Terms and Conditions
General Terms and Conditions of Service
1. Scope
of application/Exclusion of alternative terms and conditions of service
1.1. The buyer hereby agrees
to observe and be bound by the following general terms and conditions
(hereinafter referred to as GTC) in relation to the provision of sales,
delivery and miscellaneous services. These general terms and conditions are
valid for all our current and future dealings with the buyer.
1.2. The buyer’s general
terms and conditions will be, under no circumstances, recognized in the
contract unless explicit written approval of their inclusion is provided.
2. Sales
Agents
2.1. Our sales agents are
not authorized to legally represent us. In particular, they are not authorized
to act on our behalf in any of the following circumstances: to enter into a
contract with buyers, stipulate amendments to contracts, accept legally binding
notices (for example notifications of defects), agree upon matters regarding toexclusivity or protected territory, etc. or to collect money.
3. Conclusion
of the contract/subject matter of contract
3.1. Our offers are subject
to change. An order placed by a buyer is considered an offer. The contract is
concluded when we confirm the order in writing
3.2. The content of the
contract will come into force only after we have signed the confirmation of the
order and these present general terms and conditions, unless different terms
have specifically been agreed upon in writing.
4. Exclusivity
4.1. Exclusivity or
protected territory are only valid if they have been specifically agreed upon
in writing.
5. Shipment/Passing
of risk
5.1. The risk of loss and
deterioration of quality of the goods is transferred to the buyer upon
consignment of the goods, in the case of shipment, upon delivery of the goods
to the shipping agent, freight courier, etc. in the case of default of
acceptance it is nevertheless transferred to the buyer.
5.2. Unless stated otherwise
in the confirmation of order all goods will be delivered from stock.
5.3. We are not liable for
damages during shipment. Any eventual complaints concerning the packaging
should be addressed without delay with the contracted deliverer at the time of
delivery. Failure to do so will result in forfeiting the right to claim for
damaged packaging resulting from transportation damages.
6. Terms
of delivery/delivery dates/ arrears/default of acceptance
6.1. The terms and dates of
delivery will be stipulated on receipt of order. These will only be considered
binding when confirmed in writing. Delivery dates and deadlines are understood
as the time of final consignment of the goods.
6.2. On our part, we are
entitled to revise or postpone the agreed date of delivery up to a maximum of
10 days (“alternate deadline” or “alternate delivery date”) with no incurred
costs or legal consequences. We will contact and inform the buyer of any
eventual delays or postponement of the date of delivery as soon as possible, no
later than 3 days before the agreed deadline or date of delivery.
6.3. Further delays beyond
the extended “alternate deadline” or “alternate delivery date”, places us,
provided that the client, on his part, does not hinder reception, in arrears.
Should we not deliver, thereafter, within an extension set by the client of
minimum 14 days in conjunction with a threat of cancellation; the client is
entitled to withdraw from the purchase.
6.4. Partial deliveries of
reasonable volume have to be accepted by the buyer; otherwise the buyer will be
placed in arrears. We are excluded from being placed in arrears for the amount
of the partial delivery. The amount in arrears is limited to the quantity which
has not been delivered.
6.5. It will not be possible
to place us in arrears because of failure to deliver caused by forcemajeure
or unforeseen obstacles which occur after the conclusion of contract (in
particular interruption of production, strike, lockout or interruption of means
of transportation) on our part, or if our suppliers or suppliers of our
suppliers are hindered, provided that the fulfillment of delivery on our part
is sufficiently impaired or rendered unreasonable. Agreed delivery deadlines
and dates of delivery, alternate deadlines and alternate delivery dates and
extensions are prolonged automatically for the amount of time of the
obstruction. If the end of the obstruction is not foreseeable or lasts longer
than 2 months, both parties are entitled to withdraw from the contract at no
cost.
6.6. In case the buyer shall
be in default of acceptance or shall violate his duty of cooperation, therefore
rendering our fulfillment of the terms of contract impossible or unreasonable,
we reserve the right to place the burden of the risks and costs of the
merchandise on the buyer. Furthermore, irrespective of our other rights, if a
buyer renders completion of the consignment in the allotted 14 day extension or
the duty of cooperation unachievable, we will withdraw from the agreed contract
6.7. A buyer will be in
default of acceptance, when he has not made the necessary advanced payment or
agreed securities, when he has no valid solvency insurance or when he has not
signed the supplier’s agreement.
7. Price/terms
of payment
7.1. The purchase price will
be ascertained according to our valid price list at the time of the delivery of
the order, unless otherwise agreed and confirmed in writing. The price can
change until the time of delivery coming from our stock.
7.2. Our prices refer to and
are understood as merchandise coming from our stock, exclusive of legal indirect
taxation (sales tax/VAT etc.) and transport costs equal to 1% of the net worth
of the merchandise
7.3. Our invoices are to be
paid, in full, within 30 days of acceptance of the merchandise. Payment
received within 10 days of acceptance of the merchandise, and where no special
discount has been conceded, will be eligible for a 4% discount. Payments will
be considered successfully concluded when the amount is at our unrestricted
disposal. In this case the value-date of the credit advice will be decisive.
7.4. In case of untimely
payment we will, without further reminders, charge the legal rate of interest
on arrears.
7.5. Bank drafts and cheques
will only, and exceptionally, be accepted by written agreement and where we
will not incur costs or charges
7.6. Inclusion in accounts
will be admissible only once the buyer’s counterclaim is ascertained as
indisputable or legally binding.
7.7. In the case of defects
or other complaints, a reasonable amount of the payment may be retained, unless
a notice of defects, according to due form, has been timely presented.
7.8. The advance payment of
the total value of goods ordered is to be paid before delivery, unless the
buyer had provided us with specific sale solvency insurance for the contract in
question or has obtained insurance from a factoring-company ascertained by us
or another agreed security is furnished.
7.9. We reserve the right to
outstanding deliveries where advance payment has been completed or a payment
bond has been provided in the case of:
- default of payment or
insolvency
- deferral, allowance or insolvencyproceedings
- extrajudicial allowance
- unsuccessful distraint
- outsourcing due to
restructuring.
7.10. Where the buyer does
not execute advance payment or furnish security within a reasonable deadline,
which we communicate per proforma invoice before beginning of the delivery
time, we reserve the right, irrespective of our contractual rights (in
particular claims for damage) in respect to the buyer, to withdraw single
items, part of or the entire contractual consignment. Like stated in the
separate, mutually agreed delivery agreement, we reserve the right to charge a
cancellation fee of up to 30% of the total contractual amount.
7.11. Should a buyer wish to
cancel a confirmed contract, he is obliged to inform us as soon as possible. We
will accept the cancellation, charging a cancellation fee of up to 30% of the
total contractual amount. Furthermore, we reserve the right, in individual cases
where the excessive damages are proven, to increase this fee.
8. Product
characteristics
8.1. We guarantee that the
articles of sale, at the time of passing of risk, possess the agreed
characteristics. This is assessed exclusively after we and the buyer have come
to a precise written agreement regarding the features, criteria and characteristics
of the merchandise, whereas a public statement, publicity or advertising does
not constitute a declaration of characteristics.
9. Buyer’s
inspection duty/notice of defect/product liability
9.1. The buyer should,
without delay, check the merchandise upon consignment. Evident defects are to
be reported to us within, and not later than, a week from acceptance of the
merchandise. Unevident defects are, on discovery and without delay, to be
reported in writing, otherwise the guarantee claims will be forfeited. Notices
of defect accountable to shippers of sales agents, in whatever form, will not
be accountable to us.
9.2. If the buyer wishes to
claim for defective merchandise, and has proof of these defects, he must, when
these defects are ascertained, duly and timely denounce the identified defects.
9.3. We reserve the right to
inspect or examine the faulty merchandise, where the buyer will grant us the
time required and opportunity to do so.
9.4. In case of faulty
merchandise we will, in the first instance according to our obligations vis a
vis the existing warranty, choose whether to opt for rectification of defects
or replacement delivery (“subsequent performance”), unless this is
unreasonable.
9.5. Defects caused by the
buyer, for example through improper or inappropriate deployment, treatment,
transport or storage of the merchandise are not covered by the guarantee
claims.
9.6. In case of failure to
provide subsequent performance, due to being unacceptable to the buyer or due
to our refusal due to unacceptability, the buyer can, at his own discretion,
lower the price (reduction) or request to withdraw from the contract, unless
the infringement of contract is minor, in particular when only minor defects
are presented.
9.7. Guarantee claims are
valid for one year from the date of delivery, or in the case of a replacement
delivery, from the date of the replacement delivery.
10. Return
shipments
10.1. If it is the buyer’s
intention to effect a return shipment, the buyer must inform us in advance of
the complaint. At the same time a return shipment number is to be requested
from us which must be affixed and rendered visible on the return shipment. A
return shipment with no return shipment number will not be accepted.
10.2. All costs and risks
pertinent to the return shipping will be assumed by the buyer. In case of a
legitimate return shipment we will adequately reimburse the buyer for the
shipment costs.
11. Limitation
of liability
11.1. In regulated cases, we
are liable for everything which is not covered by the guarantee or the product
liability according to these GTC up to a maximum limit of the reimbursement of
direct damages. In case of negligence the liability is, at our own discretion,
limited to the manner of the proximate and standard damages which are
foreseeable and typical for this type of contract or actual incidental direct
damages to the buyer.
11.2. Liability for our
auxiliary persons will, as far as legally permissible, be waived.
11.3. We are not liable for
third party damages.
11.4. The buyer has in all
cases to ensure adequate provisions for defense against damages and mitigationofdamages.
12. Product
liability
12.1. Product liability will
on our part, and as far as legally permissible, be waived.
13. Reservation
of property rights
13.1. We retain ownership of
the merchandise until the complete settlement of account receivable from the
business connection in course. In case of an open account rights to ownership
are reserved until the owing balance has been paid in full.
13.2. The buyer is liable
third party access to the merchandise, for example garnishment, insolvency,
right to retention of the renter, etc. inform us without delay.
13.3. In case of delivery in
any other legal system, in which the afore mentioned reservation of property
rights regulations differ from the security regulations in force in Switzerland,
the buyer will do his utmost to inform and instruct us without delay of the correspond security laws. The buyer will
cooperate in ensuring that all necessary provisions, for example registration,
publication, etc., are enacted for the validity and enforceability of the
security laws in question, whether requisite or conducive.
13.4. We reserve the right,
contrary to the buyer’s contractual restraints, in particular in case of
delayed payment or default of acceptance to withdraw from the contract and
recall and reclaim the merchandise.
14. Intangible
property law
14.1. We reserve all rights
regarding the documents of sale. These documents should not be rendered
accessible to third parties, unless we have given prior explicit consent in
writing, and should be returned to us immediately upon request.
15. General
terms/Jurisdiction/applicable law
15.1. Amendments and
appendices to the contract and/or these GTC (including this point, 15.1) and
subsidiary agreements are only valid if they are agreed upon in writing.
15.2. The exclusive place of
jurisdiction for all disputes in business dealings with the buyer is Zug.
However, we reserve the right to prosecute in buyer’s place of the residency,
place of business or place of operations.
15.3. The Swiss substantive
law is exclusively binding under exclusion of the United Nations Convention on
Contracts for the International Sale of Goods
15.4. Should one of the
agreed terms of this contract fully or partially be or become invalid, this
contract will nevertheless remain valid. The relevant term will, through
ourselves in conjunction with the buyer or where that is not possible through a
magistrate, be substituted by a regulation, the appropriate and relevant
content of which will be as appropriate as possible.