General Terms and Conditions of Assmy & Böttger Electronic GmbH
(Version: January 2019)
1. General
1.1 For the business transactions of our company with its contractual partners/customers, the following Terms and Conditions of Delivery and Payment shall be deemed to be recognised as binding. However, the Purchaser’s general terms and conditions of business shall only apply insofar as the supplier or service provider (hereinafter: Supplier) has expressly agreed to them in writing. Silence on our part shall not be deemed to be consent.
1.2 The Supplier reserves its unrestricted property and copyright exploitation rights to cost estimates, drawings and other documents (hereinafter: documents). The Documents may only be made accessible to third parties with the prior consent of the Supplier and, if the order is not placed with the Supplier, must be returned to the Supplier immediately upon request. Sentences 1 and 2 shall apply mutatis mutandis to documents of the Purchaser; these may, however, be made accessible to such third parties to whom the Supplier has permissibly transferred Supplies.
1.3 Partial deliveries are permissible insofar as they are reasonable for the Purchaser.
2. Prices and terms of payment
2.1 The final prices quoted are ex works of the Contractor or Seller plus the applicable statutory value added tax.
2.2 Our invoices for contract manufacturing orders are payable net cash immediately upon receipt of the invoice. Other terms of payment as well as a deduction of a discount are only permissible with a corresponding written agreement.
2.3 Invoices that do not relate to production orders are payable within 30 days of the invoice date. However, we may make delivery conditional on immediate payment. Especially in the case of first-time delivery, we reserve the right of cash on delivery.
2.4 Partial payments for sales are only possible if they have been agreed in writing in advance. In such cases, the entire remaining debt shall become due immediately if the customer defaults in whole or in part on at least two consecutive instalments.
2.5. Agreements deviating from these standard terms and conditions shall be stipulated by us in the order confirmation.
2.6. The date of receipt of payment on our accounts shall be deemed to be the payment date.
2.7. If the customer defaults on his payment obligations, he shall pay the Contractor or Seller the damage incurred, at least to the amount of the statutory interest rate.
2.8. If the Purchaser is in default of payment, we are entitled to charge bank interest including overdraft interest as well as the costs of the dunning procedure. In addition, in order to comply with the insurance conditions of the credit default insurance we have taken out, we will block the Purchaser’s account with the third reminder in the event of default in payment and will only deliver further goods against advance payment or cash on delivery.
If a reminder to the Client remains unsuccessful or if circumstances become known which call the creditworthiness of the client into question, in particular if a cheque is not paid or a petition in bankruptcy or composition is filed, all other claims which are not initially due shall also become due immediately.
2.9. We reserve the right to decide on the acceptance of bills of exchange or cheques on a case-by-case basis. It is only on account of payment. We charge the usual discount and collection charges for bills of exchange. We do not guarantee timely collection or timely protest.
In the event that a bill of exchange or cheque is not honoured on time or circumstances arise which, in our opinion, no longer justify the granting of a target, we can make the total claim due immediately – even if bills of exchange or cheques have been given for this purpose.
2.10. Only persons who can produce a power of attorney for collection issued by us are entitled to accept payments.
3. Costs for the orders not carried out
The customer will be invoiced for the expenses incurred and to be substantiated (troubleshooting time=working time) if the order cannot be carried out because:
the defect complained of did not occur during the inspection;
a required spare part can no longer be procured without the Contractor being responsible for this circumstance;
the customer culpably misses the agreed appointment;
the order was withdrawn during implementation.
4. Transfer of risk and warranty
4.1. The risk shall pass to the Purchaser as follows, even in the case of carriage paid delivery:
in the case of deliveries, when they have been brought for dispatch or collected. At the request and expense of the Purchaser, deliveries shall be insured by the Supplier against the usual transport risks.
4.2. If the dispatch, the delivery, the start, the taking over in the own works or the trial run is delayed for reasons for which the Purchaser is responsible or if the Purchaser is in default of acceptance for other reasons, the risk shall pass to the Purchaser.
5. Delivery conditions and deadlines for deliveries
5.1. Our offers are subject to confirmation. An order placement received by us shall only become binding if we confirm it in writing without restriction. Ancillary agreements are only effective if confirmed in writing.
5.2. Compliance with agreed deadlines for deliveries shall be conditional upon the timely receipt of all documents to be provided by the Purchaser, necessary approvals and releases, in particular of plans, as well as compliance with the agreed terms of payment and other obligations by the Purchaser. If these prerequisites are not fulfilled in time, the deadlines shall be extended accordingly; this shall not apply if the Supplier is responsible for the delay.
5.3. The delivery deadline shall be deemed to have been met:
In the case of delivery without installation or assembly, if the consignment has been dispatched or collected within the agreed delivery and performance period. If delivery is delayed for reasons for which the Purchaser is responsible, the deadline shall be deemed to have been met upon notification of readiness for dispatch within the agreed period.
5.4. If we are in default with the delivery for which a deadline has been bindingly agreed, we shall be granted a grace period of at least 14 days. A claim for damages by the contractual partner shall only exist if the contractual partner specifically proves that damage has occurred and in what amount and if we or our vicarious agent are guilty of gross negligence or intent.
5.5. If the failure to meet the deadline for deliveries or services is due to force majeure, e.g. mobilisation, natural disaster, riot, or similar events, e.g. strike, lockout, the deadline shall be extended accordingly.
6. Retention of title
6.1. The objects of the deliveries (goods subject to retention of title) shall remain the property of the Supplier until fulfilment of all claims to which it is entitled against the Purchaser from the business relationship.
6.2. During the existence of the reservation of title, the Purchaser is prohibited from pledging or assigning the goods as security and resale is only permitted to resellers in the ordinary course of business and only on condition that the reseller receives payment from its customer or does not hand over the goods to the customer until the customer has fulfilled its payment obligations.
6.3. In the event of impending insolvency, seizure or other dispositions or interventions by third parties, the Purchaser shall notify the Supplier without delay.
6.4. In the event of a culpable breach of material contractual obligations by the Purchaser, in particular in the event of default in payment, the Supplier shall be entitled to take back the goods after issuing a reminder, and the Purchaser shall be obliged to surrender the goods. For this purpose, the Client shall allow our employees access to its business premises. The taking back or assertion of the reservation of title or the seizure of the reserved goods by the Supplier does not constitute a withdrawal from the contract, unless the Supplier has expressly declared this.
6.5. Further conditions are agreed in the supplementary clause.
7. Warranty and liability
The Supplier is liable for defects, which also include the absence of warranted characteristics, as follows:
7.1. All parts or services whose usability is not only insignificantly impaired within 6 months – irrespective of the operating time – calculated from the day of the transfer of risk, as a result of a circumstance occurring before the transfer of risk, in particular due to defective design, poor material or defective workmanship, shall, at the discretion of the Supplier, be repaired, replaced or provided again free of charge.
7.2. The Purchaser must notify the Supplier in writing of any obvious defects in the Supplier's services without delay, at the latest ten days after they become apparent during acceptance or commissioning, otherwise the Supplier shall be released from its liability for defects.
7.3. The warranty claim shall expire if changes are made to the services without the consent of the Supplier.
7.4. The Supplier shall be granted a reasonable time and opportunity to remedy the defect. In particular, the Purchaser shall ensure that the object complained of is available to the Supplier or its agents for inspection and performance of the rectification. If he refuses to do so, we shall be released from liability for defects.
7.5. The liability for defects does not apply to natural wear and tear or damage occurring after the transfer of risk as a result of incorrect or negligent handling, damage due to force majeure, excessive stress, unsuitable operating materials, defective construction work, unsuitable building ground and such chemical, electrochemical or electrical influences that are not assumed under the contract.
7.6. If the Purchaser or third parties carry out improper modifications or repair work (incorrect connection or operation), there is no warranty for these and the resulting consequences.
7.7. The warranty period for repairs, replacement deliveries or replacement services shall be 12 months; it shall run at least until the expiry of the original warranty period for the delivery item. It shall be extended for those parts which cannot be operated expediently due to the interruption by the duration of the interruption of operation caused by the repair, replacement delivery or replacement service.
8. Receipt
Deliveries are to be accepted by the Purchaser, even if they show insignificant defects.
9. Binding nature of the contract
The contract shall remain binding in its remaining parts even if individual points are legally invalid. This does not apply if adherence to the contract would represent an unreasonable hardship for one party.
10. Place of jurisdiction
The place of jurisdiction for all obligations arising from the business transactions of our company with your contractual partners/customers as well as for all connections connected with the business transactions is Oldenburg (Lower Saxony). German law shall apply to the contractual relationships.
Supplementary clause: Extended retention of title
Regarding “General Terms and Conditions of Delivery for Products and Services of the Electrical Industry” as amended by Article III. (Retention of Title) of the General Terms and Conditions of Delivery for Products and Services of the Electrical Industry, the following simple and extended retention of title is agreed:
1. The objects of the deliveries (goods subject to retention of title) shall remain the property of the Supplier until fulfilment of all claims to which it is entitled against the Purchaser from the business relationship. If the value of all security interests to which the Supplier is entitled exceeds the amount of all secured claims by more than 20%, the Supplier shall release a corresponding part of the security interests at the request of the Purchaser.
2. During the existence of the reservation of title, the Purchaser is prohibited from pledging or assigning the goods as security and resale is only permitted to resellers in the ordinary course of business and only on condition that the reseller receives payment from its customer or does not hand over the goods to the customer until the customer has fulfilled its payment obligations.
3. a) If the Purchaser resells goods subject to retention of title, he hereby assigns to the Supplier his future claims from the resale against his customers with all ancillary rights – including any balance claims – by way of security, without the need for any special declarations at a later date. If the reserved goods are resold together with other items without an individual price having been agreed for the reserved goods, the Purchaser shall assign to the Supplier, with priority over the remaining claim, that part of the total price claim which corresponds to the price of the reserved goods invoiced by the Supplier.
b) If a justified interest is substantiated, the Purchaser shall provide the Supplier with the information required to assert its rights against the Purchaser and hand over the necessary documents.
c) Until revoked, the Purchaser shall be entitled to collect the assigned claims from the suspension of payments, opening of insolvency proceedings, protest of a bill of exchange or if there are comparable justified indications suggesting the Purchaser’s inability to pay. In addition, the Supplier may, after prior warning of the disclosure of the assignment by way of security or the realisation of the assigned claims, disclose the assignment by way of security, realise the assigned claims and demand the disclosure of the assignment by way of security by the Purchaser to the customer within a reasonable period of time.
4 a) The Purchaser is permitted to process, transform or combine the goods subject to retention of title with other objects. The processing, transformation or combination shall be carried out for the Supplier. The Purchaser shall keep the new items for the Supplier with the due care of a prudent businessman. The processed, transformed or combined item shall be deemed to be goods subject to retention of title.
b) In the event of processing, transformation or combination with other objects not belonging to the Supplier, the Supplier shall be entitled to co-ownership of the new object in the amount of the share resulting from the ratio of the value of the processed, transformed or combined goods subject to retention of title to the value of the other processed goods at the time of processing, transformation or combination. If the Purchaser acquires sole ownership of the new item, the Supplier and the Purchaser agree that the Purchaser shall grant the Supplier co-ownership of the new item created by processing, transformation or combination in the ratio of the value of the processed, transformed or combined goods subject to retention of title to the other processed, transformed or combined goods at the time of processing, transformation or combination.
c) In the event of the sale of the new item, the Purchaser hereby assigns to the Supplier by way of security its claim against the customer arising from the resale, including all ancillary rights, without any further special declarations being required. However, the assignment shall only apply to the amount corresponding to the value of the processed, transformed or combined reserved goods invoiced by the Supplier. The share of the claim assigned to the Supplier shall be satisfied with priority. With regard to the collection authorisation and the conditions for its revocation, point 3. c) shall apply accordingly.
d) If the goods subject to retention of title are combined by the Purchaser with real estate or movable property, the Purchaser shall, without the need for any further special declarations, also assign to the Supplier by way of security its claim to which it is entitled as remuneration for the combination, together with all ancillary rights, in the amount of the ratio of the value of the combined goods subject to retention of title to the other combined goods at the time of combination.
5. In the event of seizures, confiscations or other dispositions or interventions by third parties, the Purchaser must notify the Supplier immediately.
6. In the event of culpable breach of essential contractual obligations by the Purchaser, in particular in the event of default in payment, the Supplier shall be entitled to take back the goods after issuing a reminder. The Purchaser is obliged to surrender the goods. The taking back or assertion of the reservation of title or the seizure of the delivery item by the Supplier does not constitute a withdrawal from the contract, unless the Supplier has expressly declared this. After prior warning, the Supplier shall be entitled to realise the goods subject to retention of title taken back and to satisfy himself from the proceeds thereof, offsetting the outstanding claims.