§ 1 Validity
All goods, services and quotations shall be supplied by us exclusively on the basis of these Terms and Conditions of Business. They shall therefore apply to all future business relationships even if not expressly agreed. These terms shall be deemed to have been accepted at the latest on receipt of the goods or services. We hereby explicitly reject any counter-confirmations by the contract partner referring to its General Terms and Conditions of Business or Purchase. Even if we refer to a letter which contains the Terms and Conditions of Business of our contract partner or a third party, or make reference to these, this shall not constitute any consent to the applicability of these Terms and Conditions of Business.
§ 2 Quotation, conclusion of contract, content of contract, written form
(1) Our quotations shall all be non-binding and subject to change without notice unless they are expressly marked as binding or contain a specific deadline for acceptance. However, by placing a purchase order, our contract partner shall declare a binding wish to purchase the ordered goods. If we confirm receipt of a purchase order, a confirmation of receipt shall not constitute a binding acceptance of the purchase order on our part. We reserve the right to sell the goods to another buyer.
(2) The contract concluded in writing including these General Terms and Conditions of Business shall exclusively define the legal relationship between us and our contract partner. This contract shall set out all agreements between the parties relating to the subject of the contract in full. All our verbal agreements before the conclusion of a contract shall be non-binding in a legal sense and oral agreements between the parties to the contract shall be replaced by the written contract unless they expressly state that they shall continue in force and are binding.
(3) Amendments and supplements to the agreements including these General Terms and Conditions of Business must be made in writing in order to be valid. Only members of our board of directors shall be entitled to make oral side-agreements to the contrary. Documents may be sent by fax to satisfy the requirement for written form, and sending them by email shall also satisfy this requirement if it involves sending a copy of the signed declaration.
(4) The information provided by us relating to the goods or services (for example weights, dimensions, utility values, load capacity, tolerances and technical data) and our illustrations of them (for example drawings and diagrams) shall only be approximate unless their usefulness for the intended contract purpose requires greater precision. They shall not be guaranteed features but descriptions or designations of the goods or services. Normal commercial discrepancies and discrepancies caused by legal provisions or which constitute technical improvements and the replacement of components with equivalent parts shall be permitted as long as they do not adversely affect the usefulness of the products for the intended contract purpose. Public statements, endorsements or advertising shall not constitute a contractual description of the properties of the goods.
§ 3 Prices, price changes
(1) If the agreed prices are based on our list prices and the goods are not delivered until more than four months after the conclusion of the contract, the list prices in force at the time of delivery shall apply. Price increases must be reasonable and must not be disproportionate. Additional or special deliveries of goods and services shall be invoiced separately.
(2) All changes to foreign currencies or to the CHF exchange rate which occur after the conclusion of the contract shall be borne by the customer.
(3) Unless otherwise stated, our prices are net prices. Value-added tax shall be payable in accordance with the statutory provisions valid at the time. Unless otherwise agreed, prices shall be quoted from the place of performance exclusive of freight and packaging, charges, taxes and duties for exports.
§ 4 Lead time for goods and services, difficulties and obstacles to delivery
(1) The lead time for goods and services, deadlines or other times shall be non-binding and shall be agreed on an approximate basis unless a fixed period or deadline has been promised or agreed. If shipment has been agreed, the delivery dates or deadlines shall refer to the time at which the goods are handed over to the forwarder, freight driver or other third party engaged for the transport services.
(2) Notwithstanding our rights from default on the part of our contract partner, we may demand an extension of the lead time for goods or services or a postponement of delivery dates or service deadlines by the period in which our contract partner fails to meet its contract duties to us.
(3) We shall not accept any liability for the delivery of goods being rendered impossible or delayed if this is caused by force majeure or other events which were unforeseeable at the time that the contract was concluded (for example operational disruptions of any kind, difficulties in the procurement of materials or energy, transport delays, strikes, legal lock-outs, a lack of labour , energy or raw materials, difficulties in the procurement of official permits, official action or failed, incorrect or late delivery by suppliers) for which we are not responsible. If such events make it significantly more difficult or impossible for us to deliver the goods or provide the service and the obstacle is not simply a temporary one, we shall be entitled to cancel the contract. In the event of temporary obstacles, the lead time for the goods or services shall be extended or the delivery dates or service deadlines shall be postponed by the period of the obstacle plus a reasonable start-up time. If it is no longer reasonable to expect our contract partner to accept the goods or services as a result of the delay, it
shall be entitled to withdraw from the contract by means of an immediate written declaration to us.
(4) If we are in default or it becomes impossible for us to deliver the goods regardless of the reason, our liability shall be limited as set out in §10 of these General Terms and Conditions of Business.
(5) We shall be entitled to make partial deliveries and supply partial services if the part consignments and part services can be used by our contract partner for the contractual purpose, the remaining ordered goods or services are assured and the contract partner does not incur any significantly higher expenses or additional costs as a result unless we pay said costs.
(6) We shall be entitled to deliver the goods before an agreed delivery date at any time.
(7) If the shipment of the goods is delayed at the request of our contract partner, it shall pay the warehousing costs starting one month after notification that the goods are ready for shipment. If the goods are stored by us, these costs shall amount to 0.25% of the net invoice total of the goods in storage for each full week. If our contract partner can provide evidence to the effect that the costs for similar warehousing within the industry would be significantly lower, our claims described in the above sentence must be reduced within reason. This shall not affect our entitlement to compensation for substantiated higher costs. In the event of a delay described in this paragraph, we shall also be entitled, after setting a reasonable deadline for the acceptance of the goods or services, to dispose of the contract goods elsewhere and to supply them in turn to the contract partner with a reasonable extended deadline. This shall not affect existing payment obligations. Reference is made to §8 paragraph 6 of these General Terms and Conditions of Business.
§ 5 Transfer of risk
The risk shall be transferred to our contract partner at the latest when the goods are handed over (with the start of the loading process being decisive) to the forwarder, freight driver or other third party engaged to complete the shipment process. This shall apply even if partial deliveries are made or we have accepted other services such as shipment or installation. If the shipment or handover is delayed as a result of a situation whose cause is the responsibility of our contract partner, the risk shall be transferred to our contract partner from the date on which the goods are ready for shipment and we have notified our contract partner of this fact.
§ 6 Warranty, complaints, statute of limitations, restriction and exclusion of warranty
(1) The warranty period shall be one year from the date of delivery or, if an acceptance procedure is required, from the date of the acceptance procedure. This period shall not apply to compensation claims by our contract partner resulting from death, physical injury or health impairment or due to
malicious or grossly negligent breaches of duty on our part or on the part of our agents which shall become statute-barred on the basis of the statutory regulations.
(2) The supplied goods must be inspected carefully immediately after delivery to our contract partner or to the third party designated by it. They shall be deemed to have been approved by our contract partner in terms of obvious defects or other defects which would have been identifiable if they had been carefully inspected without delay unless we receive a written complaint within seven working days of the delivery of the goods. In terms of other defects, the goods shall be deemed to have been accepted by our contract partner if we do not receive a complaint within seven working days of the time at which the defect became apparent; if the defect was identifiable to our contract partner at an earlier time in the course of normal usage, however, this earlier time shall apply to the start of the period for lodging a complaint. The defective goods must be returned to us free of charge at our request. In the event of a justified complaint, we shall reimburse the costs of the cheapest method of shipment; this shall not apply if the costs increase because the goods are located in a place other than the place in which they were intended for use.
(3) If the supplied goods are defective, we shall be obliged and entitled to refinish them or supply replacements within a reasonable period at our discretion. In the event that this fails, in other words if it is impossible or unreasonable or if the refinishing work or delivery of replacements is refused or is subject to an unreasonable delay, our contract partner may withdraw from the contract or reduce the purchase price within reason.
(3a) We shall not be obliged to bear any expenses necessary for the purposes of removing the defective item or mounting or installing an improved item or replacing the defective item with a fault- free item; this shall not apply in the case of consumers, building contractors or craftsmen.
(3b) In the event that the obligation to bear the expenses necessary for removal and reassembly in accordance with Section 3a) above is not excluded, we reserve the right – by way of subsequent performance – to do the removal and/or reassembly ourselves.
(3c) In any event, we shall retain the right to refuse to provide subsequent performance where subsequent performance is only possible with disproportionate costs.
(4) The warranty claims shall be null and void if our contract partner modifies the goods or has them modified by a third party without our consent and this makes it impossible or unreasonable to rectify the defect. In any event, our contract partner must pay the additional costs for defect rectification caused by any such modification.
(5) If our contract partner receives inaccurate installation instructions, our obligation shall only extend to providing installation instructions that are free from inaccuracies and only if the inaccuracy in the installation instructions prevents the proper installation of the goods.
(6) In the event of defects in components supplied by other manufacturers which we cannot rectify due to licensing or other material reasons, at our discretion we shall lodge our warranty claims against the manufacturers and suppliers for the account of our contract partner or assign them to our contract partner. Warranty claims against us shall only be valid for such defects on the basis of the other requirements and on the basis of these Terms and Conditions of Business if court enforcement of the above claims against the manufacturer and supplier was unsuccessful or has no prospects of success
as a result of insolvency, for example. For the duration of the lawsuit, the statute of limitations of the warranty claims held by our contract partner against us shall be suspended.
(7) If we are responsible for a defect, our contract partner may demand compensation on the basis of the requirements set out in §10 of these General Terms and Conditions of Business.
(8) Warranty claims relating to the delivery of used items shall be excluded in full.
§ 7 Reservation of title
(1) Pending discharge of all receivables (including all net receivables under trade credit terms) held by us against our contract partner either now or in the future for any legal reason, the contract partner shall furnish us with the following security.
(2) We shall retain (co-)title to the goods supplied to our contract partner or a third party until all secured receivables have been paid in full; hereinafter they shall be known as goods subject to retention of title.
(3) If the goods subject to retention of title are processed by our contract partner, it is hereby agreed that the processing work takes place on our behalf and for our account as the manufacturer and we shall acquire title or, if the processing involves materials from several title holders and the value of the processed goods is higher than the value of the goods subject to retention of title, co-title (fractional title) to the new goods in proportion of the goods subject to retention of title to the value of the new goods. In the event that such title acquisition takes place on our behalf, our contract partner hereby
transfers its future title or co-title (in the proportion described above) to the new goods to us as security. If the goods subject to retention of title are connected or intrinsically mixed with other goods to form a single item and if one of the other goods can be regarded as the main goods, our contract partner hereby transfers co-title to the single item in the proportion set out in sentence 1 to us as long as the main goods belong to it.
(4) Our contract partner shall keep the goods subject to retention of title for us free of charge. It shall be entitled to process and sell the goods subject to retention of title as part of its normal business operations as long as it has not committed a breach of duty as described in paragraph 6. The goods may not be assigned, pledged or used as security. The receivables result from the resale or another legal reason (insurance, illegal action) relating to the goods subject to retention of title, including all balance receivables from a current account, are hereby assigned to us by our contract partner by way of security in full (or co-title in the appropriate co-title proportion). We hereby accept the assignment. We revocable authorise our contract partner to collect the receivables assigned to us on our account on its own behalf. This collection authority may only be revoked if a breach of duty as described in paragraph 6 occurs. If our interest in doing so is justified, we shall be entitled to notify our contract partner’s customer of the assignment.
(5) In the event of any third party action against the goods subject to retention of title, particularly the seizure, our contract partner must disclose our title and notify the third party immediately so that we can enforce our title rights. For this purpose, our contract partner must provide all the information required for us to enforce our rights without delay and in writing. If the third party is unable to reimburse us with the court or out of court costs we incur in this respect, our contract partner shall be liable for them.
(6) In the event that our contract partner is in default with payment, we shall be entitled to recover the goods subject to retention of title or demand the assignment of the recovery claims of our contract partner against third parties and to withdraw from the contract. The same shall apply in other cases in which our contract partner commits a breach of cardinal contractual obligations. The recovery or seizure of the goods subject to retention of title by us shall not constitute a withdrawal from the contract.
(7) Our contract partner undertakes to insure the goods subject to retention of title against damage resulting from the risk of loss of any kind (for example fire, theft and vandalism) at its own expense. It also undertakes to treat the goods with care and to carry out any required maintenance, repair or inspection work at its own expense.
(8) We shall release the goods subject to retention of title and the items or receivables in their place if their value exceeds the level of receivables secured by them by more than 50%. The selection of the items to be released in this case shall be at our discretion.
§ 8 Payment, due date, offsetting restrictions, reduction in purchase price, retention
(1) Our invoices shall be due and payable on the basis of the invoice within 30 days of the invoice date on a strictly net basis. We shall be entitled to allocate payments received at our discretion.
(2) If payment is not made on time, we shall be entitled to charge interest amounting to 5% p. a. from the date on which it was due. We shall also be entitled to provide evidence and claim a higher interest rate or additional damages.
(3) Payment shall be regarded as having been effected when the amount is at our unconditional disposal. To the extent that we accept payment by means other than cash, which we reserve the right to do, the payment shall likewise not be regarded as having been effected until the amount owing is credited unconditionally to our account or we have unconditional disposal of it.
(4) If we become aware of circumstances which significantly reduce the creditworthiness of our contract partner or which jeopardise the payment of our outstanding receivables from the contract relationship (including all individual orders to which the same framework agreement applies), we shall be entitled to make the entire outstanding debt due for payment even if we have accepted non-cash payment. In this case we shall also be entitled to demand payment in advance or security; we shall not be obliged to deliver in such cases until such time as our contract partner has made the payment
in advance or provided the security.
(5) Exercising a right of retention, setting off or reducing the purchase price compared to the agreed remuneration shall only be permitted if the counter claims on which such action is based have been decided in a court of law or are undisputed.
(6) If the delivery is delayed for reasons which are the responsibility of our contract partner, regardless of the date of the actual delivery, we shall be entitled to invoice the agreed goods or services at the latest on the date of delivery which was originally agreed. This shall apply even if we agree to delay the delivery. All other claims against our contract partner based on any relevant aspect shall not be affected by this.
§ 9 Intellectual property rights, confidentiality, title
(1) If we supply parts on the basis of designs, drawings, models, plans, samples or other specifications provided by our contract partner, we shall not accept liability for the infringement of copyrights, commodity laws , trademarks, patents or other intellectual property rights. Our contract partner shall indemnify us completely in this regard.
(2) If we provide our contract partner with technical illustrations of any kind, intellectual property rights of all kinds shall not be affected; in particular the right of duplication, distribution, display and other exploitation shall remain with us without restrictions. Our contract partner shall not be entitled to duplicate our illustrations, disclose the content to third parties or exploit them in any other way. Our title to all drawings, estimates or other documents or illustrations shall remain in our hands unless their transfer has been expressly agreed; our contract partner must return such items in full if they are
not required by it for the proper fulfilment of the contract or the negotiations do not result in a contract being concluded. All information on this basis shall be strictly confidential.
(3) Unless expressly agreed to the contrary in writing, information belonging to our contract partner which comes to our attention during the fulfilment of the contract shall not be regarded as confidential.
§ 10 Liability for compensation for culpability, limitation and exclusion of liability
(1) Our liability for compensation, regardless of the legal basis, particularly as a result of delivery being impossible, delayed, defective or incorrect, breach of contract, breach of duties during contract negotiations and illegal action, if this involves culpability, shall be limited as set out below.
(2) We shall not accept liability in the event of simple negligence on the part of our bodies, legal representatives, employees or other agents unless this involves a breach of cardinal contractual obligations. Cardinal contractual obligations shall include the duty to deliver goods which are not suffering from defects which adversely affect the use more than insignificantly, as well as duty to provide advice, protection and care which should enable our contract partner to use the goods as set out in the contract or protect our contract partner’s personnel from death or physical injury or protect
its property from significant damage.
(3) If we are liable to provide compensation on the basis of the above provisions in paragraph 2, this liability shall be limited to damage which we foresaw as a possible consequence of a breach of contract when we concluded the contract or should have been able to foresee had we used a normal commercial level of care. Indirect damage and consequential damage which are a consequence of defects affecting the goods shall also only be liable to compensation if said damage is typically expected to occur if the goods are used for their intended purpose.
(4) In the event that we are liable for simple negligence causing property damage and/or other resulting damage, our duty of compensation shall be limited, even if this were caused by a breach of cardinal contractual obligations. This limitation shall amount to the net total agreed with our contract partner for the order related to the case of damage (maximum liability).
(5) The exclusions and limitations of liability set out above shall apply to the same extent to our bodies, legal representatives, employees and other agents.
(6) If we provide technical information or advice and this information or advice is not part of the services which we are due to supply on the basis of the contract, it shall be provided free of charge and with the exclusion of all liability.
(7) In the event of an infringement of intellectual property rights, we shall reserve the right at our discretion in order to indemnify ourselves from any obligations, at our own expense
a) to purchase the required licences to repair the alleged infringement of intellectual property rights or
b) to provide our contract partner with modified goods or parts thereof which, when used to replace the goods or parts thereof, rectify the alleged infringement of intellectual property rights relating to the goods.
If this is not successful within a reasonable period of time, our contract partner shall be entitled to withdraw from the contract or reduce the purchase price by a reasonable amount. Any claims for compensation on the part of the contract partner shall be subject to the restrictions set out in this §10. In the event of an infringement of rights by products supplied by us from other manufacturers, §6 paragraph 6 of these Terms and Conditions of Business shall apply as and where appropriate.
(8) The restrictions set out in this §10 shall not apply to liability caused by malice, to guaranteed properties, to death, physical injury or health impairment or under the Product Liability Act.
§ 11 Place of jurisdiction, applicable law
(1) The sole place of jurisdiction for all disputes arising from the contract relationship and/or all legal relationships between us and our contract partner shall be Volketswil, Switzerland regardless of the type of action or proceedings involved or the item to which the lawsuit relates. We reserve the right to choose a different place of jurisdiction.
(2) The laws of Switzerland shall apply to these Terms and Conditions of Business and all legal relationships between the contract partners with the exclusion of all other regulations, such as the UN Convention on Contracts for the International Sale of Goods of 11 April 1980.