General terms and conditions of Fassmann + Partner AG
§1 Definitions
In these General Terms and Conditions, as well as in all documents relating to this order, fassmann+partner means Fassmann + Partner AG; the company headquarters is in Tiefenaustrasse 2, CH-3048 Worblaufen.
“Data“ means all calculations, designs, drawings, specifications, trade secrets and other intellectual property that belong to fassmann+partner or are controlled by fassmann+partner.
“Order“ means the purchase order and all amendments made thereto duly signed on behalf of fassmann+partner.
“Specification“ means technical requirements and/ or descriptions of the items to be supplied and/ or the supplier's own specification determined by the supplier in the order.
“Supplier“ means the person, firm or company that the order has been placed to.
“Services“ means the service (if applicable) in the order.
“Deliverables“ means all goods, materials, software and any therewith related work which are the subject of the order.
§2 Scope of application
The following purchase terms and conditions apply exclusively to orders for goods and services placed by fassmann+partner. Any therefrom deviating conditions, even if they are contained in the supplier's general terms and conditions of business, are hereby expressly rejected. Unconditioned acceptance of the delivery does not constitute recognition of the supplier's general terms and conditions. By submitting an offer, the supplier accepts the conditions of purchase of fassmann+partner.
§3 Order
3.1. fassmann+partner accepts no responsibility for items supplied or services rendered unless they have been carried out in accordance with the order, the reference number of which must be stated on all documents and on all correspondence, including instruction sheets, invoices and required certificates.
3.2. fassmann+partner is entitled to revoke an order within five (5) days of its submission without incurring liability.
3.3. The supplier must notify fassmann+partner of acceptance of the order within five (5) days of the date of the order. fassmann+partner may approve a different deadline in writing. Failure to do so gives fassmann+partner the right to cancel the order without incurring liability.
§4 Prices
4.1. If prices have been agreed, they must be fixed and binding prices, excluding value added tax (VAT) but including all other taxes, duties, customs duties and fees. No price changes may be made without the written consent of fassmann+partner. If prices are still to be agreed at the time of the order, offers or price quotations must be submitted by the supplier as soon as possible and confirming additions to the order must have been confirmed in writing by fassmann+partner. Prices must be quoted and payable in Swiss francs (CHF) or euros (EUR).
4.2. No fees may be charged on delivery costs, for example, but not exclusively, on packaging and insurance, unless there is a written agreement thereof. Any such fee must be listed separately on the invoice.
§5 Invoices and payments
5.1. Invoices must be sent to the accounting department of fassmann+partner to the above address after the delivery items have arrived at the delivery address specified by fassmann+partner or after the services rendered have been acknowledged by fassmann+partner in writing. Each invoice must show the project number, order date, delivery item, part designation and, if applicable, drawing number, description, quantity and weight.
In case of a refusal of acceptance of the delivered items, fassmann+partner cannot be charged for invoices for the delivery items that were not accepted.
5.2. Payments will be made by fassmann+partner after 40 days from receipt by fassmann+partner of the duly issued invoice. fassmann+partner will inform the supplier immediately of any incorrect invoices.
§6 Object of delivery
6.1. The objects of delivery must correspond to the number, quality and specifications stated in the order, they must be suitable for the required claims and free of any visible or hidden defects.
§7 Dispatch, transfer of risk and ownership, place of fulfilment and packaging
7.1. Project number, order date, description of the delivery items, number of packages and total gross weight of the delivered items as well as the classification of dangerous goods, if applicable, must be noted on the shipping documents. The supplier undertakes to take back packaging free of charge for fassmann+partner.
7.2. The risk and ownership of the delivered items are passed onto fassmann+partner at receipt of the delivered items at the delivery address indicated by fassmann+partner in the order or, if nothing is mentioned, at the address mentioned by fassmann+partner under item 1.
7.3. The place of fulfilment is the delivery address indicated by the fassmann+partner or, if nothing is mentioned, the address mentioned by the fassmann+partner under item 1.
7.4. Proprietary rights: The property of all items/components delivered by Fassmann + Partner AG and, if applicable, already assembled on site, shall remain the all-encompassing property of Fassmann + Partner AG until full payment has been made by the orderer/client.
§8 Delay in delivery and completeness
8.1. The delivery periods or delivery dates stated in the order are binding and are understood to be at the delivery address specified by fassmann+partner in the order.
8.2. In the event of a delay in delivery, fassmann+partner may, without prejudice to its legal rights, claim a contractual penalty of five percent (5%) of the order value affected by the delay for each weekday of delay or part thereof, up to a maximum total of twenty-five percent (25%).
8.3. Partial deliveries may only be made with the prior written consent of fassmann+partner. fassmann+partner has the right to cancel the order in whole or in part if a partial delivery has been made without prior agreement in writing by fassmann+partner, without prejudice to any other right or remedy which fassmann+partner may have, without incurring liability.
8.4. fassmann+partner has the right to cancel the order in whole or in part if delivery has not taken place on the date specified, without prejudice to any other right or remedy which fassmann+partner may have, without incurring liability.
8.5. Payments made by fassmann+partner do not constitute recognition of a delivery as being in accordance with the contract and free of defects.
§9 Warranty
9.1. In particular, the supplier shall guarantee that the delivered items comply with the state of the art and the technical documents, drawings and other specifications on which the order is based.
9.2. Unless otherwise agreed in writing or unless the law provides for a longer warranty period, the warranty period shall be at least twenty-four (24) months from delivery or acceptance, if such a period is provided for by law or contract (SIA 118 - General Conditions for Construction Work).
9.3. The warranty period shall recommence for any repair work carried out under the warranty (SIA 118 - General Conditions for Construction Work).
9.4. If, after delivery or acceptance or after unpacking, or within twenty-four (24) months thereafter (or a longer period if agreed in writing), items supplied do not comply with the specification or requirements of the design, material, work or quality or do not conform to the samples approved by fassmann+partner (hereinafter referred to as "defects"), fassmann+partner is authorised to exercise one or more of the following rights at its own discretion and without prejudice to any other right or remedy:
I) to refuse to accept the items delivered in whole or in part and to demand that the supplier reimburse fassmann+partner for the costs incurred.
II) without delay demand that the supplier replaces or improves the delivered items at its own expense.
III) to require from the supplier to reduce the price according to the reduced value.
The supplier must indemnify fassmann+partner for all additional costs and expenses associated with such a defect.
In the event of a warranty claim, fassmann+partner is entitled to withhold payments due under the relevant contractual relationship or commercially related transactions up to the amount of the order value concerned.
§10 Changes
fassmann+partner may change orders unilaterally by written notification. The supplier undertakes to comply with such changes without delay. Within five (5) days of receipt of the above-mentioned notification of change, the supplier must submit a detailed report to fassmann+partner, which must show in an appropriate manner the effects of such a change. The level of detail in the report should be reasonable for the supplier. fassmann+partner and the supplier should reach agreement without delay with regard to the necessary and relevant changes in the order and should incorporate this agreement in the order by means of the order amendment.
§11 Third party industrial property rights
11.1. The supplier is liable for ensuring that no industrial property rights of third parties are infringed by the delivery items and their use which is in accordance with the contract, unless this infringement results exclusively from modifications to the delivery items carried out by fassmann+partner.
As soon as fassmann+partner notifies the supplier of the assertion of an alleged infringement of industrial property rights, the supplier will immediately defend the third party's claim against fassmann+partner in Germany and abroad at his own expense and indemnify fassmann+partner from all costs and claims, including all penalties incurred by fassmann+partner as a result of the infringement of industrial property rights. If there is an infringement of industrial property rights, the supplier
must obtain the right to continue to use the delivered items free of charge without being requested to do so, or to replace or modify them in such a way that an infringement of industrial property rights no longer exists, whereby the delivery items must continue to meet the specification as set out in the contract.
11.2. In any case, fassmann+partner must be indemnified for all costs arising from the replacement or modification of the defective delivered items.
§12 Term of contract and continuing obligation
The supplier undertakes, taking into account the currently existing economic conditions, to accept further orders with regard to future requirements of fassmann+partner for similar items to be supplied at prices and delivery periods which are not less advantageous to fassmann+partner than those approved for this order.
§13 Secrecy and advertising
13.1. The order and the item on which it is based on will be treated confidentially between the supplier and fassmann+partner and each subcontracting party of the supplier. All data, information and documentation in connection with the order may be used exclusively for the purposes of this order. If requested by fassmann+partner, the supplier will make appropriate and agreed publications with regard to the placing of the order and will participate in further agreed publications. In general, the supplier is expressly not entitled to use or exploit the name of fassmann+partner or other information in connection with the order or the comments associated with it, except with the express permission of fassmann+partner as mentioned above.
13.2. The use or exploitation of the name fassmann+partner for commercial purposes requires the prior written approval of fassmann+partner.
13.3. fassmann+partner retains all intellectual and industrial rights to data, information and documentation which have been provided or transmitted to the supplier. No rights and/ or intellectual property rights are granted tacitly.
§14 Miscellaneous
14.1. The supplier may only subcontract the partial or complete performance of this contract with the written consent of fassmann+partner.
14.2. The supplier is not permitted to assign rights and/ or obligations under this contract without the prior written consent of fassmann+partner.
14.3. The supplier is obliged to observe the relevant accident prevention regulations and industrial safety regulations in the execution and processing of the order. The latest standards and regulations of the respective country apply.
14.4. The supplier shall be obliged to obtain all necessary work permits and local public authorizations so that the performance can be fulfilled and fully comply with tax or insurance law and other regulations arising from statutory provisions.
14.5. All disputes arising from the interpretation or performance of this contract and/ or order shall be governed exclusively by Swiss law. The place of jurisdiction is Worblaufen.
Stand: November 2022
PDF - ABG Fassmann + Partner AG
