected by these provisions.
9.2 The warranty period is 12 months, unless the product is not used in accordance with its customary use for a building has caused its defectiveness. It begins with the date of delivery. If our technical information or installation instructions are not followed or changes are made to the products, the warranty is no longer applicable, unless the customer proves that the alleged defect is not due to these the circumstances.
9.3 The customer is obliged to notify us immediately of obvious defects, at the latest within two weeks of receipt of the goods, in writing and accurately describing the defects. Defects, even with careful examination within this period cannot be discovered, should be immediately communicated to us in writing after their discovery and thereby be precisely identified. In case of a breach of these rules, the assertion of warranty claims will be excluded. The customer bears the full burden of proof for all claims, in particular for the defect itself, the time it was detected and the timeliness of his/her complaint.
9.4 In the event of justified complaints, we can make our choice to remedy it by repair or replacement.
9.5 If subsequent performance fails after a reasonable time period set by the customer, the customer can either demand a reduction of the payment (reduction) or cancellation of the contract. If there is only minor non-conformity of the performance, especially with only minor defects, the customer has no right to withdraw.
9.6 If the customer opts for the withdrawal from the contract due to legal or material defect after failed subsequent performance, he/she shall have no further claim for damages by reason of the defect. If the customer opts for compensation after failed subsequent performance, the goods shall remain with the customer if this is reasonable. The compensation is limited to the amount of the difference between the purchase price and the value of the defective item. This does not apply if our breach of contract was caused maliciously.
9.7 The time of the contractual nature of the products supplied by us, or if no agreement is made, only our product description in the sales catalog or if custom-made by the buyer, the countersigned approved design and where appropriate, the approved template. The approved template is only for controlling the approved design, an indication of quality is not associated with the template. Public statements, recommendations or advertisements do not constitute a contractual nature of the product described.
9.8 Warranty claims are entitled only to direct our contractors and are not transferable.
9.9 We recognize during the planning of the customer requirements that the manufacturing technology can be critical or not feasible, in which case we present a counter proposal to the customer by communicating this information. The buyer in this case is obliged to review our proposal out of its own responsibility for usability in its production. We do not accept any representations or guarantees with regard to the adequacy of our proposed amendment for the designated uses of the customer.
9.10 Assmann has installed a certified quality management system according to DIN EN ISO 9001. The buyer is entitled to obtain information on the nature and scope of quality inspections. Additional testing, as set out in our quality manual, requires the separate written agreement between us and the customer with an exact representation of the test parameters and test methods.
9.11 Our quality management system shall not particularly relieve the buyer of the need for a proper inspection of incoming goods.
10. Limitations of Liability
10.1 We are not liable for negligent breach of non-essential contractual obligations.
10.2 For other negligent breach of obligations, our liability is limited to the type of foreseeable, direct average damage. This is also the case of negligent breach of duty by our legal representatives or agents.
10.3 The foregoing limitations of liability do not apply to claims of the customer from product liability or if bodily or health damage or loss of life of the customer is attributable to us.
10.4 Customer claims for damages are limited to one year beginning with the delivery of the goods. This does not apply to claims of the customer from product liability or if bodily or health damage or loss of life of the customer is attributable to us.
11. Product returns
11.1 Product returns, including those that are caused by product defects, always require our prior consent in writing, for organizational reasons in our acceptance of goods. We strictly do not apply this to special items and discontinued articles if their return is not due to product defects.
11.2 Together with our agreement, the customer includes return documents or labels together with the returns. Without this, a proper processing of the product receipt is not guaranteed, so such items are not accepted.
11.3 In the case of a product defect caused not by returning goods in original packing and as undamaged articles, we will credit 70% of the price charged. The customer has the right to prove that the costs we incur for investigation, processing, repackaging and handling in our work is less than the deduction of 30%. If the goods are damaged or not in the original box, we will charge the actual cost, but at least 60% of the original product price, and the customer retains the right to prove a lower expenditure.
12. Retention of title
12.1 Until the complete settlement of all liabilities of the business relationship - including interest and costs - we will retain the title to the goods delivered. The customer is required to commit to special storage and insurance under retention of title and present proof upon request. In case of purchase price redemption in check or bill processing our retention of title expires not with the redemption of the customer's checks but only with the redemption of the last refinancing paper.
12.2 The buyer is entitled to possess and process the goods subject to retention of title in the ordinary and normal course of business. He/she however reserves ownership upon full payment of the purchase price. The customer may not pawn the goods nor pledge them as security and must notify us immediately of any third party distraints or other third party access to the goods.
12.3 If the buyer processes or handles the goods ordered from us or associates with others, we do not own the goods, so we as producers are not subject to handling or processing charges. We thus acquire ownership or joint ownership in proportion to the total value of our product resulting from processing the item. The buyer holds the newly created item for us free of charge. When the buyer processes of our goods with goods from other suppliers, we will pro rata the co-owner of the new item. As far as we are owners or co-owner by handling or processing of new items, they are also our co-owners of which the provisions of goods subject to retention of title apply accordingly.
12.4 The buyer hereby assigns to us, from the condition precedent to the time they occur to him/her, the further claims due to us. If the conditional goods resold in particular do not belong to us - so the transfer takes place only in the amount of the sales value of our retained goods. If the third party liability is higher than our demand, the claim against the third party buyer is only to us, as it matches the value of our retained goods.
12.5 The buyer is entitled to collect the claims assigned by the third party buyer to us. However he/she shall immediately pay over to us the amounts recovered. We also reserve the right to directly collect the claim from the third party buyer.
12.6 In the event of breach of contract of the customers, especially in the event of payment default or breach of obligations according to paragraphs 1 and 2 above, this gives us the right to withdraw from the contract and reclaim the goods without prejudice to other legal rights regarding breach of obligations of the customer.
13. Property rights, copyright
13.1 The buyer is responsible for ensuring that products that we manufacture according to his/her specifications do not infringe the rights of third parties. If we took account of the manufacture or delivery of such items from third parties by claiming a property right, the customer shall indemnify us against all claims. We will only conduct defense procedures in such cases if the buyer summons us under this binding declaration of cost. We are entitled to demand security in this case because of the legal costs.
13.2 The customer has the contractual obligation to use only for the agreed purpose, the documents provided to him/her, drawings, and the constructive benefits and proposals for the design and manufacture of machined parts and assemblies. He/she is prohibited to make them accessible to third parties without our consent nor make them the subject of publications.
The customer, as well as we, is required to treat as confidential information all non-public business and technical details that will be mutually known in the business relationship. Drawings, models, templates, samples and similar items may not be released to third parties or otherwise made available. Reproduction of such items is only permitted in the context of operational requirements and copyright provision.
15. Data protection
Our current Data protection and privacy statement can be found here.
16. Place of fulfillment, jurisdiction
Jurisdiction and place of fulfillment for everything in the contractual relationship, disputes directly or indirectly arising, including actions on a bill, is the competent court for Lüdenscheid.
17. Choice of law, business conditions for foreigners
Foreigners who signed contracts with buyers and who are not established in Germany are subject to German law, including the United Nations Convention on Contracts for the International.
17.1 Our offers are binding, unless expressly designated as without engagement.
17.2 The contract goods shall be delivered EXW in accordance with Incoterms 2000.
17.3 Title to the contract goods shall pass to the customer only upon their payment in full.
17.4 Unless agreed otherwise, payment must be in €. If the customer fails to pay at maturity, commencing from the time of maturity it must pay interest in the amount of 8 % above the current base rate of the European Central Bank.
17.5 The delivered goods must be inspected immediately. The plea that the goods are not in conformity with the contract must be raised immediately. In any case, a plea that the goods are not in conformity with the contract, even in the case of hidden defects, shall be subject to a preclusive period of 6 months from the time of receiving the goods.
17.6 All claims of the customer due to the goods not being in conformity with the contract shall become statute-barred in 6 months, commencing from the days of the timely plea as provided under item 17.5.
17.7 If the goods are not in conformity with the contract, notwithstanding Art. 46 of the Convention, we shall have the right to deliver a replacement instead of the subsequent improvement. In this case the customer must make the goods that are not in conformity with the contract available to us at our expense.
17.8 We must only pay damages on account of the goods not being in conformity with the contract if we are at fault with regard to this lack of conformity with the contract. The claim for damages is limited to the max. amount € 25,000.00.
17.9 The ineffectiveness of individual provisions of these Standard Terms and Conditions shall not affect the legal validity of the contract in other respects.
17.10 The place of jurisdiction shall be the registered office of the seller; we are however also entitled to file an action against the customer at its general place of jurisdiction.
Here you can download our terms and conditions in PDF format. (Acrobat PDF 28kb)