General Terms of Sale and Delivery
1. The following terms of sale and delivery apply to all contracts for the purchase and delivery of goods concluded between the buyer and us. They apply also to all future business relationships even if they are not even expressly agreed to. Conditions from the buyer that differ from ours and which we do not expressly recognise are not binding on us, even if we do not explicitly reject them. Our terms of purchase and delivery also apply if we fulfil the buyer’s order while being aware of contrary or differing conditions from the buyer.
2. Oral side-agreements are only binding for us if we confirm them in writing. A waiver of this requirement of written form requires a written agreement.
II. Conclusion of Contract/Credit Check
1. An order from the buyers, which qualifies as an offer to conclude a purchase contract can be accepted within two weeks by sending an order confirmation for the products ordered within the same period.
2. We are entitled, for the purpose of performing a credit check on the buyer which will use the address and creditworthiness data stored about the buyer including that which is determined based on a mathematical-statistical procedure by Swiss companies who are entrusted with debt collection or obtaining credit information, to retrieve such data or provide them with such data, to the extent that we have persuasively asserted our legitimate interest. We collect or use such data for the purpose of deciding on the establishment, execution or termination of contractual relations based on probability values which are based i.a. on address-specific data.
3. Our offers are non-binding and subject to change unless we have expressly identified them as binding.
4. We hold all ownership, copyrights and other protected rights to all illustrations, calculations, drawings as well as other papers. The buyer may only share these with third parties on condition of our written consent regardless of whether we have labelled these as confidential or not.
III. Terms of Payment - Prices
1. Our prices are valid ex works excluding packaging if nothing else was specified in the order confirmation. A legally mandated VAT is not included in our prices. It will be listed separately in the full legal amount on the invoice on the day when the invoice is issued. .
2. Our invoices are due and payable within 30 days of the invoice date, net, without any discounts. A discount for on-time payment is only permissible if there is a separate written agreement between us and the buyer. If the buyer does not conform with the agreed-upon payment deadline, it enters into default without any dunning being needed and must pay default interest on the unpaid charges in the amount of 6% per annum. All other rights under Art. 107 ff. OR remain reserved.
3. The Buyer is only entitled to offsetting, even if there are complaints of defects or counter-claims are asserted, if the counter-claims are legally established, recognised by us or undisputed. The Buyer is only entitled to exercise a right of retention if its counter-claim is based on the same contractual relationship. We are authorised to exercise a right of retention on all claims arising from the business relationship with the buyer.
IV. Delivery and Performance Deadlines and Default of Delivery
1. The delivery deadlines or timeframes we indicate, or agree on, are target values and are subject to change. We do not conclude fixed-term transactions or transactions with expiry dates in the sense of Art. 102 Para. 2 OR. Binding delivery deadlines or timeframes require a separate written agreement. The delivery timeframe we indicate only begins once all technical questions have been clarified. Likewise the buyer must fulfil all obligations incumbent on it properly and in a timely fashion.
2. If a delivery is not completed by the agreed-upon date, the Buyer is entitled to set a reasonable grace period and then proceed according to the provisions of law governing default. The supposition from Article 190 Para. 1 OR does not apply. If the delivery is not completed even after the grace period, we are only liable for default damages if the default on delivery is attributable to an intentional or grossly negligent breach of contract for which we, our agents or our temporary employees are responsible.
3. Delays in delivery on account of events of force majeure nature or other circumstances which we could neither foresee nor be held responsible which would make the delivery unreasonably difficult or impossible (e.g. operational disruptions, unforeseen difficulties in materials procurement, strike, power failure, blocked traffic, actions of public officials, etc.) entitle us either to reasonably extend the delivery period or withdraw from the contract. All claims to compensation for damages on the part of the buyer arising from this are excluded.
V. Transfer of Risk - Shipping/Packaging
1. Loading and shipping are completed uninsured and at risk to the Buyer „ex warehouse" or „ex works", to the extent that the order confirmation does not specify anything else. We will strive, with respect to mode of shipping and shipping route, to take the desires and interests of the Buyers into account; any added costs accrued because of this – even if delivery carriage-paid is agreed to -will be borne by the Buyer.
2. If dispatch is delayed at the request or through the fault of the Buyer, we will store the goods at cost and risk to the buyer. In this case notification that the good is ready to ship is deemed equivalent to dispatch.
3. On request from and at cost to the Buyer we will insure the shipment with a transport insurance policy.
4. We are always entitled to partial shipments and partial performance to the extent that this is reasonable for the Buyer.
1.The Buyer is obligated to carry out all action that are necessary for the acceptance of our shipment. In the event that this obligation is culpably not fulfilled by the Buyer, the Buyer is liable to us for any added expenses whereby we reserve the right to assert further claims for damages.
2. If the Buyer comes into default of acceptance of the shipment lasting longer than 14 days, we will set a grace period of 14 days in writing for the acceptance simultaneously notification that we will refuse acceptance after the expiration of the grace period we have granted. If the buyer allows the grace period we set to pass without action, we are entitled to withdraw from the purchase contract through written declaration or to demand payment due to non-fulfilment. If the Buyer consistently refuses acceptance or if it is clear that it will not be able to pay the Purchaser’s price even with an extended grace period, no grace period need be set.
3. We are then entitled to assert our lost profits at 10 % of the agreed-upon purchase price to the extent that the Buyer does not prove that we suffered lower damages. Irrespective of this we are entitled to prove higher damages and assert them.
1. Warranty claims on the part of the Buyer are only admitted if the Buyer has properly fulfilled its obligation to inspect and report. The Buyer therefore must inspect the good immediately on receipt and with all due care with respect to defects, dimensioning, quality and any guaranteed characteristics and report any complaints concerning any defects or deviations from the order to us at the latest within 8 days. If defects cannot be detected in spite of careful inspection of the good, the report of defect is due at the latest within 5 days of detection of such defects. If inspection and notification are not completed in a timely fashion, our shipments are deemed approved. If the Buyer makes any modifications to our products, fails to adequately follow our operation, assembly, and maintenance instructions, or does not follow them at all, uses parts or consumable materials that we did not approve, then our warranty obligations are voided if the Buyer cannot prove that the defect is not attributable to one of these conditions. Additionally, our specific assembly instructions and warranty conditions apply.
2. To the extent that the good evinces a defect for which we are responsible, we are obligated to subsequent performance under exclusion of the Buyer‘s rights to withdraw from the contract or reduce the purchase price (reduction), unless we are entitled to refuse subsequent fulfilment due to relevant provisions of law.
The Buyer must grant us a reasonable time frame for subsequent fulfilment. Subsequent fulfilment can take the form of remediating the defect (re-working) or delivering a new good. In the case of remediation of a defect we will bear the required expenses to the extent that these are not increased due to the object of contract being located at a place other than the place of fulfilment. We are entitled to use reasonable discretion in selecting the form of subsequent fulfilment. Every act of subsequent fulfilment we carry out proceeds without recognition of a legal obligation unless we acknowledged the defect.
If subsequent fulfilment fails, the Buyer can, at its discretion, demand a lowering of the purchase price (reduction) or declare withdrawal from the contract. Re-working is deemed to have failed on the second unsuccessful attempt, to the extent that the nature of the object of contract makes further attempts at re-working the good reasonable and these are reasonable for the buyer. Additional rights to claim damages from defects are expressly rejected. Compensation for damages according to the provisions for liability stated below remain reserved.
The Buyer is not entitled to assert claims to compensation for damages or a reduction of the purchase price for insignificant defects.
3. The Buyer‘s claims based on defects in the object of purchase expire 5 years after delivery to the Buyer or pick-up if they have been used in accord with their customary use in a construction project, otherwise in 2 Years .
We are liable to the Buyer only for grossly negligent or intentionally-caused direct damages in connection with the products we deliver. All further claims to compensation for damages for direct or indirect damages as well as to expenses incurred by the Buyer in the sense of Art. 208 Para. 2 OR are explicitly excluded. This exclusion of liability also applies to our contractual or extra-contractual liability in connection with damages which are attributable to actions or omissions of actions of our legal representatives, employees and temporary employees as well as for the contractual and extra-contractual liability of these persons.
Specifically excluded from our liability are also and especially all direct and indirect damages that are not attributable to defective products but instead e.g. to reasons that lie beyond our contract and for which we cannot be held responsible, such as improper storage, treatment and/or processing, failure to heed manufacturer’s instructions/assembly instructions, etc.
IX. Reservation of Title
1. The object of delivery remains our property until all claims we hold against the buyer from the business relationship are fulfilled.
2. In the event that the object of delivery is sold, the buyer herewith assigns its claims against its own buyer deriving from this re-sale with all incidental rights as a security to us, without this requiring any additional declarations. The assignment applies including any demands to outstanding balances. The assignment however only applies in the full amount of the price of the object of delivery that we stated in the invoice. The portion of that claim that we assigned has priority of payment.
3. If the Buyer combines the object of delivery with land plots, it hereby also cedes, without any additional declarations being necessary, its claim arising from the payment for this combination in the amount corresponding to the price of the object of delivery that we billed to it in the invoice.
4. To the point of revocation, the Buyer is authorised to collect on the claims that we assign. The Buyer will forward the payments made on the assigned claims up to the amount of the secured claim to use immediately. If legitimate interests exist, especially in cases of default on payment, termination of payments, opening of insolvency proceedings, protest of a bill or justifiable reasons to suspect that the Buyer holds excessive debts or will be unable to render payment, we are entitled to revoke the Buyer’s authorisation to collect. Additionally we can, after prior warning and on honouring an appropriate grace period, disclose the security assignment, sell the securities assigned as well as to demand the disclosure of the assigned securities to the end-clients by the Buyer.
5. On the credible assertion of a legitimate interest, the Buyer must give us the information required to assert these rights against its end-client and surrender the required documents.
6. While the reservation of title is in effect, the Buyer is prohibited from taking out liens on the products or giving them in security. In the event of attachment, confiscation or other dispositions or interventions of third parties, the Buyer must notify us immediately.
7. In the event the Buyer fails to meet its obligations, especially in cases of default on payment, we are entitled, even without setting a grace period, to demand surrender of the object of delivery and/or if necessary to withdraw from the contract after setting a grace period. The Buyer is obligated to surrender the products. The demand to surrender the object of delivery does not constitute a declaration of withdrawal on our part, unless this is explicitly declared. .
X. Court of Jurisdiction, Choice of Laws, Data Confidentiality
1. The place of fulfilment and court of jurisdiction for deliveries and payments as well as any legal disputes arising between us and the Buyer from the purchase contract concluded between the Buyer and us is our company’s main office. We are however entitled to bring legal actions against the Buyer at its residence and/or main business premises.
2. The relationships between the contracting parties are governed exclusively by Swiss law, specifically the Swiss Code of Obligations. The application of international agreements concerning the purchase of moveable goods and the UN-Agreement on Contracts for the International Sale of Goods from 04.11.1980 (CISG) are excluded.
3. The execution of the contract concluded between us and the Buyer proceeds under conformity with the legal provisions of Swiss laws on data confidentiality. We are also obligated to impose compliance with these regulations by our service providers and any temporary employees we engage.
4. The German-language text is exclusively valid with respect to the content of our general terms of sale and delivery even if there are any versions prepared in other languages.
Status as of December 2017